Download this publication - PULP

284 Chapter 12
This brief analysis of certain decisions of the Constitutional Court already
enables us to conclude that its approach to the less restrictive means
requirement does not accord with the strict ‘necessity’ approach that is
entailed by Alexy’s conceptualisation of rights as optimisation
requirements. A particular provision which limits a right will be able to
pass constitutional scrutiny even if it is not, strictly speaking, the least
intrusive measure that can be conceived or that lies within the range of
physical possibility. The court rather can be understood to adopt a less
rigid interpretation of the ‘less restrictive means’ requirement: Its
interpretation rather requires that the means adopted must not too severely
intrude upon a right in relation to other readily available alternative means
that would equally realise the objectives sought to be achieved.
In other words, the less restrictive means requirement can be understood
to involve several assessments: First, a court must consider the degree of
interference that the means adopted by a legislative scheme causes to the
right in question. Secondly, there needs to be consideration given to
alternative means that could be adopted to realise the objectives of the
limiting provision, though such an assessment need not exhaust the field but
only engage with those that are clearly relevant and can be practically
realised. Finally, there needs to be an overall assessment of the extent to
which each of the measures considered interferes with the right in question
and whether the one adopted by the legislature too severely intrudes upon the
right in relation to the readily available alternatives. Critically important
here is to recognise that the limitations clause does require a comparative
analysis of certain ‘leading alternatives’ to the impugned measure. The question
that must be determined, however, is not whether the ‘best’ measure has been
adopted that is least restrictive of the right; rather, it is whether the one that has
been adopted meets a threshold qualitative criterion of not being ‘too severely
restrictive of a right’ in relation to the leading alternatives. It is possible on
this interpretation of the requirement for there to be a measure that is less
restrictive of a right than the one that is impugned (and passed by the
legislature) but for a court nevertheless to find that the legislative measure is
not ‘too severely restrictive’ of the right such that it still passes constitutional
muster. Thus, at the heart of this interpretation of the Constitutional Court’s
understanding of this component, lies a qualitative judgment concerning the
degree of interference with a right by a particular measure in relation to readily
available alternatives.
I have thus sought to show that Alexy’s conception of rights as
optimisation requirements entails an overly onerous ‘necessity principle’ that
would only allow for the limitation of a right to be justifiable in circumstances
where such a limitation is the least restrictive measure that could be adopted.
I have sought to show the major difficulties this would raise for a party
seeking to justify the limitation of a right, thus leading to very few
circumstances in which limitations would pass constitutional muster. I have
also sought to demonstrate the fact that the South African Constitutional
Court has not adopted such a stringent approach and is mindful of a number