QuestionYou are the owner of shares in an American based company. On May 1st 2019 South Africa declares war on America and the government decides to expropriate the shares, as they refuse to financially support any company established in America. Fully discuss whether or not the deprivation of property is reasonable and justifiable in terms of section 36 of the Constitution.Use the articles prescribed to answer this question. The answer should discuss all the aspects of section 36 and must be over 800 words.• Discussion of section 36• Discussion of the facts• Application of the law to the facts• Argument presented and conclusion reached• Overall grammar, format and references
Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=rjhr20 South African Journal on Human Rights ISSN: 0258-7203 (Print) 1996-2126 (Online) Journal homepage: https://www.tandfonline.com/loi/rjhr20 A Fresh Look a Limitations: Unpacking Section 36 Kevin Iles To cite this article: Kevin Iles (2007) A Fresh Look a Limitations: Unpacking Section 36, South African Journal on Human Rights, 23:1, 68-92, DOI: 10.1080/19962126.2007.11864912 To link to this article: https://doi.org/10.1080/19962126.2007.11864912 Published online: 07 Apr 2017. Submit your article to this journal Article views: 149 https://www.tandfonline.com/action/journalInformation?journalCode=rjhr20 https://www.tandfonline.com/loi/rjhr20 https://www.tandfonline.com/action/showCitFormats?doi=10.1080/19962126.2007.11864912 https://doi.org/10.1080/19962126.2007.11864912 https://www.tandfonline.com/action/authorSubmission?journalCode=rjhr20&show=instructions https://www.tandfonline.com/action/authorSubmission?journalCode=rjhr20&show=instructions A FRESH LOOK AT LIMITATIONS: UNPACKING SECTION 36 KEVIN ILES* 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. I INTRODUCTION The interim Constitution1 promulgated in 1993 contained a free-standing and general limitations clause for the limitation of rights. This device was extended into the Constitution of the Republic of South Africa, 1996, in * Candidate Attorney, Bowman Gilfillan Inc. Part of the research for this paper was undertaken at the Socio-Economic Rights Project, Community Law Centre, University of the Western Cape. The Socio-Economic Rights Project, through the Community Law Centre, receives supplementary funding from the Ford Foundation. The views expressed here do not necessarily represent the official views of the Ford Foundation. My thanks to Nico Steytler, Pierre de Vos and Jared Nickig for providing comments on earlier drafts of this paper. 1 Constitution of the Republic of South Africa, Act 200 of 1993 (interim Constitution). Section 33 of the interim Constitution provided that: ‘1. The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation- (a) shall be permissible only to the extent that it is — (i) reasonable; and (ii) justifiable in an open and democratic society based on freedom and equality; and (b) shall not negate the essential content of the right in question, and provided further that any limitation to — 68 s 36.2 Because of the textual similarity between this method of limitation and s 1 of the Canadian Charter,3 South African limitations jurispru- dence has borrowed extensively from Canadian limitations jurispru- dence.4 The limitations jurisprudence developed in the first Constitutional Court cases under the interim Constitution has continued to influence the post-1996 Constitution limitations landscape despite the textual differ- ences between the two Constitutions.5 While academic writers have explored the relationship between the limitations clause and those rights that contain their own internal limitations clauses,6 little attention has (aa) a right entrenched in section 10, 11, 12, 14 (1), 21, 25 or 30 (1) (d) or (e) or (2); or (bb) a right entrenched in section 15, 16, 17, 18, 23 or 24, in so far as such right relates to free and fair political activity, shall, in addition to being reasonable as required in paragraph (a) (i), also be necessary. 2. Save as provided for in subsection (1) or any other provision of this Constitution, no law, whether a rule of the common law, customary law or legislation, shall limit any right entrenched in this Chapter. 3. The entrenchment of the rights in terms of this Chapter shall not be construed as denying the existence of any other rights or freedoms recognised or conferred by common law, customary law or legislation to the extent that they are not inconsistent with this Chapter. 4. This Chapter shall not preclude measures designed to prohibit unfair discrimination by bodies and persons other than those bound in terms of section 7 (1). . .’. 2 H Cheadle ‘Limitation of Rights’ in H Cheadle, D Davis & N Haysom (eds) South African Constitutional Law: The Bill of Rights (2002) 693, 697. 3 Section 1 of the Canadian Charter states that ‘. . . guarantees set out in [the Charter are] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ 4 The primary Canadian case in this regard is R v Oakes (1986) DLR (4th) 200, 227-228. For examples of this borrowing by the South African Constitutional Court see S v Zuma 1995 (2) SA 642 (CC) paras 21-22 and S v Makwanyane 1995 (3) SA 391 (CC) paras 105-107, 110, 134. 5 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) paras 33-35. 