46 S.C. 128\02 ‘What is reasonably justifiable in a democratic society is an elusive concept. It is one that defies precise definition by the courts. There is no legal yardstick, save that the quality of reasonableness of the provision under attack is to be adjudged on whether it arbitrarily or excessively invades the enjoyment of the guaranteed right according to the standards of a society that has a proper respect for the rights and freedoms of the individual.’ From a procedural aspect the onus is on the challenger to establish that the enactment under attack goes further than is reasonably justifiable in a democratic society and not on the State to show that it does not. See Zimbabwe Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S) at 382 in fine – 383A; 1984 (2) SA 778 (ZS) at 783H. The standard of proof is a preponderance of probability. In effect the court will consider three criteria in determining whether or not the limitation is permissible in the sense of not being shown to be arbitrary of excessive. It will ask itself whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measure designed to meet the legislative objective are rationally connected to it; and (iii) the means used impair the right or freedom are no more than is necessary to accomplish the objective.” I agree with the above approach. This Court has to be satisfied that the impugned provisions are arbitrary oppressive and, consequently, not justifiable in a democratic society before striking down such a provision as unconstitutional. I will now turn to deal with the impugned sections in the order they are set out in the draft order. IS SECTION 4(2) AND (3) REASONABLY JUSTIFIED IN A DEMOCRATIC SOCIETY? Section 4 of the Act provides as follows:-