Limitation of human rights under the South African constitutional jurisprudence : an analysis of the tension between general and special limitation clauses

Abstract

The South African Interim Constitution of 1993 brought about what has been termed a 'paradigmatic shift' not only on constitutional law, but on the entire structure of public law. It heralded a new order based on the supremacy of the Constitution thereby ending the era of a malignant system of public law whose 'chief strut' was the theory of parliamentary sovereignty. The new order, for the first time in the constitutional history of the country, introduced a systematic Bill of Rights duly entrenched in the Constitution. The Constitution does not absolutely protect the rights of everyone but it also provides for the means of limiting such rights. In limiting the human rights as enshrined in the Bill of Rights, South Africa has opted for a hybrid style of rights limitation. There is a general limitation clause embodied under section 36 of the Constitution. Alongside this general limitation, there are other special limitations inbuilt within some of the rights in Constitution. This dualism has given rise to a jurisprudential problem of the relationship between section 36 and these internal limitations. Thus, the purpose of this study is to analyse this tension that exists between section 36 and the special limitations. The analysis takes both historical and comparative perspectives from other jurisdictions whose human rights jurisprudence has been influential on the development of indigenous jurisprudence in South Africa. In the final analysis, it is argued that the problem can be avoided by allocation of proper tasks during the application of the two-stage approach to human rights limitation. Secondly, it is recommended herein that the tension can also be avoided by giving a proper interpretation to section 36. If this is followed , it would be realized that section 36 does not really have meaningful application to those rights that have adequate internal limitations, including socio-economic rights.