South African constitutional litigation

Constitutional litigation in South Africa is an area of the law in that country dealing with the rules and principles applicable to cases that involve constitutional matters. It examines the constitutional jurisdiction of the Constitutional Court, the High Court and the Supreme Court of Appeal (and certain other specialist courts), and considers the various rules peculiar to these courts that are relevant to constitutional litigation, such as the admission of an amicus curiae, the duty to raise a constitutional matter as early as possible in the proceedings, and the duty to join the relevant organ of state in a case involving a constitutional issue.

Litigating fundamental rights

The Bill of Rights is "the principal source of substantive constraints on public power in the Constitution."[1] The Bill of Rights instructs the state to use the power that the Constitution gives it in ways that do not violate fundamental rights and that promote and fulfil those rights. Should it fail to comply with these instructions, it will act unconstitutionally; its actions or laws will be unlawful and invalid. Although the Constitution as a whole is mostly concerned with state power and with law, there are a number of provisions of the Bill of Rights that place duties on private individuals in certain circumstances.

One of the most important principles of South African law is expressed by the maxim ubi ius ubi remedium: Where there is a right, there is a remedy. This means that the existence of a legal rule implies the existence of an authority with the power to grant a remedy if that rule is infringed. A legal rule will be deficient if there is no means of enforcing it, and if no sanction attaches to a breach of that rule. Litigation to enforce directly the Bill of Rights is one way in which breaches of the Bill may be remedied.

Direct Bill of Rights litigation is most conveniently analysed as taking place in distinct stages. There is an initial procedural stage, followed by a number of stages in which issues of substance are considered.

Initially, a court hearing a Bill-of-Rights case will be concerned with any procedural issues that might arise:

• the application of the Bill of Rights to the subject-matter of the litigation;
• the justiciability of the issue to be decided (including the standing of the applicant); and
• the jurisdiction of the court to grant the relief claimed by the applicant.

Often, however, these procedural aspects of the case will be uncontroversial and the court can proceed directly to the substance of the case. The first step in the substantive stage of the litigation involves interpreting the provisions in the Bill of Rights. The court must consider, by reference to the facts of the case, and to the interpretation of the Bill of Rights, whether a right has been violated. If the court does find that a right has been violated, it must then consider whether that violation is a justifiable limitation of the right. Finally, if the court finds that a violation of a right is not a justifiable limitation, it will have to consider the proper remedy to deal with the unconstitutional infringement of a fundamental right. At each distinct stage of the litigation, the court must consider whether the onus of proof is on the applicant or respondent.

Stages

Before a court may proceed to consider the issues of substance raised in human rights litigation, it must first consider a series of preliminary, procedural issues.

Application and the principle of avoidance

Application of the Bill of Rights concerns the issues of whether and how the Bill of Rights applies in a legal dispute. The first of these issues (whether the Bill of Rights applies) raises four questions:

1. Who benefits from the Bill of Rights?
2. Who is bound by the Bill of Rights?
3. Does the Bill of Rights apply to matters arising before its commencement?
4. Does the Bill of Rights apply only in the national territory or does it have extraterritorial effect?

Answering these questions involves determining the "reach" or "scope" of the Bill of Rights.

Application is concerned not only with whether the Bill of Rights applies, however, but also with how it applies in a legal dispute. The question here is this: What is the relationship between the Bill of Rights and the principles or rules of ordinary law? Currie and de Waal argue that the two application issues should be resolved in the following way:

• The reach of the Bill of Rights (beneficiaries, duties, time and territory) demarcates the types of legal disputes to which the Bill of Rights directly applies. Within this area, the Bill of Rights overrides ordinary law and conduct that is inconsistent with it. In addition, and subject to considerations of justiciability and jurisdiction, the Bill of Rights generates its own set of remedies. This form of application, which is geared towards showing inconsistency between the Bill of Rights and law or conduct, is called the direct application of the Bill of Rights.
• At the same time, the Bill of Rights contains a set of values that must be respected whenever the common law or legislation is interpreted, developed or applied. This form of application, which aims at creating harmony between the Bill of Rights and ordinary law, is called the indirect application of the Bill of Rights. When indirectly applied, the Bill of Rights does not override ordinary law; nor does it generate its own remedies. Instead, law is interpreted or developed in a way that makes it conform to the Constitution. The special constitutional rules relating to the procedural issues of standing and the jurisdiction of the courts are also irrelevant to this form of application. Rather, the Bill of Rights respects the procedural rules, the purpose and remedies of ordinary law, but demands the furtherance of its values through the operation of ordinary law.[2]

Indirect application of the Bill of Rights must be considered before direct application. This is the result of the operation of the principle that constitutional issues should, where possible, be avoided. The principle of avoidance requires a court first to try to resolve a dispute by applying ordinary legal principles, as interpreted or developed with reference to the Bill of Rights, before applying the Bill of Rights directly to the dispute.

An important implication of the principle of avoidance is that the special rules in the Bill of Rights relating to the standing of litigants and the jurisdiction of the courts apply only when it is impossible to give effect to the values in the Bill of Rights by applying, interpreting or developing the ordinary law. Similarly, constitutional remedies are only relevant when the Bill of Rights is directly applied to an issue. If it is possible to resolve the dispute through indirect application, ordinary procedural rules and remedies apply to the dispute.

However, in order to apply the Bill of Rights indirectly, a court must obviously determine the effect of the provisions of the Bill of Rights. A court cannot interpret or develop the ordinary law with reference to the values contained in the Bill of Rights without knowing what they are. The interpretation of the Bill of Rights and its limitation clause therefore remain important, even when the Bill of Rights is indirectly applied.

Justiciability

In some cases, an applicant may lack standing to seek a remedy. In other cases, the issue may have become moot or academic and therefore not justiciable. An issue may also be non-justiciable because it is not yet ripe for decision by a court. The Bill of Rights contains special rules relating to these issues when it is directly applied. In such cases, it demands a broader approach to standing. In cases of indirect application, the ordinary legal rules apply.

Jurisdiction

In cases of indirect application, the ordinary procedural rules apply. The constitutional jurisdiction of the courts and the procedures that must be observed when the Bill of Rights is directly applied to law or conduct are not simply technical issues, but are of paramount importance for the protection of fundamental rights in practice. It is important to know in which forum to challenge an alleged violation of a right, since not all courts have the same jurisdiction in constitutional matters. If the court does not have the jurisdiction to grant the relief claimed, it must dismiss the application, whatever its merits may be.

Substantive questions

At the substantive stage of Bill-of-Rights litigation, the court is concerned with the substance of the applicant's allegation that a right has been infringed by law, or by the conduct of the other party. The court must assess the merits of this allegation. This assessment primarily involves the interpretation of the provisions of the Constitution in general, and the Bill of Rights in particular.

Interpretation

The court must determine whether or not the Bill of Rights protects a particular interest of the applicant. It must then determine whether or not the law that has been challenged or the conduct of the respondent impairs that interest, thereby trespassing in an area protected by the Bill of Rights.

Limitation

Fundamental rights and freedoms are not absolute: "Their boundaries are set by the rights of others and by the legitimate needs of society. Generally, it is recognised that public order, safety, health and democratic values justify the imposition of restrictions on the exercise of fundamental rights."[3] In the South African Constitution, a general limitation clause, section 36, sets out specific criteria for the restriction of the fundamental rights in the Bill of Rights. The clause is general because it applies in the same way to all the rights in the Bill of Rights. In this regard the Constitution differs from, for example, the United States Constitution, which does not contain a limitations clause at all. The German Bill of Rights does not have a general limitations clause, but it does contain specific limitations clauses attached to most of the fundamental rights.

The court, in determining whether or not a right has been unjustifiably infringed, undertakes what is

essentially a two-stage exercise. First, there is the threshold enquiry aimed at determining whether or not the enactment in question constitutes a limitation on one or other guaranteed right. This entails examining (a) the content and scope of the relevant protected right(s) and (b) the meaning and effect of the impugned enactment to see whether there is any limitation of (a) by (b). Subsections (1) and (2) of section 39 of the Constitution give guidance as to the interpretation of both the rights and the enactment, essentially requiring them to be interpreted so as to promote the value system of an open and democratic society based on human dignity, equality and freedom. If upon such analysis no limitation is found, that is the end of the matter. The constitutional challenge is dismissed there and then.[4]

If, however, the court determines that a law, or the conduct of the respondent, impairs a fundamental right, "the second stage ensues. This is ordinarily called the limitations exercise."[5] It must then consider whether the infringement is nevertheless a justifiable limitation of the right in question: "In essence this requires a weighing-up of the nature and importance of the right(s) that are limited together with the extent of the limitation as against the importance and purpose of the limiting enactment."[6]

Not all laws or conduct that infringe fundamental rights are unconstitutional. Sometimes a law may be a justifiable limitation on a particular fundamental right. This means that, although the law or conduct infringes the right, the infringement (which is called a limitation) is justifiable. While infringing conduct itself cannot validly limit a fundamental right, the challenged conduct may be authorised by law. If the law passes the limitations test, the conduct it authorises will survive a constitutional challenge. The question, ultimately, which falls for determination by this balancing exercise is whether or not a balance can be struck? If not—if, that is, there is no proportionality—the limitation will not be found to be reasonable and justifiable in an open and democratic society.

In the case of the death penalty, for example, the purposes served by such a penalty—at least, the purposes as considered by the Constitutional Court in S v Makwanyane—are deterrence,[7] prevention.[8] and retribution.[9] In serving these purposes, however, the impugned right is obliterated completely; its essential content, according to the Constitutional Court, is negated.[10] There is, in other words, no proportionality between means and end.

One consequence of the inclusion of a general limitation clause in the Bill of Rights is that the process of considering the limitation of fundamental rights must be distinguished from that of interpretation of the rights. If it is argued that conduct or a provision of the law infringes a right in the Bill of Rights, it will first have to be determined whether that right has in fact been infringed, and thereafter whether the infringement is justified. The question of whether an infringement of a right is a legitimate limitation of that right "frequently involves a far more factual enquiry than the question of interpretation."[11] Appropriate evidence must be led to justify the limitation of a right in accordance with the criteria laid down in section 36. A court cannot determine in the abstract whether the limitation of a right is "reasonable" or "justifiable in an open and democratic society based on human dignity, equality and freedom." This determination requires "evidence, such as sociological or statistical data,"[12] on the impact that the legislative restriction has on society.

Remedies

Should a court find that a right has been infringed, and that the infringement does not satisfy the test for a valid limitation of a right, the question of the appropriate remedy for the infringement arises. The constitutional remedies are only available when the Bill of Rights is directly applied. In cases of indirect application, ordinary legal remedies are used to give effect to the fundamental values in the Bill of Rights.

Onus

The Constitutional Court has dealt with the issue of onus, or burden of proof, by dividing the substantive stage of human-rights litigation into two further sub-stages:

1. interpretation; and
2. limitation.

The approach of the court to onus in respect of these stages is set out by Ackermann J in the following extract from Ferreira v Levin NO:

The task of determining whether the provisions of [an] Act are invalid because they are inconsistent with the guaranteed rights here under discussion involves two stages, first, an enquiry as to whether there has been an infringement of the [...] guaranteed right; if so, a further enquiry as to whether such infringement is justified under [...] the limitation clause. The task of interpreting the [...] fundamental rights rests, of course, with the Courts, but it is for the applicants to prove the facts upon which they rely for the claim of infringement of the particular right in question. Concerning the second stage, [it] is for the legislature or the party relying on the legislation to establish this justification [in terms of the limitation clause], and not for the party challenging it, to show that it was not justified.

This description focuses on the difference in onus relating to the questions of interpretation and limitation. The applicant has to show that an infringement of a right has taken place. This requires the applicant to prove the facts on which he relies. The respondent then has to show that an infringement is a justifiable limitation of the right in terms of section 36.

In addition to the applicant's onus at the substantive stage of litigation, the applicant must also show, at the preliminary stage of litigation,

• that the Bill of Rights applies to the challenged law or conduct;
• that the issue is justiciable;
• that he or she has standing; and
• that he or she is in the right forum to obtain the desired relief.

Only once these issues have been decided in the applicant' s favour, and a violation of the Bill of Rights is found, will the party relying on the validity of the challenged decision or legislation be called upon to justify it in terms of section 36, the limitation clause.

The question of who bears the onus when considering the appropriate relief for unconstitutional legislation or conduct is "more complicated."[13] When the Bill of Rights is indirectly applied, an ordinary legal remedy is granted, and the ordinary legal rules apply in respect of the burden of proof. When the Bill of Rights is directly applied, the remedy that flows from a finding of inconsistency between the Bill of Rights, on the one hand, and law or conduct, on the other, is invalidation by the court of the offending law or conduct. A party proposing a variation of this form of relief in terms of section 172(l)(b)(i) or (ii) must justify the request. Since section 172 allows a court to limit or suspend the effects of a declaration of invalidity, the respondent will in most cases be called upon to justify such a request. However, a court may also grant relief in addition to the declaration of invalidity, as in the case of an interdict or constitutional damages. In most cases, the applicant will request such relief, and will therefore bear the burden of persuasion.

