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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Riding the push-me pull-you: constructing a test that reconciles the conflicting interests which animate the limitation clause
Author:Woolman, StuartISNI
Year:1994
Periodical:South African Journal on Human Rights
Volume:10
Issue:1
Pages:60-91
Language:English
Geographic term:South Africa
Subjects:constitutions
1993
offences against human rights
External link:https://doi.org/10.1080/02587203.1994.11827529
Abstract:The limitation clause provides the test that South Africa's courts must use to determine whether government infringements of the fundamental rights and freedoms enshrined in the interim Constitution (1993) are justifiable and therefore constitutional. This article looks at the basic structure of the limitation clause and the four primary influences on its construction - the Canadian limitation clause, the levels of judicial scrutiny in American fundamental rights and equal protection analysis, the German notion of negating the essential content of a right and the European Convention on Human Rights' limitation clauses. It shows how the limitation clause can, if properly understood, avoid the infirmities which afflict those foreign bodies of law and overcome its own inapposite drafting. Part 2 of the article examines the problem of judicial review, that is, whether and how one can justify the power of an 'unaccountable' judiciary to strike down the decisions of the democratically elected branches of government. Part 3 makes substantive recommendations as to how the courts should construe the various elements of the limitation clause. Notes, ref.
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