Unit 7

Question 1

What does section 36 state?

Answer 1

1) The rights in the BoR may be limited only ito law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including -
a) The nature of the right;
b) The importance of the purpose of the limitation;
c) The nature and extent of the limitation;
d) The relation between the limitation and its purpose; and
e) Less restrictive means to achieve the purpose.
2) Except as provided in ss (1) or in any other provision of the C, no law may limit any right entrenched in the BoR

Question 2

Explain section 36 (10)

Answer 2

• ‘Limitation’ means ‘infringement’
• The infringement will not be unconstitutional if it takes place for a reason that is accepted as a justification for infringing rights in an open and democratic society based on human dignity, equality and freedom
• The reasons for limiting a right need to be exceptionally strong
• ‘General’ means that it applies to all the rights in the BoR
• Two-stage approach:
  1) The court must determine the scope of the rights;
  2) If the court finds that a right has been infringed, the respondent may then seek to demonstrate that the infringement of the right is nevertheless permissible ito sec 36.
• The ‘law of general application’ requirement in sec36 therefore prevents laws that have personal, unequal or arbitrary application.
• It must be shown that the law in question serves a constitutionally acceptable purpose and that there is sufficient proportionality between the harm done by the law and the benefits it is designed to achieve
• The proportionality test is included in section 36
• The BoR contains numerous demarcations (eg. right to assemble as long as it takes place peacefully and unarmed)