A Fresh Look a Limitations: Unpacking Section 36

Abstract

The wording of the general limitations clause in s 36 of the Constitution of the Republic of South Africa, 1996 differs from that used in its predecessor, the interim Constitution. The Constitutional Court of South Africa has nevertheless continued to apply the limitations jurisprudence developed under the interim Constitution to the 1996 Constitution. While endorsing a two-stage approach to rights adjudication the Constitutional Court has, however, failed to state which tasks should be allocated to which stage of the rights adjudication procedure. To avoid requiring courts to engage in a constitutionally unguided narrowing of rights, all balancing and proportionality enquiries should be reserved for the second stage of the process, the limitation stage. Contrary to certain dicta of the Constitutional Court, the limitation stage should not involve an enquiry into the importance of the right which implies the existence of a hierarchy of rights in the Constitution. Nor should the least restrictive means test required by s 36(1)(e) be treated as a threshold enquiry. Although the Constitutional Court has held that every limitation is subject to s 36, it is also not clear from the structure of s 36 that it is capable of applying to all the rights in the Bill of Rights.