circumstances and juvenile whipping, in general, only as a device to keep the juvenile out of prison.[1]
[54] The structure and content of Chapter 3 suggests a two-stage enquiry. The first stage is concerned with establishing whether there is a violation of a right sought to be protected by the Constitution; this has been answered in the affirmative. The second leg of the enquiry deals with the question whether the violation constitutes a permissible limitation of the right in question. Section 33(1) of the Constitution provides:
"The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation —
[55] Applicants contended firstly, that the rights at issue were not capable of limitation and that section 33(1) of the Constitution was therefore not applicable. The implication of this proposition was that no further enquiry was called for once a violation of the right had been proved.
[56] This argument raises an issue which this Court may have to confront in the future and that is the tension between threshold requirements and requirements of limitation. The issue has been raised in argument in other cases which have come before us. It is, however, not an issue which needs to be resolved in this case. In S v Makwanyane (supra) this court dealt with section 11(2) of the Constitution on the basis that section 33(1) is applicable to
- ↑ See S v Maisa supra note 7, at 271E; S v Machwili 1986(1) SA 156 (N) at 157F–G; S v Motsoesoana supra note 12, at page 358G; S v Zimo en Andere supra note 8, at page 337H–338A; S v Maseti 1992(2) SACR 459 (C) at page 464I–J; S v V en 'n Ander supra note 5, at page 543E; S v P 1985 (4) SA 105 (N) at page 107F; and S v M supra note 5, at page 245B.
