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[1996] ZACC 10
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Du Plessis and Others v De Klerk and Another (CCT8/95) [1996] ZACC 10; 1996 (3) SA 850; 1996 (5) BCLR 658 (15 May 1996)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
CASE NO CCT 8/95
In the
matter of:
DU
PLESSIS,
D
First Appellant (Defendant)
THE
PRETORIA NEWS (PTY) LTD
Second Appellant (Defendant)
LAUTENBACH,
D
Third Appellant (Defendant)
ALLIED
PUBLISHING (PTY) LTD
Fourth Appellant (Defendant)
and
DE
KLERK, G F J

First Respondent (Plaintiff)
WONDER
AIR (PTY) LTD
Second Respondent (Plaintiff)
Heard
on:         7 November 1995
Delivered
on:    15 May 1996
JUDGMENT
[
1
]
KENTRIDGE AJ
:
The Pretoria News is a daily newspaper published in Pretoria. The
first appellant is the editor of the Pretoria News, the
second
appellant is the owner and publisher of the newspaper, the third
appellant is a journalist employed on the newspaper and the
fourth
appellant is its distributor.  During February and March, 1993,
the newspaper published a series of six articles dealing
with the
supply by air of arms and other material to the Angolan rebel
movement, UNITA.  The tenor of the articles was that
South
African citizens were engaged in these operations, that the
operations were covert, and that they entailed the evasion of South
African air control regulations.  The flights were described in
the articles as
“
illegal
”
and as
“
pirate
flights.
”
The
articles suggested that those responsible for the flights were
“
fuelling the
war  in Angola
”
,
and were doing so for motives of personal gain, notwithstanding the
disastrous effect of the Angolan civil war on the inhabitants
of that
country.  The articles were published under the by-line of Dale
Lautenbach, the third appellant.
[
2
]
The last two in the series of articles, published on 9
th
and 11
th
March, 1993, mentioned by name Mr Gert de Klerk, the first respondent
herein and his company Wonder Air (Pty) Ltd, the second respondent.
The article published  on 9
th
March, stated that the Department of Foreign Affairs had been calling
in a number of private air operators
“
following
suspicions that individual companies might be fuelling the war in
Angola with supplies.
”
The
first respondent was named as one of those summoned.  The
article published on 11
th
March, again in the context of illegal flights to supply the UNITA
rebels, referred to
“
the
mystery airstrip
”
owned
and operated by the respondents.  In consequence of these
publications the respondents issued a combined summons out of
the
Transvaal Provincial Division of the Supreme Court claiming damages
for defamation against the appellants jointly and severally.
The first respondent claimed damages of R750 000.00 for injury to his
reputation and his feelings; the second respondent claimed
R5 million
for loss of business and damage to its commercial reputation.  I
shall hereafter refer to the respondents as
“
the
Plaintiffs
”
and
to the appellants as
“
the
Defendants.
”
[
3
]
On 25
th
May, 1993, the Defendants filed a joint plea.  The Defendants
admitted publishing the articles, but denied that they meant that
the
Plaintiffs were involved in illegal activities, or that the articles
were defamatory of the Plaintiffs.  In the alternative
the
Defendants alleged that the general subject matter of the articles
was a matter of public interest.  On this basis they
pleaded a
“
rolled-up
”
defence of fair comment
[1]
- namely that in so far as the references to the Plaintiffs were
expressions of opinion, those opinions constituted fair comment
made
in good faith on matters of public interest, and were based on facts
truly stated in the articles themselves; and that in so
far as the
articles contained allegations of fact those allegations were true
and were matters of public interest.  There was
a further
allegation by way of defence that the Defendants had published the
articles in good faith in pursuance of a duty to its
readers and to
the public in general to keep them informed of
“
facts,
opinions and allegations
”
concerning
the civil war in Angola, that its readers had a corresponding right
to be so informed and that in the premises the publication
of the
articles
“
was not
unlawful.
”
[2]
All allegations of damage were
denied.
[
4
]
I  have given only a brief and simplified summary of the
Defendants
’
plea
because it is not in issue in the proceedings in this Court.
What has brought the Defendants, as appellants, to this Court
is the
fate of an application to amend their plea by adding a further
defence.  Notice of intention to amend the plea was given
by the
Defendants on 7
th
October, 1994.  The significance of this date is that it was
subsequent to the coming into force of the interim Constitution
on
27
th
April, 1994, in terms of section 251(1) of the Constitution of the
Republic of South Africa Act 200 of 1993.  The Plaintiffs
objected to the proposed amendment, and it is necessary to set out in
full both the proposed amendment and the grounds on which the
Plaintiffs objected to it.
[
5
]
The notice of intention to amend read as follows -
“
KINDLY TAKE NOTICE that the defendants
intend to amend their plea in the following way -
By the insertion after paragraph 12.14 of the following:
“
12.15    In addition to the
aforegoing, the publication of the article was not unlawful by reason
of the protection
afforded to the defendants by section 15 of the
Constitution of the Republic of South Africa (Act 200 of 1993) which
provides:
` (15)
(1)           Every
person shall have
the right to freedom of speech and expression,
which shall include freedom of the press and other media, and the
freedom of artistic
creativity and scientific research.
’
More particularly:
12.15.1    The articles in question were published
against the background and in the circumstances described in
paragraphs
12.1 - 12.9 hereof in good faith and without the intention
of defaming the plaintiffs.
12.15.2    The articles concern matters of public
interest and were published pursuant to a duty to keep members of
the
public informed of facts, opinions and allegations concerning the
on-going civil war in Angola and a corresponding right or legitimate
interest on the part of readers of the Pretoria News to be informed
of such facts, opinions and allegations.
12.16       By
virtue of the facts and contentions set out in paragraphs 12.15, the
publication of the
said articles were not unlawful and such
publication is protected by section 15 of the Constitution.
”
The grounds of objection were the following -
“
The Plaintiffs object to the proposed
amendment on the following grounds:
1.
That the proposed amendment would render the Defendants
’
plea excipiable;
2.
The Constitution of the Republic of South Africa, Act
200 of 1993,
was at no relevant stage in force when the Defendants published the
defamatory material of and concerning the Plaintiffs;
3.
The damage caused to the Plaintiffs consequent upon and
as a result
of the publication of the defamatory material was caused prior to the
promulgation introduction of Act 200 of 1993;
4.
The South African Constitution is not retroactive;
5.
In the alternative,
the Constitution has no application
horizontally, alternatively does not apply to disputes of the present
nature;
6.
Further alternatively
, Section 15 of the Constitution
does not grant any of the Defendants leave and licence to publish
defamatory material, either as
alleged or at all;
7.
In particular, Chapter 3 of the Constitution protects the
Plaintiffs
’
right to their physical and emotional integrity,
reputation, unrestricted participation in public and commercial
affairs and their
right to an untarnished reputation;
8.
These rights, inasmuch as they may come into conflict with
the
Defendants
’
right to publish
defamatory material (the existence of which right is denied), takes
precedence over any right claimed by the Defendants;
alternatively
9.
The Defendants
’
right to publish
defamatory material (which is denied) is limited in terms of Section
33 of the Constitution and the common law by
the Plaintiffs rights as
aforesaid;
10.
Consequently, the proposed amendment of the Defendants
’
plea does not disclose a defence and should not be
granted.
”
(I have
not corrected the grammatical errors in the two documents.)
[
6
]
The opposed application to amend the plea was heard by Van Dijkhorst
J in the Transvaal
Provincial Division.  On 10
th
November, 1994, he gave judgment refusing the application for
amendment.
[3]
The learned judge
’
s
approach to the application was that an amendment which would render
a pleading excipiable should not be allowed, and he held that
the
proposed amendment would be excipiable on two separate grounds.
The first ground was that the proceedings before the court
were
“
proceedings
which immediately before the commencement of the Constitution were
pending before any court of law ... exercising jurisdiction
in
accordance with the law then in force ...
”
,
in terms of section 241(8) of the Constitution, and therefore had to
“
be dealt with as
if this Constitution had not been passed.
”
This meant, according to the learned
judge, that the provisions of the Constitution could not be invoked
by any party to the pending
proceedings.  He followed his own
judgment in
Kalla v
The Master and Others
,
[4]
in which he had given extensive reasons for the conclusion
“
that
section 241(8) precludes retrospective operation of the
Constitution.
”
[5]
[
7
]
The second ground on which Van Dijkhorst J held the proposed
amendment to be excipiable
was that set out in paragraph 5 of the
Plaintiffs
’
notice
of objection,  viz.-
“
In the alternative
the
Constitution has no application horizontally, alternatively does not
apply to disputes of the present nature.
”
[
8
]
The question whether Chapter 3 of the Constitution (Fundamental
Rights) has only a
“
vertical
”
application or has in addition a
“
horizontal
”
application has been the subject of
considerable debate by commentators on the Constitution.  There
have been similar debates,
both academic and judicial, in other
countries with constitutional Bills of Rights.  The term
“
vertical
application
”
is
used to indicate that the rights conferred on persons by a Bill of
Rights are intended only as a protection against the legislative
and
executive power of the state in its various manifestations.  The
term
“
horizontal
application
”
on
the other hand indicates that those rights also govern the
relationships between individuals, and may be invoked by them in
their
private law disputes. Although the terms
“
vertical
”
and
“
horizontal
”
are convenient they do not do full
justice to the nuances of the jurisprudential debate on the scope of
Chapter 3.  Does Chapter
3 entitle a party to private litigation
to contend that a statute relied on by his opponent is invalid as
being inconsistent with
the Constitution?  To what extent does
Chapter 3 have an impact on the common law in either the criminal or
the civil field?
Does the vertical application of the
Constitution cover private law disputes between a citizen and the
state?  These and no
doubt other related questions are open
questions in this Court at least.  At this point in the present
judgment it is sufficient
to record that Van Dijkhorst J, upon an
analysis of the relevant constitutional provisions, held that Chapter
3 had only vertical
and not horizontal application, and that in
consequence a defendant could not invoke section 15 as a defence to a
civil action for
damages for defamation.
[
9
]
In due course the Defendants applied to Van Dijkhorst J for leave to
appeal to this Court.
The learned judge held that in view of
conflicting decisions at first instance it was imperative that the
constitutional issues which
had been decided against the Defendants
be resolved by the Constitutional Court.  On 1
st
March, 1995, he accordingly referred those issues to this Court under
section 102(2) of the Constitution, alternatively under section
102(8).  Further in terms of Rule 18(e) of the Rules of the
Constitutional Court he certified -
(1)           These
two Constitutional issues are of substance and a ruling thereon
by
the Constitutional Court is desirable.
(2)           They
can be disposed of on the pleadings and no evidence is necessary.
(3)           In
view of conflicting decisions in the Supreme Court on both issues
there is a reasonable prospect that another court may reach a
different conclusion should permission be granted to bring the
appeal.
[
10
]
On 9
th
June this Court granted leave to appeal against the whole of the
judgment and order of Van Dijkhorst J of 10
th
November, 1994.  As the issue of the correct interpretation of
section 241(8) of the Constitution had in the interim been resolved
by this Court in its judgment in
S
v Mhlungu and Others
,
[6]
this Court formulated the first issue on which it required argument
in the appeal as follows -
“
(a)
Are the Defendants entitled to invoke the provisions of the
Constitution notwithstanding
that -
(i)
publication of the offending material had already occurred;
and/or
(ii)
action was instituted; and/or
(iii)          all
relevant facts had occurred
before
the Constitution came into operation?
”
It
also reformulated the judge
’
s
question,
“
whether
the Constitution has horizontal application.
”
The parties were asked to address
this question -
“
(b)
Are the provisions of Chapter 3 of the Constitution - and more
particularly section
15 - capable of application to any relationship
other than that between persons and legislative or executive organs
of state at all
levels of government?
”
[
11
]
Thereafter, on 20
th
October, 1995, the parties were requested by the President of the
Court to address the Court on the following additional matters:
“
i.
In view of the finding by the judge in the Court
a
quo
that the proposed amendment does
not raise the issue whether the common law of defamation should be
developed to make it consistent
with the Constitution, is it
competent to raise this as an issue in the appeal?; and if so
ii.
Is the development of the common law within the jurisdiction
of the
Appellate Division or the Constitutional Court or both Courts?;
and if the latter
iii.
Should the appeal on this issue have been noted to the Appellate
Division and dealt with by it in terms of Section 102 (4), (5) and
(6) of the Constitution?
”
At the hearing before us on 7
th
November
counsel addressed us on all the above issues.
[
12
]
In their written argument the Defendants contended that the amendment
which they had sought ought
to have been granted.  At an early
stage of the oral argument, however, Mr Gilbert Marcus, who appeared
for the appellant Defendants,
was faced with a difficulty which
proved to be insuperable.  The Constitution, in terms of section
251(1), came into operation
on 27
th
April 1994, and on that day a new legal order came into existence in
the country.  In
S
v Mhlungu and Others, supra
n6, a case much relied on in the Defendants
’
written argument, this Court held
that from that day onward any person in South Africa was entitled to,
and could invoke, the rights
conferred by Chapter 3 of the
Constitution.  Cases such as
Kalla
v The Master and Others, supra
n4, which had held, in reliance on section 241(8), that those rights
were not available in proceedings which were pending immediately
before the commencement of the Constitution, were overruled.
