entrusts the enforcement of its provisions to courts of law.[1] The "court of final instance over all matters relating to the interpretation, protection and enforcement" of those provisions is this Court,[2] appointment to which is reserved for lawyers.[3] The incumbents are judges, not sages; their discipline is the law, not ethics or philosophy and certainly not politics.
[208]The exercise is to establish whether there is an invalid infringement of a right protected by Chapter Three. This
"calls for a 'two-stage' approach. First, has there been a contravention of a guaranteed right? If so, is it justified under the limitation clause?"[4]
For the first step, one need go no further than section 9 of the Constitution, which could not possibly be plainer:
"Every person shall have the right to life."
Whatever else section 9 may mean in other contexts, with regard to which I express no view, at the very least it indicates that the State may not deliberately deprive any person of his or her life. As against that general prohibition section 277(1) of the Criminal Procedure Act sanctions a judicial order for the deprivation of a person's life. The two provisions are clearly not reconcilable. Therefore, the latter provision is liable to be struck down under section 4(1) of the Constitution, unless it is saved by the second step of the analysis—application of the limitations clause.
[209]During the second step of the exercise one must ask whether that infringement of the right to life is reasonable and also whether it is justifiable in an open and democratic society
- ↑ See Chapter 7 of the Constitution.
- ↑ Section 98(2) of the Constitution.
- ↑ See section 99(2)(c) of the Constitution which requires an appointee to be a person who "(i) is a judge of the Supreme Court or is qualified to be admitted as an advocate or attorney and has, for a cumulative period of at least 10 years after having so qualified, practised as an advocate or an attorney or lectured in law at a university; or (ii) is a person who, by reason of his or her training and experience, has expertise in the field of constitutional law relevant to the application of this Constitution and the law of the Republic."
- ↑ Per Kentridge AJ, in S v Zuma and Others 1995 (4) BCLR 401, 414 (SA). The "limitation clause" he refers to is section 33(1) of the Constitution.
