Individual rights cannot be limited by the Bill of Rights. It limits the government’s ability to violate rights. Read the Ninth Amendment, which was intended to establish the notion that the enumerated rights are not exhaustive and final, and that mentioning certain rights does not deny or degrade the existence of additional rights. The amendment did not specify which rights were protected.

Individual rights were debated prior to, during, and after the passage of the Constitution. However, since that time, the Ninth Amendment has been employed as a secondary source of liberties and has emerged as crucial in the enlargement of rights such as the right to privacy. It has never been asserted that the Ninth Amendment meant anything other than what it says, and the idea that the government could ever utilize the Ninth Amendment to nullify a people’s right or a state’s power would have made the Founders roll in their graves.

Limitations of Rights

The limitation of rights in the South African Constitution is established under Section 36, often referred to as the Limitation Clause. This clause provides that rights in the Bill of Rights may be limited, but only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.

Several factors are taken into consideration when evaluating whether a limitation is reasonable and justifiable. These include:

1. The nature of the right,
2. The importance of the purpose of the limitation,
3. The nature and extent of the limitation,
4. The relation between the limitation and its purpose, and
5. Less restrictive means to achieve the purpose.

Therefore, it’s clear that the South African Constitution recognizes the potential need to limit rights under certain conditions, but it also ensures that any limitations are subject to strict scrutiny to prevent misuse.

Examples of Limitations

To better understand this, let’s consider a few hypothetical examples. Freedom of expression, as guaranteed by the constitution, may be limited in the context of hate speech, incitement of violence, or advocacy of hatred based on race, ethnicity, gender, or religion.

Similarly, the right to freedom and security of the person can be limited in cases where someone has been accused of a crime. They can be detained under due process of law, but the Constitution also provides for rights for arrested and detained persons.

The right to privacy can also be limited, especially in the digital age. For instance, law enforcement agencies may need to infringe on an individual’s privacy during a criminal investigation. However, such infringement must be done under judicial oversight, following established legal procedures.

The South African Constitution, therefore, provides a well-balanced framework that recognizes both the need for individual rights and the circumstances under which these rights may be limited. However, these limitations are carefully controlled and monitored to prevent any potential misuse of power, thus upholding the democratic principles that the South African Constitution embodies.