The purpose of section 241(8), was held to be essentially to preserve
the authority of pre-Constitution courts to continue to adjudicate in
pending cases.
[7]
On and after 27
th
April the
Constitutional guarantees were available to accused persons in
pending cases as they were to all other persons.
[8]
Accordingly, Mhlungu and other persons accused in cases pending on
27
th
April, 1994, were entitled to invoke their constitutional rights so
as to  preclude the use against them of the presumption
contained in
section 217(1)(b)(ii)
of the
Criminal Procedure Act 51
of 1977
, a presumption which this Court had held in
S
v Zuma and Others
[9]
to be unconstitutional and hence invalid.
[
13
]
It was in that limited sense, if at all, that
S
v Mhlungu and Others, supra
n6, held that Chapter 3 had
“
retrospective
”
operation.  It most certainly
did not decide that the Constitution operated retroactively in the
meaning which I endeavoured
to explain in my dissenting judgment in
that case.
[10]
A statute is said to be retroactive if it enacts that
“
as
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
.
[11]
The Constitution does not operate retroactively in that sense.
I do not believe that this proposition is in any way inconsistent
with the majority judgments in
Mhlungu
’
s
case.  Thus Kriegler J said, in
paragraph 99 -
“
In the true sense of the words it [i.e. the
Constitution] is not retroactive nor retrospective.  What it
does mean, though, is
that the moment when the judicial officer has
to deal with a claim under Chapter 3 he or she has to ask whether
such right exists.
”
Mahomed
J, in paragraphs 39 and 41 also made it clear that the Constitution
did not affect acts performed before its commencement.
See also
per Sachs J paragraphs 132 and 144.
[12]
[
14
]
Consequently, the difficulty facing the Defendants in this Court was
their inability to point to anything
in the Constitution which
suggests that conduct unlawful before the Constitution came into
force is now to be deemed to be lawful
by reason of Chapter 3.
Indeed, all indications in the text are to the contrary.  First,
there is section 251(1) itself,
which fixes the date of
commencement.  Then there is section 7(2), which provides that
Chapter 3 should apply
“
to
all law in force and all administrative decisions taken and acts
performed
during
the period of operation of this Constitution
.
”
(My emphasis). In this sub-section
“
acts
”
may mean only administrative acts.
Nonetheless if the provisions of Chapter 3 do not apply to
administrative acts performed
before the Constitution came into
operation there is no reason to suppose that it was intended to apply
to any other act performed
before that date.  Again section
98(6) provides -
“
(6)
Unless the Constitutional Court in the interests of justice and good
government
orders otherwise, and save to the extent that it so
orders, the declaration of invalidity of a law or a provision thereof
-
(a)
existing at the commencement of this Constitution, shall not
invalidate
anything done or  permitted in terms thereof before
the coming into effect of such declaration of invalidity; or
(b)
passed after such commencement, shall invalidate everything done or
permitted in terms thereof.
”
That
sub-section enables this Court, where the interests of justice and
good government require it, to ante-date the operation of
a
declaration of invalidity.  Although there is no express limit
on the power to ante-date a declaration of invalidity, it could
hardly be suggested that any such declaration could refer to a date
earlier than the date of the commencement of the Constitution.
[13]
See the orders made by this Court in
S
v Zuma and Others, supra
n9, and
S v Mhlungu
and Others
,
supra
n6.
[
15
]
It follows, as Mr Marcus was constrained to accept, that a pleading
alleging that articles published
in 1993 were, by reason of section
15 of the Constitution,
“
not
unlawful
”
and
were protected by that section, must be bad in law.  The appeal
against the order of Van Dijkhorst J must therefore be dismissed.
That, however, does not conclude the proceedings before this Court.
There is the judge
’
s
reference of the issue of

horizontality
’
to this Court under section 102 of
the Constitution to be considered.  Further Mr Marcus on behalf
of the Defendants has it in
mind to apply in due course for an
amendment to the plea so as to invoke section 15 of the Constitution
on a different basis possibly
by reference to section 35(3) of the
Constitution.  Whether he can invoke section 15 on any basis
depends on the answer to the
first issue on which this Court required
argument.
[14]
[
16
]
The Defendants argued that even if the Constitution does not make
lawful what was previously unlawful,
the protections of Chapter 3,
including section 15, are available to relieve them from the
consequences of a previously unlawful
act.  They rely by way of
analogy on the right of persons convicted and sentenced before the
commencement of the Constitution
to invoke their constitutional right
not to undergo cruel and inhuman punishment.
[15]
The previous lawfulness of the sentence did not preclude their
relying on their Chapter 3 rights to avoid its consequences.
Similarly, they say, they are now entitled to rely on section 15 to
relieve them from the obligation of paying damages for their
earlier
unlawful act.
[
17
]
With all respect to the arguments of counsel, the analogy is false.
This Court has held that
the death penalty and the whipping of
juveniles were in themselves unconstitutional and therefore unlawful
by reason
inter alia
of section 11(2), which provides that no person shall be subject to
cruel, inhuman or degrading punishment.
[16]
Although the sentences were lawful when imposed, their
execution
became unconstitutional once the Constitution came into operation.
The obligation to pay damages is obviously not in such a
category.
Another fundamental difference is that the commission of the delict
and the liability to pay damages cannot be separated.
The right
to damages accrues at the moment the defamation is published.
No-one could sensibly assert that the state has an
accrued right to
inflict a punishment.  It cannot be disputed that since 27
th
April, 1994, the Defendants have been entitled to exercise their
right of freedom of expression and freedom of the press under section
15.  If their case on the interpretation of section 15 and on
its horizontal application is correct, it may allow them to repeat
their allegedly defamatory publications with impunity.  But it
is not in that sense that the Defendants wish to invoke their
right
of free speech.
[
18
]
The Defendants also argue that it would be absurd and unjust to allow
the
“
arbitrary selection of one category of
persons who would become entitled to enjoy the human rights
guarantees of the Constitution
and the arbitrary exclusion of another
group of persons from such entitlement.
”
[17]
The arbitrariness to which Mahomed J was referring
related to the suggested exclusion of litigants in cases pending on
27
th
April, 1994, from the right to invoke constitutional
guarantees after that date.  As appears from section 7(2) of the
Constitution,
referred to above, there can be nothing arbitrary,
absurd or unjust in the distinction between acts done (including
delicts committed)
before the Constitution commenced and those done
thereafter.
[
19
]
The Defendants also submit that the articles which are the
subject-matter of the civil action could
have led to a prosecution
for the common law offence of criminal defamation.  On the
hypothesis that the existence of that common
law offence is
inconsistent with the right of freedom of speech under section 15,
that section could be properly invoked, they say,
as a defence to a
prosecution notwithstanding the fact that the offence was committed
before the Constitution came into force.
The same principle
might apply, it is suggested, to a prosecution for the common law
crime of blasphemy.  I shall assume for
the purpose only of the
present argument that that submission is correct.  The attempt
to extend it to civil law delictual claims
is, however, unsound.
At common law the statutory abolition of a criminal offence did not
ordinarily affect a prosecution for
an offence committed before the
abolition.
[18]
Under the Constitution different policy considerations may apply.
The state may possibly be precluded from prosecuting
for an offence
which has by reason of the Constitution ceased to exist.
[19]
The state cannot be said to have vested rights which will be
affected, nor is any other person adversely affected and it may be
said
that to punish a person for an offence which has ceased to exist
is an infringement of one or other of his protected fundamental
rights.
[20]
It is unnecessary and would be undesirable to express any view on
these arguments.  What is obvious is that very different
considerations must apply to a civil claim for damages for
defamation.  There is another party whose rights would indeed be
affected by depriving him of a claim for damages which had vested in
him before the commencement of the Constitution.  A right
of
action is a form of incorporeal property.
[21]
Whether it is property entitled to protection under section 28 of the
Constitution need not be decided.
[22]
What is clear is that there is no warrant in the Constitution for
depriving a person of property which he lawfully held before
the
Constitution came into force by invoking against him a right
which did not exist at the time when the right of property
vested in
him.  The Defendants
’
citation
of the well-known authorities on the need for a generous rather than
a legalistic interpretation of a Constitution hardly
supports an
argument directed to depriving an individual of an existing right.
[
20
]
I have dealt with the question of the retrospective or retroactive
operation of Chapter 3 of the Constitution
in general terms. As
stated in paragraphs 13 and 14 above, the Constitution does not turn
conduct which was unlawful before it came
into force into lawful
conduct.  It does not enact that as at a date prior to its
coming into force
“
the
law shall be taken to have been that which it was not
”
.
The consequences of that general principle are, however, not
necessarily invariable.  In the present case we are dealing
with
the right to damages for a defamation committed before the
Constitution came into operation, and we hold that nothing in the
Constitution impairs that right.  But we leave open the
possibility that there may be cases where the enforcement of
previously
acquired rights would in the light of our present
constitutional values be so grossly unjust and abhorrent that it
could not be countenanced,
whether as being contrary to public policy
or on some other basis.  It is not necessary to spell out
examples.  It is sufficient
to say that cases such as the one
before us obviously do not fall into that category.
[
21
]
I would therefore hold that the Defendants are not entitled to invoke
section 15 as a defence to an
action for damages for a defamation
published before the Constitution came into operation.
[23]
I have reached this conclusion without reference to foreign
authority, but at this stage it may be appropriate to refer to
some
decisions on another constitutional instrument which has given rise
to problems of retrospectivity in one sense or another,
namely the
Canadian Charter of Rights and Freedoms.
[
22
]
The Canadian approach is summarised as follows by Professor PW Hogg -
“
Section 58 of the Constitution Act, 1982
provides that the Act is to come into force on a day to be fixed by
proclamation.  That
proclamation was issued by the Queen, who
came to Canada for the purpose, at a ceremony in Ottawa on April 17,
1982; and the proclamation
fixed April 17, 1982 as the day upon which
the Constitution Act, 1982 was to come into force.  The Charter
of Rights accordingly
came into force on that day, and operates only
prospectively from that day.
A statute (or regulation or by-law or other
legislative instrument) which was enacted before April 17, 1982, and
which is inconsistent
with the Charter, will be rendered
“
of
no force or effect
”
by the supremacy
clause of the Constitution, but only as from April 17, 1982.
Action of an executive or administrative kind,
such as search,
seizure, arrest or detention, which was taken before April 17, 1982,
cannot be a violation of the Charter, because
the Charter was not in
force at the time of the action.
”
[24]
[
23
]
In
R. v. Longtin
[25]
Blair JA, in the Ontario Court of Appeal, held that the Charter did
not operate retrospectively.  In the same Court, some years
later, in
R. v.
James
;
R.
v. Dzagic
,
[26]
Tarnopolsky JA remarked
[27]
that that assertion of Blair JA had not been questioned, but added
that the issue had rather been whether, in any particular case,
giving effect to a Charter provision did or did not amount to a
retrospective application.  In that case the Ontario Court of
Appeal held that section 8 of the Charter, which protects against
unreasonable search and seizure had no application where the seizure
took place before the Charter came into force, and that the material
seized could accordingly be used in post-Charter proceedings.
The Court held that the law to be applied was that in force at the
time when the act complained of occurred.
[28]
Our own Constitutional provisions and our own weighing of the
competing public interests in South Africa may or may not produce
a
different approach to the admissibility in evidence of material
wrongfully seized.  That is not the issue here.  What
I
would take from the case and respectfully endorse are some general
remarks by Tarnopolsky JA at the end of his judgment -
“
It is not an effective way to promote
respect for Charter rights to apply new effects to actions taken
before the Charter came into
effect... it is important that actions
be determined by the law, including the Constitution, in effect at
the time of the action.
”
[29]
An
appeal from this judgment was dismissed, without written reasons by
the Supreme Court of Canada.
[30]
In another case in the Ontario Court of Appeal,
R.
v. Lucas
;
R.
v. Neely
[31]
,
there were two prosecutions for the statutory offence of having
sexual intercourse with a female under the age of fourteen.
Although the offences occurred before the Charter came into force, a
lower court had acquitted the accused on the ground that the
statute
was invalid, being inconsistent with the equal rights provision of
the Charter.  On appeal by the Crown to the Court
of Appeal the
submission that new substantive law should not be applied to past
events was upheld.
[32]
[
24
]
The generous approach of the Canadian courts to the interpretation of
the Charter is well known.
Perhaps, therefore, the Canadian
cases put into perspective the Defendants
’
contention that failure to uphold
their submissions would result in absurdity and injustice.
[
25
]
What remains to be considered, as far as the Defendants are
concerned, is whether they can nonetheless
derive any assistance from
section 35(3) of the Constitution, a point related to the questions
put to the parties by the President
on 20
th
October, 1995.
[33]
Before attempting to deal with those issues it is, however, necessary
to revert to the second question referred to this court
by Van
Dijkhorst J, namely
“
whether
the Constitution has horizontal application.
”
[
26
]
That reference was made under section 102(8) of the Constitution
which provides-
“
(8) If any division of the Supreme Court
disposes of a matter in which a constitutional issue has been raised
and such court is of
the opinion that the constitutional issue is of
such public importance that a ruling should be given thereon, it may,
notwithstanding
the fact that the matter has been disposed of, refer
such issue to the Constitutional Court for a decision.
”
In
previous cases this Court has left open the precise connotation of
the expression
“
disposes
of a matter.
