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Stu Woolman & Henk Botha 155
if the courts wish to curtail their findings of unconstitutionality, their
criteria for the justification of government limitations on rights have
to become more flexible. The further possibility exists that in order
to make their justificatory criteria more flexible, the courts will
expand the kinds of objectives which justify limitations on
constitutional rights. This result would seem to stand in direct conflict
with the textual demand that both rights interpretation and
limitations analysis be undertaken in the light of the needs of an open
and democratic society based on human dignity, equality and
freedom. Finally, by pushing all of the Chapter 2 analysis into the
limitation clause, and forcing themselves to be more flexible with
respect to the grounds for justification of a limitation, the courts
undercut their ability to articulate analytically rigorous conceptions
of rights at the first stage of analysis and useful standards of
justification for limitations at the second stage of analysis.
3 Balancing as a bad metaphor
One of the most noteworthy features of the Constitutional Court’s
limitations jurisprudence is the way it conceives of the relationship
between the different factors that FC section 36 suggests that one
consider. The Court understands these factors — FC section 36(1)(a)-
FC section 36(1)(e) — to be closely interrelated. Far from representing
a ‘sequential check-list’ that can be adhered to ‘mechanically’, the
factors are to be considered within the broader context of a
‘balancing exercise’ and a ‘global judgment on proportionality’.
This approach has taken many commentators by surprise. Prior to
the judgment in Makwanyane, 10 it was widely expected that the Court
would model its analysis of the reasonableness and justifiability of
fundamental-rights limitations on the approach adopted by the
Canadian Supreme Court in R v Oakes. 11 However, the approach of the
Makwanyane Court represents a significant departure from the Oakes
test. The Oakes test proceeds in distinct stages: first, it is asked
whether the limitation serves a sufficiently important objective;
second, whether the limitation is rationally connected to the said
objective; third, whether the limitation impairs the right as little as
possible; and fourth, whether the actual benefits of the limitation are
proportionate to its deleterious consequences for the rights-holder.
The need to consider the second question arises only once the first leg
of the test has been satisfied; the third question is addressed only
once the first and second questions have been answered in the
10 S v Makwanyane 1995 3 SA 391 (CC), 1995 6 BCLR 665 (CC), 1995 2 SACR 1 (CC).
11 See S Woolman ‘Riding-the push-me-pull-you: Constructing a test that reconciles
the conflicting interests which animate the limitation clause’ (1994) 10 South
African Journal on Human Rights 60 84–90.