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Theory, practice and the legal enterprise 383
The Court here recognises the problem with the decision in Mohlomi but
consigns its unsatisfactory and under-theorised answer to a footnote. In doing
so, the Court calls into question the entire structure of constitutional
analysis. It does so without providing an understanding as to what each
respective stage involves, simply being content to blur the boundaries on the
grounds of ‘practicality’. A deeper engagement with this question would
have required the Court to consider the particular virtues of the two-stage
process. It requires courts, for instance, to provide an interpretation of a right as
well as to engage in the first stage with the violation that has taken place. Once
this is clearly before the Court, a limitations enquiry can be engaged that must
consider how to minimise the extent of the violation of the right even where
the purpose of the limitation is justifiable. Indeed, what is notable is that by
blurring the boundaries in this case, the majority leaves out any detailed
analysis as to what is required at the first stage of the enquiry: It fails to
engage with the interpretation of the specific right and to recognise in any detail
the respects in which the impugned provision violated the right in question.
Interestingly, it is at the point where the Court is considering whether a
violation of section 34 has taken place that Beinash suddenly enters the Court’s
analysis. As was mentioned, Beinash provided virtually no analysis of the
right of access to courts. It is thus unclear why it is referred to in deciding
whether a violation of section 34 has taken place. The majority seems to use
the case to justify its quick disposal of the first stage of the enquiry; however,
it fails to provide any good grounds for dispensing with this stage. There is
also no attempt made to reconcile Beinash and Mohlomi with the former
simply standing in for the banal proposition that ‘the legislature may limit
the right of access to courts in a way that is reasonable and justifiable’. 73 The
use of Beinash and Mohlomi shows the limits of analogical reasoning:
Without a well-considered external reference point, the use of case law alone
becomes meaningless or banal. The first stage of the enquiry is also avoided
which may in future lead to a failure to give appropriate weight to the right
that has been violated. What makes matters worse is that the lack of a
stronger dose of theory leads the Court to fudge established constitutional
doctrine concerning the two-stage enquiry and to allow resultant uncertainty
in this regard to reign.
The avoidance of adequate theoretical reasoning is also evident in the
approach the majority adopts towards the limitation of rights in this case.
The majority recognises that they have to ‘balance the limitation of a
fundamental right with the potentially calamitous consequences for the
RAF, a body designed to help those who suffered as a result of road
accidents, which may well otherwise follow’. 74 In a curious footnote, Van der
Westhuizen J, writing for the majority, claims that ‘[t]o weigh competing rights
and governmental duties is not the same as the purely utilitarian sacrificing
73
Mdeyide (n 69 above) para 61.
74 Mdeyide (n 69 above) para 80.