Study Unit 7: F U Limitation of Rights R Objectives: Significance of inclusion of general limitation clause in BOR 2 Analyse law of general application Critically analyse CC approach to limitation 0 Explain demarcations of rights + special limitation clauses Apply s36 to practical problem 1 F GC Swanepoel 1/6
Importance of general limitation clause (s36) 1. Lays out stringent requirements for limiting rights "General" as applies to all rights in BOR (all rights limited by same set of criteria) Even though s36 applies to all rights in BOR, difficult to see how it could be meaningfully applied to provisions containing internal demarcations repeating phrasing of s36 or making use of similar criteria (Ex. Difficult to imagine court could find administrative action unlawful i.t.o s33(1) (right to fair AA) but reasonable for purposes of s36 ) (see TB pg 165 Footnote 5) Limitation of FR has 2 step approach (see SU2): 1. Rights analysis (Interpretation) - Determining whether FR infringed 2. Limitation analysis - Determining whether infringement constitutional Involves a more factual enquiry than interpretation phase 2. Party (usually state) wishing to justify limitation must show limitation is reasonable + justifiable in open + democratic society and must adduce evidence to show: a) Purpose of limitation is important b) Purpose cannot be achieved through less invasive way c) Importance of purpose of limitation outweighs adverse effects of limitation of right In Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders CC held s36 places burden on state to justify FR limitations State had to place sufficient evidence before court to support justification of limitation Evidence can be factual material relevant to issue or of a official, scientific, technical or statistical nature capable of easy verification Even if respondent makes no attempt to discharge "burden of justification" - court has to consider possibility that limitation is justifiable (National Coalition for Gay and Lesbian Equality v Minister of Justice) CC indicated in more recent cases that only casual limitation analysis need be undertaken where respondent: Puts up half-hearted/inadequate case for justification (S v Steyn) Clearly shares view of applicant. 3. Majority of FR cases turn on limitation inquiry Limitation Inquiry Involves 2 main questions: 1. Is the right limited i.t.o law of general application? (if the answer is "no" then limitation is unconstitutional - no need to proceed to step 2 of inquiry) Only law of general application can validly limit right (is minimum requirement for limitation) Law of general application includes: Original + Delegated legislation Common law (Private + Public) Customary law (policy + practice of organs of state not law ) Focuses on rule of law which entails that: a) Power of Gov derives from law GC Swanepoel 2/6
August v Electoral Commission CC held that IEC's inaction caused prisoners to be denied right to vote - this was not authorised by law no justification i.t.o s36 b) Law must be of general application Practically means that law must be clear, accessible + precise so people may know rights + obligations requires laws to be prospective in operation (Dawood v Minister of Home Affairs) Substantively means law must apply impersonally + equally to all and must not be arbitrary S v Makwanyane: argued that s277 of CPA (death sentence) was not law of general application as did not apply through whole of SA CC rejected argument, held that disparages between different legal orders in different parts of country does not breach equal protection provisions (Ex. Absurd to suggest law by Guateng legislature not of general application because doesn't apply throughout RSA) President of RSA v Hugo CC considered validity of Presidential Act ordering release of prisoners who were mothers with children under 12 No authoritative view on interpretation of law of general application requirement, however Kriegler J's dissenting judgment held: Presidential Act was not law because It was a executive order directed to specific state officials It was not general in it's application Presidential Act could not serve as legitimate restriction of rights to equality Presidential Act not law of general application can't limit FR Administrative action taken under authority of law (delegated legislation (qualifies as law of general application)) does not in itself qualify as law of general application Legislation conferring discretionary power on administrative officials must place guidelines on proper exercise of discretion Dawood v Minister of Home Affairs (Tb,Pg 175 ) Aliens Control Act gave officials discretionary powers of granting immigration permits to foreign spouses Involved right to cohabit (protected by rights to dignity) Statutory provisions failed to qualify as law of general application - limitation could not be justified Legislation cannot leave it to admin official to determine when it's constitutionally justifiable to limit right 2. Is the limitation justifiable in an open and democratic society based on human dignity,equality + freedom? Requires that: a) Law in question serves constitutionally acceptable purpose ie limitation is acceptable in open demo... b) Sufficient proportionality exists between harm done by the law (infringement of FR) and benefits it is designed to achieve (purpose of law) Relevant factors when considering reasonableness + justifiability (found in s36(1) + proportionality enquiry in Makwanyane): GC Swanepoel 3/6
