O’REGAN J and SACHS J
“[T]here is no absolute standard which can be laid down for determining reasonableness
and necessity. Principles can be established, but the application of those principles to
particular circumstances can only be done on a case-by-case basis. This is inherent in the
requirement of proportionality, which calls for the balancing of different interests. In the
balancing process the relevant considerations will include the nature of the right that is
limited and its importance to an open and democratic society based on freedom and
equality; the purpose for which the right is limited and the importance of that purpose to
such a society; the extent of the limitation, its efficacy and, particularly where the
limitation has to be necessary, whether the desired ends could reasonably be achieved
through other means less damaging to the right in question.”49
We have concluded that section 20(1)(aA) limits both section 8 and section 13 of the
interim Constitution. To determine whether either of these limitations are justifiable, we
will look at each separately. In doing so, we shall consider, first, the nature and extent of
the invasion of the right, second, the purpose of the limitation and, finally, whether the
limitations pass the test of proportionality. For purposes of convenience, we deal first
with the justification advanced in respect of the limitation on the right to privacy.
The limitation of section 13 – the right to privacy
49
Id at para 104.
58
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