”
[34]
Whatever the precise scope of the
expression, I have no doubt that in this case the learned judge had
disposed of the matter before
him. That matter was the application to
amend the plea so as to introduce a new defence.  His judgment
refusing the amendment
on the ground that the new plea would be bad
in law, effectively eliminated that defence from the case.
[
27
]
I find a useful analogy in the decisions of the Supreme Court on the
appealability of judgments dismissing
or upholding exceptions.
The test applied is whether the order made has a final and definitive
effect.
[35]
Generally, the dismissal of an exception is not regarded as final,
whereas the upholding of an exception to a pleading on the
ground
that it is bad in law is regarded as final and appealable.  The
reasons given for this distinction are instructive.
In
Trakman
NO v Livshitz and Others
[36]
a procedural application had been made in the court below and had
been dismissed.  The Appellate Division held that the order
dismissing the application was appealable because it -
“
... was final and not susceptible of
alteration by the court
a quo
;
it was definitive of the parties
’
rights
in respect of the application for review; and it
disposed
of all the relief claimed in such application
”
.
(My emphasis)
In
Liquidators,
Myburgh, Krone & Co. Ltd v Standard Bank of South Africa Ltd and
Another
[37]
,
in explaining why an order upholding an exception was final and
therefore appealable, Innes CJ said -
“
Where an order, though made during the
progress of a litigation is not reparable at the final stage; or to
put it another way, where
the final word has been spoken on the point
dealt with, then that order is final and not interlocutory
”
.
The order of Van Dijkhorst J did dispose finally of all
the relief claimed in the application for amendment.  He spoke
the final
word on that application.  The conclusion that the
judge had disposed of the case before him is reinforced by the
consideration
that the trial of the action need not be heard by the
same judge.
[
28
]
This conclusion is not affected by the possibility that an appeal may
lie against the decision of
Van Dijkhorst J.  Section 102(8)
refers to
“
any
division of the Supreme Court
”
,
which indicates that the power conferred is not limited to a court of
final appeal.
[
29
]
As to policy and convenience, I cannot see why the framers of the
Constitution  should have wished
to exclude from the operation
of sub-section (8) a case such as this one, where there has been a
claim for specific relief and that
claim has been finally disposed
of.  I see no reason of policy why, before a referral, the whole
of any relevant proceedings
must be completed, proceedings which may
be protracted and which have no bearing on the constitutional issue.
The whole basis
for a referral under sub-section (8) is that a
constitutional issue of great public importance has been raised.
As far as the
proceedings before the Supreme Court are concerned the
issue may be moot.  The losing party may not wish to appeal, or
the parties
may have reached a settlement.  Nonetheless,
provided there is a compelling public interest, the constitutional
issue may properly
be referred.
[38]
I would add that a referral such as this does not disturb the
“
logic
”
of the appeal routes provided in the
Constitution.  Theoretically, no doubt, the learned judge might
have granted leave to appeal
to a full bench of the Transvaal
Provincial Division but, given that the constitutional issue is of
such public importance as to
call for a referral to this Court, that
possibility can be disregarded.  In practical terms this is the
only Court competent
to review the judgment of the learned judge on
the constitutional issues.  Before sending the case to this
Court he had dealt
fully with those issues.  I can discern no
ground on which his referral can be faulted.
[
30
]
Accordingly, although the appeal has been dismissed without the
necessity of dealing with the
“
horizontality
”
issue the referral on that issue
remains to be dealt with by this Court.  Whether in any
circumstances this Court has a discretion
to refrain from deciding an
issue validly referred to it I need not now decide.  Even if
such a discretion exists I would not
exercise it, notwithstanding the
dismissal of the appeal.  The issue is plainly of public
importance, especially in the light
of the conflicting decisions in
the Supreme Court referred to by the learned judge, and has been the
subject of written and oral
argument before us.  (I add, in
parenthesis, that the alternative referral under section 102(2) was
not appropriate.  See
our decisions in
S
v Mhlungu and Others
[39]
and
S v Vermaas; S v
Du Plessis
.
[40]
)
[
31
]
The
“
horizontality
”
issue has arisen in other countries
with entrenched Bills of Rights and the parties have supplied us with
a wealth of comparative
material both judicial and extra-judicial,
for which we are grateful.
[
32
]
In the court below the learned judge, having endorsed the purposive
approach to constitutional interpretation,
analysed the purpose of
the Chapter on Fundamental Rights as follows -
“
When interpreting the Constitution and more
particularly the Bill of Rights it has to be done against the
backdrop of our chequered
and repressive history in the human rights
field.  The State by legislative and administrative means
curtailed the common law
human rights of most of its citizens in many
fields while the Courts looked on powerless.  Parliament and the
executive reigned
supreme.
It is this malpractice which the Bill of Rights
seeks to combat.  It does so by laying down the ground rules for
State action
which may interfere with the lives of its citizens.
There is now a threshold which the State may not cross.  The
Courts guard
the door.
”
[41]
Having
considered the interpretation of entrenched Bills of Rights in the
Constitutions of other countries, he concluded that in general,
fundamental rights are protected against state action only.
“
Horizontal
protection,
”
he
said,
“
sometimes occurs to a limited extent but
when it is intended over the broad field of human rights, it is
expressly so stated
”
[42]
Horizontal
application of Chapter 3 would in his view create an undesirable
uncertainty in private legal relationships which could
not have been
intended by the framers of our Constitution.  After an analysis
of certain provisions of the Constitution he held
that the
fundamental rights set out in Chapter 3 were of vertical application
only, and that the contrary conclusion of Van Schalkwyk
J in
Mandela
v Falati
[43]
was clearly wrong.  It should be noted that in
Motala
and Another v University of Natal
[44]
Hurt J refused to follow the opinion of Van Dijkhorst J and held that
at least sections 8 (equality) and 32 (education) had horizontal
application.  In
Potgieter
en

n
Ander v Kilian
[45]
the Natal Provincial Division
disagreed with these two judgments and endorsed the opinion of Van
Dijkhorst J.
[
33
]
There can be no doubt that the resolution of the issue must
ultimately depend on an analysis of the
specific provisions of the
Constitution.  It is nonetheless illuminating to examine the
solutions arrived at by the courts of
other countries.  The
Court was  referred to judgments of the courts of the United
States, Canada, Germany and Ireland.
I would not presume to
attempt a detailed description, or even a summary, of the relevant
law of those countries, but in each case
some broad features are
apparent to the outside observer.  A comparative examination
shows at once that there is no universal
answer to the problem of
vertical or horizontal application of a Bill of Rights.
Further, it shows that the simple vertical/horizontal
dichotomy can
be misleading.  Thus under the Constitution of the United States
the First to Tenth Amendments (the
“
Bill
of Rights
”
) and
the Fourteenth Amendment, insofar as they confer rights on
individuals, would at first sight appear to be vertical, in the sense
of being directed only against state power.
[46]
Yet the courts of that country have in some cases at least reached
what is effectively a horizontal application of constitutional
rights
by holding that the judicial power is a state power against which
constitutional protections may invoked.
[
34
]
So, in
Shelley v.
Kraemer
[47]
an African-American couple had bought property which was subject to a
restrictive covenant under which the seller had undertaken
to sell
only to whites.  Owners of restricted property in the same
neighbourhood sued to prevent the couple from taking possession
of
the property.  The United States Supreme Court reiterated
earlier holdings that the Fourteenth Amendment did not reach private
conduct, however discriminatory, but held that official actions by
state courts and judicial officials were subject to the Fourteenth
Amendment, with the result that the discriminatory covenant could not
be enforced by the courts.  Vinson CJ said -
“
... state action in violation of the
Amendment
’
s provisions is equally
repugnant to the constitutional commands whether directed by state
statute or taken by a judicial official
in the absence of
statute.
”
[48]
It
was on this principle that the United States Supreme Court was able
to hold in
New York
Times Co. v. Sullivan
[49]
,
an action between private litigants, that the law of defamation of
the State of Alabama was an unconstitutional impairment of the
right
of freedom of speech.  A complex case law suggests that the rule
in
Shelley v.
Kraemer, supra
n47,
is not invariably available in private law disputes.
[50]
The reasoning behind the decision has also been cogently
criticised.
[51]
It may nonetheless be accepted that by identifying some state
involvement in private transactions (sometimes with great
ingenuity
[52]
)
United States
’
courts
have found a way of enforcing fundamental constitutional rights in
disputes between private litigants.
[
35
]
Irish cases indicate that in some instances at least, constitutional
rights have been directly applied
in private disputes so as to
override a rule of common law.  An example is
C.M.
v T.M.
[53]
in which Barr J held that the common law doctrine that a wife
’
s
domicile was dependent on that of her husband was inconsistent with
the principles of equality before the law and equality between
husband and wife embodied in Articles 40 and 41 of the Irish
Constitution.
[
36
]
Very different models of constitutional adjudication are to be found
elsewhere.  There is a valuable
comparative overview of the
application of constitutional rights in the private law of a number
of countries in
Constitutional
Human Rights and Private Law
,
a work by Justice A. Barak, of the Supreme Court of Israel,
[54]
from which it appears that there are
several jurisdictions which reject the horizontal application, or at
least the direct horizontal
application of constitutional rights.
I propose to confine my further consideration of the comparative
material to the Canadian
and German position, particularly as
argument on these two systems was specifically addressed to us.
[
37
]
The leading Canadian case is
Retail,
Wholesale & Department Store Union, Local 580 et al. v. Dolphin
Delivery Ltd
.
[55]
a judgment of the Supreme Court (to which I shall refer hereafter as
Dolphin Delivery).
That case arose from a labour dispute, in which the defendant trade
union threatened to picket the plaintiff
’
s
premises unless it ceased to do business with another company with
which the union was in dispute.  A trial judge found that
the
defendant
’
s
conduct constituted the tort of inducing a breach of contract and
granted an injunction restraining the threatened picketing. The
union
appealed on the ground that the injunction infringed its Charter
right of freedom of expression.  In dismissing the appeal
the
court held (among other grounds) that while the Charter applied to
common law as well as statute law, it did not apply in litigation
between private parties in the absence of any reliance on legislation
or governmental action.  McIntyre J, who gave the leading
judgment, based his judgment on the terms of section 32 of the
Charter which expressly provide that the Charter applies to
“
the
Parliament and government of Canada
”
and
to
“
the
legislature and government of each province.
”
By
“
government,
”
he held, was meant the executive and
administrative branch of government.  An order of court was not
to be equated with governmental
action.
[56]
[
38
]
The essence of the court
’
s
conclusion is to be found in the following passage from the judgment
of McIntyre J
[57]
-
“
It is my view that s. 32 of the Charter
specifies the actors to whom the Charter will apply.  They are
the legislative, executive
and administrative branches of
government.  It will apply to those branches of government
whether or not their action is invoked
in public or private
litigation.  It would seem that legislation is the only way in
which a legislature may infringe a guaranteed
right or freedom.
Action by the executive or administrative branches of government will
generally depend upon legislation,
that is, statutory authority.
Such action may also depend, however, on the common law, as in the
case of the prerogative.
To the extent that it relies on
statutory authority which constitutes or results in an infringement
of a guaranteed right or freedom,
the Charter will apply and it will
be unconstitutional.  The action will also be unconstitutional
to the extent that it relies
for authority or justification on a rule
of the common law which constitutes or creates an infringement of a
Charter right or freedom.
In this way the Charter will apply to
the common law, whether in public or private litigation.  It
will apply to the common
law, however, only in so far as the common
law is the basis of some governmental action which, it is alleged,
infringes a guaranteed
right or freedom.
”
What
follows from this is - (a) if a party to private litigation founds a
claim or defence on some piece of legislation (whether an
act of
Parliament, a by-law or regulation) or on some executive act, (such
as the issue of a licence) its constitutionality under
the Charter is
an issue which may properly be raised; (b) in litigation between
private parties no inconsistency between the common
law and the
Charter may be relied on; but (c) the Charter applies to the common
law in a dispute between government and a private
litigant - for
example where the government relies on a common law prerogative.
(In a subsequent case
[58]
the Canadian Supreme Court has held that the Charter applies to the
state even in respect of activities which are contractual or
commercial in nature).  The Defendants in the present case point
to differences in wording between the Charter and our own
Constitution,
and deny that
Dolphin
Delivery
provides
any assistance in interpreting the latter. They have also referred us
to the academic criticisms of
Dolphin
Delivery
noted by
Friedman JP in
Baloro
and Others v University of Bophuthatswana and Others.
[59]
I shall return to
Dolphin
Delivery
later in
this judgment.
[
39
]
The German jurisprudence on this subject is not by any means easy to
summarise, especially for one
who does not read German.  There
are, however useful, accounts of the German approach in some of the
South African literature,
as also in the work of Justice
Barak,
[60]
which I have mentioned above.   I have also had the benefit
of reading an extensive article entitled
“
Free
Speech and Private Law in German Constitutional Theory
”
by Professor Peter E. Quint,
[61]
to which I am much indebted.
[
40
]
The German model may be described as the indirect application model.
The rights of individuals
entrenched in the Basic Law are directly
available as protection against state  (including legislative)
action, but do not directly
apply to private law disputes.  The
values embodied in the Basic Law do, however, permeate the rules of
private law which regulate
legal relations between individuals.
