Constitutional Law
Limitation Clause
Section 36 of the Constitution allows rights to be limited — but only by a law of general application that is reasonable and justifiable in an open democratic society.
Legal Definition
The Limitation Clause permits Parliament to restrict constitutional rights provided the restriction: (1) is in a law of general application; (2) is reasonable and justifiable in an open democratic society based on human dignity, equality and freedom; and (3) takes account of proportionality.
📖 Constitutional / Statutory Basis: Section 36, Constitution of the Republic of South Africa, 1996
Practical Example
A law requiring search warrants before police can enter your home limits privacy (s14) but may be justified under s36 as proportionate crime prevention.
Frequently Asked Questions
What factors determine whether a limitation is justified?
Courts weigh the nature and importance of the right, the importance of the purpose of the limitation, and whether less restrictive means could achieve the same goal.
Can an emergency law limit rights further?
Yes. Section 37 allows a state of emergency declaration to derogate from some rights, but core rights like dignity and the right not to be tortured cannot be suspended.
Who decides if a limitation is justified?
Courts — ultimately the Constitutional Court — decide whether a limitation passes the s36 test.
Related Terms
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