Summary

The stages through which Bill-of-Rights litigation typically proceeds may be summarised as follows:

Procedural stage

Does the Bill of Rights apply in the dispute between the parties? How does the Bill of Rights apply in the dispute?

As for the first question, it must be determined whether the applicant is entitled to claim the benefits of the Bill of Rights. It must also be determined whether the Bill of Rights applies to the conduct of the respondent, in the sense that the respondent has obligations under the Bill of Rights. Finally, it must be determined whether the cause of action arose in the national territory during the period of application of either the interim or 1996 Bill of Rights.

As for the second question, indirect application must be considered before direct application. If the Bill of Rights is indirectly applied to the issue, the questions of justiciability, jurisdiction and an appropriate remedy are resolved in terms of ordinary legal rules. If directly applied, special constitutional rules apply.

Is the issue to be decided justiciable? Does the applicant in the matter have standing in respect of the particular relief sought?

Does the court have jurisdiction to grant the relief claimed?

Substantive stage

If the answer to all three questions is "yes," the court is able to move on to the substantive stage.

Has the law or conduct of the respondent infringed a fundamental right of the applicant? If so, the court will consider whether the infringement is justifiable. If not, then the application must be dismissed.

Is the infringement a justifiable limitation of the right in question according to the criteria set out in section 36? If yes, then the conduct of the respondent is not unconstitutional; the application must be dismissed. If no, then the conduct is unconstitutional, and the question of the appropriate remedy must be canvassed.

Remedies

What remedy is appropriate in this case?

Application of the Bill of Rights

The Bill of Rights applies directly to a legal dispute when

• a right of a beneficiary of the Bill of Rights has been infringed by
• a person or entity on whom the Bill of Rights has imposed the duty not to infringe the right
• during the period of operation of the Bill of Rights
• in the national territory.

In addition, in instances when the Bill of Rights does not apply directly to a dispute, because one or more of the elements above is not present, it may apply indirectly. This is because all law must be developed, interpreted and applied in a way that conforms to the Bill of Rights.

A conceptual distinction, then, must be made between two forms of application of the Bill of Rights:

1. Indirect application: The Constitution and the Bill of Rights establish an "objective normative value system," a set of values that must be respected whenever the common law or legislation is interpreted, developed or applied. This form of application is termed the "indirect" application of the Bill of Rights. When indirectly applied, the Bill of Rights does not override ordinary law or generate its own remedies. Rather, the Bill of Rights respects the rules and remedies of ordinary law, but demands furtherance of its values mediated through the operation of ordinary law.
2. Direct application: In disputes in which the Bill of Rights applies as directly applicable law, it overrides ordinary law and any conduct that is inconsistent with it. To the extent that ordinary legal remedies are inadequate or do not give proper effect to the fundamental rights, the Bill of Rights generates its own remedies. The methodology for the conduct of direct-rights litigation is applicable.

This distinction was of "decisive significance" under the interim Constitution.[14] It has "comparatively less significance" under the 1996 Constitution.[15] This is because of changes made to the jurisdictional and application scheme by the 1996 Constitution. There are nevertheless important consequences that follow from the form of application, and the distinction between direct and indirect application therefore "continues to play a role in constitutional litigation."[16]

The application of the Bill of Rights has been "one of the most troublesome issues in South African constitutional law."[17] The principal reason for the difficulty is that, since 1994, South Africa has had two Constitutions that have treated the issue differently. Much of the relevant jurisprudence, particularly relating to the application of the Bill of Rights to the common law, was decided under the interim Constitution and does not always bear precisely on the altered jurisdictional and application schemes of the 1996 Constitution.

Interim Constitution

The narrowest conception of a bill of rights is that it is a "charter of negative liberties." This means that it is intended to protect individuals against state power by listing rights that cannot be violated by the state, either by means of law or through the conduct of state actors. This is the "vertical" relationship—between individuals and the state. A bill of rights that has solely vertical application will place duties on the state not to violate the rights of individuals. It will not place any similar duties on individuals.

According to the Constitutional Court, in Du Plessis v De Klerk, the Bill of Rights in Chapter 3 of the interim Constitution conformed to this traditional model, in so far as it had no direct application to so-called "horizontal" disputes: that is, to disputes between private litigants governed by the common law. "Constitutional rights under Chapter 3," the court held, "may be invoked against an organ of government but not by one private litigant against another."[18] This was principally because of the absence of the word "judiciary" in section 7, the application section of the interim Constitution, which provided that the Bill of Rights "shall bind all legislative and executive organs of state at all levels of government." The omission meant that the Bill of Rights placed duties to uphold constitutional rights only on the legislative and executive organs of state. Individuals were not directly bound by the Bill of Rights. Nor was the judiciary, which had the task of adjudicating and enforcing the rights and duties of individuals.

However, while the interim Bill of Rights did not apply directly to horizontal cases, it did have indirect application. The Bill of Rights applied to "all law in force," including all pre- and post-1994 legislation and the uncodified common law (provisions of the common law which had not been incorporated into legislation). Even if individuals were not directly bound by the Bill of Rights, the courts had to interpret legislation, and develop the common law, so that the ordinary law recognised and protected the rights in the Bill of Rights. In Du Plessis v Klerk, the Constitutional Court held that the Bill of Rights in the Interim Constitution "may and should have an influence on the development of the common law as it governs relations between individuals."[19] This was provided for in section 35(3) of the interim Constitution: "In the interpretation of any law and the application and development of the common law and customary law, a court shall have due regard to the spirit, purport and objects of" the Bill of Rights. "In private litigation," held the court, "any litigant may nonetheless contend that a statute (or executive act) relied on by the other party is invalid as being inconsistent with the limitations placed on legislature and executive under Chapter 3."[20] Accordingly, "as Chapter 3 applies to common law, governmental acts or omissions in reliance on the common law may be attacked by a private litigant as being inconsistent with Chapter 3 in any dispute with an organ of government."[21]

In Du Plessis, the Constitutional Court also decided a crucial jurisdictional issue. The court's conclusion that the Constitution distinguished between direct and indirect application of the Bill of Rights was bolstered by the close fit between this distinction and the "two-track" jurisdictional scheme of the interim Constitution, which distinguished between "constitutional matters" and other matters, the former being the preserve of the Constitutional Court, and the latter the preserve of the Appellate Division. The development of the common law was a non-constitutional matter, and therefore remained within the jurisdiction of the court that had overseen the development of the common law for the past century: the Appellate Division of the Supreme Court. "The development of the common law," held the court in Du Plessis, "is within the jurisdiction of the Appellate Division, but not of the Constitutional Court."[22]

1996 Constitution

With the Du Plessis decision in mind, and concerned that confining the Bill of Rights to direct vertical application amounted to the toleration of private violations of rights, the Constitutional Assembly created a different application and jurisdictional scheme in the 1996 Constitution. To provide for direct horizontal application, two textual changes were made. The first was the addition of the word "judiciary" in section 8(1), missing from the application provisions of the interim Constitution. The second was the imposition of a duty on individuals, in section 8(2), to uphold the rights of other individuals: "A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right."

The 1996 Constitution also made significant changes to the powers of the courts to enforce the Constitution. The "two-track" jurisdictional scheme of the interim Constitution was replaced by a unified scheme in which the High Courts, Supreme Court of Appeal and the Constitutional Court shared jurisdiction over constitutional matters. This scheme required revision of the holding in Du Plessis that the application of the Constitution to the common law was a non-constitutional matter. Under the 1996 Constitution, the Constitutional Court held in the Pharmaceutical Manufacturers case, "there are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control."

While clearly envisaging direct horizontal application in applicable cases, the 1996 Bill of Rights also requires the courts to apply the Bill of Rights indirectly, in similar terms to section 35(3) of the interim Constitution. This is section 39(2): "When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights."

To summarise, the 1996 Constitution, like its predecessor, distinguishes two forms of application of the Bill of Rights:

1. Direct application entails the imposition of duties by the Bill of Rights on specified actors: A breach of such a duty is a violation of a constitutional right.
2. Indirect application occurs where there is a provision of ordinary law (legislation, common law or customary law) that mediates between the Bill of Rights and the actors who are subject to that law. The duty of the courts is to ensure that the ordinary law conforms to the values to which the Bill of Rights, by conferring the rights and duties that it does, gives effect.

Like its predecessor, the 1996 Constitution provides for direct vertical application of the Bill of Rights but, unlike its predecessor, does not confine itself to this form of direct application. Section 8(2) clearly envisages direct application of the Bill of Rights in the horizontal relationship in certain circumstances.

Direct application

There are four elements that are determinative of the direct application of the Bill of Rights. The first relates to beneficiaries, the second to the duties imposed by the Bill of Rights, the third to time and the fourth to the limited territorial effect of the Bill of Rights.

Legal rights are a correlative relationship. If Armand has a legal right to something, this postulates that Theo has a legal duty to Armand to uphold that right. Armand is therefore the beneficiary of the right and Theo is the duty-bearer in respect of the right. The first application issue to confront when considering the reach of the Bill of Rights is to identify the beneficiaries and the duty-bearers of the rights in the Bill of Rights.

Natural persons

Most of the rights in the Bill of Rights are for the benefit of "everyone." The negative phrase, which is to the same effect, is that a right may be denied to "no-one." For example, section 11 provides that "everyone has the right to life." Section 13 is phrased negatively but, like section 11, accords the right universally: "No one may be subjected to slavery, servitude or forced labour." Rights phrased in this way are accorded to all natural persons within the territory of the Republic.

Other rights are accorded to narrower categories of beneficiaries. The political rights in section 19, the citizens' rights in section 20, certain of the freedom-of-movement rights in section 21, and the freedom-of-trade right in section 22, are accorded to "every citizen." The right to vote and to stand for political office, in section 19(3), is restricted to "every adult citizen." Further examples of restrictions on the category of beneficiaries are the cultural rights contained in section 31, which are for the benefit only of "persons belonging to a cultural, religious or linguistic community." The rights contained in section 35 are restricted to arrested, detained and accused persons.

The restriction of a right to a particular category of beneficiaries is an attempt to circumscribe the scope of the right. A right accorded only to citizens obviously has a more limited scope of operation than a right accorded universally. The circumscription of rights in this manner "does not really concern the application of the rights, but may raise difficult issues of interpretation."[23] The courts will have to interpret the Bill of Rights to determine who is, for example, a "detained person," or "a worker," or a "person belonging to a cultural religious or linguistic community." The activities of persons who are excluded from the scope of a right will not be protected by the right.

Juristic persons

Are the rights accorded to "everyone" also available for the benefit of juristic persons? In other words, are companies protected by the Bill of Rights? What about state-owned or state-controlled corporations such as Eskom or the SABC? These questions are answered by reference to s 8(4): "A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person."

In order to decide whether a juristic person is protected, regard must be had to two factors:

1. the nature of the fundamental right in question; and
2. the nature of the juristic person.

In Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa,[24] an objection was raised that, inconsistently with Constitutional Principle II, the extension of the rights guaranteed by the Bill of Rights to juristic persons would diminish the rights of natural persons. This Constitutional Court rejected the objection in the following terms:

Many "universally accepted fundamental rights" will be fully recognised only if afforded to juristic persons as well as natural persons. For example, freedom of speech, to be given proper effect, must be afforded to the media, which are often owned or controlled by juristic persons. While it is true that some rights are not appropriate to enjoyment by juristic persons, the text of s 8(4) specifically recognises this. The text also recognises that the nature of a juristic person may be taken into account by a court in determining whether a particular right is available to such person or not.[25]

The nature of some of the fundamental rights prevents them from benefiting juristic persons. The rights to life and physical integrity, and to human dignity, for example, cannot sensibly be applied to juristic persons. A company cannot claim protection of its right to life or human dignity, or its right not to be deprived of liberty or tortured, "because these rights protect aspects of human existence that a company does not possess."[26] However, the nature of most of the rights that are likely to be relied on by juristic persons[27] makes them applicable to the protection of juristic persons. However, in the case of rights that stem from the protection of human dignity (such as privacy), the Constitutional Court has indicated, in Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd In re: Hyundai Motor Distributors (Pty) Ltd v Smit NO,[28] that juristic persons are entitled only to a reduced level of protection compared to natural persons:

Privacy is a right which becomes more intense the closer it moves to the intimate personal sphere of the life of human beings, and less intense as it moves away from that core. This understanding of the right flows [...] from the value placed on human dignity by the Constitution. Juristic persons are not the bearers of human dignity. Their privacy rights, therefore, can never be as intense as those of human beings. However, this does not mean that juristic persons are not protected by the right to privacy. Exclusion of juristic persons would lead to the possibility of grave violations of privacy in our society, with serious implications for the conduct of affairs. The state might, for instance, have free licence to search and seize material from any non-profit organisation or corporate entity at will. This would obviously lead to grave disruptions and would undermine the very fabric of our democratic state. Juristic persons therefore do enjoy the right to privacy, although not to the same extent as natural persons.[29]

It is the second of section 8(4)'s criteria (the nature of the juristic person) that may place greater restrictions on the availability of human rights to juristic persons. "It is difficult to see," write Currie and De Waal,

how organs of state exercising core government functions such as Parliament, a cabinet minister or the police will ever be able to rely on the protection of the Bill of Rights. Although arguably they are 'juristic persons', the nature of such organs of state makes them unsuitable to be beneficiaries of fundamental rights. They are not used by individuals for the collective exercise of their fundamental rights, but are instead used by the state for the exercise of its powers."[30]

However, state-owned corporations, such as the South African Broadcasting Corporation or the Post Office, or entities such as universities, which are set up by the state for the purpose, amongst other things, of realising particular fundamental rights, are differently situated: "Clearly a state-owned corporation like the SABC should be able to invoke the right to freedom of speech and the press when it becomes involved in a dispute with the state or even with an individual."[31] In Hoffmann v South African Airways,[32] the Constitutional Court held,

Transnet is a statutory body, under the control of the state, which has public powers and performs public functions in the public interest. It was common cause that SAA is a business unit of Transnet. As such, it is an organ of state and is bound by the provisions of the Bill of Rights in terms of section 8(1), read with section 239, of the Constitution. It is, therefore, expressly prohibited from discriminating unfairly.

