Download this publication - PULP

384 Chapter 16
of rights in the interest of the greater (administrative or financial) good. It is a
constitutionally-mandated exercise which is well in accordance with the ideal
of transformative constitutionalism’. 75 The first sentence demonstrates the
Court’s awareness of serious moral problems with a purely utilitarian process
of sacrificing fundamental rights for other goods: Yet, the response is
completely inept. To say that something is ‘constitutionally mandated’ does not
show in any way that the balancing process differs from a utilitarian sacrifice:
Such a sacrifice might be mandated by the Constitution. The simple reference
to transformative constitutionalism will also not do for it is unclear in what way
balancing, in itself, is transformative, particularly where rights are to be
sacrificed. The judge here demonstrates an awareness of a problem for which
a wholly unsatisfactory answer is provided. This does not appear to be
because the judge is incapable of better reasoning but because the tropes of
minimalism allow judges to make bald assertions with no adequate support.
The use of bald assertion and minimal reasoning is again in evidence in
the majority’s approach to the ‘less restrictive means’ requirement. The
majority considers whether the legislature could have enacted a less drastic
prescription provision. Without deciding the matter, it states that the RAF and
Minister believe that it could not have done so. ‘Even if they are
incorrect, this is not the only consideration. The exercise is one of the
proportionality test in which all the factors are weighed against one another.
The mere possibility of less restrictive means is therefore not decisive.’ 76 The
Court here simply deflects the issue: By claiming that less restrictive means
requirement is but one factor in the proportionality test, it fails to engage in
any detail with possible alternatives to the present dispensation. Its
minimisation of the importance of this element of proportionality also
seriously weakens the protection that rights afford individuals in South
Africa. 77
The majority judgment and the case law in this field demonstrate a
number of the pitfalls of minimalism. First, the theory and practice of
adjudication unavoidably involve a series of enquiries that exist at different
levels of abstraction: The question of the adequacy of a two-stage structure is
one such example that can affect the concrete outcome of a case. The
minimal reasoning of the Court, in this regard, leads not only to confusion
but also to significant gaps in our understanding of the way in which the rules
75 Mdeyide (n 69 above) fn 66.
76
Mdeyide (n 69 above) para 92.
77 The minority judgment in Mdeyide provides an excellent example of what more adequate
adjudicative techniques would look like. Froneman J does not seek to avoid the implications
of a two-stage analysis and embraces the importance of the first stage. He requires strong
evidence to justify a limitation of rights and takes account of the social context in which the
justifiability of a limitation must be evaluated in some detail. He also goes into more detail
on the less restrictive means requirement and considers the implications of the theories of
great thinkers such as John Rawls and Amartya Sen (at n 36 of his judgment) for the case
at hand. For a more detailed contrast and critical engagement with the two judgments in
the context of their approach to the limitation of rights, see D Bilchitz ‘How should rights be
limited? Road Accident Fund v Mdeyide’ (2011) Journal of South African Law 568.