A constitutional right may override a rule of public law, but it is
said to
“
influence
”
rather than to override the rules of
private law.  Private law is therefore to be developed and
interpreted in the light of any
applicable constitutional norm, and
continues to govern disputes between private litigants.  Private
law rules are not completely
superseded.
[62]
This approach was authoritatively laid down by the German
Constitutional Court in the leading case of
L
h
th
,
a case concerning the right of free expression under Article 5 of the
Basic Law.
[63]
Later cases, such as the
Mephisto
case in 1971, and the
Deutschland-Magazin
case in 1976, established that it was for the ordinary courts to
apply the constitutional norms to private law.  This was likely
to involve a balancing of constitutionally protected interests
against one another (for example the right of free expression against
the right of human dignity under Article 1) or against established
private law rights such as confidentiality or privacy.  The
facts of the particular case are also to be taken into account in the
balancing process.  The German Constitutional Court will
exercise, if necessary, a power of review, but it will do so with
restraint - usually only when it is satisfied that the ordinary
courts have proceeded on a seriously wrong interpretation of the
basic constitutional rights under Basic Law.
[64]
Quint makes two comments of particular interest.  One is that
the deference of the Constitutional Court to the ordinary
courts on
questions of private law stems from the fact that, unlike the United
States Supreme Court, its basic function is to decide
constitutional
questions only.
[65]
This consideration may prove in due course to have some relevance to
the practical application of section 35(3) of our own
Constitution.
The second is that in some cases the impact of the German Basic Law
upon private law under the
“
indirect
”
doctrine
may be stronger than that of the United States Constitution on
American common law under the
“
state
action
”
doctrine,
[66]
precisely because the ordinary German courts are entitled and obliged
to take the Basic Law into account without searching for an
element
of state action.
[67]
[
41
]
The doctrine of the application of the norms of the Basic Law in the
field of private law (
“
Drittwirkung
”
)
is subtle and is the subject of considerable debate in Germany
itself.  The analyses of Justice Barak and Professor Quint might
not command universal acceptance, still less my own brief
interpretation of the doctrine.  It is not, however, my purpose
to
provide a definitive statement of German law, even if I were
competent to do so.  The purpose of this perhaps overlong
account
of constitutional adjudication elsewhere is to see what
guidance it might provide in the interpretation of the South African
Constitution.
In my opinion there is at least one positive
lesson to be learnt from the Canadian and German approaches to the
problem before us.
Both Canada and Germany have developed a
strong culture of individual human rights, which finds expression in
the decisions of their
courts.  Yet, after long debate, both
judicial and academic, in those countries, the highest courts have
rejected the doctrine
of
direct
horizontal
application of their Bills of Rights.  On this issue, as on the
retrospectivity issue, the example of these countries
seriously
undermines the Defendants
’
contention
that anything other that a direct horizontal application of Chapter 3
must result in absurdity and injustice.
[
42
]
As I have already indicated the issue of horizontal or vertical
application of Chapter 3 has been
hotly debated in the South African
legal literature.  Arguments of substance have been deployed on
both sides of the debate.
I have read much of this
literature,
[68]
I hope with advantage.  It is not out of any disrespect to the
authors that I refrain from listing all those to be found on
each
side of the controversy, or from analysing their respective
arguments.  I propose instead to turn without further delay
to
consider what I take to be the relevant provisions of the
Constitution.
[
43
]
In relation to the application of Chapter 3 of the Constitution there
are, as Professor Cockrell has
explained,
[69]
two inter-related but nonetheless different questions to be
considered.  The first is to what law the Chapter applies - does
it apply to the common law, or only to statute law?  The second
question is what persons are bound by the Chapter - do the rights
give protection only against governmental action or can they also be
invoked against private individuals?   There are,
of
course, subsidiary questions, such as what bodies can be considered
to be organs of government, and whether executive action in
the
private law sphere is
“
governmental.
”
[
44
]
The plain answer to the first question emerges from section 7(2) of
the Constitution, which states
-
“
This Chapter shall apply to all law in
force and all administrative decisions taken and acts performed
during the period of operation
of this Constitution.
”
The
words
“
all law in
force
”
may have
some ambiguity, in that they are capable of being read as being
limited to statute law.  However, any ambiguity is removed
by
the Afrikaans version, where the equivalent words are
“
alle
reg wat van krag is.
”
The
word
“
reg
”
(as distinct from
“
wet
”
)
unambiguously embraces common law as well as statute law.
[70]
Although the Afrikaans version of Act 200 of 1993 was the original
signed version, by virtue of section 15 of Act 2 of 1994
the English
version is deemed to be the signed version.
[71]
The latter version would therefore prevail in case of a conflict
between the two versions.  But where there is no conflict
between them there is another well-established rule of
interpretation:  if one text is ambiguous, and if the ambiguity
can be
resolved by the reference to unambiguous words in the other
text, the latter unambiguous meaning should be adopted.
[72]
There is no reason why this common-sense rule should not be applied
to the interpretation of the Constitution.  Both texts
must be
taken to represent the intention of Parliament.  Moreover,
Afrikaans remains an official language with undiminished
status in
terms of section 3 of the Constitution.  The term
“
reg
”
is used in other parts of Chapter 3
as the equivalent of
“
law,
”
for example in section 8 (
“
equality
before the law
”
)
and section 33(1) (
“
law
of general application
”
).
Express references to the common law in such sections as 33(2) and
35(3) reinforce the conclusion that the law referred to
in section
7(2) includes the common law, and that Chapter 3 accordingly affects
or may affect the common law.  Nor can I find
any warrant in the
language alone for distinguishing between the common law of delict,
contract, or any other branch of private law,
on the one hand, and
public common law, such as the general principles of administrative
law,
[73]
the law relating to acts of state or to state privilege, on the
other. By contrast, many provisions of the Constitution use the word
“
wet
”
as the equivalent to
“
law
”
,
in contexts which may assist in finding the answers to the second
question.
[
45
]
The second question too seems to have a plain answer.  Section
7(1) states -
“
This Chapter shall bind all legislative and
executive organs of state at all levels of government.
”
Entrenched
Bills of Rights are ordinarily intended to protect the subject
against legislative and executive action
[74]
,
and the emphatic statement in section 7(1) must mean that Chapter 3
is intended to be binding
only
on the legislative and executive organs of state.  Had the
intention been to give it a more extended application that could
have
been readily expressed.  One model which would have been
available is Article 5 of the Namibian Constitution, which provides
-
“
The fundamental rights and freedoms
enshrined in this Chapter shall be respected and upheld by the
Executive, Legislature and Judiciary
and all organs of the Government
and its agencies and, where applicable to them, by all natural and
legal persons in Namibia, and
shall be enforceable by the Courts in
the manner hereinafter prescribed.
”
It would be surprising if as important a matter as
direct horizontal application were to be
left to be implied.
[
46
]
Another strong indication that a general horizontal application was
not intended is section 33(4)
-
“
This Chapter shall not preclude measures
designed to prohibit unfair  discrimination by bodies and
persons other than those
bound
in terms of section 7(1).
”
(My
emphasis)
If
Chapter 3 has a general horizontal application, who can the bodies
and persons be who are not bound?
[75]
Then there is section 35(3) -
“
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 this
Chapter.
”
(My emphasis)
Again, one asks why such a provision would be needed if
the Chapter could be directly applied to common law disputes between
private
litigants.
[
47
]
Nor do I believe that the absence of reference to the judiciary in
section 7(1) is an oversight.
One of its effects is to exclude
the equation of a judgment of a court with state action and thus
prevent the importation of the
American doctrine developed in
Shelley
v. Kraemer, supra
n47.  This Court, like the provincial and local divisions of the
Supreme Court, is bound to apply the law, which in a proper
case
includes Chapter 3 but that does not permit the courts to ignore the
limitation contained in section 7(1).  It has, I believe,
sometimes been suggested that section 7(2) somehow overrides or
extends section 7(1).  This reading, unpersuasive in itself,
results from a failure to keep in mind the two different questions
which I earlier identified.
[76]
Section 7(1) answers one of them, section 7(2) the other.  It
may be asked why then in private litigation a litigant may
contend
that a statute relied on by the other party is invalid as being
unconstitutional.  That such a contention is open to
a litigant
is hardly disputable.
[77]
There are two reasons why it must be so.  First, as Chapter 3
expressly binds the legislature, every person is protected
against
the operation of unconstitutional legislation.  Second, section
4 of the Constitution (which is outside Chapter 3) provides
-
“
(1)
This Constitution shall be the supreme law of the Republic and any
law or act
inconsistent with its provisions shall, unless otherwise
provided expressly or by necessary implication in this Constitution,
be
of no force and effect to the extent of the inconsistency.
(2)
This Constitution shall bind all legislative, executive and judicial
organs of state at all levels of government.
”
In
this section the Afrikaans equivalent of
“
law
”
(in the phrase

any
law or act
’
) is
not
“
reg
”
but
“
wet
”
,
which unambiguously connotes a statute.  This means that any
statute inconsistent with the Constitution is of no force and
effect.
[78]
Any litigant must therefore be able to rely on this section in any
litigation.  To adopt the language of the reformulation
of the
referral issue (b) set out in paragraph 10 above, any litigant
contesting the constitutionality of a statute is applying Chapter
3
to the relationship between himself and the legislature, not to his
relationship to the opposing (private) litigant.
[
48
]
Having referred to section 4 of the Constitution I should deal
briefly with an argument which has
been raised in the literature,
namely that section 4, by nullifying any law inconsistent with the
provisions of the Constitution,
implies that the common law governing
relations between individuals also falls to be tested directly
against the provisions of Chapter
3.  Quite apart from the
consideration that
“
law
”
in section 4 apparently means statute
law, the argument overlooks the proviso -
“
unless otherwise provided expressly or by
necessary implication in this Constitution
”
.
If on a proper construction of Chapter 3 its operation
is intended to be vertical only, the argument based on section 4
loses any
force which it may have had.
[
49
]
To recapitulate, by reason of the sections to which I have referred -
a)
Constitutional rights under Chapter 3 may be invoked against an organ
of government
but not by one private litigant against another.
b)
In private litigation 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.
[79]
c)
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.
[80]
In
sub-paragraph (c) I refer to
“
governmental
acts or omissions
”
.
For the purposes of this judgment it is unnecessary to attempt to
define that concept.  In particular, I leave open the
question
whether (as in Canada)
[81]
it would include state activities in the commercial or contractual
sphere.
[
50
]
In argument before us it was urged that this result was anomalous.
It is fortuitous in modern
times whether a rule of private law
remains a common law rule or is  embodied in a statute.
Examples were given of some
rules of common law which may be
inconsistent with the rights of the individual set out in Chapter 3.
It is also pointed out
that some statutes embody the common law, and
that various statutes have altered the common law in some parts of
South Africa but
not others.  Thus the statute abolishing the
marital power
[82]
does not apply in the territories of the former Transkei,
Bophuthatswana or Venda.
[83]
Other examples mentioned were common law crimes such as blasphemy or
criminal defamation which, it was said, may be inconsistent
with
Chapter 3 rights; if so, they must be susceptible to attack although
no statute is involved.
[
51
]
Pausing to remark that difficulties and anomalies arise on the
vertical as well as horizontal approaches,
[84]
I believe, with all respect to the submissions of counsel and of
those writers who support them,
[85]
that the supposed irrationalities of the vertical interpretation are
exaggerated.  Such as there may be flow from the structure
and
wording of the Constitution.  This requires further analysis.
I have already pointed out that in some parts of the
Constitution
“
law
”
(
“
wet
”
in the Afrikaans) means statute law,
at whatever level.  One instance is section 4, which nullifies
statutes inconsistent with
the Constitution, but not common law
rules. This distinction between common law and statute becomes of
primary importance in relation
to section 98, the section which
confers jurisdiction on this Court.  Under section 98(2) this
Court has jurisdiction,
“
as
the Court of final instance over all matters relating to the
interpretation, protection and enforcement of the provisions of this
Constitution.
”
Then
certain specific matters are set out, including -
“
(c) any inquiry into the Constitutionality
of any law, including an Act of Parliament, irrespective of whether
such law was passed
or made before or after the commencement of this
Constitution.
”
Here
too the Afrikaans text has
“
wet
”
,
and the reference to passing or making a law is obviously
inappropriate to a rule of common law.  There is no similar
reference
to the constitutionality of any rule of common law.
Sub-sections 98(5) and 98(6) also relate to statute law only.
They
provide that if the Constitutional Court finds a law (
“
wet
”
)
inconsistent with the Constitution it shall declare such law invalid
to the extent of its inconsistency.  The Court may require
Parliament or any other competent authority to correct the defect in
the law (again
“
wet
”
)
during which time that law remains in force.
[
52
]
The operation of a declaration of invalidity of a law (
“
wet
”
)
is dealt with in sub-section (6), but section 98 nowhere provides for
a declaration that a rule of common law is invalid.
Such a
declaration would be highly unusual, and would give rise to much
difficulty.  If a statute, including one embodying a
private law
rule, is struck down, the previous common law (or earlier statute
law) is presumably restored.  But what would result
from holding
a rule of common law to be unconstitutional?  What would follow
is that the relevant common law would require to
be reformulated.