6 See, for example, P de Vos ‘Pious Wishes or Directly Enforceable Human Rights? Social and Economic Rights in South Africa’s 1996 Constitution’ (1997) 13 SAJHR 67; S Woolman ‘Limitation’ in M Chaskalson et al (eds) Constitutional Law of South Africa (1999) 12, 12-1; S Liebenberg ‘Socio-Economic Rights’ in M Chaskalson et al (eds) Constitutional Law of South Africa (1999) 41, 41-7–41-8; I M Rautenbach ‘The Limitation of Rights in Terms of Provisions of the Bill of Rights Other than the General Limitations Clause’ (2001) TSAR 617; M Pieterse ‘Towards a Useful Role for Section 36 of the Constitution in Social Rights Cases? Residents of Bon Vista Mansions v Southern Metropolitan Local Council’ (2003) 120 SALJ 41; K Iles ‘Limiting Socio-Economic Rights: Beyond the Internal Limitations Clauses’ (2004) 20 SAJHR 448. A FRESH LOOK AT LIMITATIONS: UNPACKING SECTION 36 69 been paid to the jurisprudence of the limitations clause in its own right.7 Neither has any consistent or coherent limitations clause jurisprudence emerged from the Constitutional Court. Apart from one brief statement in Prinsloo v Van der Linde8 where the Court recognized that different tasks occur at different stages of the two-stage approach to rights interpretation adopted by the Constitutional Court,9 the Court has not stated what tasks it is allocating to which stage of the two-stage rights interpretation and limitation process.10 The judgment in Beinash v Ernst and Young11 provides an example of the problem. In that judgment the interpretation of the right is reduced to one paragraph. It is extremely brief and superficial12 and, in the result, the bulk of the analysis occurs at the limitations stage turning it into a tangle of rights interpretation and rights limitation issues.13 This article attempts to expand on the work of Stuart Woolman by exploring s 36 of the 1996 Constitution and offering a particular jurisprudential approach to the application of the limitations clause. It also considers some of the judgments of the Constitutional Court in this regard and highlights some of the difficulties with the Court’s approach to s 36. Part II explores the rights interpretation stage of the two-stage approach to rights adjudication and considers what that stage should and should not involve. Part III analyses s 36 and the various factors listed in s 36(1) as factors to be taken into account when limiting rights. Part IV considers the structure of s 36 and raises the question whether all rights are necessarily capable of limitation by s 36. II THE FIRST STAGE OF THE TWO-STAGE APPROACH: RIGHTS INTERPRETATION (a) What the first stage involves The decision by the constitutional drafters to employ a free-standing and general limitations clause has had a profound effect on the approach to 7 The notable exception in this regard is the work of Stuart Woolman who has written extensively on the general limitations clause: see ‘Limitation’ (ibid) as well as in, amongst others, S Woolman ‘Riding the Push Me Pull You: Constructing a Test that Reconciles the Conflicting Interests which Animate the Limitation Clause’ (1994) 10 SAJHR 60; S Woolman ‘Coetzee: The Limitations of Justice Sach’s Concurrence’ (1996) 12 SAJHR 99 and S Woolman ‘Out of Order? Out of Balance? The Limitation Clause of the Final Constitution’ (1997) 13 SAJHR 102. 8 Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) para 35. 9 Cheadle (note 4 above) 696; I Currie & J de Waal The Bill of Rights Handbook (2005) 165-166; Zuma (note 4 above) 21; Ferreira v Levin NO 1996 (1) SA 984 (CC) para 82. 10 Woolman ‘Coetzee’ (note 7 above) 108-15; A Cockrell ‘Rainbow Jurisprudence’ (1996) 12 SAJHR 1. 11 1999 (2) SA 91 (CC). 12 Ibid 16. 13 Woolman ‘Limitation’ (note 6 above) 12-24A. 70 (2007) 23 SAJHR rights adjudication in South African law.14 The limitations clause lays down prescribed criteria for the limitation of rights in s 36.15 In the absence of such a clause any limitation of a right would, of necessity, have to occur during the interpretation of the scope of the right. The South African courts have consequently adopted a two-stage approach to rights adjudication.16 The first stage involves a determination of the scope of the right.17 If the law of general application which is the subject of the litigation restricts an activity which falls within the protected scope of the right, then a second stage justification analysis is triggered. This stage draws on the factors listed in s 36(1) to determine whether the infringement of the right is justifiable in an open and democratic society based on human dignity, equality and freedom.18 The result of such a two-stage approach is that as state interests are accommodated at the second justification stage,19 courts can afford to interpret rights generously and broadly at the first stage and reserve any qualification of the right for the second stage of the analysis.20 As Ackermann J indicated in the context of the interim Constitution in Ferreira v Levin: If a limitation is sought to be made at the first stage of the enquiry, it requires, at best, an uncertain, somewhat subjective and generally constitutionally unguided normative judicial judgment to be made. The temptation to, and danger of, judicial subjectivity is great. This Court would, in my view, be discharging its interpretative function best, most securely and most constitutionally, if, as far as is judicially possible, it seeks for any limitation of an entrenched right through s 33(1). It may well be that the Constitution itself, either because of the descriptive ambit of one or more of the many other rights