a) Nature of the right Court must assess importance of right in overall constitutional scheme (Some rights carry more weight then others in creation of open,democratic...) Court held death penalty infringed rights to life, dignity, freedom from cruel, inhumane + degrading punishment Purpose of death penalty must be balanced against harm it did (violation of above rights) CC held above rights to be most important of all FR Only very compelling reasons could justify their limitation b) Importance of Purpose of limitation Reasonableness requires limitation to have purpose Justifiability requires purpose to be important in constitutional democracy State held that death penalty served 3 purposes that could not be served by other forms of punishment: i. Deterred violent crime ii. Prevented violent crime iii. Fitting retribution CC held i+ii important in open + demo... but that retribution was not purpose fitting society Cons wished SA to be (Cons envisages society based on reconciliation + ubuntu) Limiting measure must serve purpose all citizens find compellingly important limitation with purpose of protecting personal morality of a sector of society will not be justifiable (Gay + Lesbian Equality) CC jurisprudence indicates court considers following as legitimate purposes in context of limitations analysis: 1. Protecting administration of justice in its broadest (Ex. Court has condoned as legitimate purposes for limitation of rights the prevention of intimidation of witnesses, the screening out of appeals with no merit ect.) 2. The prevention, detection, investigation and prosecution of crime generally 3. Reduction of unemployment among SA citizens 4. Inspection + regulation of multiple health undertakings impacting on welfare + general well-being of society 5. Protection of the rights of others 6. Compliance with constitutional obligations 7. Promoting healing of divisions of past + building of united society 8. Complying with SA's international obligations 9. Preventing people from gaining illegal entry into the country GC Swanepoel 4/6
c) Nature + extent of limitation Proportionality requires infringement not to be more extensive then is warranted by purpose sought Determining whether limitation does more damage to rights than is reasonable for achieving purpose requires assessment of extensiveness of infringement CC had to assess whether there was proportionality between infringement (death penalty) of rights to life, dignity + freedom and purposes is sought to achieve (deterrence + prevention) where harm disproportionate to benefits, limitation not justifiable To this CC first had to assess degree of harm (how seriously does death penalty impact on above rights) CC held death penalty had grave + irrevocable effects on rights concerned d) Relation between limitation + purpose Infringing law must be reasonable + justifiable to serve as legitimate limitation of right, entails that: There must be a good reason for infringement There must be proportionality between harm done by infringement + beneficial purpose law is meant to achieve Thus causal connection must exists between law + it's purpose: the law must tend to serve it's purpose If law doesn't serve purpose it was designed to cannot be reasonable limitation of right If only marginally contributes to achieving purpose cannot be adequate justification for infringement of FR CC had to decide whether means (death penalty) served the ends (prevention + deterrence of violent crime) Found definite rational relation between means + ends in case of prevention (executed criminal will never commit this crime again) In case of deterrence however CC held that if state wished to show death penalty deterred violent crime they would need to supply evidence to support this CC held there was no satisfactory evidence establishing a connection between death penalty + reduction in violent crime e) Less restrictive means of achieving purpose If less restrictive (but equally effective) alternative method exists to achieve purpose of limitation less restrictive method must be preferred State has margin of discretion where assessing effectiveness of alternative methods Death penalty served purposes of deterrence + prevention GC Swanepoel 5/6
CC held goals of prevention + deterrence of violent crime just as well served by period of imprisonment and this is to be preferred as it is less extensive an infringement than death Requires that legislation be narrowly tailored CC held above factors do not amount to rigid test. Importance of s36(2) a) Holds that only laws conforming to test for valid limitations in s36(1) can legitimately restrict rights but Adds that rights can also be restricted i.t.o any other provisions of C Demarcations of rights and special limitation clauses Demarcation Some rights in BOR are textually qualified through language demarcating their scope AKA demarcations ; internal modifiers Purpose: Demarcations define rights more precisely than is case with textually unqualified rights Examples: s9(3) guarantees right not to be unfairly discriminated against Thus fair discrimination not illegal (demarcation makes it clear that certain activities fall outside definition of the right) s17 protects right to assemble, demonstrate picket and present petitions peacefully + unarmed Comes into play at 1 st stage of rights + limitation analysis (interpretation stage) Determining whether applicants conduct falls within demarcated scope of right Special limitation clauses Other rights in BOR are textually qualified through language creating special criteria for limitation of certain rights by legislature AKA special limitations Comes into play at 2 nd stage of analysis (any form of limitation analysis assumes that infringement has been established) Person relying on validity of legislation must show limitation is justified either by special limitation clause or criteria of s36 Special limitation clauses contained in C: s15(3) allows legislation dealing with family law systems s22 allows regulation of practice of trade, profession or law s23(5) + (6) allows labour relations legislation to regulate collective bargaining s29(4) allows state subsidies for independent schools s33(3)(c) requires legislation giving effect to rights to just administrative action to promote an efficient administration These are special limitations because relate to state's conduct + means employed to protect, promote + fulfil rights in BOR (Demarcations relate to applicant's activity and whether it falls within scope of right) Burden of showing law/conduct is justified by special limitation provision rests on party seeking to uphold it and not applicant Limitation section must be distinguished from suspension/derogation section (s37) (LS applies continually s37 only in state of emergency) GC Swanepoel 6/6