Die vryheid van bedryf, beroep en professie in die Suid-Afrikaanse Handves van Regte

LL.M.Constitutions seldom protect the right to occupational freedom by name. When they do, the right is cast in a choice / practise mould or is protected with reference to a right to a livelihood. There is a lot of overlapping between this right and the other rights protected in the South African Constitution. For this reason it is sometimes asked if it is at all necessary to protect the right to occupational freedom by name in the Constitution. There are two considerations in favour of inclusion of the right in the Constitution. The first one is historic — in view of the previous serious human rights violations, it is important to also include this right in the Constitution. The second consideration centres around the importance of the right, where it relates to an activity that occupies an enormous amount of time and very often provides the main, if not the only, source of sustenance to the individual and his or her family. In terms of section 22 of the Constitution, only citizens can be bearers of the right. Whether juristic persons can also be regarded as citizens for purposes of this article, is a difficult question. It is suggested that a wider interpretation of the definition of a citizen is possible that would include juristic persons. This definition is derived from the Constitution itself, rather that from the terms of the Citizenship Act. If the Court finds that a juristic person cannot be regarded as a citizen, the juristic person should be able to turn to other rights in the Constitution that it can be a bearer of, for the protection of its right to occupational freedom. The right to occupational freedom encompasses a wide palette of activities that can all be embraced by the term "occupation". An occupation has two main characteristics: it is practised for a fixed period and provides income to an individual. The economic or social value of the occupation, or its lawfulness or harmfulness to society cannot be used as criteria to exclude a particular activity from the right's field of protection. It is submitted that section 22, despite decisions to the contrary, protects both the choice and the practice of an occupation. A different interpretation would render the right meaningless: it does not make sense to protect the right to choose an occupation, without also protecting the act with which the activity is made externally distinguishable. The fact that the section expressly provides for the regulation of the practice of an occupation would imply that this aspect of the right is also protected. Because the state is bound by the provisions of the Bill of Rights, it has the duty to protect, promote and fulfil the rights. There is however no positive duty on the state to provide work. The right to occupational freedom can also feature in private relationships. The justification of a limitation on the right presents a number of problems. It should firstly be emphasised that the second sentence in section 22 does not constitute a socalled "claw-back clause". Such an interpretation would not be in accordance with the supremacy and the justiciability of the Constitution. The second problem relates to the finding of a proper yardstick to evaluate the justification of limitations on the right. It is suggested that a rational connection test, as is applied in the United States in the case of economic regulation, is too narrow to provide for the wide array of scenario's and activities that is encompassed by the right to occupational freedom. This right provides a battlefield on which difficult choices must be made regarding the weighing of the (sometimes) very important interests of the individual against the, equally important, function of the state in regulating the economy. The situation is even more complicated when two private actors enter the scene, where both may claim protection under the right at the same time. For this reason, it is submitted, that a differential approach must be followed. The general limitation clause with its list of factors provides a very useful tool in this regard. The German Stufenlehre provides an example of how the requirements for a valid limitation can be adjusted to cater for varying degrees of intensity in the factual limitation of the right. The Stufenlehre classification of objective and subjective limitations on the choice of an occupation and measures relating to the practice of an occupation, may also be useful. This classification reflects the formal structure of section 22 and takes the distinction between the choice and practice of an occupation into account. The fact that only the latter incorporates a specific limitation may reflect the intention of the legislature to ease the requirements for the justification of an infringement on this aspect of the right to occupational freedom. The intensity of the infringement and the subsequent level of justification required must be determined separately in the case of each set of facts, while always applying section 36 of the Constitution