As for private juristic persons, the size or activities of the juristic person are not necessarily decisive. Of greater significance, in the view of Currie and De Waal, is "the relationship between the activities of the juristic person and the fundamental rights of the natural persons who stand behind the juristic person."[33] In other words, juristic persons are not in and of themselves worthy of protection; they become so when they are used by natural persons for the collective exercise of their fundamental rights. For example, companies are routinely used by individuals as an entity for conducting business, necessitating the exercise of property rights by companies. As the Constitutional Court put it in First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services,[34]

It is trite that a company is a legal entity altogether separate and distinct from its members, that its continued existence is independent of the continued existence of its members, and that its assets are its exclusive property. Nevertheless, a shareholder in a company has a financial interest in the dividends paid by the company and in its success or failure because she "... is entitled to an aliquot share in the distribution of the surplus assets when the company is wound up" No matter how complex the holding structure of a company or groups of companies may be, ultimately—in the vast majority of cases—the holders of shares are natural persons.[35]

The court also commented on "the universal phenomenon" that "natural persons are increasingly forming companies and purchasing shares in companies for a wide variety of legitimate purposes, including earning a livelihood, making investments and for structuring a pension scheme." The use of companies, the court found, "has come to be regarded as indispensable for the conduct of business, whether large or small. It is in today's world difficult to conceive of meaningful business activity without the institution and utilisation of companies."[36] The court saw that "denying companies entitlement to property rights," even more so than in relation to the right to privacy, would

"lead to grave disruptions and would undermine the very fabric of our democratic State." It would have a disastrous impact on the business world generally, on creditors of companies and, more especially, on shareholders in companies. The property rights of natural persons can only be fully and properly realised if such rights are afforded to companies as well as to natural persons.[37]

What section 8(4) envisages is that there should be a link between protecting the activity of the juristic person and protecting the fundamental rights of the natural persons that lie behind it.

Much of the debate about the meaning of the guidelines contained in section 8(4)—that is, "the nature of the right" and "the nature of the juristic person"—is made "irrelevant," write Currie and De Waal, by the courts' approach to standing in constitutional litigation.[38] A person has standing to challenge the constitutionality of laws or conduct,

1. provided that he alleges that a fundamental right is infringed or threatened; and
2. provided that he has, in terms of the categories listed in section 38, a sufficient interest in obtaining a remedy.

The first enquiry is objective: It is sufficient to show that a right in the Bill of Rights is violated by a law or conduct; it is not necessary to show that a right of the applicant has been violated. This approach allows anyone with a sufficient interest to rely on the objective inconsistency between the Bill of Rights and a law or conduct. For example, it will seldom be necessary for juristic persons to invoke section 8(4), which sometimes extends the protection of the right to the juristic person itself. Laws, and many forms of state and private conduct, inevitably impact on the activities of both natural and juristic persons. Provided that a juristic person has a sufficient interest of its own,[39] or, if it is an association, a sufficient interest of its members, it may challenge such laws or conduct on the basis of fundamental rights that do not necessarily benefit the juristic person. For example, a law which prohibits the sale of wine on Sunday may be challenged by a company on the basis of the right to freedom of religion, provided that the company has a sufficient interest in the outcome of the litigation. It is not necessary in such a case for the company to show that the right to freedom of religion benefits juristic persons.

It is only when a law or conduct impacts solely on the activities of juristic persons that it will not be possible to follow this course of action. Then there can be no objective inconsistency between the Bill of Rights and the law or conduct, unless section 8(4) extends protection of the relevant right to juristic persons. For example, when a special tax on companies is challenged, a person challenging the tax will have to do so on the basis of a right that benefits juristic persons.

Waiver

Waiver may be considered an application issue, and can be accommodated under the consideration of the beneficiaries of the Bill of Rights in that someone who has waived a right has agreed that he will not claim the benefit of it. Although the distinction may be difficult to make in some cases, the waiver of fundamental rights should be distinguished from a decision not to exercise a fundamental right. Where a person chooses not to take part in an assembly, or not to join an association, he cannot later complain about a violation of his rights to freedom of assembly or association. The same applies when an arrested person makes an informed choice to co-operate with the police by making a statement or a confession, or when a person allows the police to search his or her home: "Such a person cannot subsequently object at the trial that the introduction of the evidence violates his or her right to remain silent or his or her right to privacy of the home."[40] In principle, the accused may nevertheless object to the use of the evidence if it would render the trial unfair. In the absence, however, of other circumstances—for example, that the accused was improperly persuaded to co-operate—"it is difficult to see why the use of the evidence would result in an unfair trial."[41]

Waiver is different. One is dealing with waiver when someone undertakes not to exercise a fundamental right in future. For example, a contractual restraint of trade is an undertaking to waive one's right, guaranteed by section 22, to occupational freedom for a period of time. A person may also undertake not to disclose sensitive information, or undertake to vote for a particular political party on election day; he may agree to have his telephone calls recorded and listened to by his or her employer, or to attend religious instruction classes in a private school. These are, respectively, attempts to waive the rights to freedom of expression, to vote, to privacy and to freedom of religion. The question is whether people may be obliged to honour such an undertaking even if they subsequently change their minds.

A waiver, write Currie and De Waal, "cannot make otherwise unconstitutional laws or conduct constitutional and valid."[42] Section 2 of the Constitution provides that law or conduct inconsistent with the Constitution is invalid. This is an objective consideration: "The actions of the beneficiary of the right can have no influence on the invalidity of unconstitutional law or conduct."[43] That is why a person cannot validly undertake to behave unconstitutionally; such an undertaking will have no force and effect.

Similarly, a person cannot waive the indirect application of the Bill of Rights. Two people may not undertake, for example, that the law of defamation must be applied in future disputes between them without any reference to the Bill of Rights. The reason for this is that section 39(2) requires the courts to promote the Bill of Rights when developing the common law. Individuals may not prevent the court from fulfilling its constitutional obligations.

What individuals may do is to waive the right to exercise a fundamental right. The individual may undertake not to invoke the constitutional invalidity of state or private conduct. Although, "from a constitutional point of view, such a waiver is hardly ever decisive of an issue," nonetheless "it is also seldom irrelevant."[44] Although waiver is dealt with here as an issue of application, "we do not mean to suggest that it must be answered by simply asking whether the individual may exclude him or herself from the 'benefits' of a particular fundamental right in the circumstances of the case."[45] Waiver, and more generally, victim responsibility, may also influence the limitation stage and the remedy that a court will award for breach of the fundamental right.

The effect of waiver depends firstly on the nature and purpose of the fundamental right in question. In principle, many of the freedom rights may be waived as long as the undertaking is made clearly and freely, and without the subject's being placed under duress or labouring under a misapprehension: "To be enforceable, however, it would have to be a fully informed consent and one clearly showing that the applicant was aware of the exact nature and extent of the rights being waived in consequence of such consent."[46]

For example, the right to occupational freedom[47] is often waived by employees when concluding a contract of employment. There is also no reason why one cannot waive the right to privacy.[48] Similarly, one may validly undertake not to demonstrate,[49] not to join a political party,[50] or not to leave the Republic.[51] One may also waive many of the procedural rights, such as the right to legal representation or the right of access to court. As far as these rights are concerned, it is not so much the nature of the right that may be decisive, "but the length of the period of the waiver, the danger of abuse and the position of the beneficiary."[52] The waiver may not be contrary to some other constitutional principle or otherwise contra bonos mores.

In contrast to the freedom rights, the nature of the rights to human dignity,[53] to life,[54] and not to be discriminated against,[55] or the right to a fair trial, does not permit them to be waived: "Unlike the freedom rights, these rights cannot be exercised negatively."[56] The right to freedom of expression, for example, can be exercised by keeping quiet, but the right to dignity cannot be exercised by being abused. One cannot therefore assume that the right is exercised when it is waived (as one can, subject to the above considerations, with the freedom rights).

Although some rights may not be waived, this does not mean that the fact of waiver then becomes legally irrelevant. Waiver may also be relevant when considering the remedy to be awarded for the violation of a fundamental right. For example, a court would not enforce an undertaking to vote for a particular political party, but it would also probably not grant relief for such a violation of the right to vote, other than to declare the agreement to be invalid. On the other hand, if a person is prevented from voting against his or her will, "it may well be appropriate to award damages for the infringement."[57]

"An interesting illustration" of some of the principles discussed above is provided by Garden Cities Inc Association v Northpine Islamic Society. The High Court granted an interdict enforcing a contractual undertaking not to use loud-speaking equipment to broadcast calls to prayer from a suburban mosque. An undertaking not to use any amplification equipment had been given by the respondent in 1986, in the deed of the sale of the land on which the mosque was built. Despite the contract, the respondent started broadcasting amplified calls to prayer through a loudspeaker, and the applicants applied for an interdict to stop it.

The argument of the respondent was that enforcing the contract would amount to a violation of the constitutional right to freedom of religion, and that the Constitution did not permit the waiver of a fundamental aspect of one's religion. Conradie J was able to avoid the waiver issue by holding that amplification of the call to prayer had not been shown to be a fundamental precept of the Islamic faith, and that the agreement therefore did not infringe the right to religious freedom. Currie and De Waal, however, argue

that it was not necessary for the court to decide on what constitutes a "fundamental precept" of the respondent's religion. If the respondent had waived its right to practice its religion in this way, it would have made the decision itself. But it is in any event doubtful that the waiver would have been binding since it cannot have qualified as having been given in full knowledge of the freedom that is being surrendered. In Northpine the undertaking was made in 1986, at a time when there was no constitutionally protected right to religious freedom. It is therefore not feasible to argue that a properly informed waiver of rights took place, since the right in question did not exist at the time.

Direct horizontal and vertical application of the Bill of Rights

Traditionally, a bill of rights confines itself to regulating the "vertical" relationship between the individual and the state.[58] This is not a relationship of equality. The state is far more powerful than any individual.[59] If not protected by a bill of rights against abuse of the state's powers, the individual would be "in an extremely vulnerable position."[60] The 1996 Bill of Rights performs this traditional task of protecting individuals against the state by imposing a duty on all branches of the state to respect its provisions.

The 1996 Bill of Rights goes further than is traditional, however. It recognises that "private abuse of human rights may be as pernicious as violations perpetrated by the state."[61] For this reason, the Bill of Rights is not confined to protecting individuals against the state. In certain circumstances, the Bill of Rights directly protects individuals against abuses of their rights by other individuals, by providing for the direct horizontal application of the Bill of Rights.

The direct application of the duties under the Bill of Rights is governed by section 8. Broadly speaking, section 8(1) deals with direct vertical application. It describes the circumstances in which law and conduct of the state may be challenged for being inconsistent with the Bill of Rights. Section 8(2), on the other hand, deals with direct horizontal application. It sets out the circumstances in which the conduct of private individuals may be attacked for infringing the Bill of Rights. Section 8(3) grants powers to the courts to remedy such infringements.

We are concerned at this point with direct application. Recall, though, that the Bill of Rights also applies indirectly on both the vertical and horizontal axes. Indirect application means that, instead of the Bill of Rights' directly imposing duties and conferring rights, rights and duties are instead imposed by the common law or legislation. In turn, the development and interpretation of the common law and legislation is influenced by the Bill of Rights.

Direct vertical application: duties of state actors

Section 8(1) provides that the legislature, the executive, the judiciary and all organs of state are bound by the Bill of Rights. An applicant may therefore challenge the conduct of any of these state institutions as a breach of their duties under the Bill of Rights.

Legislatures

The term "legislature" refers to the institutions that exercise the legislative authority of the Republic: Parliament, the provincial legislatures and the municipal councils. The primary duty of all of these bodies, and their principal form of conduct, is legislating. The output of the legislative process—legislation of the central, provincial and local governments, as well as any form of delegated legislation—must comply with the Bill of Rights. This is because, in the words of section 8(1), the Bill of Rights "applies to all law."

