Section 36 Explained: The Limitations Clause and How Rights Are Restricted

Section 36 is one of the most important provisions in the Constitution. It sets out when and how fundamental rights can be limited. Understanding Section 36 is essential for answering almost any Bill of Rights exam question.

The Text of Section 36

Section 36(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 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.

Why Section 36 Matters

No right is absolute. Section 36 provides the framework for balancing individual rights with societal interests.

Examples of when limitations may be justified:

• Public health measures (e.g., lockdowns during a pandemic)
• National security (e.g., limits on movement near military installations)
• Public safety (e.g., prohibiting dangerous speech)
• Protecting other rights (e.g., defamation law limits expression to protect reputation)

The Section 36 Test: Step-by-Step

Use this framework to analyze whether a limitation is constitutional:

Step 1: Is There a Law of General Application?

The limitation must be imposed by a law (statute, regulation, or common law) that applies generally (not arbitrarily targeting specific individuals).

Example: A statute requiring seat belts → Law of general application ✅
Example: A minister's informal directive banning protests → Not a law of general application ❌

Step 2: Is the Limitation Reasonable and Justifiable?

This is the proportionality test. Courts consider five factors:

(a) Nature of the Right

How important is the right being limited?

• Core rights (e.g., life, dignity, equality) are harder to limit
• Peripheral rights (e.g., commercial speech) can be more easily limited

Example: Limiting political speech is very difficult to justify; limiting false advertising is easier.

(b) Importance of the Purpose

Why is the right being limited? Is the purpose legitimate and important?

• Compelling purposes: Public health, national security, protecting other rights
• Weak purposes: Administrative convenience, cost-saving

Example: Limiting freedom of movement to prevent disease spread → Important purpose ✅

(c) Nature and Extent of the Limitation

How severe is the limitation? Does it completely deny the right, or only restrict it?

• Total bans are harder to justify than partial restrictions
• Permanent limitations are harder to justify than temporary measures

Example: A complete ban on political speech → Severe limitation, hard to justify
Example: Requiring advance notice for protests → Minor limitation, easier to justify

(d) Relation Between Limitation and Purpose

Is there a rational connection between the limitation and its purpose?

Will the limitation actually achieve the stated goal?

Example: Banning all protests to reduce COVID transmission → Weak connection (protests can be safe with precautions)
Example: Banning gatherings of >50 people to reduce COVID transmission → Strong connection

(e) Less Restrictive Means

Are there alternative, less restrictive ways to achieve the same purpose?

If a less intrusive measure can achieve the goal, the limitation fails.

Example: Banning all religious gatherings to prevent COVID spread → Less restrictive means exist (e.g., require masks, distancing)

Step 3: Balancing

After considering all five factors, the court decides:

Is the limitation reasonable and justifiable in an open and democratic society?

This is a value judgment informed by South Africa's constitutional values: dignity, equality, freedom.

Landmark Section 36 Cases

S v Makwanyane (1995)

Issue: Is the death penalty a justifiable limitation on the right to life?

Holding: No. The death penalty fails the Section 36 test:

• Nature of right: Life and dignity are foundational
• Purpose: Crime deterrence (questionable effectiveness)
• Less restrictive means: Life imprisonment

Takeaway: Even important societal goals (crime prevention) cannot justify severe limitations on core rights if less restrictive alternatives exist.

Prince v President of the Law Society (2002)

Issue: Does the Drugs Act's prohibition of cannabis use unjustifiably limit religious freedom?

Holding: The limitation was justifiable. The state has a legitimate interest in drug control, and the prohibition was not aimed at religion.

Takeaway: Even sincerely held religious beliefs can be limited to protect public health and safety.

De Reuck v DPP (2004)

Issue: Does criminalizing child pornography unjustifiably limit freedom of expression?

Holding: No. The limitation was justified:

• Purpose: Protecting children from exploitation (compelling)
• Connection: Possession fuels exploitation
• Less restrictive means: None that adequately protect children

Takeaway: Protecting vulnerable groups (especially children) is a compelling justification for limiting rights.

Minister of Home Affairs v NICRO (2005)

Issue: Does denying prisoners the right to vote unjustifiably limit political rights?

