ASSESSING THE ROLE AND APPLICATION OF THE LIMITATION

CLAUSE WITHIN THE SOUTH AFRICAN BILL OF RIGHTS IN BALANCING

INDIVIDUAL RIGHTS WITH THE BROADER INTERESTS OF SOCIETY.
 1. INTRODUCTION
“The 1996 Constitution of the Republic of South Africa anchors the Bill of
Rights, which asserts a broad spectrum of liberties and entitlements as a
cornerstone of democracy” (Constitution, 1996). However, because the
exercise of these rights often clashes with the rights of others and the broader
needs of a democratic society, they are not absolute. The general limitation
clause, enshrined in Section 36 of the Constitution, provides a structural
framework for determining when and how constitutionally protected rights may
be lawfully restricted to address this tension. According to Section 36,
“limitations must be reasonable and justifiable in an open and democratic
society based on equality, freedom, and human dignity, and they must be
proportionate to the objective they seek to achieve” (Constitution, 1996). In
this way, the limitation clause plays an essential balancing function. It
recognizes that societal interests such as public order, security, or the
protection of vulnerable groups may sometimes warrant the curtailment of
individual rights, while simultaneously preventing the state from unjustifiably
infringing on those rights. Drawing on judicial interpretation, academic
scholarship, and case law, this assignment critically examines the role and
scope of the limitation clause under the Bill of Rights and considers whether
Section 36 provides a satisfactory means of reconciling competing societal
needs with the protection of individual rights.

2. BODY

2.1 Circumstances under which limitation on rights can be justified

Limitation clause means certain rights are limited. “Section 36(1) in the Constitution
states that rights ‘are restricted only by law of general application to the extent that
the limitation is reasonable and justifiable within an open and democratic society
based on human dignity, equality and freedom” (Constitution, 1996). South Africans
now have many civil rights, but the Constitution’s promises to fix past injustices have
not yet been achieved. People have rights like freedom of speech and fair trials, but
deep unfairness in society is still a problem. Importantly, even though the
Constitution promises basic social and economic rights, it has not really helped to
reduce inequality. Everyone is supposed to have these personal and socio-economic
rights, they exist in an unequal society that is still deeply shaped by the racism of
colonialism and apartheid, which left behind poverty and land loss mostly affecting
people of certain races (Gloppen, 2019; Rafudeen, 2016). The authors explain that
the Constitutional Court makes its decisions by weighing and balancing issues, even
though the word ‘proportionality’ does not appear in the Constitution (Rautenbach,
2014. De Vos and Freedman contend that "all at once approach [of the Constitutional
Court and section 36, in the sense that no specific steps or stages are prescribed]
reduced the precedential value by making the balance struck too case specific"
(cited in Rautenbach, 2014). The general part in the introductory part of section 36 is
that the measure must be “reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom" (Constitution, 1996).
“Limitation clauses are intended by their drafters to guide legal reasoning by drawing
attention to important goods that must be borne in when determining the scope of
rights” (Miller, 2008:1). The limitation clause is found in section 36 of the Constitution
and sets out the factors that can justify a right being limited. It requires courts to
weigh several considerations. The nature of the right speaks to how important the
right is and to what extent it can be limited. The purpose of limiting the right refers to
the important and justifiable reasons why the right is being limited, and it must work
for the greater good of the public. How much the right will be limited is another
consideration; rights can only be limited to a certain extent, and it must be clear how
big or small the changes in those rights will be. This shows the relation between the
limitation and its purpose: it is of no use to limit a right if it is not going to serve its
intended purpose. The right must align with its intended goal, and the courts must
also consider whether there are better ways to achieve the same purpose.
Therefore, the court reviews how the goal can be achieved without limiting the right
—whether there is another way to enforce or put restrictions instead of directly
limiting the right (Legal Fundi, 2023).

