Stumbling on the essential content of a right : an insurmountable hurdle for the state?

• Main Author: Bernstein, David Martin
• Other Authors: Van Wyk, D. H.
• Format: Others
• Language: en
• Published: 2015
• Subjects: Analysis of Section 33(1)(b); Borrowed Provisions; Complex Interpretative Conundrums; Insurmountable Obstacle; Myopic Guidance - enter our Constitutional Court; Academic Opinion; Boundary Demarcation; Prognosis of Working Draft Re:- Section 35(1 )(b); Solution: Inverted value orientated/residual approach; 342.85068; Civil rights > South Africa; Human rights > South Africa; Constitutional courts > South Africa; Constitutional law > South Africa
• Online Access: http://hdl.handle.net/10500/18082

Section 33(1)(b) is fraught with borrowed provisions. The end-product marries German and Canadian features. The failure of the German Constitutional Courts to interpret the "essential content of a right" precipitated the adopted infant's bumpy landing in South Africa. That the sibling still lacks identity is evidenced by our Constitutional Court's evasive and superficial treatment of the clause. Section 33(1)(a) - proportionality prong enables judges to justify their neglect of Section 33(1)(b). The opinion is expressed that Section 33(1){b) demands interpretation but to date it has been shrouded in vagueness. After all without demarcating boundaries with sufficient precision and highlighting where the State may not tread the State may trespass. Alternatively the limitable nature of human rights could become a myth as Section 33(1)(b) could be transformed into an insurmountable hurdle for the State, rendering every right absolute in practice. A workable conceptual framework proposes an inverted, porous and value imbibing solution. === Law === LL.M.