As far as conduct of the legislatures other than law-making is concerned, the implication of section 8(1) is that legislatures and their committees and functionaries are bound by the Bill of Rights when they perform non-legislative functions, such as the determination of internal arrangements, proceedings, rules and procedures. In De Lille v Speaker of the National Assembly, the High Court stated:

The National Assembly is subject to the supremacy of the Constitution. It is an organ of state and therefore it is bound by the Bill of Rights. All its decisions and acts are subject to the Constitution and the Bill of Rights. Parliament can no longer claim supreme power subject to limitations imposed by the Constitution. It subject in all respects to the provisions of our Constitution [... T]he nature and exercise of parliamentary privilege must be consonant with the Constitution. The exercise of parliamentary privilege which is clearly a constitutional power is not immune from judicial review. If a parliamentary privilege is exercised in breach of a constitutional provision, redress may be sought by an aggrieved party from law courts whose primary function is to protect rights of individuals.

Executive

The Bill of Rights binds the "executive [...] and all organs of state." This means that conduct of the executive and organs of state can be tested against any of the provisions of the Bill of Rights, with the exception of section 33, which can only be applied to conduct of the executive and organs of state that amounts to "administrative action." Although the executive and organs of state are primarily responsible for executing the law, it must be kept in mind that the Bill of Rights also binds these actors when they make law. All delegated legislation may therefore be directly tested against the Bill of Rights for this reason, and for the reason that the Bill of Rights applies to "all law."

The "executive" may be taken to refer to the party-political appointees who collectively head the government, whether at the national or provincial level. At the national level of government, for example, the executive consists of the President, the Deputy President, the Ministers and the Deputy Ministers. On this definition, "it is difficult to envisage conduct of the 'executive' that would not also amount to conduct of an 'organ of state' as defined in s 239."[62]

Organs of state

The phrase "organ of state" is defined in section 239 of the Constitution. In terms of this definition, the conduct of organs of state may be divided into three categories:

1. conduct of any department of state or administration in the national, provincial or local spheres of government;
2. conduct of any other functionary or institution exercising a power or performing a function in terms of the Constitution or a provincial constitution; and
3. conduct of any functionary or institution exercising a public power or performing a public function in terms of any legislation.

A court or a judicial officer is specifically excluded from the definition.

The first category refers to any department of state or administration in the national, provincial or local spheres of government. When read in context, the implication of this provision is that state departments (or the administration) are bound by the Bill of Rights whether they exercise a power in terms of legislation or act in another capacity. State departments will therefore be bound by the Bill of Rights when, for example, they decide whether to enter into contracts.

By providing that the exercise of a power or the performance of a function in terms of the Constitution, or of a provincial constitution, amounts to conduct of an organ of state, section 239 makes it clear that the exercise of constitutional executive powers (previously referred to as "prerogative powers") may be challenged for consistency with the Bill of Rights.

Finally, a functionary or an institution qualifies as an "organ of state" in terms of s 239 when it exercises a public power or performs a public function in terms of legislation. This provision means, first, that the functionary or the institution must derive powers from a statute or perform a function in terms of a statute (as opposed to merely being incorporated pursuant to a statute, such as all companies and close corporations are). Secondly, it means that the nature of the power or function (and not the nature of the functionary or institution) must be "public." The phrase "public power" is used in section 239 of the Constitution, but it is not defined there. It has gained wide currency in the constitutional jurisprudence, but definition or theorisation of the concept are seldom ventured, "because of its difficulty and abstraction."[63] The concept is best understood as occupying similar terrain to the concept of "public law." Like public law, which operates in distinction to private law, public power operates "in necessary but sometimes fuzzy distinction to an opposite—private power."[64] Currie and De Waal propose the following understanding of public power:

Public power is power with a state-like dimension—either because it derives from the state or because it does what the state typically does—exercise power in a general and public-regarding way. The term therefore connotes use of the state's lawfully derived powers of regulation and compulsion. It is to be distinguished from exercises of what can be called private power—the domain of voluntary obligations.

Judiciary

When the members of the judiciary (judges and magistrates) act in a judicial capacity—that is to say, when they adjudicate legal disputes—they are required to conduct themselves in a manner that complies with the Bill of Rights. Some provisions of the Bill of Rights, such as section 35(5), which provides for the exclusion of evidence in certain circumstances, are indeed specifically directed at the conduct of the judiciary when presiding over criminal trials. When members of the judiciary perform administrative actions, they are also bound to comply with the administrative-justice right in section 33.

The difficult issue is to determine the extent to which the judiciary is bound when it makes law. Every court decision may be considered to become part of the common law and add to the common law (unless and until it is overturned by a higher court or the legislature). If this is so, "it can be argued that no court may give legal effect to private conduct that is inconsistent with the Bill of Rights."[65] This means that, for practical purposes, private persons will then always be bound to the Bill of Rights, because they will be unable to seek the assistance of the courts to enforce their unconstitutional conduct.

However, this argument has been rejected by the Constitutional Court, on the basis that it would make section 8(2) and (3) redundant. The 1996 Constitution specifically provides that private individuals are directly bound by the Bill of Rights in some instances, not in every instance. This means, in effect, that common-law rules and principles may only be directly tested against the Bill of Rights in so far as they are relied upon by actors who are directly bound by the Bill of Rights. Whenever such an actor, private or state, is bound, the Bill of Rights becomes directly applicable law which overrides the common law in so far as it is inconsistent with the Bill of Rights. In disputes between private parties regulated by common law, the extent to which the Bill of Rights applies to private conduct therefore determines its reach or direct application to the common law.

The near-redundancy of direct horizontal application

Like its predecessor, the 1996 Constitution provides for direct vertical application of the Bill of Rights but, unlike its predecessor, is not confined to this form of direct application. Section 8(2) clearly envisages direct application of the Bill of Rights in the horizontal relationship in certain circumstances, and therefore "points unequivocally toward a much broader conception of direct application." The 1996 Constitution also still permits, however, in section 39(2) (as the Interim Constitution did in section 35(3)), indirect application of the Bill of Rights in horizontal cases.

The presence of section 39(2), as Kentridge AJ stated, "prophetically,"[66] in Du Plessis v De Klerk, "makes much of the vertical-horizontal debate irrelevant." Since Du Plessis, the courts have routinely approached the issue of the effect of the Bill of Rights on the common law indirectly. The invitation of section 8(2)—to apply rights directly in horizontal situations—was "snubbed."[67]

For a while, therefore, direct horizontality, "this deliberate innovation in the Constitution," threatened "to become a dead letter." As Iain Currie and Johan de Waal observe, "Certainly, one attraction of indirect application was that courts did not have to confront the opacity and apparent circularity of s 8 (the Bill of Rights was to be applied to private actors 'where applicable')."[68] Whatever the reasons, indirect horizontality provided the default form of application by which the courts approached the common law. The trouble with this was that, besides rendering section 8(2) of the Constitution "irrelevant," the "model of indirect application or, if you will indirect horizontality," as Kentridge AJ pointed out in Du Plessis, "seems peculiarly appropriate to a judicial system which, as in Germany, separates constitutional jurisdiction from ordinary jurisdiction."[69] But, under the 1996 Constitution, and in a deliberate alteration of the position under the interim Constitution, South Africa no longer separates constitutional jurisdiction from ordinary jurisdiction. Moreover, indirect application suggests that there is a body of common law that is "conceptually separate from the Constitution, exercising a mediating influence between the actors to whom it applies and the Constitution. This," write Currie and De Waal, "is difficult to accommodate"[70] in the remodelled constitutional system in which there is "only one system of law."

The question of direct application was definitively settled by O'Regan J in Khumalo v Holomisa, "an extremely significant decision,"[71] where she held that "the right to freedom of expression is of direct horizontal application" to the law of defamation. By implication and in principle, that holding extends to other areas of private law. This case, the Constitutional Court's first use of the direct-horizontality provisions of the 1996 Constitution,

might be read as bringing to end the long reign of indirect application of the Bill of Rights to the common law. It holds (although admittedly not in so many words) that the Bill of Rights must be applied directly to the common law wherever appropriate. It should be directly applied, in other words, in many (perhaps most) of the horizontal cases that have previously been treated as indirect application cases (ie, cases involving private litigants relying on common-law provisions).[72]

Khumalo, writes Stu Woolman, "committed the Constitutional Court to the proposition that common-law rules—whether challenged in disputes between the state and private parties or in disputes between private parties—were subject to the direct application of the Bill of Rights."[73]

However, despite Khumalo, indirect horizontal application "has proven to be extremely robust and remains the preferred judicial method for dealing with rights claims in the horizontal dimension."[74][75][76]

In its only other encounter with direct horizontality, in Barkhuizen v Napier, the Constitutional Court declined to apply the Bill of Rights directly to a challenge to a time-limitation clause in an insurance contract. An insurance company had rejected an insurance claim on the grounds that, at the time of the accident, the vehicle was being used for business purposes, despite its being insured for private use only. Two years after the rejection of the claim, the insured issued summons against the insurance company for the insured amount. The summons was met with a special plea that a term of the insurance policy required any summons to be served within ninety days of the rejection of the claim. In his replication, the insured argued that the term requiring him to issue a summons within ninety days was a breach of section 34 of the Constitution.

This gave the Constitutional Court the opportunity to consider what it termed the "proper approach" to the determination of constitutional validity of contractual clauses concluded between private parties. The High Court had considered the matter as an instance of direct application of section 34 to the contract, and had held that the impugned term of the contract was in conflict with the right. The clause, it held, was a law of general application, because it was underpinned by the principle of pacta sunt servanda. This analysis permitted the High Court to consider whether the limitation of section 34 by the contract was a justifiable limitation of the right. It was held not to be; the clause was declared invalid.

The Constitutional Court expressed "grave doubt" about this approach, which entailed "testing the validity of a contractual term directly against a provision in the Bill of Rights." Instead, the approach ordinarily to be adopted entailed indirect application via the principle that contracts that are contrary to public policy are unenforceable. This principle must be understood to be "deeply rooted in our Constitution and the values that underlie it." This meant that

what public policy is and whether a term in a contract is contrary to public policy is now to be determined by reference to the values that underlie our constitutional democracy as given expression by the provisions of the Bill of Rights. Thus a term in a contract that is inimical to the values enshrined in our Constitution is contrary to public policy and therefore unenforceable [...]. This approach leaves space for the doctrine of pacta sunt servanda to operate, but at the same time allows courts to decline to enforce contractual terms that are in conflict with the constitutional values even though the parties may have consented to them.

The view of Currie and De Waal is that Barkhuizen "largely renders s 8(2) nugatory."[77] The Constitution applies to all law and, in the case of the common law ("the courts' own law"),[78] the default approach of the courts is to assess its constitutionality and to develop it where necessary by way of the indirect application methodology set out below. "The only remaining reason"[79] to deploy direct horizontal application would be to take advantage of the holding of the Supreme Court of Appeal in Afrox Healthcare v Strydom, to the effect that courts in direct-application cases are not bound by pre-1994 decisions.

See also in this regard Barkhuizen v Napier (See its consideration especially of pacta sunt servanda) and Fraser v ABSA.

How to interpret s 8(2)

The Bill of Rights binds private persons in certain circumstances. According to section 8(2), a provision of the Bill of Rights applies to the conduct of a private person or a juristic person only to the extent that the provision is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. It binds a private or juristic person, in other words, if it is applicable to a private or juristic person. This, it has been noted, is almost tautological.

In Khumalo, the Constitutional Court had regard to what it described as the "intensity of the constitutional right in question." The meaning of this phrase, which Currie and De Waal regard as "opaque," appears in context "to have something to do with the scope of the right."[80] The applicants were members of the media (who are expressly identified as bearers of the constitutional right to freedom of expression). The second factor considered by the court was the "potential of invasion of that right by persons other than the State." The result was a holding that the right to freedom of expression was horizontally applicable in a defamation case.

