that "wishes to prevent crime…[not] to kill criminals simply to get even with them."[1]
The Essential Content of the Right
[132]Section 33(1)(b) provides that a limitation shall not negate the essential content of the right. There is uncertainty in the literature concerning the meaning of this provision. It seems to have entered constitutional law through the provisions of the German Constitution, and in addition to the South African constitution, appears, though not precisely in the same form, in the constitutions of Namibia, Hungary, and possibly other countries as well. The difficulty of interpretation arises from the uncertainty as to what the "essential content" of a right is, and how it is to be determined. Should this be determined subjectively from the point of view of the individual affected by the invasion of the right, or objectively, from the point of view of the nature of the right and its place in the constitutional order, or possibly in some other way? Professor Currie draws attention to the large number of theories which have been propounded by German scholars as to the how the "essence" of a right should be discerned and how the constitutional provision should be applied.[2] The German Federal Constitutional Court has apparently avoided to a large extent having to deal with this issue by subsuming the enquiry into the proportionality test that it applies and the precise scope and meaning of the provision is controversial.[3]
[133]If the essential content of the right not to be subjected to cruel, inhuman or degrading punishment is to be found in respect for life and dignity, the death sentence for murder, if viewed subjectively from the point of view of the convicted prisoner, clearly negates the essential content of the right. But if it is viewed objectively from the point of view of a constitutional norm that requires life and dignity to be protected, the punishment does not necessarily negate the essential content of the right. It has been argued before this Court that one of the purposes of such punishment is to protect the life and hence the dignity of innocent members of the public, and if it in fact does so, the punishment will not negate the
- ↑ Brennan, J., in Furman v. Georgia, supra note 34, at 305.
- ↑ Currie, supra note 139, refers to an analysis of the 'remarkable variety of views' on the meaning of 'essence'. Id. at 178 (citing 2 Maunz/Durig, Art. 19, Abs. II, Rdnr. 16).
- ↑ Grimm, supra note 138, at page 276 states, "operating at an earlier stage than the essential content limit in Article 19(2), the proportionality principle has rendered the former almost insignificant." Currie, supra note 139, notes that the German Federal Constitutional Court has remarked in at least one case that dealt with the 'essential content' question that the Court "state[d] an alternative ground that, because of its greater stringency [the proportionality test], has made it unnecessary in most cases to inquire whether a restriction invades the 'essential content' of a basic right." Currie, supra note 139, at 306–307 (citing 22 BVerfGE 180, 220 (1967)).