But reformulation of the common law is the task of the Supreme
Court.  In
Shabalala,
supra
n80, we held
that the state
’
s
claim of docket privilege was inconsistent with the Constitution.
The extent of the inconsistency was defined in the order
in that
case, but as was stated in paragraph 58 of the judgment of Mahomed
DP,
“
the details
as to how the Court should exercise its discretion in all these
matters must be developed by the Supreme Court from case
to case, but
always subject to the right of an accused person to contend that the
decision made by the court is not consistent with
the
Constitution
”
.
This Court
’
s
jurisdiction derives only from section 98.  Unlike the Supreme
Court of the United States, the Australian High Court
or the Supreme
Court of Namibia, it has no inherent or general jurisdiction.
It cannot re-write the common law governing private
relations.
If this is borne in mind most if not all the suggested irrationality
of the vertical doctrine disappears.
[
53
]
In many cases
[86]
a holding of unconstitutionality would leave a gap in the law. Take
the rule of the common law referred to in the Defendants
’
Heads of Argument that the widow of a
customary union has no action for loss of support.  If that rule
were held to be unconstitutional
what specific rights are to be
accorded the widow, having regard to other rules of customary law
regarding widowhood?  To take
another of the examples put before
us, assume that, in the absence of a statute, the marital power at
common law were to be
“
struck
down
”
as
unconstitutional, how would existing marriages in community of
property be dealt with?
Section 11(3)
of the
Matrimonial
Property Act 88 of 1984
, as amended by
section 30
of Act 132 of 1993,
which statutorily abolished the marital power, provided a detailed
regime for the governance of marriages in
community of property.
This Court would have had no power to fill the gap. Defendants point
out that if this is so, striking
down a statute may leave an even
worse common law regime in place.  The lesson is to be
circumspect in attacking statutes.
The radical amelioration of
the common law has hitherto been a function of Parliament; there is
no reason to believe that Parliament
will not continue to exercise
that function.
[
54
]
Where the state in its executive or administrative capacity is
concerned there is  no difficulty
in the vertical application of
Chapter 3 against it in the field of common law.  If the common
law offences of blasphemy and
defamation
[87]
are incompatible with the provisions of Chapter 3, the executive
action of the state in prosecuting and inflicting punishment for
those offences could be called into question.  This is provided
for in paragraph (b) of section 98(2) which gives this Court
jurisdiction in any dispute over the constitutionality of any
executive or administrative act or conduct.  In this regard
section
98(7) provides -
“
In the event of the Constitutional Court
declaring an executive or administrative act or conduct or threatened
executive or administrative
act or conduct of an organ of state to be
unconstitutional, it may order the relevant organ of state to refrain
from such act or
conduct, or, subject to such conditions and within
such time as may be specified by it, to correct such act or conduct
in accordance
with this Constitution.
”
It
was by reason of these provisions that we were able in
Shabalala
[88]
to declare that certain practices hitherto adopted by prosecuting
authorities were unconstitutional and to state what was required
of
them so as to ensure that an accused
’
s
right to a fair trial was not infringed.  It will not have been
overlooked that there is no provision similar to section 98(7)
in
relation to private persons - a strange hiatus if horizontality were
intended.
[
55
]
Another pointer in the same direction is section 33(1) which provides
that rights entrenched in Chapter
3 may be limited by law of general
application.  That
“
law
”
may be common law, but the problem of
applying section 33(1) to private relationships governed by the
common law seems almost insurmountable.
The common law
addresses problems of conflicting rights and interests through a
system of balancing.  Many of these rights and
interests are now
recorded in the Constitution and on any view that means that as a
result of the terms of the Constitution the balancing
process
previously undertaken may have to be reconsidered.  A claim for
defamation, for instance, raises a tension between the
right to
freedom of expression and the right to dignity.  The common law
compromise has been to limit both rights to a certain
extent,
allowing damages to be recovered for what is regarded as
“
unlawful
expression
”
but
allowing
“
dignity
”
to be infringed in circumstances
considered to be privileged.  Section 33(1) could hardly be
applied to such a situation.
[
56
]
I have arrived at the conclusions set out above without any reference
to the drafting history of Chapter
3, and in particular of section
7.  We heard no argument on that history, but it is referred to
frequently in the literature
which I have cited.  It is perhaps
sufficient to say that there is nothing in the legislative history
referred to in that literature
which requires the adoption of the
horizontal interpretation.  Nor have I so far referred in any
detail to the considerations
of policy which point to the vertical
solution as the correct one.  One consideration is adverted to
by McIntyre J in
Dolphin
Delivery
,
supra
at 196 -
“
While in political science terms it is
probably acceptable to treat the courts as one of the three
fundamental branches of government,
that is, legislative, executive,
and judicial, I cannot equate for the purposes of Charter application
the order of a court with
an element of governmental action.
This is not to say that the courts are not bound by the Charter.
The courts are, of
course, bound by the Charter as they are bound by
all law.  It is their duty to apply the law, but in doing so
they act as neutral
arbiters, not as contending parties involved in a
dispute.  To regard a court order as an element of governmental
intervention
necessary to invoke the Charter would, it seems to me,
widen the scope of Charter application to virtually all private
litigation.
All cases must end, if carried to completion, with
an enforcement order and if the Charter precludes the making of the
order, where
a Charter right would be infringed, it would seem that
all private litigation would be subject to the Charter.
”
Those remarks seem to me to be fully applicable to
Chapter 3 of our own Constitution.
[
57
]
The limitation of the jurisdiction of this Court to constitutional
matters, and the preservation of
the role of the Appellate Division
as the final court of appeal in other matters also appear to me to
lead inexorably to the conclusion
that Chapter 3 is not intended to
be applied directly to common law issues between private litigants.
Section 101(5) of the
Constitution states-
“
The Appellate Division shall have no
jurisdiction to adjudicate any matter within the jurisdiction of the
Constitutional Court
”
.
Numerous provisions of Chapter 3 could and would be
invoked in private litigation if direct horizontal application of the
Chapter
were permitted.  For example, cases of
injuria
including defamation, invasion of privacy and breach of
confidentiality would call for the application of sections 10, 13 and
15
of the Constitution.  Section 15 would also be relevant to
civil contempts of court.  In employment cases sections 8 and
27
would apply.  Section 26 would be applied to contracts in
restraint of trade and section 29 in actions for nuisance.
Section 30 would be applied in custody and maintenance cases.
The consequence would be that appeals in all such cases would
lie to
the Constitutional Court, and the Appellate Division would be
deprived of a substantial part of what has hitherto been its
regular
civil jurisdiction. At the very least, appeals to the Appellate
Division would routinely result in referrals of common law
cases to
the Constitutional Court.  I do not believe that such a state of
affairs could ever have been intended by the framers
of the
Constitution.
[
58
]
Our jurisdiction under section 98 is not suited to the exposition of
principles of private law.
I have made this point in relation
to the
Matrimonial Property Act 1984
.  The common law of
defamation illustrates this point even more clearly.  We are
asked to find that the law currently applied
by the courts is
inconsistent with section 15 of the Constitution.  Let that be
so.  What regime is to replace the existing
law?  In the
development of the common law of defamation a multitude of choices is
available.  The Defendants, it would
seem from their written
arguments, are attracted by the far-reaching revision of the common
law adopted by the United States Supreme
Court in
New
York Times Co. v. Sullivan, supra
n49, in terms of which a
“
public
person
”
,
however grossly defamed in relation to his or her public conduct, can
only succeed in an action for defamation by proving that the
defamatory statement was false and, what is more, by proving with
“
convincing
clarity
”
that it
was made by the defendant with knowledge of its falsity or with
reckless disregard whether it was false or not.  I would
suggest
that before adopting this rule as part of our law, a court would have
to consider among other things the sharp criticisms
of that rule both
academic and judicial,
[89]
within the United States, and its rejection by the Supreme Court of
Canada in
Hill v.
Church of Scientology of Toronto.
[90]
Presumably a court would also wish to consider the rule adopted by
the High Court of Australia
[91]
in the interests of freedom of speech, namely that in an action for
defamation by a person engaged in politics or government it is
a
defence for the
defendant
to prove that he honestly and reasonably believed in the truth of
what he published.  The Australian rule introduces the concept
of a duty to exercise care into the law of defamation.  A South
African court would have to consider the appropriateness of
introducing such an element into a delict of intent (
injuria
)
in which hitherto
culpa
has not been an element.
[92]
It would also doubtless consider whether the Australian rule was not
right in placing the burden of proof on the defendant
rather than the
plaintiff - in that respect among others refusing to follow New York
Times Co. v. Sullivan,
supra
n49.  At least equally important would be the consideration of
the development of the South African law of defamation.
Unlike
some of the other rights embodied in Chapter 3, freedom of speech and
of the press is not a newly created right.  When
not suppressed
or restricted by statute it was emphatically endorsed and vindicated
in many judgments of South African courts.
[93]
Any law of defamation is a restriction on freedom of speech in the
interest of other rights thought worthy of protection.
More
particularly, in cases of defamation, courts have tried to strike a
balance between the protection of reputation and the right
of free
expression.
[94]
Presumably, too, a court would wish to take account of the fact that
our Constitution, like that of Germany but unlike
that of the United
States, expressly recognises the right to dignity and to personal
privacy, and might find guidance in the German
cases to which I have
referred as well as in the American cases.  On the other hand a
court might also wish to consider the
desirability of cutting down
the concept of a defamatory statement in the interests of freer
political criticism.
[95]
It may similarly consider whether the rule that the press and the
broadcasting media, unlike other litigants, cannot avail
themselves
of the defence of absence of
animus
injuriandi
[96]
ought to be varied in the light of the values embodied in section 15
of the Constitution.  Those values might also require the
development of a broader concept of the public interest, entailing a
reconsideration of the
Neethling
case,
supra
n2.  For present purposes the point is that these are not
choices which this Court can or ought to make.  They are choices
which require consideration perhaps on a case by case basis by the
common law courts.  The common law, it is often said, is
developed on incremental lines.  Certainly it has not been
developed by the process of
“
striking
down
”
.
[
59
]
The consequences which I have outlined in paragraph 57 above are well
illustrated by the judgment
of Cameron J in
Holomisa
v Argus Newspapers Ltd
to which I referred in paragraph 21 above.  The learned judge
had regard to section 15 of the Constitution and to much South
African and foreign case law,  and considered various possible
forms which a law of defamation might take.  In the context
of
the case before him he fashioned a principle of the law of defamation
which is completely novel in this country.  Whether
his
reformulation of the law is a desirable one is a question quite
outside the purview of this judgment.
[97]
He reached his conclusion by attempting to apply the precepts of
section 35(3) - a provision to which I shall advert in a subsequent
paragraph - and not by a direct application of section 15.  If,
however, section 15 had a direct horizontal application the
task of
formulating an appropriate law of defamation would fall to this Court
on appeal.  But that could not be reconciled with
our limited
jurisdiction under section 98(2).  What is in my view certain is
that section 15 of the Constitution does not mandate
any particular
rule of common law.  Our jurisdiction, which is to interpret,
protect and enforce the provisions of the Constitution,
cannot
empower us to choose one among a number of possible rules of common
law all of which may be consistent with the Constitution.
It
would be equally impossible, for reasons which I have already
explained, for this Court simply to declare that a particular rule
of
the law of defamation is invalid, leaving a lacuna in the law.
[
60
]
Fortunately, the Constitution allows for the development of the
common law and customary law by the
Supreme Court in accordance with
the objects of Chapter 3.  This is provided for in section 35(3)
-
“
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
this Chapter.
”
I
have no doubt that this sub-section introduces the
indirect
application of the fundamental rights provisions to private law.
I draw attention to the words
“
have
due regard to
”
in
section 35(3).  That choice of language is significant.
The lawgiver did not say that courts should invalidate rules
of
common law inconsistent with Chapter 3 or declare them
unconstitutional.  The fact that courts are to do no more than
have
regard to the spirit, purport and objects of the Chapter
indicates that the requisite development of the common law and
customary
law is not to be pursued through the exercise of the powers
of this Court under section 98 of the Constitution. The presence of
this
sub-section ensures that the values embodied in Chapter 3 will
permeate the common law in all its aspects, including private
litigation.
I incline to agree with the view of Cameron J in
the judgment already referred to
[98]
,
that section 35(3) makes much of the vertical/horizontal debate
irrelevant. The model of indirect application or, if you will
indirect
horizontality, seems peculiarly appropriate to a judicial
system which, as in Germany, separates constitutional jurisdiction
from
ordinary jurisdiction.  This does not mean that the
principles evolved by the German Constitutional Court must be
slavishly
followed.  They do however afford an example of how
the process of influencing the common law may work in practice.
The
German Basic Law, Article 1(3) provides -
“
The following basic rights shall bind the
legislature, the executive and the judiciary as directly enforceable
law.
”
[99]
It has no equivalent to section 35(3).  Yet, as I
pointed out earlier in this judgment, the German courts nonetheless
apply a
model of indirect and not direct application of the basic
rights provisions in private litigation.
