MADALA J
“The meaning of a right or freedom guaranteed by the Charter was to be ascertained by
an analysis of the purpose of such a guarantee; it was to be understood, in other words,
in the light of the interests it was meant to protect.
In my view, this analysis is to be undertaken, and the purpose of the right or freedom
in question is to be sought by reference to the character and the larger objects of the
Charter itself, to the language chosen to articulate the specific right or freedom, to the
historical origins of the concept enshrined, and where applicable, to the meaning and
purpose of the other specific rights and freedoms with which it is associated within the text
of the Charter. The interpretation should be . . . a generous rather than a legalistic one,
aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit
of the Charter’s protection.”
[42]
The Constitution is forward-looking and guarantees to every citizen fundamental
rights in such a manner that the ordinary person-in-the-street, who is aware of these
guarantees, immediately claims them without further ado – and assumes that every right
so guaranteed is available to him or her on demand. Some rights in the Constitution are
the ideal and something to be strived for. They amount to a promise, in some cases, and
an indication of what a democratic society aiming to salvage lost dignity, freedom and
equality should embark upon. They are values which the Constitution seeks to provide,
nurture and protect for a future South Africa.
[43]
However, the guarantees of the Constitution are not absolute but may be limited
in one way or another. In some instances, the Constitution states in so many words that
the state must take reasonable legislative and other measures, within its available
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