In the view of Currie and De Waal, these two factors form part of a broader inquiry, consisting of five general considerations that must be kept in mind when interpreting s 8(2):

1. Section 8(2) states that a "provision" may apply to private conduct. It does not say that a "right" may apply to private conduct. Currie and De Waal argue that "it is therefore possible, and quite reasonable,"[81] that some provisions of the Bill of Rights may apply to the conduct of a private person or juristic persons, while other provisions in the same section (and pertaining to the same right) will not apply to such conduct. For example, the right of access to health care services[82] "probably does not apply directly horizontally." However, the right not to be refused emergency medical treatment (s 27(3)) probably does apply horizontally.[83] Also, the freedom to make political choices[84] and the right to vote[85] may be violated by private conduct, but the right to free, fair and regular elections only places duties on the state.
2. Questions concerning the horizontal application of the Bill of Rights cannot be determined a priori and in the abstract. Although this is not explicitly stated, whether a provision of the Bill of Rights applies horizontally also depends on the nature of the private conduct in question and the circumstances of a particular case. This explains why section 8(2) states that a provision in the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable. The extent to which a provision is applicable can only be determined by reference to the context within which it is sought to be relied upon. For example, the right of every arrested person to be informed promptly of the right to remain silent is of a nature that makes it generally inapplicable to private arrests. But there may be circumstances in which the right should apply to private arrests. There is no reason why a private security officer, who knows of the existence of the section-35(1)(a) right, or who may reasonably be expected to know of the right, should not observe it. Conversely, the right to assemble peacefully and unarmed generally applies on the horizontal level. The right to assemble in, for example, shopping malls and on the property of an employer is therefore guaranteed. In some circumstances, however, it may be inappropriate to apply the right horizontally. For example, "it is unlikely that the right to assemble can be relied on to justify demonstrations in or in front of someone's private home."[86] However, a resort to context or the circumstances of a particular case "should not be used to frustrate the clear intention of the drafters of the 1996 Constitution"[87] to extend the direct operation of the provisions of the Bill of Rights to private conduct: "It is not permissible to argue, for example, that it is only when private persons find themselves in a position comparable to the powerful state, that s 8(2) binds them to the Bill of Rights."[88] It may be that most private or juristic persons do not have the capacity to infringe human rights in a manner and on a scale comparable to the state, "but any interpretation of s 8(2) must avoid relying on such generalisations. The subsection was after all included to overcome the conventional assumption that human rights need only be protected in vertical relationships."[89]
3. The purpose of a provision is an important consideration in determining whether it is applicable to private conduct or not. For example, the purpose of the right to leave the Republic[90] is, in principle, to prevent the state from keeping persons captive in their own country. The right to reside anywhere in the Republic[91] is aimed at preventing the state from reintroducing group areas-style legislation that divides the country into racial zones. "It follows," write Currie and De Waal, "that these rights are not intended to have general horizontal application. On the other hand, the purpose of the right to human dignity does not necessarily demand differentiation between state and private conduct."[92] The right is to protect an individual against assault on his or her dignity from any source, whether private or public. The proper interpretation of a right in terms of its purpose may therefore sometimes result in a right's not being applicable to private conduct, either generally or in a particular situation.
4. The nature of any duty imposed by the right must be taken into account. This recognises that private or juristic persons are often primarily driven by a concern for themselves. On the other hand, the state is supposed to be motivated by a concern for the well-being of society as a whole: "The application of the Bill of Rights to private conduct should not undermine private autonomy to the same extent that it places restrictions on the sovereignty of the government."[93] This consideration is of particular importance when it comes to the imposition of duties which entail the spending of money. Since the conduct of private persons has to be funded from their own pockets, the same duties may not be imposed on them as may be imposed on an organ of state which relies on public funds. For example, a private hospital cannot (unlike a state hospital) be saddled with the duty to provide every child with basic health care services.[94]
5. In some instances, indications are found in the Bill of Rights itself as to whether a particular right may be applied to private conduct or not. Section 9(4), for example, states that "no person" may discriminate, directly or indirectly, against anyone on one or more of the grounds listed in section 9(3). Similarly, section 12(1)(c) is explicitly made applicable to the conduct of private and juristic persons. The section states that the right to freedom and security of the person includes the right "to be free from all forms of violence from either public or private sources."

Subject to the five considerations discussed above, "it may be said," write Currie and De Waal,[95] that the nature of citizenship rights,[96] the right to just administrative action,[97] and the rights of detained, arrested and accused persons,[98] generally preclude them from being directly applied to private conduct. Also, the nature of the positive duties imposed by the right to have legislative and other measures taken to protect the environment,[99] to realise the right to housing,[100] the right to health care, food, water and social security,[101] and the right to education,[102] "would usually result in them not being applicable to private conduct."[103] The remaining rights in the Bill of Rights can, depending on the circumstances of a particular case, be applied directly horizontally, so as to impose duties on private individuals to conform their conduct to the Bill of Rights.

Which Constitution applies?

An unconstitutional law becomes invalid at the moment the Constitution comes into effect. This is the effect of the supremacy clause of the Constitution: All law and conduct inconsistent with the Constitution is invalidated by it. When making an order of invalidity, a court simply declares invalid what has already been made invalid by the Constitution. This means that an unconstitutional law in force at the time of commencement of the interim Constitution is invalidated by the interim Constitution with effect from 27 April 1994: "If the law is challenged in litigation brought during the period of operation of the 1996 Constitution, the invalidity of the law should be assessed in terms of the interim Constitution."[104]

The doctrine described above is known as "objective constitutional invalidity." It means that an applicant will always have a choice between the interim and 1996 Constitutions when challenging old-order (pre-1994) laws. In other words, "nothing prevents an applicant whose cause of action arose after the commencement of the 1996 Constitution came into force from arguing that an old-order law was invalidated by the interim Constitution."[105] For example, in Prince v President, Cape Law Society, the Constitutional Court held, in litigation brought under the 1996 Constitution, that the requirement in the Supreme Court Act[106] that eleven judges of appeal sit in cases in which the validity of an Act of Parliament was in question was inconsistent with the interim Constitution. According to the Constitutional Court, the quorum requirement in the Supreme Court Act was in conflict with the interim Constitution, which expressly provided that the Appellate Division lacked jurisdiction to enquire into the constitutional validity of legislation. To the extent that the Supreme Court Act provided that the Appellate Division had jurisdiction to adjudicate the constitutionality of Acts of Parliament, it was invalid. Moreover, it had been invalid since the moment of commencement of the interim Constitution on 27 April 1994.

"Clearly," write Currie and De Waal, "there is no difficulty with the application of the rule in Prince if the interim Constitution and 1996 Constitution contain substantively identical provisions."[107] If law in force at the time of commencement of the interim Constitution violates that Constitution, it is invalid with effect from April 27, 1994, and will remain an invalid violation of the 1996 Constitution, notwithstanding the repeal of the interim Constitution by its successor. Prince, however, confronts the situation of a law invalidated by a provision of the interim Constitution that has no equivalent in its successor. The 1996 Constitution granted the SCA the constitutional jurisdiction that it had been denied under the interim Constitution, including jurisdiction to adjudicate on the constitutional validity of Acts of Parliament. Did this mean that section 12(1)(b) was resuscitated? The Constitutional Court's answer was no:

Once section 12(1)(b) became invalid because of its inconsistency with the interim Constitution, it could not be validated simply by the fact that under the Constitution the SCA now has constitutional jurisdiction. Section 168(2) of the Constitution which stipulates that the quorum of the SCA shall be determined by an Act of Parliament must therefore, in the absence of the proviso in section 12(l)(b), refer, at present, to section 12(1) of the Supreme Court Act which determines that the ordinary quorum of that Court shall be five judges. This result is consistent with the new constitutional order. Section 12(l)(b) of the Supreme Court Act was enacted at a time when the SCA was the highest court of appeal. That is no longer the case. Its decisions on the constitutionality of an Act of Parliament or conduct of the President have no force or effect unless confirmed by this Court. Its powers in this regard are therefore no different from those conferred upon the High Court.

Currie and De Waal criticise this explanation as "evasive" and "far from clear."[108] Despite this, "it is probably safe to say that, as a general rule, a law invalidated by the interim Constitution remains invalid after its repeal, notwithstanding any substantive difference that there might be in the provisions of the two Constitutions." This, they argue, is "the logical implication" of item 2 of Schedule 6 of the 1996 Constitution: "All law that was in force when the new Constitution took effect, continues in force." Repeal of the interim Constitution does not deprive it of the legal effect that it had while it was in force. One effect was the automatic invalidation of all inconsistent law. Such law is therefore not in force at the time of the transition to the 1996 Constitution and cannot be resuscitated by it.

"Where the interim Constitution is more protective than the final," observe Currie and De Waal, "the implications of Prince may be significant."[109] For example, an applicant may choose to attack an old-order law for inconsistency with the right to freedom of economic activity,[110] rather than relying on the narrower right to professional freedom.[111]

"Logically speaking," [112] the doctrine of objective invalidity means that in the case of old-order legislation, invalidity must first be assessed in terms of the interim Constitution, notwithstanding that the cause of action may have arisen during the operation of the 1996 Constitution. "This, however, does not happen in practice."[113] In Ex parte Women's Legal Centre: In re Moise v Greater Germiston Transitional Local Council (Moise II), the court dealt with an application to amend the order that it had made earlier, in Moise v Greater Germiston Transitional Local Council (Moise I). In Moise I, the court had confirmed the declaration of invalidity by a High Court of section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act.[114] The point made by the applicants in Moise II was that the Limitation Act was pre-constitutional legislation. It was found by the High Court to be a violation of the right of access to court in s 34 of the 1996 Constitution. Section 22 of the interim Constitution also contained a right of access to court in all relevant respects identical to the one in s 34: "One would therefore have expected, in the light of the Prince decision, that the subsection had become invalid at the moment of commencement of the interim Constitution." [115]

The Constitutional Court dismissed the application for an amendment on the basis that the consistency of the Limitation Act with the interim Constitution had not been raised or canvassed in the High Court: "Arguably, and if properly raised, a court should consider whether a law should be declared [invalid] with reference to the interim Constitution if it survives a challenge under the 1996 Constitution."[116]

The rules and principles stated above apply to the Bill of Rights and not to the other provisions of the Constitution.

The non-retrospectivity rule

Neither the interim nor the 1996 Constitution is retrospective in its operation. A law is retrospective if it states that, at a past date, the law shall be taken to have been that which it was not, so as to invalidate what was previously valid or vice versa. Neither the interim nor the 1996 Constitution reaches backward so as to invalidate actions taken under laws valid at the time, even if those laws were contrary to fundamental rights. The corollary also holds: The Constitution cannot retrospectively validate actions that were unlawful in terms of pre-1994 law. Also, the Constitution does not interfere with rights that vested before it came into force.

The rule that the Constitution does not apply retrospectively affects challenges to violations of human rights that occurred before the commencement of the Constitution. Put another way, the rule means that a litigant can only seek constitutional relief for a violation of human rights by conduct that occurred after commencement. As we have seen, the implication of the doctrine of objective constitutional invalidity is that on the date of the Constitution's commencement, laws that are inconsistent with the Constitution cease to have legal effect. But this does not mean that acts performed and things done under such (unconstitutional) laws before the Constitution came into force are also invalid. Since the Constitution does not operate retrospectively, they remain valid. An applicant who complains about such actions will not be allowed to challenge the constitutionality of the enabling laws. The constitutional validity of the enabling law becomes irrelevant since the conduct authorised by the law remains valid.

The rule of non-retrospectivity only limits the "reach" of the Bill of Rights. In other words, it covers only the direct application of the Bill of Rights; it does not prevent the courts from applying the Bill of Rights indirectly to the law when developing the common law or interpreting a statute, even if the dispute arose before the commencement of the Constitution. This is because the post-constitutional development of the common law, or reading down of statutes with reference to the Constitution, does not result in the Constitution's working retroactively. "It is sometimes said," the court noted in Du Plessis v De Klerk, "that 'judge-made law' is retrospective in its operation."[117] Currie and De Waal contend that it is "always" so.[118] It must be added, however, that the Constitutional Court has not explicitly decided that the rule of non-retrospectivity does not hold for the indirect application of the Bill of Rights.

In Du Plessis v De Kierk, the Constitutional Court expressly "left open"[119] the question of whether a litigant could rely on section 35(3) of the interim Constitution in respect of a common-law claim which arose prior to the date on which the interim Constitution came into force. Kentridge AJ nevertheless remarked that "it may be that a purely prospective operation of a change in the common law will be found to be appropriate when it results from the application of a constitutional enactment which does not itself have retrospective operation."[120]

However, in Gardener v Whitaker, Kentridge AJ "seemed to condone the indirect application of the Bill of Rights to the law of defamation" in relation to an alleged defamation that took place before the commencement of the interim Constitution.'04 Similarly, in Key v Attorney-General a search and seizure of documents had been completed before the interim Constitution came into force. This meant that the statutory provisions authorising the search and seizure could not be attacked as violations of the Constitution. Kriegler J nevertheless stated that if the evidence obtained by way of the search and seizure was tendered in criminal proceedings against the applicant, he would be entitled to raise Constitution-based objections to its admissibility. While the non-retrospectivity rule prevented the applicant in Key from challenging the provisions of the Investigation of Serious Economic Offences Act[121] before or during the trial, a discretion to exclude otherwise admissible evidence could be developed by indirectly applying the Bill of Rights.

In Masiya v Director of Public Prosecutions,[122] the Constitutional Court accepted that retrospective consequences would ordinarily follow from the development of the common law in terms of section 39(2) of the Constitution. However, it held that, on the exceptional facts at issue—the development of the common-law definition of rape to include anal rape of a woman—the retrospective development would offend the principle of legality. Legality, noted the court, included the principle of foreseeability. The rules of criminal law had to be clear, so that individuals know which conduct is proscribed by law. The definition was accordingly held to apply only to conduct taking place after the judgment.

Application of the Bill of Rights to matters pending at the date of commencement

Court proceedings that commenced prior to the coming into effect of the interim or 1996 Constitutions, but which had not yet been finalised when those Constitutions took effect, are governed by item 17 of Schedule 6, which provides that court proceedings that commenced before the coming into effect of the 1996 Constitution, but after the coming into effect of the interim Constitution, must be decided in terms of the interim Constitution, unless the interests of justice require otherwise. Proceedings that commenced before the coming into effect of the interim Constitution must be dealt with in accordance with the law in force at the time, unless the interests of justice require otherwise.

