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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:A fresh look at limitations: unpacking section 36
Author:Iles, KevinISNI
Year:2007
Periodical:South African Journal on Human Rights
Volume:23
Issue:1
Pages:68-92
Language:English
Geographic term:South Africa
Subjects:human rights
constitutions
jurisprudence
constitutional courts
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. In order 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 this section is capable of applying to all the rights in the Bill of Rights. Notes, ref., sum. [Journal abstract]
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