Holding: Yes. The blanket ban on prisoner voting was unjustified:

• Nature of right: Political participation is foundational to democracy
• Extent: Total ban (overly broad)
• Less restrictive means: Allow some prisoners to vote (e.g., those serving short sentences)

Takeaway: Blanket bans are disfavored. Limitations must be tailored to the specific purpose.

Internal vs External Limitations

Internal Limitations

Some rights have built-in exceptions that are not subject to Section 36.

Example: Section 16(2) excludes hate speech, war propaganda, and incitement of violence from freedom of expression.

Key difference: Internal limitations are absolute — the speech is simply not protected. No Section 36 analysis needed.

External Limitations

If a right is protected (no internal limitation), it can still be limited under Section 36.

Example: Defamation law limits freedom of expression (Section 16), but this is an external limitation subject to the Section 36 test.

Common Exam Issues

Issue 1: Forgetting Step 1 (Law of General Application)

Always check:

• Is there a law?
• Does it apply generally?

If no, the limitation fails immediately.

Issue 2: Skipping Factors

Students often focus only on one or two factors (usually purpose). Always consider all five Section 36(1) factors.

Issue 3: Less Restrictive Means is Critical

This factor often determines the outcome. If the state could achieve its goal with a less intrusive measure, the limitation fails.

Exam tip: Always propose a less restrictive alternative.

Issue 4: Burden of Proof

The state (or party defending the law) bears the burden of proving the limitation is justified under Section 36.

How to Apply Section 36 in Exams

Framework:

1. Identify the right (e.g., Section 9 — equality)
2. Has the right been infringed? (Yes/No)
3. Is there a law of general application? (Yes/No)
4. Apply the five factors:
   • Nature of the right
   • Importance of the purpose
   • Nature and extent of the limitation
   • Relation between limitation and purpose
   • Less restrictive means
5. Conclude: Is the limitation reasonable and justifiable?

Example Application:

Hypothetical: A statute requires all public protests to be approved by the police. Is this constitutional?

Answer:

1. Right: Freedom of assembly (Section 17)
2. Infringement: Yes, requiring approval restricts the right
3. Law of general application: Yes (statute)
4. Section 36 factors:
   • (a) Nature: Assembly is important for democracy (high protection)
   • (b) Purpose: Public safety, traffic management (legitimate)
   • (c) Extent: Requires approval (moderate limitation, not a ban)
   • (d) Connection: Approval process can help manage safety (rational connection)
   • (e) Less restrictive means: Notification system (rather than approval) could achieve the same goal
5. Conclusion: Likely unjustified — requiring approval (pre-censorship) is more restrictive than necessary. A notification system would suffice.

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📚 Study Tips: Mastering Section 36

1. Memorize the Five Factors

Use the mnemonic: "NIPRL" (like "nipple")

• Nature of the right
• Importance of the purpose
• Purpose (nature/extent of limitation)
• Relation (between limitation and purpose)
• Less restrictive means

Or just number them 1-5 and memorize in order.

2. Always Consider Less Restrictive Means

This is the most important factor in many cases. If you can think of a less intrusive alternative, the limitation likely fails.

Exam strategy: Always propose an alternative in your answer.

3. Know Which Rights Are Hard to Limit

Core rights (hard to limit):

• Life (Section 11)
• Dignity (Section 10)
• Equality (Section 9)
• Political rights (Section 19)

Peripheral rights (easier to limit):

• Commercial speech
• Property (subject to land reform)

4. Distinguish Internal from External Limitations

• Internal → Not protected at all (no Section 36 needed)
• External → Protected but can be limited (Section 36 applies)

5. Practice the Framework

For every Bill of Rights question:

1. Identify right
2. Infringement?
3. Law of general application?
4. Five factors
5. Conclusion

Do this for every past exam question. It becomes second nature.

6. Read Makwanyane and NICRO

These two cases are essential for understanding Section 36:

• Makwanyane (death penalty) — High bar for limiting core rights
• NICRO (prisoner voting) — Importance of less restrictive means

7. Link Purpose to Constitutional Values

When analyzing "importance of purpose," ask:

• Does the purpose advance dignity, equality, or freedom?
• Or does it serve administrative convenience?

8. Proportionality is Key

Section 36 is fundamentally about proportionality:

• Is the limitation proportional to the goal?
• Does the benefit outweigh the harm?

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