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B: Substantive Stage - 2: Limitation of rights (Justification analysis) -…
B: Substantive Stage - 2: Limitation of rights (Justification analysis) - Cases
S v Makwanyane
The court had to determine how extensively the death penalty impacted the right to life. This limitation infringes on the core of this right and persuasive reasons need to justify the limitation. Therefore, the court concluded that the extent of the impact of the right and the purpose of the limitation were not sufficiently proportional to justify the limitation
The court needs to determine with regards to the limitation, the purpose of the limitation and whether the purpose is sufficiently important to justify the limitation
The nature of the right factor has to do with this case in the following manners. The court had to determine the importance of the right in an open and democratic society based on the foundational values of human dignity, equality and freedom. The death penalty limited the right to life and indirectly impacted the right to dignity and to be free from cruel and degrading punishment. The death penalty is a justifiable limitation of these rights.
The limitation must perform a rational and constitutional purpose
The nature and the extent of the limitation is linked to proportionality as any societal benefits should outweigh the harm caused
The court determined that the purpose of the death penalty was to deter violent crime, prevent repetition of crime in the future and to provide vengeance for victims. The court determines that the first 2 purposes were legitimate and acceptable purposes in an open and democratic society. The third purpose was not of sufficient important to justify the limitation to the right to life
The court considers the following with regards to the nature of the right
How the limitation will implicate other rights
National coalition for Gay and Lesbian equality also said that the court should consider the importance of the right
The ability if the right to be limited
The effect of the limitation on other rights
The relative importance of the limited right in an open and democratic society
The court had to determine the strength of the connection between preventing and deterring violent crime and the death penalty. While the penalty could prevent future acts because the dude is now dead there isn't enough proof to show that it is an effective deterrent. The link between the limitation and the purpose was weak as the state did not give sufficient evidence to show that the death penalty deters violent crime
Sections relevant to the limitations analysis
S36(1)(c) - the nature and the extent of the limitation
S36(1)(d) - the relationship between the limitation and its purpose
S36(1)(b) - the importance of the purpose of the limitation
S36(1)(e) - can less restrictive means be used to achieve the purpose
S36(1)(a) - the nature of the right
The court had to determine whether measures existed to achieve the same purpose that limited the right to life substantially less. The court determined that this did exist in the form of life imprisonment.
This case regarded whether or not the death penalty was in violation of the rights in the interim constitution.
Thus, the death penalty was a violation of the BoR
Dawood v Minister of Home Affairs
Chapter B1