Territorial application of the Bill of Rights

"Though it is obvious," write Currie and De Waal, that the Constitution applies throughout the national territory, "it is less obvious whether it has any extraterritorial application."[123] The question was considered by the Constitutional Court in Kaunda v President of the Republic of South Africa. The case arose from an incident in which the applicants, all South African citizens, had been arrested in Zimbabwe on charges that they had plotted to stage a coup in Equatorial Guinea. The applicants sought relief in the form of an order directing the South African government to seek assurances from the governments of Zimbabwe and Equatorial Guinea that the death penalty would not be imposed on the applicants. The basis of the application was a contention that the applicants' constitutional rights to a fair trial, to dignity, life and freedom and security of the person were being infringed in Zimbabwe, and were likely to be infringed if they were extradited to Equatorial Guinea. The state's duty to protect the rights of the applicants (stemming from section 7(2)) required them to be provided with diplomatic protection.

This argument, Chaskalson CJ held for the majority of the court, required acceptance of the proposition that "the rights nationals have under our Constitution attach to them when they are outside of South Africa, or that the state has an obligation under section 7(2) to 'respect, protect, promote, and fulfil' the rights in the Bill of Rights which extends beyond its borders." According to the court, to the extent that the Constitution provides the framework for the governance of South Africa, it is territorially bound and has no application beyond the borders of the Republic. As for the Bill of Rights, although foreigners are entitled to require the South African state to respect, protect and promote their rights, they lose the benefit of that protection when they leave the national territory. The argument of the applicant, to the effect that section 7(2) places a more extensive obligation on the state to respect, protect and promote the rights of South Africans when they are in foreign countries, was rejected. The bearers of the rights in the Bill of Rights are people in South Africa. The Bill of Rights does not have general application beyond the national territory.

Section 7(1) does not deal with standing, but rather with the definition of the class of beneficiaries of the rights in the Bill of Rights. It therefore does not bar a foreign litigant who has a protectable interest in this country from seeking to protect that interest before a South African court.

Indirect application

Indirect application means that the Constitution and the Bill of Rights do not directly bind actors. Instead, the influence of the Bill of Rights is mediated through other law: statutory or common law. In principle, and where possible, a legal dispute should be decided in terms of the existing principles or rules of ordinary law, properly interpreted or developed with reference to the values contained in the Bill of Rights, prior to any direct application of the Bill of Rights to the dispute. When it comes to statutory law, the principle simply means that a court must first attempt to interpret legislation in conformity with the Bill of Rights (indirect application) before considering a declaration that the legislation is in conflict with the Bill of Rights and invalid (direct application). When it comes to the common law, the principle supports the courts' routine practice of developing the common law in conformity with the Bill of Rights (indirect application) in preference to assessing whether the common law is in conflict with the Bill of Rights (direct application).

Indirect application to legislation: the duty to interpret legislation in conformity with the Bill of Rights

Since the Bill of Rights binds all the original and delegated law-making actors, it is always capable of being applied directly to legislation. But, before a court may resort to direct application and to invalidation, it must first consider indirectly applying the Bill of Rights to the statutory provision by interpreting it in such a way as to conform to the Bill of Rights.

Section 39(2) places a general duty on every court, tribunal or forum to promote the spirit, purport and objects of the Bill of Rights when interpreting any legislation. Statutory interpretation must positively promote the Bill of Rights and the other provisions of the Constitution, particularly the fundamental values in section 1. "This means," according to the Constitutional Court in Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd In re: Hyundai Motor Distributors (Pty) Ltd v Smit NO,[124]

that all statutes must be interpreted through the prism of the Bill of Rights. All law-making authority must be exercised in accordance with the Constitution. The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance. As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution's goal of a society based on democratic values, social justice and fundamental human rights. This spirit of transition and transformation characterises the constitutional enterprise as a whole.[125]

The court held further that "the purport and objects of the Constitution find expression in section 1 which lays out the fundamental values which the Constitution is designed to achieve."[126] In other words, the legislature is presumed to have intended to further the values underlying the Bill of Rights by passing legislation that is in accordance with the Bill of Rights, unless the contrary is established. The duty of courts, tribunals or forums to interpret in accordance with the Bill of Rights applies even if a litigant has failed to rely on section 39(2). The duty is therefore extensive, "requiring courts to be alert to the normative framework of the Constitution not only when some startling new development of the common law is in issue, but in all cases where the incremental development of [... a common-law] rule is in issue."

The general duty to promote the Bill of Rights becomes particularly important when it is possible to avoid an inconsistency between a legislative provision and the Bill of Rights by interpreting the legislation so that it conforms to the Bill of Rights. Under the interim Constitution, such a process of interpretation became known as "reading down." According to section 35(2) of the interim Constitution, where legislation was capable of being read in two ways—as a violation of fundamental rights or, if read more restrictively, as not violating rights—the latter reading was to be preferred. Section 35(2) is not repeated in the 1996 Constitution, but the courts and other tribunals are still permitted, and indeed required, to "read down" by virtue of section 39(2). In any event, section 35(3) of the interim Constitution, which is the predecessor to s 39(2), always encapsulated the notion of reading down without any need for it to be expressly spelled out in the section.

In De Lange v Smuts, Ackermann J stated that "reading down" does

no more than give expression to a sound principle of constitutional interpretation recognised by other open and democratic societies based on human dignity, equality and freedom such as, for example, the United States of America, Canada and Germany, whose constitutions, like our 1996 Constitution, contain no express provision to such effect. In my view, the same interpretative approach should be adopted under the 1996 Constitution.[127]

"Accordingly," wrote Langa DP in Hyundai Motor Distributors, "judicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section."[128]

The duty to interpret in accordance with the Constitution applies also where two or more interpretations of a legislative provision are possible. The court must prefer the reading of a statute that "better" promotes the spirit, purport and objects of the Bill of Rights, even if neither interpretation would render the provision unconstitutional.

Methodology

In Govender v Minister of Safety and Security, the Supreme Court of Appeal set out a standard formula for dealing with constitutional challenges to legislation. A judge, magistrate or presiding officer of a tribunal is required

• to examine the objects and purport of the Act or the section under consideration;
• to examine the ambit and meaning of the rights protected by the Constitution;
• to ascertain whether it is reasonably possible to interpret the Act or section under consideration in such a manner that it conforms to the Constitution (by protecting the rights therein protected);
• if such interpretation is possible, to give effect to it; and,
• if it is not possible, to initiate steps leading to a declaration of constitutional invalidity.

This power of interpretation, "considerable though it is,"[129] is not unconstrained. As the Constitutional Court recognised in Hyundai Motor Distributors,

Limits must [...] be placed on the application of this principle. On the one hand, it is the duty of a judicial officer to interpret legislation in conformity with the Constitution so far as this is reasonably possible. On the other hand, the legislature is under a duty to pass legislation that is reasonably clear and precise, enabling citizens and officials to understand what is expected of them. A balance will often have to be struck as to how this tension is to be resolved when considering the constitutionality of legislation."[130]

"Taken to its limit," agree Currie and De Waal,

the power to interpret legislation in conformity with the Constitution would mean that any legislative provision could be made to conform to the Constitution by a suitably determined exercise of interpretative will. This would make the powers of the courts to declare legislation invalid superfluous and would deny the legislatures any significant role in the interpretation of the Constitution.[131]

Therefore, according to the Supreme Court of Appeal, an interpretation of legislation is constrained by the requirement that it must be "reasonably possible." The Constitutional Court earlier expressed the same qualification in different words in the Hyundai Motor Distributors case: "There will be occasions when a judicial officer will find that the legislation, though open to a meaning which would be unconstitutional, is reasonably capable of being read "in conformity with the Constitution". Such an interpretation should not, however, be unduly strained."[132]

In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs, it was said that

There is a clear distinction between interpreting legislation in a way which "promote[s] the spirit, purport and objects of the Bill of Rights" as required by s 39(2) of the Constitution and the process of reading words into or severing them from a statutory provision which is a remedial measure under s 172(1)(b), following upon a declaration of constitutional invalidity under s 172(1)(a) [...]. The first process, being an interpretative one, is limited to what the text is reasonably capable of meaning. The latter can only take place after the statutory provision in question, notwithstanding the application of all legitimate interpretative aids, is found to be constitutionally invalid.[133]

"It follows," held the court in Hyundai Motor Distributors, "that where a legislative provision is reasonably capable of a meaning that places it within constitutional bounds, it should be preserved. Only if this is not possible should one resort to the remedy of reading in or notional severance."[134]

These qualifications may be taken to mean something along the lines of "plausible"—the result of the interpretative process must be a reading of the legislation that is defensible using "all legitimate interpretive aids," by which is meant the repertoire of justificatory arguments supplied by the law of interpretation of statutes. The process of reaching a plausible, constitutionally-compliant interpretation entails reading legislation purposively and contextually. If the only plausible interpretation of a statutory provision is one that entails an infringement of the Bill of Rights, the court must proceed to consider whether the infringement is justifiable. If is not, it must declare the provision unconstitutional.

Interpretation in conformity is not confined to the restrictive reading of legislation

"Reading down" should perhaps be avoided as a description of the practice of interpretation in conformity with the Constitution, as it tends to suggest that the practice always entails reading restrictively. But section 39(2) sometimes requires more than simply narrowing the ambit of legislation so as to avoid conflict with rights. A narrow construction of a legislative provision will often have the result of avoiding an alleged conflict between the provision and the Bill of Rights: for example, when discretionary powers conferred are too wide, or when the scope of regulation is over-inclusive, or to restrict the impact of changes to the criminal law. But, on other occasions, the statute may have to be generously interpreted to avoid the conflict: for example, where the constitutional invalidity lies in the lack of any express grant of discretionary power. The point is that, if the statutory provision is genuinely ambiguous or otherwise unclear, the interpretation which best conforms to the Bill of Rights must be chosen.

Section 39(2) does not have any bearing on the interpretation of the Constitution or the Bill of Rights; the subsection deals with statutory interpretation only.

The obligation to develop the common law

As we have seen, legislation is approached by first interpreting it with the Constitution in mind, prior to any direct application of the Constitution (and any finding of unconstitutionality). In the case of the common law, the approach is similar but not identical, the difference lying in the remedial powers of the courts. If impugned legislation is found to limit a right, and if the limitation does not satisfy the justification standard in section 36, the court provides a remedy by declaring the legislation unconstitutional and, where possible, ameliorating the constitutional defect through reading in or notional or actual severance. "In that event," according to Moseneke J in S v Thebus, "the responsibility and power to address the consequences of the declaration of invalidity resides, not with the courts, but pre-eminently with the legislative authority." The Constitutional Court was unanimous on this issue. In Du Plessis v De Klerk, furthermore, the court noted that "the common law, it is often said, is developed on incremental lines. Certainly it has not been developed by the process of 'striking down.'"[135]

But the common law is different. It is the law of the courts and not the legislature:

The superior courts have always had an inherent power to refashion and develop the common law in order to reflect the changing social, moral and economic make-up of society. That power is now constitutionally authonsed and must be exercised within the prescripts and ethos of the Constitution.

According to the court, the need to develop the common law under section 39(2) could arise in at least two instances:

1. The first was when a rule of the common law is inconsistent with a constitutional provision. Repugnancy of this kind would compel an adaptation of the common law to resolve the inconsistency.
2. The second possibility was that "a rule of the common law is not inconsistent with a specific constitutional provision but may fall short of its spirit, purport and objects." If so, "the common law must be adapted so that it grows in harmony with the 'objective normative value system' found in the Constitution."

In a constitutional challenge of the first type the court must perform a "threshold analysis," being whether the rule limits an entrenched right, if the limitation is not reasonable and justifiable, the court itself is obliged to adapt, or develop the common law in order to harmonise it with the constitutional norm.

In its earlier decision in Carinichele, the Constitutional Court emphasised that the constitutional obligation to develop the common law is not discretionary, but is rather a "general obligation" to consider whether the common law is deficient and, if so, to develop it to promote the objectives of the Bill of Rights. The obligation applied in both civil and criminal cases, irrespective of whether or not the parties had requested the court to develop the common law.

The methodology of indirect application to the common law

The indirect application of the Bill of Rights to the common law can take many forms. The first method is to argue for a change in the existing principles of the common law so that the law gives better effect to Bill of Rights. This argument has been made in the areas of defamation and restraint of trade. In restraint of cases the argument that the incidence and content of the onus have to be reformed with reference to the section 22 right to occupational freedom has been less successful. The courts have been less inclined to reform the principles of the law of contract in a similar manner to the development of the law of delict.

The second method is to "apply" the common law with due regard to the Bill of Rights. This method was employed by Davis AJ in Rivett-Carnac v Wiggins. Davis AJ declined to consider the constitutionality of the presumption relating to animus iniuriandi in defamation cases, but "clearly took the Bill of Rights into account in reaching the conclusion that the statements made in this particular case were not defamatory."[136] Davis AJ held that the "boundary between criticising professional work without reducing such professional's reputation in the eyes of colleagues and the publication of defamatory statements about such a professional must be carefully drawn, particularly in the light of our new constitutional commitments."