2.2 Legal case where the limitation clause has been invoked to justify restrictions on
certain rights.

The 1996 South African Constitution changed the country’s history significantly. For
the first time it granted everyone fundamental rights and freedoms. However, these
rights are not unlimited. One of the best examples of how the limitation clause works
is the case of S v Makwanyane and Another that took place in 1995. This case
challenged the death penalty in South Africa. It became famous because it shows
how the Constitutional Court protects people’s rights, even when it is not popular or
easy to do so. Before the transition to democracy, the death penalty was common,
and South Africa had one of the world’s highest execution rates. Many people were
on death row, waiting to be executed. As the death penalty sentence was in
progress, they were critics that came about from the researchers that of that the
death penalty was biased because majority of the population that suffered death
penalty were blacks more than any race in the population. “International human
rights groups also stated that it violated the basic right to life and human dignity”
(Currie & De Waal, 2013). This made the question of the death penalty even more
urgent under the new democratic Constitution. Makwanyane and Mchunu were
convicted of murder and sentenced to death. They argued that the death penalty
went against their constitutional rights, “specifically the right to life (Section 11), the
right to human dignity (Section 10), and freedom from cruel, inhuman, or degrading
treatment” (Section 12) (Currie & De Waal, 2013). For them, this case was not just
about their own lives; it was about whether the state could take life under a
constitution that places human dignity first. The government defended the death
penalty, arguing that it was necessary to fight violent crime, protect communities, and
deliver justice to victims and their families. They also stated that removing the death
penalty could make people lose trust in the justice system, since many South
Africans supported it at the time (S v Makwanyane, 1995). Their argument made
sense in the context of the 1990s, when crime was rising and society was changing
rapidly. The Constitutional Court had to decide whether Section 36 could justify
taking someone’s life. They used a proportionality test, which checks how important
the right is, the purpose of the restriction, how serious the limitation is, the
connection between the restriction and the purpose, and whether there were less
restrictive ways to achieve the same goal (Republic of South Africa, 1996). This test
ensures that the decision is fair and based on principle, not simply public opinion. In
its judgment, the Court made it clear that life and dignity are at the heart of South
Africa’s democracy. Justice Chaskalson, who delivered the majority opinion, stated
that while crime is serious, the state cannot combat it by violating the Constitution.
The death penalty is irreversible, cruel, and inconsistent with human dignity. The
Court also rejected the idea that public opinion could justify taking life, pointing out
that constitutional principles are meant to stay constant, not change with shifting
public moods (S v Makwanyane, 1995). The Court collectively declared the death
penalty to be unconstitutional. This was a turning point. It showed that the Court was
willing to protect rights even when it went against popular belief. It also set an
important precedent for future cases, showing that rights can only be limited if the
restriction is reasonable, proportionate, and consistent with democratic values. The
ruling has since influenced debates on prisoner voting, freedom of expression,
protests, and other areas where the state might try to limit rights for the sake of
public safety. This case also highlights the importance of the judiciary in a
democracy. By abolishing the death penalty, the Court showed that it could act
independently, stand up for human rights, and resist political or public pressure. This
helped South Africans trust the Constitution and the law more, because it showed
that fundamental rights would be protected regardless of government or public
opinion. Ultimately, S v Makwanyane is a perfect example of how the limitation
clause operates. Rights can sometimes be restricted, but life and dignity are non-
negotiable. The case teaches us that in a democracy, constitutional values come
first, even when society is fearful or outraged about crime. It is remembered not just
as a fight against the death penalty but as a cornerstone of South Africa’s
democracy, showing that human rights, dignity, and justice are at the centre of the
country’s legal system.

