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means which are realistically available in our country at
this stage, but without losing sight of the ultimate values to
be protected”
(S v Manamela and Another (Director-General of Justice intervening)
2000 (3) SA 1 (CC) quoted with approval in Minister of Home Affairs v
Nicro and Others 2005 (3) SA 280 (CC) para [33])
[76] In a justification analysis facts and policy are often intertwined. A legislative
choice is not always subject to courtroom fact-finding and may be based on
reasonable inferences unsupported by empirical data. If the [policy] concerns are of
sufficient importance, the risks associated with them sufficiently high, and there is
sufficient connection between means and ends, that may be enough to justify action
taken to address them.
“Where justification depends on factual material, the party
relying on justification must establish the facts on which the
justification depends. Justification may, however, depend
not on disputed facts but on policies directed to legitimate
government concerns. If that be the case, the party relying
on justification should place sufficient information before
the Court as to the policy that is being furthered, the
reasons for that policy and why it is considered reasonable
in pursuit of that policy to limit a constitutional right. That
is important, for if this is not done the Court may be unable
to discern what the policy is, and the party making the
constitutional challenge does not have the opportunity of
rebutting the contention through countervailing factual
material or expert opinion. A failure to place such
information before the Court, or to spell out the reasons for
the limitation, may be fatal to the justification claim. There
may, however, be cases where, despite the absence of such
information on the record, a court is nonetheless able to
uphold a claim of justification based on common sense and
judicial knowledge”.
(Para [35] of Nicro)
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