Section 36 Explained: The Limitation Clause and How Rights Are Balanced

Not all rights are absolute. Sometimes, the government can limit your constitutional rights — but only under very strict conditions.

Section 36 is the limitation clause of the South African Constitution. It sets out the test courts use to decide whether a law that limits a constitutional right is justified or unconstitutional.

Understanding Section 36 is critical for:

• Answering constitutional law exam questions
• Analyzing whether rights violations are justified
• Building persuasive legal arguments

This guide covers:

• What Section 36 is and why it exists
• The full text of the limitation clause
• The step-by-step limitation analysis framework
• Leading cases applying Section 36
• Exam tips and common mistakes

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What Is Section 36?

Section 36 is the general limitation clause. It allows the government to limit rights in the Bill of Rights, but only if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.

In simple terms:
Section 36 asks: "Is this limitation on a constitutional right justified?"

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The Text of Section 36

Section 36(1): Limitation of Rights

(1) 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.

Section 36(2): Except Where Otherwise Provided

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

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Why Does Section 36 Exist?

Not all rights are absolute. Sometimes, individual rights conflict with:

• Other rights (e.g., freedom of expression vs. dignity)
• Public interests (e.g., public safety, national security, health)
• Societal needs (e.g., crime prevention, economic stability)

Section 36 provides the framework for balancing competing interests. It ensures that rights can be limited, but only when absolutely necessary and in a manner that respects constitutional values.

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When Do You Apply Section 36?

You apply Section 36 after you've established that a constitutional right has been violated.

The Two-Stage Analysis:

Stage 1: Has a right been infringed?

• Identify the right (e.g., Section 9 - equality, Section 10 - dignity, Section 16 - freedom of expression)
• Apply the test for that specific right
• Conclusion: If YES → the right is infringed, proceed to Stage 2

Stage 2: Is the infringement justified under Section 36?

• Apply the Section 36 limitation analysis (explained below)
• Conclusion: If YES → the law is constitutional. If NO → the law is unconstitutional.

Important: Section 36 is a defence. The state (or party defending the law) has the burden of proof to show the limitation is justified.

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The Section 36 Limitation Test (Step-by-Step)

Courts use a structured analysis to determine whether a limitation is justified. Here's the framework:

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Threshold Requirement: Law of General Application

Question: Is the limitation imposed by a law of general application?

What this means:

• The limitation must come from a law (statute, regulation, common law)
• The law must apply generally (not arbitrarily or to specific individuals)

Example:
A statute prohibiting hate speech is a law of general application. A government official's informal instruction is not.

If NO: The limitation fails automatically. Section 36 does not apply.

If YES: Proceed to the substantive test.

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The Substantive Test: Reasonable and Justifiable?

The court asks: Is the limitation reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom?

This is assessed by considering five factors listed in Section 36(1):

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Factor (a): The Nature of the Right

Question: How important is the right being limited?

Key considerations:

• Is it a core right central to human dignity (e.g., life, dignity, equality)?
• Is it a derivative or instrumental right (e.g., administrative justice, access to information)?

General principle:
The more fundamental the right, the harder it is to justify limiting it.

Example:
Limiting the right to life (Section 11) requires very strong justification. Limiting the right to administrative action (Section 33) may be easier to justify in certain contexts.

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Factor (b): The Importance of the Purpose of the Limitation

Question: Why is the government limiting the right? Is the purpose important?

Key considerations:

• What is the objective of the law?
• Is it a legitimate government purpose (e.g., public safety, health, national security, crime prevention)?

General principle:
The more important the purpose, the more likely the limitation is justified.

Example:
A law prohibiting hate speech serves the important purpose of protecting human dignity and preventing harm.

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Factor (c): The Nature and Extent of the Limitation

Question: How severe is the limitation? Does it completely destroy the right, or only partially restrict it?

Key considerations:

• Does the law completely prohibit the exercise of the right, or only regulate it?
• How broad is the limitation?
• Does it affect everyone, or only a specific group?

General principle:
The more severe and broad the limitation, the harder it is to justify.

Example:
A law banning all political speech is harder to justify than a law banning hate speech.

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Factor (d): The Relation Between the Limitation and Its Purpose

Question: Is there a rational connection between the limitation and its purpose? Will the limitation actually achieve the stated objective?