2.3 Challenges and Effectiveness of the Limitation Clause

” The limitation clause in the Constitution of South Africa shows that majority of the
rights are not absolute but, Section 13 strongly protects as they are deemed as
absolute such as the right not to be subjected to slavery or forced labour”
(Constitution 1996: section 13). Therefore, the limitation clause plays a significant
role in balancing the individual’s rights through considering the major social concerns
such as health and ensuring protection over the other human rights. Although
sometimes it may be difficult to implement the limitation clause as it is the clause that
limits individuals from infringing other citizens’ rights, it is very common for a
particular group of age, race and gender to feel that the clause is actually favouring a
particular group. A clear example was during the Covid-19 pandemic that led to a
national shutdown in 2020, the government relied on the limitation clause which is
the 36th Section (Constitution, 1996: section 36) in the Constitution of the Republic of
South Africa to restrict certain constitutional rights in the interest of public health and
safety, for instance the religious groups were not permitted to hold gatherings during
this period, even for worship services. Many churches argued that their freedom of
religion was unfairly limited as their spiritual practices were viewed as any other form
of entertainment. The clause aims that no South African citizens’ rights may be
violated in any way however applying the limitation clause is not without challenges.
The government may sometimes use the societal concerns as a cover to limit rights
in a way that goes overboard to what is actually reasonable or justifiable, a good
example would be South Africa during the apartheid era the government would often
use public safety and public order as a reason to pass the laws that limited rights
such as freedom of expression, movement, etc. (Public Safety Act of 1953). Despite
the challenges and difficulties that may come with applying the limitation clause, the
limitation clause also has the positive aspects such as limiting the freedom of
expression to prevent hate speech,” this restriction balances the right to freedom of
expression alongside with the protection of dignity and equality” (Constitution, 1996).
Limiting the freedom of expression forms the positive side of the limitation clause as
it shows how human rights can be limited to protect rights without completely
removing freedom of expression. For example, in the Qwelane v SA Human Rights
Commission (2022) the court limited freedom of expression because the article
published by the Sunday Sun in 2008 incited hatred against the LGBTQ+ community
this showed the balancing of individual rights with the protection of dignity and
equality ([Link]). Therefore, it goes without say that the limitation clause is
beneficial because it allows rights to be balanced with societal needs, but it can be
problematic when restrictions are applied unfairly or disproportionately.

3. CONCLUSION
In conclusion, the South African Constitution makes it clear that fundamental
rights are not unlimited. As stipulated in Section 36 of the Constitution, these
rights may be restricted under circumstances that are reasonable and
justifiable in an open and democratic society based on human dignity,
equality, and freedom (Constitution of the Republic of South Africa, 1996). The
law of general application must apply to everyone rather than targeting a
particular group or individuals; it should also be legitimate and serve a
purpose. Factors such as the importance of the right, the reason for the
restriction, how severely the right is impaired, and whether less restrictive
means could achieve the same goals must be considered when assessing
whether a limitation is acceptable (Constitution of the Republic of South
Africa, 1996). This framework ensures that the rights of individuals are
protected while allowing the state to safeguard broader societal interests. The
discussion has shown that Section 36 indeed provides an acceptable means
of reconciling societal needs with the protection of individual rights. Far from
being a flaw, the inclusion of a general limitation clause in the Constitution is a
foundational feature of its transformative project. Section 36 represents a
sophisticated balancing mechanism that mediates the inherent tension
between individual freedom and the collective good. It promotes a culture of
justification by requiring the state to demonstrate that any limitation of rights is
rational, evidence based, and capable of withstanding judicial scrutiny (Currie
& De Waal, 2013). This protects individuals from arbitrary state action while
affirming the dignity of rightsholders, whose rights are so important that their
limitation demands public justification. The limitation clause also
acknowledges the relational nature of rights, recognizing that in a diverse
society, "the absolute exercise of one person’s right can infringe upon the
rights of others or undermine public interests such as safety or health." This
principle is clearly illustrated in case law. For instance, while the Constitution
(1996) guarantees freedom of expression, this right is not absolute. As the
Constitutional Court affirmed in Qwelane v South African Human Rights
Commission (2022), this freedom may be limited to protect the competing
constitutional value of human dignity and to "prevent hate speech." Similarly,
the practical application of section 36 was demonstrated during the national
state of disaster, where, as legal scholar Pierre De Vos (2020) argued, the
clause was used to justify "temporary limitations on rights like freedom of
assembly in pursuit of public health." These examples underscore how
section 36 acts as a necessary mechanism to balance competing interests
within the constitutional framework.
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 South Africa, Republic. 1953. Public Safety Act 3 of 1953 (Act 3 of 1953).
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