Convention. The national authorities are allowed a discretion by the European Court of Human Rights in regard to what is necessary—a margin of appreciation—but not unlimited power. The "margin of appreciation" that is allowed varies depending upon the nature of the right and the nature and ambit of the restriction. A balance has to be achieved between the general interest, and the interest of the individual.[1] Where the limitation is to a right fundamental to democratic society, a higher standard of justification is required;[2] so too, where a law interferes with the "intimate aspects of private life."[3] On the other hand, in areas such as morals or social policy greater scope is allowed to the national authorities.[4] The jurisprudence of the European Court of Human Rights provides some guidance as to what may be considered necessary in a democratic society, but the margin of appreciation allowed to national authorities by the European Court must be understood as finding its place in an international agreement which has to accommodate the sovereignty of the member states. It is not necessarily a safe guide as to what would be appropriate under section 33 of our Constitution.
Is Capital Punishment for Murder Justifiable under the South African Constitution?
[110]In Zuma's case, Kentridge AJ pointed out that the criteria developed by the Canadian Courts for the interpretation of section 1 of the Canadian Charter of Rights may be of assistance to our Courts, but that there are differences between our Constitution and the Canadian Charter which have a bearing on the way in which section 33 should be dealt with. This is equally true of the criteria developed by other courts, such as the German Constitutional Court and the European Court of Human Rights. Like Kentridge AJ, "I see no reason in this case… to attempt to fit our analysis into the Canadian pattern,"[5] or for that matter to fit it into the pattern followed by any of the other courts to which reference has been made. Section 33 prescribes in specific terms the criteria to be applied for the limitation of different categories of rights and it is in the light of these criteria that the death sentence for murder has to be justified.
[111]"Every person" is entitled to claim the protection of the rights enshrined in Chapter Three, and "no" person shall be denied the protection that they offer. Respect for life and dignity which are at the heart of section 11(2) are values of the highest order under our Constitution. The carrying out
- ↑ R v France (1993) 16 EHRR 1, para. 63.
- ↑ Handyside v United Kingdom (1979-80) 1 EHRR 737, para. 49.
- ↑ Dudgeon v United Kingdom (1981) 4 EHRR 149, para. 52; Norris v Ireland (1988) 13 EHRR 186, para. 46; Modinos v Cyprus (1993) 16 EHRR 485.
- ↑ "…[T]he margin of appreciation available to the legislature in implementing social and economic policies should be a wide one..." James v United Kingdom (1986) 8 EHRR 123, para. 46. See also, Lithgow v United Kingdom (1986) 8 EHRR 329, para. 122.
- ↑ S v Zuma and Two Others, supra note 122, para. 35.
