Courts have allowed government too much leeway to violate constitutional rights, new IRR report shows

A new report by the Institute of Race Relations (IRR) argues that the strong protections for civil liberty in the Constitution are not always acknowledged or properly applied by the courts.

The report, Civil Liberty in South Africa: Freedom Under Law Three Decades After Apartheid, recommends how the judiciary can set right this incongruence.

Publication of the report coincides with public outrage at the violent abuse of citizens earlier this week by what appear to be members of the police's VIP protection unit.

As the IRR noted in a statement yesterday, such abuses against citizens are symptomatic of a broader societal issue, where South Africans' civil liberties are increasingly threatened, evoking chilling echoes of our country's darkest past.

The IRR’s new comprehensive report outlines steps that the courts, Parliament, and the executive should take to promote and uphold civil liberty.

While it is expected that Parliament and the executive, as is the case around the world, will take their chances by attempting to curb the freedoms of the people to achieve political agendas, the courts are generally regarded as impartial guardians of civil liberty.

Nonetheless, argues author of the report, Martin van Staden, Head of Policy at the Free Market Foundation and former IRR Deputy Head of Policy Research, the courts have misconstrued section 36 of the Constitution.

Section 36 of the Constitution, known derogatorily as the ‘weasel clause’, provides the formula that must be complied with to determine whether a legal limitation on the rights entrenched in the Constitution is justifiable. The government, but also the courts, have taken this to be an enabling provision that invites the limitation of civil liberty.

Instead, argues Van Staden, section 36 is properly conceived as a barrier to limitation, as it places significant constraints on a power that governments have always and will always have – the power to limit freedom. In particular, it requires government to provide a substantive justification of their limitations to the courts, and for the courts to be scrupulous in evaluating these justifications.

‘Section 36 is part of the regime of limiting the power of government, not part of a regime empowering government to limit civil liberty,’ writes Van Staden. ‘Governments by their very nature already possess this power. An explicit limitations provision is about channelling and circumscribing that inherent power.’

Van Staden, who holds a Master of Laws (cum laude) in constitutional law from the University of Pretoria, elaborates various ways through which section 36 can take its proper place in South Africa’s constitutional machinery.

First and foremost, the courts must rethink their approach to the provision. They must apply a higher standard, and expect more from government, when constitutional liberties are being limited. Up to now the courts have applied varying degrees of scrutiny in haphazard fashion, which creates uncertainty among South Africans and their lawyers about whether section 36 would come to their aid when resisting government infringements on civil liberty.

Second, Parliament itself can be proactive and adopt legislation that foregrounds civil liberty. Such legislation should require all limitations of constitutional rights to be elaborately justified according to the section 36 formula. It should also make clear that no ‘implicit’ limitation of constitutional rights can take place – if Parliament intends to limit a constitutional right in a law of general application, it must articulate this intention explicitly.

The report is available to be read here.

Media contact: Martin van Staden, Head of Policy at the Free Market Foundation and former IRR Deputy Head of Policy Research Tel: +27 (0)79 501 3522 Mail: martinvanstaden@fmfsa.org

Media enquiries: Michael Morris Tel: 066 302 1968 Email: michael@irr.org.za

Sinalo Thuku, Tel: 073 932 8506 Email: sinalo@irr.org.za