[
61
]
There is also some practical guidance to be found in the Canadian
authorities, always bearing in mind
that there is no separation of
constitutional and ordinary jurisdiction in Canadian courts.  In
R. v. Salituro
[100]
Iacobucci J said -
“
Judges can and should adapt the
common law to reflect the changing social, moral and economic fabric
of the country.  Judges
should not be quick to perpetuate rules
whose social foundation has long since disappeared.  Nonetheless
there are significant
constraints on the power of the judiciary to
change the law.  ... in a constitutional democracy such as ours
it is the Legislature
and not the courts which has the major
responsibility for law reform ... .  The judiciary should
confine itself to those incremental
changes which are necessary to
keep the common law in step with the dynamic and evolving fabric of
our society.
”
[101]
In
Bank of British
Columbia v. Canadian Broadcasting Corp.
[102]
,
the court engaged in the process of weighing up the claims of the
Charter and the common law rules of defamation, in circumstances
where a bank had sued a public broadcaster for libel following
reports that it was in imminent danger of failing.  The court
extracted what it perceived to be the core value underlying the
freedom of expression, press and media provision in section 2(b)
of
the Charter, namely the right to gather and disseminate truthful
information free from government interference.
“
The
ultimate purpose of the Charter protection is so that truth may be
uncovered and made known ... .  The Charter speaks to
our
highest values.  Truth is one of them.
”
[103]
What section 2(b) did not do, it was held, was to provide a special
privilege to the press in the context of private litigation.
In
Hill
’
s
case,
supra
n90, plaintiff instituted action for libel following the bringing of
contempt proceedings against him by the Defendants.  The
court
ruled out direct application of the Charter but emphasised that
“
the
common law must be interpreted in a manner which is consistent with
Charter principles.  This obligation is simply a manifestation
of the inherent jurisdiction of the courts to modify or extend the
common law in order to comply with prevailing social conditions
and
values.
”
[104]
Having  weighed up the Charter requirements and the common law
rules, the court concluded that the common law of defamation
complied
with the underlying values of the Charter and there was no need to
amend or alter it.  Our courts may well reach a
different
conclusion: for one thing section 35(3) has no counterpart in the
Canadian Charter.  But the process of reasoning
of the Canadian
judges remains instructive.
[
62
]
What I conclude is that Chapter 3 does not have a general direct
horizontal application but that it
may and should have an influence
on the development of the common law
[105]
as it governs relations between individuals.  I insert the
qualification
“
general
”
because it may be open to a litigant
in another case to argue that some particular provision of Chapter 3
must by necessary implication
have direct horizontal application.
Section 15(1) is not such a provision.  No such implication is
necessary.  One
of the purposes of the section is to give
protection against far-reaching censorship laws and other statutes
restricting free speech
which were common under the regime of
Parliamentary supremacy.  Accordingly, my response to the second
issue referred to this
Court by the learned judge would be that
Chapter 3 of the Constitution does not in general have direct
horizontal application, and
more particularly that section 15(1) does
not have direct horizontal application.  On the other hand, the
values which it embodies
can and must be taken into account in the
development of the common law of defamation.
[
63
]
I should add that in my opinion the phrase
“
a
court
”
in section
35(3) means
“
all
courts
”
, and
includes the Appellate Division, notwithstanding the provisions of
section 101(5).  There is no contradiction as the
“
application
and development of the common law
”
is
not a matter which falls within the jurisdiction of the
Constitutional Court under section 98.  This is not to say that
the
Constitutional Court has no control over how the common
private
law develops.  In terms of section 98(2) it has jurisdiction in
the final instance over all matters relating to
“
the
interpretation, protection and enforcement of the provisions of this
Constitution
”
.
It must ensure that the provisions of section 35(3) in relation,
inter alia
,
to the development of the common law are properly interpreted and
applied, otherwise it is not discharging its duty properly in
relation to the enforcement of the provisions of the Constitution.
The Constitutional Court has jurisdiction to determine what
the
“
spirit, purport
and objects
”
of
Chapter 3 are and to ensure that, in developing the common law, the
other courts have had
“
due
regard
”
thereto.
It is unnecessary, for the purposes of this judgment, to define the
boundaries of its jurisdiction in this regard.
Whether the
Constitutional Court will exercise review powers along the same lines
as the German Constitutional Court
[106]
is a question for the future.
[
64
]
What I have said above has implicitly answered the questions put to
counsel by the President of the
Court, set out in paragraph 11 above.
i.
The issue whether the common law of defamation should be developed to
make
it consistent with the Constitution, was not an issue in the
appeal but fell to be considered in relation to the second issue
referred
to this Court by the judge.
ii.
The development of the common law is within the jurisdiction of the
Appellate
Division, but
not
of the Constitutional Court,
subject to the reservation made in the previous paragraph of this
judgment.
iii.         Any
appeal on such an issue (the development of the common law), once it
has
been properly raised and dealt with in a provincial division,
must be directed to the Appellate Division.
[
65
]
In the application before him Van Dijkhorst J was not required to
consider the development of the
common law in terms of section 35(3)
and did not do so.  That section may in some instances require
the Supreme Court to give
a new turn to a branch of the common law.
It may well follow from the answer I have given to question (a) in
paragraph 10 above,
that the Defendants cannot derive any assistance
from section 35(3) in relation to a defamation which was published
before the Constitution
came into force.  That issue, however,
was not argued before us, and is not without its complications. In
our courts a judgment
which brings about a radical alteration in the
common law as previously understood proceeds upon the legal fiction
that the new rule
has not been made by the court but merely
“
found
”
,
as if it had always been inherent in the law.  Nor do our courts
distinguish between cases which have arisen before, and those
which
arise after, the new rule has been announced.  For this reason
it is sometimes said that
“
judge-made
law
”
is
retrospective in its operation.  In all this our courts have
followed the practice of the English courts.  Thus in
Birmingham
Corporation
v.
West
Midland Baptist (Trust) Association
;
[107]
Lord Reid said
-
“
We cannot say that the law was one thing
yesterday but is to be something different tomorrow.  If we
decide that the rule [i.e.
the previously accepted rule] ... is wrong
we must decide that it always has been wrong
”
.
That
is why in
Geelong
Harbour Trust Commissioners
v.
Gibbs Bright and
Co
[108]
Lord Diplock said that any change in the law made by judicial
decision is in effect retrospective. In their well-known book
The
South African Legal System
[109]
Professors Hahlo and Kahn say that (save in matters of court
practice), there -
“
... has never been a holding ... by any
South African court that the operation of a decision is to be
prospective.  This solution
of certain American courts is
unknown.
”
This
is no doubt correct.  It may nonetheless be said that there is
no rule of positive law which would forbid our Supreme Court
from
departing from that practice.  Indeed, in England at least two
Law Lords have said that the judiciary should seriously
consider
exercising a jurisdiction to overrule a previous  decision
prospectively only,
[110]
as American courts have done.
[
66
]
It is unnecessary to discuss the American practice in detail.
It is described in Tribe,
American
Constitutional Law
[111]
and in an article,
“
Prospective
and Retrospective Judicial Lawmaking
”
,
by Professor M.I. Friedland,
[112]
which also describes English and Canadian practice.  It is
sufficient to refer to two decisions of the United States Supreme
Court, which state the principle that courts
may
(not must) apply their decisions prospectively if they overrule past
precedents.  See
Great
Northern Railway Co.
v.
Sunburst Oil and
Refining Co,
[113]
and
Chevron Oil Co
v.
Huson
.
[114]
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.  But 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.
Order
[
67
]
The Order of the Court is as follows:
1.         The
appeal is dismissed with costs, such costs to include the costs of
two counsel.
2.         The
two questions referred by the judge
a quo,
and reformulated by
this Court as set out in paragraph 10 above are answered as follows -
a)         No:
The Defendants in this case are not entitled to invoke the provisions
of the
Constitution.
b)         No:
The provisions of Chapter 3 of the Constitution are not in general
capable
of application to any relationship other than that between
persons and legislative or executive organs of state at all levels of
government.  In particular section 15 is not capable of
application to any relationship other than that between persons and
legislative or executive organs of the state at all levels of
government.
S.
KENTRIDGE
Acting Justice of the Constitutional Court
Chaskalson
P, Langa J and O
’
Regan
J concur in the judgment of Kentridge AJ.
[
68
]
MAHOMED DP
:
I have had the privilege of reading and considering the main judgment
of Kentridge AJ and also the separate judgments of Ackermann,
Kriegler, Madala, Mokgoro and Sachs JJ.  In view of the fact
that I have sometimes different perspectives in regard to some
of the
issues articulated in those judgments, I have considered it wise to
set out briefly my approach on the disputed issues.
“
Retrospectivity
”
In
effect, what the amendment sought by the appellants seeks to assert
is the proposition that if the disputed articles published
by the
Pretoria News were unlawful at the time of the publication, the
effect of the subsequent enactment of the interim Constitution
of
1993 (
“
the
Constitution
”
) is
to render such publication lawful.  In my view that is an
untenable proposition.  The reliance by the Appellants on
my
judgment given in
Mhlungu
’
s
case
1
seems to me to be misplaced.  Nothing in
Mhlungu
’
s
case, in any of the judgments of the
majority or the minority, support the proposition contended for.
What was involved in the
relevant parts of the judgment in
Mhlungu
’
s
case was the proper interpretation of
section 241(8) of the Constitution.  What I did hold was that an
accused person in a criminal
trial was entitled to rely on any
protection of the Constitution in any trial that was taking place
after the commencement of the
Constitution and even in circumstances
where such a trial had actually begun before the commencement of the
Constitution.  I
held that section 241(8), properly interpreted,
did not operate as an obstacle in the way of an accused person who
sought to assert
the protection of the Constitution at a time when
the Constitution was already in operation, notwithstanding the fact
that the case
may already have begun before the commencement of the
Constitution.
2
Indeed, I held expressly that an accused person could not rely on any
of the provisions of section 25(3) of the Constitution
in an appeal
heard after the commencement of the Constitution in which it was
being asserted that a right protected by section 25(3)
had not been
accorded to the accused at the trial at a time when the Constitution
was not yet in operation.
3
The lawfulness or unlawfulness of any conduct at the time it took
place is determined by the applicable law at that time.
The
Constitution does not convert conduct which was unlawful at the time
when it took place into lawful conduct.
[
69
]
Notwithstanding this conclusion I would like to make one
qualification which might perhaps be important
in some future
dispute.  I would prefer to leave open the question whether or
not, following on a declaration of invalidity,
this Court has
jurisdiction in terms of section 98(6) of the Constitution, to make
an order invalidating something which was done
(or permitted to be
done) at a time when the Constitution was not operative at all.
It may arguably be contended in some suitable
case that the interests
of justice and good government justify an order which invalidates
anything previously done or permitted in
terms of an invalid law even
if the Constitution was not operative at the time when it was so done
or permitted.  It is unnecessary
to pursue this line in the
present case.  Even if section 98(6) was to be construed as
permitting a retrospective order of the
kind I have alluded to in
certain circumstances, the factual circumstances in the present case
would not justify such an order.
[
70
]
In paragraph 2(a) of the order proposed by Kentridge AJ, it is stated
that
“
[t]he
Defendants in this case are not entitled to invoke the provisions of
the Constitution
”
having
regard to the fact that the publication of the offending material,
the institution of the action and all the relevant facts
had occurred
before the Constitution came into operation.  I am in respectful
agreement with that order but I would emphasize
the qualification
contained in paragraph 20 of the judgment of Kentridge AJ in respect
of other cases where the enforcement after
the Constitution of rights
acquired prior to the Constitution would be plainly inconsistent with
our present constitutional values.
Section 102(8)
[
71
]
After some hesitation I have come to the conclusion that Kentridge AJ
is correct in his interpretation
of the section and it therefore
follows that the matter was correctly referred to this court by the
court
a quo.
“
Horizontality
”
[
72
]
Much of the debate before us pertained to the question whether the
fundamental rights provisions contained
in Chapter 3 are only of
“
vertical
”
application against the legislature
and the executive or whether they are also of
“
horizontal
”
application between private citizens
inter se
.
Having examined the detailed reasons given by Kentridge AJ and those
given by Kriegler J, I have come to the conclusion that
on any
approach the practical consequences are substantially the same.
1.         The
debate between Kentridge AJ and Kriegler J cannot properly be
characterized
as a debate on the issue as to whether Chapter 3 of the
Constitution is of horizontal or vertical application.
2.
Where a statute or an ordinance or a by-law or a regulation is
attacked on the
grounds that it is inconsistent with the
Constitution, there is consensus that this is a competent attack and
it matters not whether
such an attack is made in litigation between
private individuals or whether it is made in litigation between a
governmental authority
and a citizen.  Its effect in such
circumstances can therefore be
“
horizontal
”
.
3.         Even
where the attack concerned is made not on any statutory enactment but
on the
common law, Chapter 3 can be invoked to sustain such an attack
if one of the parties to the litigation is a governmental agency.
4.
The only residual area of potential disagreement arises in the case
where what
is sought to be attacked is some or other rule of the
common law in litigation between private parties not involving any
legislative
or executive authority.  But even in this limited
area the true debate is effectively not whether the rights
articulated in
Chapter 3 are capable of
“
horizontal
”
effect but whether or not such
“
horizontality
”
is to arise in consequence of the
direct application of the relevant Chapter 3 right or through the
mechanism of interpreting, applying
and developing the common law by
having regard to the spirit, purport and objects of the Chapter,
pursuant to section 35(3).
5.         On
both approaches there is consensus that the power of all the
divisions of the
Supreme Court (including the Appellate Division) to
interpret and develop the common law, having regard to the spirit,
purport and
objects of Chapter 3, is crucial and unimpaired.