The third method, which is closely related to the second, is to give constitutionally-informed content to open-ended common-law concepts, such as "public policy" or "contra bonos mores" or "unlawfulness." This has been held to be the proper approach to Bill of Rights challenges to contractual provisions. Barkhuizen v Napier dealt with a contractual time-bar clause requiring action to be instituted against an insurer within ninety days of the rejection of an insurance claim. The insured contended that this clause infringed his right of access to court in terms of section 34. The approach to be adopted to this contention was to apply a "constitutionalised" conception of the common-law doctrine of public policy: a conception informed by the values given effect to in the Bill of Rights.

The analysis then undertaken by the Constitutional Court in Barkhuizen essentially entailed an application of the test for the validity of legislative time-bar provisions set out in Mohlomi v Minister of Defence: A time-bar provision will unjustifiably limit the right of access to court if it is unreasonably short and if it is inflexible. If it is an unjustifiable limitation of section 34, it will be contrary to public policy and unenforceable. The justifiability of the provision had to be determined in the light of a number of factors, including the bargaining position of the respective parties and their ability to enforce their rights.

In Barkhuizen, the court found that the applicant was well-resourced and there was nothing on the facts to explain why no steps had been taken to enforce his rights at the earlier stages. Similarly, the facts did not disclose the extent of the bargaining between the parties prior to the conclusion of the contract. It could not be said, for instance, whether the insured was in a weak bargaining position and could not influence the terms of the contract.

Bredenkamp v Standard Bank is an application of the Barkhuizen methodology. The issue was whether the contractual right of a banker to close a client's account was subject to the requirements of fairness. The Supreme Court of Appeal held that the Constitution does not envisage the duty of fairness to apply in all contractual settings. Rather, one must consider the specific circumstances of each case to determine whether a constitutional value is implicated. If not, one cannot complain about an overarching requirement of fairness: "If a contract is prima facie contrary to constitutional values, questions of enforcement would not arise. However, enforcement of a prima facie innocent contract may implicate an identified constitutional value. If the value is unjustifiably affected, the term will not be enforced."

This means that fairness is not a self-standing requirement against which contractual clauses must be assessed: "Fairness is part of a matrix of constitutional values, which inform the interpretation of contracts. Such values are an embodiment of the legal convictions of the community. The autonomy of individuals to freely conclude contracts which are binding upon them is also part of the legal convictions of the community."[137]

Limits on indirect application to the common law

A rule of the common law must be assessed for inconsistency with the Bill of Rights and, if necessary, developed within the "matrix of [... the] objective, normative value system" established by the Constitution. Courts have far more scope to "develop" the common law by way of indirect application than they have when they "interpret" legislation, where they are bound to a reasonable interpretation of the statute.

Are there any limits on the power to develop the common law? The first limitation is that, when the common law is developed, it must be done incrementally and on a case by case basis. The development cannot take place in the abstract; the court must apply the law as it is found to be in the case before it. This approach has also found favour when the Bill of Rights is directly applied to the common law. Indeed, it is even more important when the Bill of Rights is directly applied, because the consequences of a direct application differ from those of an indirect application. For example, in Shabalala v Attorney-General, Transvaal, the Constitutional Court was careful, after striking down a common-law rule, to balance the need to provide guidance with the danger of being prescriptive. Such care must also be taken when the Bill of Rights is indirectly applied. "Some guidance on the new approach has to be provided," write Currie and De Waal, "while room must be left for the courts to develop the principle on a case by case basis."[138]

Stare decisis and indirect application

"One of the most important"[139] limitations on the power to develop the common law via the indirect application of the Constitution is the doctrine of stare decisis. In Govender v Minister of Safety and Security, reading down was employed to hold that section 49(l)(b) of the Criminal Procedure Act was not unconstitutional. In a subsequent decision, the Transkei High Court, in S v Walters, confronted with the precedent of the SCA decision in Govender, held that it did not have to follow it. Appeal-court decisions on the constitutional validity of legislation, according to Jafta AJP, "rank in the same level" as High Court decisions. The reason is that both decisions had no force unless confirmed by the Constitutional Court. Since, in the view of Jafta AJP, the SCA's decision on section 49(1)(b) in Govender was clearly wrong, it did not have to be followed by the High Court. The subsection was struck down to the extent that it permitted the use of force to prevent a suspect from fleeing.

The High Court's approach to the issue was repudiated by the Constitutional Court in the confirmation proceedings:

The trial court in the instant matter was bound by the interpretation put on section 49 by the SCA in Govender. The judge was obliged to approach the case before him on the basis that such interpretation was correct, however much he may personally have had his misgivings about it. High courts are obliged to follow legal interpretations of the SCA, whether they relate to constitutional issues or to other issues, and remain so obliged unless and until the SCA itself decides otherwise or [... the Constitutional Court] does so in respect of a constitutional issue.

But this holding, Kriegler J emphasised, applied only to the binding effect of decisions of higher tribunals "delivered after the advent of the constitutional regime and in compliance with the requirements of section 39 of the Constitution." The extent of application of stare decisis to pre-1994 decisions (if this is what "the advent of the constitutional regime" means), and to direct applications of the Constitution, was not decided.

The subsequent decision of the Supreme Court of Appeal in Afrox v Strydom "fills the gap left open by the Constitutional Court."[140] As regards the binding effect of pre-constitutional authority of the appeal court, there are three distinct situations that can arise:

1. Direct application of the Constitution to the common law: "The High Court is convinced that the relevant rule of the common law is in conflict with a provision of the Constitution."[141] In such situations, pre-Constitutional authority is not binding on a High Court.
2. Pre-constitutional decisions of the appeal court based on open-ended considerations such as boni mores or public interest: In such situations, the High Court may depart from earlier authority if convinced, taking the values of the Constitution into account, that it no longer reflects the boni mores or the public interest.
3. The third situation is that of an indirect application of the Constitution to the common law, by way of section 39(2). Even if convinced that the rule must be developed to promote the spirit, purport and objects of the Bill of Rights, a High Court is obliged to follow the authority of pre-constitutional decisions of the appeal court.

Currie and De Waal put Afrox and Walters together in the following way:

• Post-constitutional decisions of higher courts are binding, whether they are on constitutional issues or not.
• Pre-1994 decisions of higher courts on the common law are binding, except in cases of direct conflict with the Constitution or in cases involving the development of open-ended standards such as boni mores.

The distinction between direct and indirect application is therefore "crucial to the impact of the Afrox decision."[142] Section 39(2), the SCA holds, does not authorise lower courts to depart from higher authority, whether pre- or post-constitutional. The subsection must be read with section 173, recognising the inherent jurisdiction of the High Courts to develop the common law. It is that power which is exercised when the courts develop the common law in accordance with section 39(2). But the power has always been constrained by the doctrine of stare decisis: "There is nothing to indicate that the Constitution has changed this."[143]

The Afrox and Walters decisions have been strongly criticised. There is, however, "a significant omission from the Afrox decision."[144] As we have seen, indirect application in terms of section 39(2) does not involve only development of the common law, but also statutory interpretation, taking the spirit, purport and objects of the Bill of Rights into account. But the SCA in Afrox "seems to confine itself to the first type of indirect application only."[145] This may be taken to mean that "post-Afrox High Courts still possess the jurisdiction to depart from pre-constitutional statutory interpretations of the AD."[146] Currie and De Waal argue that "a great deal also turns on the distinction between direct and indirect application."[147] Khumalo v Holomisa appears to treat direct horizontal application as a relatively simple and unexceptional process. If so, "awkward appeal court precedent can easily be sidestepped. A High Court, by opting for direct application, will be understood to distinguish the case before it from a precedent arising from indirect application."[148]

Manner of application of the Bill of Rights in legal disputes

Under the 1996 Constitution, there is only one system of law. The Constitution applies to all law, informing its interpretation and development by the courts and determining its validity. This means that the parallel systems of "constitutional" law and "non-constitutional" law (and "constitutional" and "non-constitutional litigation") developed under the interim Constitution are no longer theoretically sustainable. Nevertheless, the distinction between the direct and indirect methods of application of the Constitution to the law has not been abandoned and "continues to have some practical significance at least in so far as the common law is concerned."[149]

Jurisdiction

We have seen that, under the interim Constitution, the distinction between direct and indirect application of the Bill of Rights had important jurisdictional implications. The interim Constitution distinguished between constitutional matters and other matters, and provided that the Constitutional Court could hear only the former and the Appellate Division only the latter. In Du Plessis, the Constitutional Court held that indirect application of the Bill of Rights to the common law was not a constitutional matter, and therefore was within Appellate Division jurisdiction. The main task of the Constitutional Court was to test the validity of the law and state conduct against the Constitution. In order to trigger the jurisdiction of the Constitutional Court, it was therefore necessary to show that the Bill of Rights applied directly to the challenged law or conduct. Whenever the Bill of Rights merely applied indirectly to a dispute, the Appellate Division and not the Constitutional Court was primarily responsible.

Under the unitary jurisdictional system established by the 1996 Constitution, all superior courts have the power to apply the Constitution directly and indirectly to the common law. This means that the jurisdictional motivation for distinguishing between direct and indirect application no longer holds for common-law disputes. However, since decisions of the High Courts and the Supreme Court of Appeal declaring certain forms of legislation invalid must be confirmed by the Constitutional Court, "it remains important for jurisdictional reasons,"[150] whether legislation is directly tested against the Bill of Rights, or whether it is merely interpreted with reference to the Bill of Rights.

The purpose and effect of direct application differ from that of indirect application

The purpose of direct application is to determine whether there is, on a proper interpretation of the law and the Bill of Rights, any inconsistency between the two. The purpose of indirect application is to determine whether it is possible to avoid, in the first place, any inconsistency between the law and the Bill of Rights by a proper interpretation of the two.

Direct application of the Bill of Rights generates a constitutional remedy, whereas indirect application does not. The reason for this is that direct application is aimed at exposing inconsistency between the Bill of Rights and law or conduct. If there is, the court then declares that law or conduct constitutionally invalid. The effect of such a declaration, according to Ackermann J and Sachs J in Du Plessis, is to restrict the legislature's options in amending the law or enacting a similar law. Much depends of course on the terms of the court's order and its reasoning and the application of the doctrine of stare decisis, but as a general rule direct application rules out certain possibilities as constitutionally impermissible, whereas an indirect application merely proposes a construction of the law that conforms to the Constitution. Although there is, therefore, a difference in principle between direct and indirect application, the problem alluded to by Ackermann J and Sachs J also depends on the extent to which a court is prepared to "pronounce on the meaning" of the Constitution: "Courts generally avoid making extensive pronouncements on what the Constitution demands the common law to be, whether they apply the Bill of Rights directly or indirectly."[151] The preferred approach is to give narrow rulings limited to the facts before the court: "Such orders will preserve considerable space for the legislature to reform the common law."[152] Direct application, however, "inevitably rules out certain options."[153] When a law or conduct is ruled to be inconsistent with the Constitution, it can no longer form part of the law. The scope of the limitation on the legislature's discretion will therefore depend on the extent of the court's ruling.

That said, there is little practical difference between the two forms of application when it comes to the common law. This is because, although notionally methodologically distinct, direct and indirect application of the Bill of Rights end up at the same point: the need to develop rules of the common law in conformity with the Bill of Rights.

"There are," observe Currie and De Waal, "only a few common-law cases where the method of application is likely to make a substantive difference to the result."[154] These are cases in which a plaintiff cannot find a cause of action in the existing common law. Since the common law does not provide a right, it will be necessary to invoke directly a right in the Bill of Rights.

Indirect application must be considered before direct application

In S v Mhlungu, Kentridge AJ stated,

I would lay it down as a general principle that, where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.

This statement was subsequently approved by the unanimous court in Zantsi v Council of State, Ciskei. In this case, Chaskalson P referred to the "salutary rule" which is followed in the United States "never to anticipate a question of constitutional law in advance of the necessity of deciding it" and "never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." This rule, Chaskalson P added,

allows the law to develop incrementally. In view of the far-reaching implications attaching to constitutional decisions, it is a rule which should ordinarily be adhered to by this and all other South African Courts before whom constitutional issues are raised [.... I]t is not ordinarily desirable for a Court to give rulings in the abstract on issues which are not the subject of controversy and are only of academic interest.

There are several reasons for observing this "salutary rule" under the South African Constitution. The first is procedural. The interim Constitution contained complicated provisions governing the referral of a constitutional issue to the Constitutional Court where that issue was beyond the jurisdiction of the Supreme Court. A referral was, for example, necessary whenever the constitutionality of an Act of Parliament was in dispute. The statements in Mhlungu and Zantsi "were meant to deter the divisions of the Supreme Court from referring irrelevant issues or issues that were within their jurisdiction to the Constitutional Court."[155] Since the system of referrals has now been replaced by a wider High Court jurisdiction and a system of appeals, this justification should no longer carry the same weight. However, it would be wrong to conclude that the justification did not survive the changes in constitutional jurisdiction brought about by the 1996 Constitution and the abolition of referrals. It remains an important factor when considering applications for direct access to the Constitutional Court and applications for leave to appeal using the "leapfrog" appeal procedure. It also informs the doctrine of justiciability, particularly the principles that courts should not decide moot cases or cases that are not ripe for judicial resolution.

