The respondents have not suggested that the impugned provisions are justifiable in terms of section 36 of the Constitution. This is not, however, decisive of the matter. The validity of these provisions is a matter of public importance which is properly before the Court and which must be decided. The Court must therefore consider whether the limitations occasioned by the
- Section 36(1) of the Constitution provides―
“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including―
(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.”
- See National Coalition v Minister of Justice, above n 24 at para 5 and 35; and Dawood, above n 16 at para 15.