6.
The issue which arises in the present case is to be confined to the
proper application
of section 15 and the answer to that issue may not
necessarily be the same as the answer which might have to be given to
any other
section contained in Chapter 3. (There is some force in the
suggestion by Madala J that some of the fundamental rights enumerated
in Chapter 3 may apply directly in litigation between private
persons.
4
It is unnecessary in the present case to determine that issue or to
attempt to identify the particular rights in Chapter 3
which might be
suitable for such treatment.)
[
73
]
The differences in the theoretical approaches favoured by Kriegler J
and Kentridge AJ therefore seem
to me to involve no substantial
practical consequences, particularly if regard is had to the fact
that whatever may be said about
the meaning of the interim
Constitution might in the future be of historical importance only,
because the interim Constitution will
already have been overtaken by
a new constitutional text with quite different formulations impacting
on the problem.
[
74
]
In view of the fact, however, that somewhat different theoretical
positions have been maintained in
the judgments of Kriegler J and
Kentridge AJ, I think I should express my views on this debate and
the reasoning articulated in the
course thereof.
[
75
]
What is patent from the preamble, the postscript and the substance of
the Constitution is a very clear
and eloquent commitment to the
creation of a defensible society based on freedom and equality
setting its face firmly and vigorously
against the racism which has
dominated South African society for so long and the repression which
became necessary to perpetuate
its untenable ethos and premises.
To leave individuals free to perpetuate advantages, privileges and
relations, quite immune
from the discipline of Chapter 3, would
substantially be to allow the ethos and pathology of racism
effectively to sustain a new
life, subverting the gains which the
Constitution seeks carefully to consolidate.  It is for this
reason that I have found the
approach of Kriegler J particularly
attractive, but after some considerable hesitation I have come to be
influenced by three important
considerations which reduce the cogency
of his arguments.
[
76
]
The first influence is textual.  Section 7(1) provides that-
“
This Chapter shall bind all legislative and
executive organs of state at all levels of government.
”
What
section 7(1) therefore does is to isolate the bodies who are bound by
the Chapter.  Section 4(2) and many other Constitutions
include
the judiciary among the organs expressly bound.  Significantly
the judiciary appears in section 7(1) to have been deliberately
excluded from the organs and bodies which are identified as being the
organs bound by Chapter 3.  The organs identified as being
so
bound are simply confined to
“
all
legislative and executive organs of State.
”
Why was it necessary to isolate such
organs?  Why was it necessary to exclude the judiciary or other
organs or bodies which were
not governmental in character?  The
issue as to whether guarantees on fundamental rights should be of
horizontal application
in relations between private citizens had,
prior to the enactment of the Constitution, been the subject of very
considerable public
and academic debate, both in South Africa and
abroad.  Different responses were forthcoming from different
constituencies.
It was very much a live issue.  I find it
difficult to accept that if the lawmakers had intended to resolve
that debate in the
manner contended for by
“
horizontality
”
advocates, they would not have said
so in clear terms or at least in language which clearly permitted
that inference to be made.
I am not persuaded that the
lawmakers would wish such a crucial issue to be left for discovery
and inference by astute judicial craftsmanship
and nimble
argumentation.  The converse would have been understandable.
If the language employed in section 7(1) was language
which permitted
the inference of
“
horizontality
”
,
but nothing was said as to whether the Chapter also bound organs of
government, it might have been easy to infer that because private
citizens were bound by the discipline of Chapter 3, it was
a
fortiori
of application against a governmental authority.  The
controversy which had previously raged was not a controversy
pertaining
to whether governments should be bound by the fundamental
rights articulated in a Constitution but whether citizens should so
be
bound in their relations between themselves
.
[
77
]
In dealing with the proper force and interpretation of section 7(1) I
have not overlooked the argument
that section 7(2) applies Chapter 3
to
“
all law in
force... during the period of operation of this Constitution.
”
I have no doubt that
“
all
law
”
must include
the common law but in my respectful view Kentridge AJ is correct in
concluding that what section 7(2) does is to define
what law is
applicable to the persons bound by Chapter 3 in terms of section
7(1).  Nothing in section 4 of the Constitution
is inconsistent
with that conclusion.  The Constitution is, in terms of section
4, manifestly the supreme law of the Republic
and binding on all
legislative, executive and judicial organs of state at all levels of
government.  But that fundamental proposition
in no way extends
the application of section 7(1) to bodies or persons not otherwise
bound in terms of that subsection by the fundamental
rights
articulated in Chapter 3.
[
78
]
The textual force of section 7(1) appears, in my view, substantially
to be reinforced by the provisions
of section 33(4) of the
Constitution which prescribe that Chapter 3-
“
shall not preclude measures designed to
prohibit unfair discrimination by bodies and persons other than those
bound in terms of section
7(1).
”
What this sub-section seems to me to do is to authorize
substantive legislation which would extend to other bodies and
persons the
duties placed on government in terms of section 7(1).
The answer favoured by Kriegler J to this approach follows on his
understanding
of the meaning of section 7(2).  Section 7(2), he
says, makes the Chapter applicable to all law and it matters not
whether the
persons seeking to apply such law are private persons or
governmental organs but private persons are perfectly entitled to act
without
regard to the rights articulated in Chapter 3, as long as
they do not invoke the law in support of their actions.  On this
approach
section 33(4) becomes necessary to entitle Parliament to
enact legislation which would prohibit actions by private persons
which
are inconsistent with Chapter 3 but in circumstances where the
law is not being invoked by private persons in support of such
actions.
He puts this argument forcefully by stating that-
“
.... As far as the Chapter is concerned a
landlord is free to refuse to let a flat to someone because of race,
gender or whatever;
a white bigot may refuse to sell property to a
person of colour; a social club may to black-ball Jews, Catholics or
Afrikaners if
it so wishes.  An employer is at liberty to
discriminate on racial grounds in the engagement of staff; a hotelier
may refuse
to let a room to a homosexual; a church may close its
doors to mourners of a particular colour or class.  But none of
them can
invoke the law to enforce or protect their bigotry... The
whole gamut of private relationships is left undisturbed
.
”
5
[
79
]
There is force in this approach but I have difficulties with it.
The premise is and must be
that private persons falling within the
examples referred to in this quotation, who perform acts otherwise
inconsistent with the
rights specified in Chapter 3, are not doing so
in terms of law.  I think this is an incorrect premise.
All the acts performed
by such private persons are acts performed in
terms of what the common law would allow.  A landlord who
refuses to let to someone
because of his race is exercising a right
which is incidental to the rights of the owner of property at common
law; this applies
equally to the white bigot who refuses to sell
property to a person of colour.  A social club which black-balls
Jews, Catholics
or Afrikaners acts in terms either of its own
constitution or the common law pertaining to voluntary associations
or freedom of contract.
I am not persuaded that there is, in
the modern State, any right which exists which is not ultimately
sourced in some law, even if
it be no more than an unarticulated
premise of the common law and even if that common law is
constitutionally immunized from legislative
invasion.  Whatever
be the historical origins of the common law and the evolutionary path
it has taken, its continued existence
and efficacy in the modern
State depends, in the last instance, on the power of the State to
enforce its sanction and its duty to
do so when its protection is
invoked by the citizen who seeks to rely on it.  It is, I
believe, erroneous to conclude that the
law operates for the first
time only when that sanction is invoked.  The truth is that it
precedes it and is indeed the ultimate
source for the legitimation of
any conduct.  Freedom is a fundamental ingredient of a
defensible and durable civilization, but
it is ultimately secured in
modern conditions, only through the power, the sovereignty and the
majesty of the law activated by the
State
’
s
instruments of authority in the protection of those prejudiced
through its invasion by others.  Inherently there can be no
“
right
”
governing relations between
individuals
inter se
or between individuals and the State the protection of which is not
legally enforceable and if it is legally enforceable it must
be part
of law.
[
80
]
The approach of Kriegler J, which I have sought to summarise, also
does not explain to me satisfactorily
why section 7(1) was necessary
at all.  If section 7(2) was to be interpreted on the basis that
Chapter 3 applied to all law
and that it mattered not whether those
affected were governmental organs or private parties in litigation
between themselves, there
would have been scant reason to specially
isolate governmental organs in section 7(1).
[
81
]
The basic premise of section 7(1) is that generally Chapter 3 applies
only to legislative and executive
organs of State and substantially
the same assumption must inform section 98(7) which contemplates
restraints only upon governmental
authorities performing executive or
administrative acts inconsistent with the Constitution.  No
corresponding machinery is provided
for restraints upon any private
persons.
[
82
]
The same temper is reflected by section 35(3) which requires a court
to have regard to the spirit,
purport and objects of Chapter 3 in the
interpretation of any law and the application and development of the
common law and customary
law.  If the law pertaining to
relations between private individuals was directly subject to the
substantive rights contained
in Chapter 3 there would be scant need
to provide that the courts should have regard to the spirit, purport
and objects of the Chapter
in the application and development of the
common law.  If Chapter 3 was of direct application to such
relationships, section
35(3) would appear to me to be only of
peripheral value and relevance in the application of Chapter 3.
As will appear later,
on the interpretation I favour, on the other
hand, the role of section 35(3) is crucial in the identification,
development and enforcement
of the fundamental constitutional values
articulated in the Chapter.
[
83
]
In the main judgment of Kentridge AJ he also relies on the text of
section 33(1) in support of his
construction of sections 7(1) and
7(2).  He argues that if section 33(1) were to apply to private
relationships governed by
the common law, the problems which would
arise appear to be
“
almost
insurmountable.
”
He
contends that-
“
The common law addresses problems of
conflicting rights and interests through a system of balancing.
Many of these rights and
interests are now recorded in the
Constitution and on any view that means that as a result of the terms
of the Constitution the balancing
process previously undertaken may
have to be reconsidered.
”
6
I
agree that the text of section 33(1) may be some
“
pointer
”
in the direction favoured by
Kentridge AJ but I would not have regarded this consideration by
itself to be sufficient to justify a
rejection of  the approach
favoured by Kriegler J.  In the first place, on the approach
favoured by Kentridge AJ, Chapter
3 and therefore section 33(1) would
in any event apply to the common law where the government or a
governmental agency is involved
in litigation against a private party
and in which some right contained in Chapter 3 is invoked.  The
lawmaker therefore did
not consider the problems in applying section
33(1) in such a situation to be
“
insurmountable
”
.
I do not think that these problems necessarily  become
insurmountable in cases where it is not the government which is
involved in making or resisting an attack on the common law but
private parties
inter
se
(although it
must be conceded that where the State is a party in litigation
involving the common law it would often not be asserting
a
“
right
”
which needs balancing against a
“
right
”
claimed or asserted by its
adversary). In most cases,
“
the
balancing process previously undertaken
”
in
formulating the relevant rule of the common law has involved
balancing some of the very rights now detailed in Chapter 3 and it
may be perfectly possible, in the application of section 33(1), to do
the balancing act by having regard to the other rights articulated
in
Chapter 3, both in identifying the contours of the particular right
invoked in the attack on the common law and in seeking to
define the
permissible parameters of any limitation.
[
84
]
Apart from the actual and potential textual difficulties I have in
support of the interpretation favoured
by Kriegler J, I agree with
Kentridge AJ that
“
there
is nothing in the legislative history... which requires the adoption
of the horizontal interpretation.
”
7
I am mindful of the fact, however,
that it is theoretically possible for different Parliamentarians and
negotiators to support the
same formula in an enactment for very
different, and sometimes even conflicting reasons, but insofar as the
legislative history provides
an objective background which is
inconsistent with a particular construction which is advanced, it is,
I think, permissible to have
some regard to that history, although
this cannot in itself ever operate decisively.
8
[
85
]
Notwithstanding all these observations I would have remained
profoundly uncomfortable if the construction
favoured by Kentridge AJ
meant, in practise, that the Constitution was impotent to protect
those who have so manifestly and brutally
been victimised by the
private and institutionalized desecration of the values now so
eloquently articulated in the Constitution.
Black persons were
previously denied the right to own land in 87% of the country.
An interpretation of the Constitution which
continued to protect the
right of private persons substantially to perpetuate such unfairness
by entering into contracts or making
dispositions subject to the
condition that such land is not sold to or occupied by Blacks would
have been for me a very distressing
conclusion.
9
These and scores of other such examples leave me no doubt that those
responsible for the enactment of the Constitution never
intended to
permit the privatisation of Apartheid or to allow the unfair gains of
Apartheid or the privileges it bestowed on the
few, or the offensive
attitudes it generated amongst many to be fossilized and protected by
courts rendered impotent by the language
of the Constitution.
For this reason I would therefore have been compelled to ask whether
the interpretation favoured by Kentridge
AJ is perhaps not flawed in
some respect which I might have overlooked or whether I have not
perhaps accorded inadequate weight to
some of the relevant
considerations so forcefully articulated in the judgment of Kriegler
J.
[
86
]
Fortunately, however, none of the distressing consequences to which I
have referred in the preceding
paragraph, flow from the
interpretation which I have now come to favour.  I say this
because on that interpretation most of
the common law rules, upon
which reliance would have to be placed by private persons seeking to
perpetuate unfair privilege or discrimination,
would themselves be
vulnerable to invasion and re-examination in appropriate
circumstances.  What contracts and actions public
policy would
permit or enforce in the future will have to be re-examined.
