Limitations
Rights contained in the Bill of Rights are not absolute and may be limited by way of specific limitation clauses where individual rights are subject to limitations set out in the individual Sections, e.g. Section 9 on equality. In addition, the Constitution provides a General Limitation Clause at Section 36, which provides for all rights in the Bill of Rights to be limited in terms of law of general application and that "limitations must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom." Any limitation must therefore be reasonable and may only be made with good cause. Limits should also be less restrictive.
Organs of state, such as the judiciary, the legislature or the executive, may invariably limit rights in carrying out their functions. For example by limiting the freedom of a prisoner. Further, because of the horizontal application of the Bill of Rights, rights may be limited by the actions or decisions of other persons. The courts are empowered to test the validity of the limitation in terms of S36.
Section 36 provides certain factors that must be taken into account by the courts when determining if a limitation is reasonable and justifiable:
- The nature of the right.
- The importance of the limitation
- The nature and extent of the limitation
- The relation between the limitation and its purpose, and
- Less restrictive means to achieve the purpose.
These factors are not limited and other factors that the court may deem necessary may also be taken into account. When the nature of the right is considered, the courts will have to take into account the content of the right, the importance of the right and the interest which is protected. It is, for instance, very difficult to justifiably limit the right to life as the Constitutional Court held in S v Makwanyane where capital punishment was abolished. The promotion and protection of a permissible or lawful public interest will be important when considering the limitation and its purpose. Further, the Constitution requires a less restrictive means to be considered, rather than limiting the rights of an individual, in achieving that purpose.
Read more about this topic: Chapter Two Of The Constitution Of South Africa
Famous quotes containing the word limitations:
“To note an artist’s limitations is but to define his talent. A reporter can write equally well about everything that is presented to his view, but a creative writer can do his best only with what lies within the range and character of his deepest sympathies.”
—Willa Cather (1876–1947)
“... art transcends its limitations only by staying within them.”
—Flannery O’Connor (1925–1964)
“Growing up means letting go of the dearest megalomaniacal dreams of our childhood. Growing up means knowing they can’t be fulfilled. Growing up means gaining the wisdom and skills to get what we want within the limitations imposed by reality—a reality which consists of diminished powers, restricted freedoms and, with the people we love, imperfect connections.”
—Judith Viorst (20th century)