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Does balancing adequately capture the nature of rights? 283
means’ component is an ‘important part of the limitation analysis’ but that it
is ‘only one consideration relevant to that analysis’. 60 This factor requires ‘a
careful analysis of the purpose of the provision’ that is being impugned. 61 The
judgment then goes on to quote Blackmun J in the US who famously wrote that
‘[a] judge would be unimaginative indeed if he could not come up with
something a little less “drastic” or a little less “restrictive” in almost any situation,
and thereby enable himself to vote to strike the legislation down’. 62 This
argument leads the judgment to recognise that the legislature adopts the
particular measures it does in light of ‘concerns relating to cost, practical
implementation, the prioritisation of certain social demands and needs and
the need to reconcile conflicting interests’. 63 The legislature, the judges hold,
is the appropriate institution to make difficult policy choices and the court
should ‘take care to avoid a result that annihilates the range of choice
available to the legislature. In particular, it should take care not to dictate to
the legislature unless it is satisfied that the mechanism chosen by the
legislature is incompatible with the Constitution’. 64
The latter claim of course does not help solve the problem as the
question is when a particular measure limiting a right is in fact
incompatible with the Constitution, and the less restrictive means
requirement is meant to assist in determining this issue. Woolman and
Botha, however, capture the difficulty being gestured towards by the judges
in this passage when they understand its concern to mean that ‘less restrictive
means can often be envisaged, but such means may impose significant
administrative burdens on the state, have other substantial cost implications,
undermine the state’s symbolic objectives or reverse a hierarchy of needs
worked out through the political process’. 65 The difficulty lies in determining
when a court should strike down a measure where less restrictive means
exist despite the fact that there would be costs to the political community in
doing so. The way in which the Constitutional Court has sought to resolve
this problem (although not in an entirely clear and satisfactory manner) can
be gleaned through the following important dictum of Kriegler J:
Where section 36(1)(e) speaks of less restrictive means it does not postulate an
unattainable norm of perfection. The standard is reasonableness. And in any
event, in theory less restrictive means can almost invariably be imagined
without necessarily precluding a finding of justification under the section. It is
but one of the enumerated considerations which have to be weighed in
conjunction with one another, and with any others that may be relevant. 66
60
Manamela (n 57 above) para 94.
61 Manamela (n 57 above) para 96.
62 Manamela (n 57 above); Illinois State Board of Elections v Socialist Workers Party et al 440
US 173 (1979) 188 - 189
63 Manamela (n 57 above) para 95.
64 As above.
65
Woolman & Botha (n 1 above) 34 - 89.
66 S v Mamabolo 2001 3 SA 409 (CC) para 49.