Limitation clause contained in section 36 of Bill of Rights

LIMITATION CLAUSE

What is limitation clause?

Limitation clause enables constitutional rights to be partly limited, to a certain extent and for definite limited and democratically justifiable purposes, while not allowing restrictions that are a danger to democracy by reason on their nature or existence.

Section 36 of the constitution provides specific elements that must be taken into account by courts when determining if a restriction is either reasonable or 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

·         Less restrictive means to achieve the purpose

These elements are not really direct and other part that the court may judge or consider as unnecessary may also be taken into account. When the essence of the right is considered, the courts will have to take into account the content of the right, the importance and the interest of these right. The constitution requires a less restrictive means to be considered rather than limiting the rights of an individual, in achieving that purpose. The promotion and protection of s permissible of lawful public interest are always of importance when considering the limitation and its purpose.

The rights contained in the Bill of Rights are not direct and may be restricted by way of specific restriction clause where single rights are subject to limitations set out in the in the individual sections e.g. section 9 on Equality. Furthermore, the constitution provides General limitation clause at section 36, which gives for all rights in the Bill of Rights to be restricted in terms of law of general application and that, “limitations must be reasonable and justifiable in an open and democratic society based human dignity, equality and freedom”. Any restriction must therefore be fair and may only be made with good intentions. Limits should also be special.

The law court, the legislative or the executive may always limit rights in carrying out their activity e.g. by limiting the freedom of a convict. In addition, because of even applications of the Bill of Rights, rights may be limited by the actions or decisions of other people. The courts are authorized to check the foundation of the limitation in terms of section 36.

References:

https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.researchgate.net/publication/313423411_Limitations_on_the_Bill_of_Rights_under_the_South_African_Constitution_From_Constitutional_Law_of_South_Africa&ved=2ahUKEwj9vq3o-MHqAhVxThUIHbedAgwQFjARegQIAhAB&usg=AOvVaw0OwJ6s_FWUwY0ZuA-rMu1B