If the Interests of Justice Permit: Individual Liberty, the Limitations Clause, and the Qualified Constitutional Right to Bail

ABSTRACT

This article examines fundamental principles that have emerged from the South African Constitutional Court's decisions that give meaning to the constitutional command that rights may be limited only insofar as is reasonable and justifiable in an open and democratic society. The article then juxtaposes these aspects of the Court's limitations jurisprudence against the judgment in S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC), which considered the constitutionality of restrictions on the right to bail for persons accused of serious offences. It is submitted that the analysis in Dlamini diverges in several important respects from the type of rigorous, precise scrutiny characteristic of the Court's other limitations decisions. The article concludes by urging adherence, in both limitations decisions and bail determinations, to the fundamental principles behind the limitations clause.