O’REGAN J and SACHS J
values of the Bill of Rights as a whole and that the rights intersect and overlap one another. It
does not follow from this however that it is appropriate to base our constitutional analysis on a
right not expressly included within the Constitution. Accordingly, we will deal in turn with each
of the rights said to be infringed.
The right freely to engage in economic activity
[54]
We deal first with the alleged infringement of the right freely to engage in economic
activity and to pursue a livelihood anywhere in the national territory. In Lawrence,17 this Court
identified two possible interpretations for section 26 of the interim Constitution as follows:
“The meaning of s 26 is, however, by no means clear. There seem to be two possible
approaches to its interpretation. The first focuses on the meaning of free participation in
economic activity and in pursuing a livelihood. In a modern democratic society a right
‘freely’ to engage in economic activity and to earn a livelihood does not imply a right to
do so without any constraints whatsoever
....
On this approach to the interpretation of s 26 the right to engage in economic activity and
to pursue a livelihood anywhere in the national territory would entail a right to do so
freely with others. Implicit in this is that the participation should be in accordance with
law.
....
The alternative approach is to read s 26(1) and (2) together as indicating that all
constraints upon economic activity and the earning of a livelihood which fall outside the
17
S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC); 1997 (10) BCLR 1348 (CC) at paras 32, 34
and 37.
31
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