Key considerations:

• Does the law logically advance the government's purpose?
• Is the limitation proportionate to the goal?

General principle:
The limitation must be rationally connected to the purpose. If it's arbitrary or ineffective, it fails.

Example:
A law requiring sex offenders to register advances the purpose of public safety. A law banning all men from parks does not rationally advance public safety.

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Factor (e): Less Restrictive Means to Achieve the Purpose

Question: Could the government achieve its purpose with a less restrictive measure?

Key considerations:

• Are there alternative means that limit the right less?
• Would a narrower law achieve the same goal?

General principle:
The government must use the least restrictive means available. If a less invasive alternative exists, the limitation fails.

Example:
Instead of banning all public gatherings, the government could require permits or impose time/place/manner restrictions.

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Balancing Exercise

After considering all five factors, the court engages in a balancing exercise:

• Weigh the importance of the right against the importance of the limitation's purpose
• Consider the proportionality of the limitation
• Ask: Is the limitation reasonable and justifiable in an open and democratic society based on dignity, equality, and freedom?

If YES: The limitation is justified. The law is constitutional.

If NO: The limitation is unjustified. The law is unconstitutional.

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Leading Cases Applying Section 36

1. S v Makwanyane (1995) — Death Penalty

• Right infringed: Section 11 (right to life)
• Purpose of limitation: Deterrence, retribution, public safety
• Holding: The death penalty is not justified under Section 36. It violates human dignity, is irreversible, and there is no evidence it deters crime more effectively than life imprisonment.
• Significance: Landmark case abolishing the death penalty in South Africa.

2. S v Manamela (2000) — Mandatory Minimum Sentences

• Right infringed: Section 35(3)(n) (right to fair sentencing)
• Purpose of limitation: Combat serious crime, ensure consistency in sentencing
• Holding: Mandatory minimum sentences are justified under Section 36 if courts retain discretion to deviate in exceptional circumstances.
• Significance: Balances crime prevention with individual justice.

3. Print Media South Africa v Minister of Home Affairs (2012) — Media Appeals Tribunal

• Right infringed: Section 16 (freedom of expression and press)
• Purpose of limitation: Regulate media accountability
• Holding: A statutory media tribunal that could impose sanctions on the press would not be justified under Section 36. Self-regulation is a less restrictive alternative.
• Significance: Protects press freedom from government overreach.

4. MEC for Education: KwaZulu-Natal v Pillay (2008) — School Nose Stud

• Right infringed: Section 15 (freedom of religion and culture)
• Purpose of limitation: Maintain school discipline and uniform policy
• Holding: Banning a nose stud worn for religious/cultural reasons is not justified under Section 36. The limitation is disproportionate; allowing the stud poses no real harm.
• Significance: Affirms cultural and religious diversity in schools.

5. Minister of Home Affairs v National Institute for Crime Prevention (NICRO) (2005) — Prisoner Voting

• Right infringed: Section 19 (right to vote)
• Purpose of limitation: Punishment, civic responsibility
• Holding: Blanket disenfranchisement of all prisoners is not justified under Section 36. The limitation is overbroad and not rationally connected to the purpose.
• Significance: Prisoners retain the right to vote unless specifically disenfranchised by sentencing court.

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Section 36 vs. Internal Limitations

Some rights have internal limitations built into their text. For example:

• Section 16(2): Freedom of expression does not protect hate speech, incitement to violence, or war propaganda.
• Section 25(1): Property may be expropriated for public purposes, subject to compensation.

Key difference:

• Internal limitations are part of the right's definition. You don't need Section 36 to apply them.
• Section 36 limitations apply when a law restricts a right beyond its internal scope.

Example:
A law banning hate speech falls within Section 16(2) (internal limitation). You don't need Section 36 analysis.
A law banning all political satire infringes Section 16(1) and must be justified under Section 36.

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Study Tips: Mastering Section 36 for Exams

1. Always Do a Two-Stage Analysis

Stage 1: Is the right infringed?
Stage 2: Is the infringement justified under Section 36?

Don't skip Stage 1! You can't apply Section 36 unless a right has been violated.

2. Memorize the Five Factors

Write them as a checklist:

1. Nature of the right
2. Importance of the purpose
3. Nature and extent of the limitation
4. Relation between limitation and purpose
5. Less restrictive means

3. Use the "Least Restrictive Means" Test

Factor (e) is often decisive. If the government could achieve its goal with a narrower or less invasive measure, the limitation usually fails.