There are also substantive reasons for observing the rule: "Courts should avoid making pronouncements on the meaning of the Constitution where it is not necessary to do so, so as to leave space for the legislature to reform the law in accordance with its own interpretation of the Constitution." [156] Lengthy expositions of the Constitution may result in actual or perceived restrictions on the legislature, a "constitutional straitjacket" which makes it difficult for the legislature to respond to changing circumstances.[157] The courts, and particularly the Constitutional Court, are not the only interpreters of the Constitution. They are, however, its final and authoritative interpreters. Before pronouncing on the meaning of the Constitution, "the courts should allow other organs of the government the opportunity to interpret and give effect to the Constitution."[158] Practically, this means that the legislature should be given the opportunity to address an issue before a court decides on it: "The legislature and the executive are better equipped to ascertain the needs of society and to respond to those needs."[159] Once such a response finds expression in legislation, courts may then test the legislation against the provisions of the Bill of Rights. Even then, the Constitutional Court (the final court in constitutional matters) often seeks to avoid ruling on the constitutionality of a statutory provision until trial, and appeal-court judges have expressed their views on the effect of the provision and the likely consequences of invalidating it. "It is sound judicial policy," write Currie and De Waal, "to decide only that which is demanded by the facts of a case and that is necessary for its proper disposition; this allows constitutional jurisprudence to develop incrementally."[160]

When applying the Bill of Rights in a legal dispute, the principle of avoidance is "of crucial importance."[161] As we have seen, the Bill of Rights always applies in a legal dispute. It is usually capable of direct or indirect application and, in a limited number of cases, of indirect application only. The availability of direct application is qualified by the principle that the Bill of Rights should not be applied directly in a legal dispute unless it is necessary to do so. The principle has "a number of important consequences."[162]

Even when the Bill of Rights applies directly, a court must apply the provisions of ordinary law to resolve the dispute, especially in so far as the ordinary law is intended to give effect to the rights contained in the Bill of Rights. Many recent statutes, such as the Labour Relations Act 66 of 1995 and the Equality and Administrative Justice Acts are intended to implement the Bill of Rights. They must first be applied, and if necessary interpreted generously to give effect to the Bill of Rights, before a direct application is considered.

The same applies to disputes governed by the common law. The ordinary principles of common law must first be applied, and if necessary developed with reference to the Bill of Rights, before a direct application is considered.

When the Bill of Rights is directly applied in disputes governed by legislation, conduct must be challenged before law. In other words, the implementation of the statute must be challenged before the provisions of the statute itself.

However, "to complicate matters further," [163] the principle that constitutional issues should be avoided is not an absolute rule. It does not require that litigants may only directly invoke the Constitution as a last resort. As with many legal principles, its force depends on the circumstances of the case. Where the violation of the Constitution is clear and directly relevant to the matter, and there is no apparent alternative form of ordinary relief, it is not necessary to waste time and effort by seeking a non-constitutional way of resolving a dispute. This will often be the case when the constitutionality of a statutory provision is placed in dispute because, apart from a reading down, there are no other remedies available to a litigant affected by the provision. On the other hand, the principle of avoiding constitutional issues is particularly relevant when the interest of an applicant in the resolution of a constitutional issue is not clear, and where the issue is not ripe for decision, or when it has become academic or moot.

Bibliography

Books

• Currie, Iain, and De Waal, Johan. The Bill of Rights Handbook. Juta, 2013.
• Currie, Iain, et al. The New Constitutional and Administrative Law: Constitutional law. Vol. 1. Juta, 2010.
• Woolman, Stu, and Michael Bishop. Constitutional conversations. PULP, 2008.

Papers and journal articles

• Woolman, Stu. "Amazing, Vanishing Bill of Rights, The." S. African LJ 124 (2007): 762.

• S Woolman & D Brand 'Is there a Constitution in this Courtroom? Constitutional Jurisdiction after Afrox and Walters' (2003) 18 SA Public Law.

References

1. Currie and De Waal Handbook 23.
2. Currie and De Waal 24.
3. De Waal Constitutional Law 338.
4. Ex Parte Minister of Safety and Security: In Re S v Walters 2002 (4) SA 613 (CC) para 26.
5. Ex Parte Minister of Safety and Security: In Re S v Walters para 27.
6. Ex Parte Minister of Safety and Security: In Re S v Walters para 27.
7. Paras 116-127.
8. 128.
9. Paras 129-131/
10. Para 194.
11. De Waal Constitutional Law 339.
12. De Waal Constitutional Law 339.
13. Currie and De Waal Handbook 27.
14. Currie and De Waal Handbook 31.
15. Currie and De Waal Handbook 31.
16. Currie and De Waal Handbook 31.
17. Currie and De Waal Handbook 32.
18. Para 49.
19. Para 62.
20. Para 49.
21. Para 49.
22. Para 64.
23. Currie and De Waal Handbook 35.
24. 1996 (4) SA 744 (CC).
25. Para 57.
26. Currie and De Waal Handbook 36.
27. Equality (s 9), privacy (s 14), freedom of expression (s 16), freedom of association (s 18), the right to engage in collective bargaining (s 23(5)), the property right (s 25), the right of access to information (s 32), just administrative action (s 33), access to Court (s 34) and the fair-trial rights (s 35(3).
28. 2001 (1) SA 545 (CC).
29. Para 18.
30. Currie and De Waal Handbook 36-37.
31. Currie and De Waal Handbook 37.
32. 2001 (1) SA 1 (CC).
33. Currie and De Waal Handbook 37.
34. 2002 (4) SA 768 (CC).
35. Para 43.
36. Para 44.
37. Para 45.
38. Currie and De Waal Handbook 37.
39. s 38 (a).
40. Currie and De Waal Handbook 38.
41. Currie and De Waal Handbook 38.
42. Currie and De Waal Handbook 38.
43. Currie and De Waal Handbook 39.
44. Currie and De Waal Handbook 39.
45. Currie and De Waal Handbook 39.
46. Mohamed and Another v President of the Republic of South Africa and Others 2001 (2) SACR 66 (CC).
47. s 22.
48. s 14.
49. s 17.
50. ss 18, 19.
51. s 2 1(2).
52. Currie and De Waal Handbook 40.
53. s 10.
54. s 11.
55. s 9(3)-(4).
56. Currie and De Waal Handbook 40.
57. Currie and De Waal Handbook 40.
58. Currie and De Waal Handbook 41.
59. "It has a monopoly on the legitimate use of force within its territory. State authority allows the state to enforce its commands through the criminal law" (Currie and De Waal Handbook 41).
60. Currie and De Waal Handbook 41.
61. Currie and De Waal Handbook 41.
62. Currie and De Waal Handbook 43.
63. Currie and De Waal Handbook 44.
64. Currie and De Waal Handbook 44.
65. Currie and De Waal Handbook 44.
66. Currie and De Waal Handbook 45. Note that Kentridge was discussing section 35(3) of the Interim Constitution, section 39(2)'s predecessor.
67. Currie and De Waal Handbook 45.
68. Currie and De Waal Handbook 45. Their view is that indirect application was and remains preferred to direct application because of the principle of avoidance: "In common-law disputes between private parties, a direct application of the Bill of Rights will seldom offer significant advantages for a litigant over an indirect application. In most cases, a litigant will motivate for a change in the common law and it matters little whether a court is persuaded to do so with reference to an argument based on direct or indirect application. The only cases where direct application to the common law seems to make sense is when common-law offences or rules are challenged with the purpose of 'invalidating' them. An indirect application—that is the development of the common law—seems possible in such cases. The only other advantage of a direct application of the Bill of Rights may be found in the generous approach to standing which the courts apply in fundamental rights litigation" (45). Another reason for the reluctance of private parties to invoke the Bill of Rights directly is that constitutional remedies for the private violation of fundamental rights are "difficult to envisage or unattractive to litigants" (Currie and De Waal Handbook 46). When challenging legislation and state conduct, however, "constitutional remedies are not unattractive" (46). On the contrary, by removing parliamentary sovereignty and replacing it with constitutional supremacy, the Constitution has provided litigants with "a completely new basis to challenge legislation and state conduct" (46). Moreover, in areas where the South African public law was underdeveloped, the direct application of the Bill of Rights presented a litigant with "a useful tool to challenge state conduct" (46). Not only has the Bill of Rights and the rest of the Constitution "vastly increased the grounds for such a challenge" (46), but the remedy flowing from a finding of inconsistency between the Bill of Rights and state conduct is the invalidation of such conduct. "This remedy," write Currie and De Waal, "will usually be an attractive one for a litigant" (46). In contrast, by extending the direct operation of the Bill of Rights to private relations, the 1996 Bill of Rights "has not contributed much to the resolution of private legal disputes" (46). In most cases, the remedies that apply to such disputes, particularly common-law remedies, "appear to be sufficiently flexible to be considered appropriate for a horizontal infringement of the Bill of Rights. It is, in any event, difficult to imagine alternative and more appropriate remedies for these types of infringements" (46).
69. Para 60.
70. Currie and De Waal Handbook 46.
71. Currie and De Waal Handbook 46.
72. Currie and De Waal Handbook 46.
73. Woolman "Amazing" 768.
74. Currie and De Waal Handbook 46.
75. In a subsequent decision of the Constitutional Court, Thebus v S 2003 (6) SA 505 (CC), no reference was made to Khumalo or to any of the academic literature on the issue, and "the difficult relationship between s 8 and s 39. The court did hint, however, that section 39 (indirect application) was the default mode for considering challenges to the common law" (Currie and De Waal Handbook 46).
76. See Woolman's accusations of laziness against the court in Khumalo, in its reliance on 39(2).
77. Currie and De Waal Handbook 47.
78. Thebus para 21.
79. Currie and De Waal Handbook 47-48.
80. Currie and De Waal Handbook 48.
81. Currie and De Waal Handbook 48-49.
82. s 27(1) and (2).
83. Currie and De Waal Handbook 49.
84. s 19(1).
85. s 19(3).
86. Currie and De Waal Handbook 49.
87. Currie and De Waal Handbook 49.
88. Currie and De Waal Handbook 49.
89. Currie and De Waal Handbook 49.
90. s 21(2).
91. s 21(3).
92. Currie and De Waal Handbook 50.
93. Currie and De Waal Handbook 50.
94. s 28(l)(c).
95. Currie and De Waal Handbook 50.
96. ss 20, 21(3)-(4).
97. s 33.
98. s 35.
99. s 24(b).
100. s 26.
101. s 27.
102. s 29.
103. Currie and De Waal Handbook 50.
104. Currie and De Waal Handbook 51.
105. Currie and De Waal Handbook 51.
106. Act 59 of 1959.
107. Currie and De Waal Handbook 51.
108. Currie and De Waal Handbook 51.
109. Currie and De Waal Handbook 52.
110. s 26 of the interim Constitution.
111. s 22 of the 1996 Constitution.
112. Currie and De Waal Handbook 52.
113. Currie and De Waal Handbook 52.
114. Act 94 of 1970.
115. Currie and De Waal Handbook 52-53.
116. Currie and De Waal Handbook 52.
117. Para 65.
118. Currie and De Waal Handbook 54.
119. "It follows from what I have said above that those are matters which it is for the provincial and local divisions of the Supreme Court to decide as part of their function of applying section 35(3) and developing the common law. I do no more than respectfully draw their attention to the considerations which I have outlined. Whether appeals against judgments on such matters go to the Appellate Division or this Court, need not be decided now and should be left open" (Para 66).
120. Para 66.
121. Act 117 of 1991.
122. 2007 (8) BCLR 827 (CC).
123. Currie and De Waal Handbook 55.
124. 2001 (1) SA 545 (CC).
125. Para 21.
126. Para 22.
127. Para 85
128. Para 23.
129. Currie and De Waal Handbook 59.
130. Para 24.
131. Currie and De Waal Handbook 59.
132. Para 24.
133. Para 24.
134. Para 26.
135. Para 63.
136. Currie and De Waal Handbook 59.
137. Currie and De Waal Handbook 63.
138. Currie and De Waal Handbook 63.
139. Currie and De Waal Handbook 63.
140. Currie and De Waal Handbook 64.
141. Afrox v Strydom para 27, translated by Currie and De Waal Handbook 64.
142. Currie and De Waal Handbook 65.
143. Currie and De Waal Handbook 65.
144. Currie and De Waal Handbook 65.
145. Currie and De Waal Handbook 65.
146. Woolman and Brand "Is there a Constitution" 79.
147. Currie and De Waal Handbook 65.
148. Currie and De Waal Handbook 65.
149. Currie and De Waal Handbook 66.
150. Currie and De Waal Handbook 66.
151. Currie and De Waal Handbook 67.
152. Currie and De Waal Handbook 67.
153. Currie and De Waal Handbook 67.
154. Currie and De Waal Handbook 66.
155. Currie and De Waal Handbook 68.
156. Currie and De Waal Handbook 69.
157. Currie and De Waal Handbook 69.
158. Currie and De Waal Handbook 69.
159. Currie and De Waal Handbook 69.
160. Currie and De Waal Handbook 69.
161. Currie and De Waal Handbook 69.
162. Currie and De Waal Handbook 69.
163. Currie and De Waal Handbook 70.