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Stu Woolman & Henk Botha 153
2 Delineating rights analysis and limitations analysis
This section attempts to answer a basic question in Bill of Rights
analysis: How does fundamental rights analysis relate to limitation
clause analysis? That is, what happens in the first stage of analysis,
what remains to be done in the second stage, why do we allocate
certain analytical tasks to one stage and not the other, and how do
we justify our overall approach to constitutional interpretation?
FC section 39 tells us that the content and the scope of the rights
enshrined in Chapter 2 should be determined in the light of the five
fundamental values which animate the entire constitutional enterprise:
openness, democracy, human dignity, freedom, and equality.
FC section 39 thereby confirms that the determination of a right’s
scope is a value-based exercise. However, the scope-determinative
values are not limited to the five identified in FC section 39. For each
right there are specific values that can be said to have led to its
constitutionalisation. The specific values that animate each right,
along with FC section 39’s more general concerns, determine the
right’s sphere of protected activity. On this account, if an applicant
can show that the exercise of constitutionally protected activity has
been impaired, then she has made a prima facie showing of a
constitutional infringement. If the infringement was authorised by
law, then the state or the party relying upon this law will have an
opportunity to justify its prima facie infringement of the right under
the limitation clause.
There is of course another way to go. That approach, quite often
adopted by the Constitutional Court, suggests that any activity which
could notionally fall within the ambit of a right is protected. It
remains then to show that the law — as opposed to mere conduct —
actually limits the exercise of the right before moving on to the heart
of FC section 36 analysis. 8
8
8
See Coetzee v Government of the Republic of South Africa; Matiso & Others v
Commanding Officer, Port Elizabeth Prison 1995 4 SA 631 (CC), 1995 10 BCLR 1382
(CC) paras 46-47 (Sachs J concludes that, in his view, ‘faithfulness to the
Constitution is best achieved by locating the two-stage balancing process within a
holistic, value-based and case-oriented framework’. There are several potential
problems with Sachs J’s intervention on this subject. First, a two-stage approach
is not necessarily ‘formal’ or ‘academic’. The quality of the inquiry depends on
the nature of the questions asked, not on their number or their order. Secondly, it
is impossible to know what Sachs J means by a ‘synergetic relationship’ between
the two stages of analysis or by the ‘exercise ... of a structured and disciplined
value judgment’ when he gives neither examples nor further description of these
processes. Thirdly, and most disturbing, is Sachs J’s vision of a ‘two-stage
balancing process within a holistic, value-based and case-oriented framework’.
Sachs J’s apparent vision of balancing at both stages ignores the clear intention
and the structure of a Bill of Rights which possesses both fundamental rights and a
general limitations clause: That different forms of analysis will take place at