4. Apply IRAC Structure

Issue: Is the limitation justified under Section 36?

Rule: Section 36(1) — reasonable and justifiable in an open and democratic society, considering five factors.

Application:

• Threshold: Law of general application?
• Factor (a): Nature of the right
• Factor (b): Importance of purpose
• Factor (c): Nature and extent of limitation
• Factor (d): Rational connection
• Factor (e): Less restrictive means
• Balancing: Weigh all factors

Conclusion: Justified or not?

5. Remember: The State Has the Burden

Section 36 is a defence. The party defending the law (usually the state) must prove the limitation is justified.

6. Distinguish Section 36 from Specific Rights Tests

Some rights have their own tests (e.g., Harksen test for Section 9 equality, De Reuck test for Section 28 children's rights).

Apply the specific test first. Only move to Section 36 if the right is infringed.

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Common Mistakes Students Make

❌ Mistake 1: Applying Section 36 Without Establishing Infringement

You cannot apply Section 36 unless you've first shown a right was violated.

Fix: Always do Stage 1 (infringement) before Stage 2 (justification).

❌ Mistake 2: Forgetting the "Law of General Application" Requirement

If there's no law (e.g., just an informal policy), Section 36 doesn't apply.

❌ Mistake 3: Ignoring "Less Restrictive Means" (Factor e)

This is often the most important factor. Always ask: Could the government do this in a less invasive way?

❌ Mistake 4: Not Weighing All Five Factors

Don't just list the factors. Analyze each one and balance them against each other.

❌ Mistake 5: Confusing Internal Limitations with Section 36

If the limitation is built into the right (e.g., hate speech in Section 16(2)), you don't need Section 36.

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Exam Example: Applying Section 36

Problem Question:

A law prohibits all public gatherings of more than 10 people without a permit. Thabo organizes a protest of 50 people against climate change and is arrested. Does the law violate Section 17 (freedom of assembly)?

Answer:

Stage 1: Is Section 17 Infringed?

Section 17: Everyone has the right to assemble peacefully and unarmed.

Analysis:
The law prohibits gatherings of more than 10 people without a permit. Thabo's protest of 50 people falls within this prohibition.

Conclusion: Section 17 (freedom of assembly) is infringed.

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Stage 2: Is the Infringement Justified Under Section 36?

Threshold: Is it a law of general application?
Yes. The law is a statute applying to everyone.

Factor (a): Nature of the right
Freedom of assembly (Section 17) is a core political right central to democracy. It allows citizens to express collective views. This right is very important.

Factor (b): Importance of the purpose
Purpose: Public safety, traffic management, preventing violence.
Assessment: Legitimate and important government purpose.

Factor (c): Nature and extent of the limitation
The law completely prohibits gatherings of >10 people without a permit. This is a broad limitation affecting all forms of assembly (protests, meetings, celebrations).

Factor (d): Relation between limitation and purpose
Assessment: Requiring permits is rationally connected to public safety and traffic management. It allows authorities to plan and ensure order.

Factor (e): Less restrictive means
Could the government achieve its purpose with less restrictive means?

• Yes. Instead of a blanket prohibition, the law could:
  • Require permits only for gatherings in specific areas (e.g., highways, government buildings)
  • Allow spontaneous gatherings with post-event notification
  • Impose time/place/manner restrictions instead of outright bans

Balancing:
While the purpose is important, the limitation is too broad. A blanket ban on gatherings >10 people severely restricts freedom of assembly. Less restrictive alternatives exist (e.g., permits for specific areas only, shorter notice periods).

Conclusion:
The limitation is not justified under Section 36. The law is unconstitutional because less restrictive means are available.

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Summary: Section 36 in 5 Steps

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Conclusion

Section 36 is the safety valve of the Constitution. It allows rights to be limited — but only when absolutely necessary, proportionate, and justified.

Master the five factors. Practice applying them to problem questions. Always ask: Could the government achieve this goal with less harm to the right?

If you can answer that question clearly, you'll ace Section 36 analysis in exams.

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Related Reading

• The Harksen Test Explained: Section 9 Equality Analysis
• Section 10 Explained: The Right to Human Dignity
• How to Answer Constitutional Law Problem Questions

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