Such a constitutionally defensible and competent
source of invasion
would flow not from a direct and literal extension of the provisions
of section 7(1) of the Constitution to relations
between private
persons
inter se
.
It would flow from a source potentially no less richer and creative
than such an extension.  It would be sourced in section
35(3) of
the Constitution which compels the courts to have due regard to the
spirit, purport and objects of the Chapter in the interpretation
of
any law and the application and development of the common law.
The common law is not to be trapped within the limitations
of its
past.  It needs not to be interpreted in conditions of social
and constitutional ossification.  It needs to be revisited
and
revitalized with the spirit of the constitutional values defined in
Chapter 3 of the Constitution and with full regard to the
purport and
objects of that Chapter.
1
0
Thus approached section 35(3) can, in appropriate circumstances,
accommodate much of the concern felt by those like me who
are anxious
to avoid giving to section 7 of the Constitution an interpretation
which would leave the courts substantially impotent
in affording the
proper protection of constitutional values to those victimized by
their denial to them in the past.
[
87
]
The interpretation which I have come to favour has the advantage of
giving to the different divisions
of the Supreme Court, including its
Appellate Division, a very clear and creative role in the active
evolution of our constitutional
jurisprudence by examining, and in
suitable circumstances expanding, the traditional frontiers of the
common law by infusing it with
the spirit of Chapter 3 of the
Constitution and its purport and objects.  Nothing contained in
section 101(5), read with section
98, of the Constitution would in
any way impede the untrammelled exercise of such powers, but it would
leave also to the Constitutional
Court the residual power to
determine, in suitable circumstances, whether in the application of
its jurisdiction in terms of section
35(3) the Supreme Court has in
any particular case properly had regard to the spirit of Chapter 3 of
the Constitution and its purport
and objects.
[
88
]
In the result, I am in respectful agreement with the order proposed
by Kentridge AJ and the answers
he gives in paragraph 64 of his
judgment.
I
MAHOMED
Deputy President of the Constitutional Court
Langa
J and O
’
Regan J
concur in the judgment of Mahomed DP.
[
89
]
ACKERMANN J:
I concur with
Kentridge AJ
’
s
judgment and the order he proposes. I have also had the privilege of
reading the judgment of Kriegler J, in which he reaches a different
conclusion regarding the effect which the rights guaranteed in
Chapter 3 of the interim Constitution have on legal relations between
private persons. Because of this disagreement and the importance of
the issue at stake, I should like to add briefly certain reasons
of
my own, some of which have been foreshadowed in Kentridge AJ
’
s
judgment, why I agree with his conclusion on this particular issue.
A teleological approach to the construction of the Constitution
gives
substantial support to this conclusion.
[
90
]
It is certainly true that our interim Constitution is textually
unique and that the historical circumstances
in which constitutions
are adopted are never identical.  In certain cases these
circumstances may, for the most part, only differ
in degree.
Many constitutions, particularly those which come in the wake of
rapid and extensive political and social change,
are reactive in
nature and often reflect in their provisions a response to particular
histories and political and social ills.
1
[
91
]
Kriegler J has, in his judgment, referred eloquently to the duration,
acceleration and gravity of
the human rights denials and abuses to
which the interim Constitution is a response and which it seeks,
amongst other things, to
redress.  Without wishing to
over-simplify the nature and extent of these abuses and denials it
is, I think, fair to say that
they related in general to the core
values of dignity, freedom and equality.  There are other
constitutions which have
been a response to tragic histories or
episodes in the national histories of particular countries during
which gross abuses of human
rights have occurred.
[
92
]
I do believe that the German Basic Law (GBL) was conceived in dire
circumstances bearing sufficient
resemblance to our own to make
critical study and cautious application of its lessons to our
situation and Constitution warranted.
The GBL was no less
powerful a response to totalitarianism, the degradation of human
dignity and the denial of freedom and equality
than our
Constitution.  Few things make this clearer than Art 1(1) of the
GBL,
2
particularly when it is borne in mind that the principles laid down
in Art 1 are entrenched against amendment of any kind by Art
79(3).
3
[
93
]
The provisions of Articles 1 to 19 of the GBL (which constitute its
chapter on basic rights and determine
the binding nature of these
rights) are no more restricted than the comparable provisions in our
Constitution.  No distinction
is made between public law and
private law; statute law and common law; there is no suggestion of
their being limited to the relationship
between state and persons.
Most important of all,  Art 1(3) of the GBL states unequivocally
that the basic rights
“
shall
bind the legislature, the executive
and
the judiciary as directly enforceable law
”
4
(emphasis supplied).  By
specifically including the judiciary, this provision goes even
further textually than section 7(1) of
our Constitution.
[
94
]
Yet in Germany it is today not seriously questioned that in deciding
disputes between private persons
there is no direct application of
the fundamental rights by the judiciary.
5
This is particularly noteworthy considering the extensive
jurisprudence supporting the view that the basic rights entrenched
by
the GBL not only establish subjective individual rights but an
objective order of values or an objective value system (
“
eine
objektive Wertordnung
”
).
6
The jurisprudence of the Federal Constitutional
Court is consistently to the effect that the basic right norms
contain not only defensive
subjective rights for the individual but
embody at the same time an objective value system which, as a
fundamental  constitutional
value for all areas of the law, acts
as a guiding principle and stimulus for the legislature, executive
and judiciary.
7
Von
M
h
nch/Kunig
8
point out that the Federal Constitutional Court and academic opinion
are in agreement that the basic rights only apply with
indirect
horizontality
(
“
nur
mittelbaren
Drittwirkung
”
)
to the legal relations of private individuals; the basic rights do
not apply directly to the private law, but because the basic
rights
also operate as an objective value system they
“
influence
”
(
“
beeinflussen
”
)
the private law.
The learned authors point out
9
that the basic rights do not serve to solve disputes in the field of
private law in specific cases.
[
95
]
Against this background, particularly having regard to the explicit
wording of  Art 1(3) of the
GBL, it behoves us to consider
carefully why, on textual, teleological and policy grounds, German
constitutional jurisprudence has
rejected the direct application of
the basic rights in the GBL to private legal relationships.
[
96
]
The impact of  Art 1(3) of the GBL on the judiciary is seen as
being limited generally to procedural
due process, including equal
access to the law and equality before the law.  Where the law is
completely silent, however, the
basic rights can be directly
applied.  Thus, the general equality clause
1
0
requires procedural equality of arms (
“
Waffengleichheit
”
),
equality
“
as to
the outcome of the case
”
(i.e.
the court must be unbiassed throughout) and above all equality in the
application of the law; the courts may not depart from
legal norms,
existing norms may not be ignored and litigants may not be
discriminated against on any of the grounds mentioned in
Art
3(3).
1
1
[
97
]
Direct application of the basic rights by the judiciary in ordinary
civil proceedings would make the
law vague and uncertain, which is
contrary to the concept of the constitutional state.
1
2
Uncertainty is aggravated by the fact that (in contrast to a dispute
between citizen and state) in a dispute between two private
individuals both sides can invoke the basic rights, calling for a
difficult balancing of conflicting rights which could reasonably
lead
different courts to different decisions.
1
3
Rather, direct application should take place at the law-making level,
so that all laws which are being applied by the courts
do already
comply with the basic rights, obviating the need for direct
horizontal application by the courts.
1
4
I consider this to be an equally, if not more compelling,
consideration in the context of our own Constitution.  As I
pointed out in
S v
Makwanyane and Another
,
[i]n reaction to our past, the concept and values
of the constitutional state, of the

regstaat
’
...
are deeply foundational to the creation of the

new
order
’
referred to in the preamble
[of the Constitution].
1
5
Our
Constitution moreover commits the state, in different ways, to
legislative programmes to rectify past discrimination and denial
of
human rights and to ensure equality, the equal protection of the law
and the protection and advancement of human rights in the
future.
1
6
[
98
]
The fact that  Art 1(3) of the GBL explicitly mentions the
organs of state, and only the organs
of state, as being bound by the
chapter on basic rights is seen as a clear pointer that rights are
not to be applied horizontally.
1
7
Furthermore, certain provisions
1
8
explicitly state that they are applicable horizontally, which would
be superfluous if all provisions were applicable horizontally.
1
9
This supports the approach of and the conclusion reached by Kentridge
AJ in paragraph 46 of his judgment that the provisions
of sections
33(4) and 35(3) of the Constitution would be superfluous if the
Chapter 3 rights were directly enforceable horizontally.
[
99
]
The German Constitution guarantees a general right to freedom.
2
0
In areas such as the law of contract this would have to be
taken into account in deciding whether parties should be bound by
other sections of the basic rights chapter since the act of limiting
one
’
s own rights
by contract is itself an exercise of the right to freedom.  A
matter of some controversy is whether the individual
can consent to
the violation of his/her rights by the state.
2
1
The question whether one may allow  another private person to
infringe one
’
s
constitutional rights is not dealt with in the constitutional
context, because these rights are not considered binding on other
private persons in the first place. In this context the objection to
the direct application of basic rights to private relations
is that
it severely undermines private autonomy.
2
2
[
100
]
On a teleological approach it is argued that the purpose of the
chapter on basic rights in the GBL is to confer
rights on
individuals.  The effect of direct horizontal application would
be to place duties on individuals instead.
2
3
A related point is made that if the basic rights of the GBL are
directly invoked in any dispute between private individuals,
the
basic rights of both individuals will be at stake, necessitating the
balancing of competing rights.
2
4
[
101
]
A further argument advanced in this context, which is also relevant
to our own, is that the basic rights were
developed in an historical
setting of civil society struggling to free itself from the
authoritarian interference of the absolute
state.
2
5
[
102
]
A further problem which militates against the direct horizontal
application of the basic rights is the fact that
the Federal
Constitutional Court would be thrust into the role of an appeal court
for large numbers of appeals in what would otherwise
be normal
commercial litigation.
2
6
[
103
]
Any attempt at a detailed discussion on the operation of
mittelbare
Drittwirkung
(indirect
horizontality) in German constitutional law would be out of place
here. There are some features, however, which bear on
the
construction of our own Constitution. The Federal Constitutional
Court refers to the
radiating
effect
(
Ausstrahlungswirkung
)
of the basic rights on private law.
2
7
In the
L
h
th
case
2
8
the Federal Constitutional Court held as follows:
The influence of the scale of values of the basic
rights affects particularly those provisions of private law that
contain mandatory
rules of law and thus form part of the
ordre
public
- in the broad sense of the term
- that is, rules which for reasons of the general welfare also are
binding on private legal relationships
and are removed from the
domination of private intent. Because of their purpose these
provisions are closely related to the public
law they supplement.
Consequently, they are substantially exposed to the influence of
constitutional law. In bringing this influence
to bear, the courts
may invoke the general clauses which, like Article 826 of the Civil
Code, refer to standards outside private
law.
“
Good
morals
”
is one such standard. In
order to determine what is required by social norms such as these,
one has to consider first the ensemble
of value concepts that a
nation has developed at a certain point in its intellectual history
and laid down in its constitution. That
is why the general clauses
have rightly been called the points where basic rights have breached
the [domain of] private law...
2
9
[
104
]
Thus, in private litigation, the German courts are obliged to
consider the basic rights in interpreting concepts
such as
“
justified
”
,
“
wrongful
”
,
“
contra bonos
mores
”
et
cetera.
3
0
The basic rights therefore have a radiating effect on the common law
through provisions such as, for example section 138 of
the Civil
Code, which provides that
“
legal
acts which are contrary to public policy are void.
”
3
1
Stern
3
2
argues that although general concepts such as the
boni
mores
will be the
main entry point into private law for the basic rights, there is no
reason why they should not be applied to any other
rule whose meaning
is unclear.  If, in such situations, the court does not have
regard to the basic rights in interpreting the
law in question, then
there is a violation of rights.
3
3
[
105
]
Stern
3
4
suggests that the major advantage of indirect horizontal application
is that, instead of throwing out the good parts of the existing
law
with the bad and setting off into unchartered waters, it embarks on a
cautious reform of the existing law within its own framework.
The same learned author also points out
3
5
that even the highest German Federal Labour Court
3
6
which initially supported a direct horizontal application of basic
rights had, by 1984, come to accept the position that unless
expressly
provided (as in Art 9(3) of the GBL), the constitution
required that these rights should only be given indirect horizontal
application.
[
106
]
That the drafters of our Constitution had recourse to or were
influenced by certain features of the GBL in drafting
our
Constitution is evident from various of its provisions.
3
7
The marked similarity between the provisions of section 35(3),
enjoining courts
“
[i]n
the interpretation of any law and the application and development of
the common law and customary law
”
to
“
have due regard
to the spirit, purport and objects of [Chapter 3]
”
,
and the indirect horizontal application of the basic rights in the
GBL in German jurisprudence cannot, in my view, simply be a
coincidence.
It provides a final powerful indication that the
framers of our Constitution did not intend that the Chapter 3
fundamental rights
should, save where the formulation of a particular
right expressly or by necessary implication otherwise indicates,
3
8
apply directly to legal relations between private persons.
[
107
]
The implications of direct horizontal application must be logically
followed and consistently faced. If direct
horizontality is to be
applied to section 15(1) then it must be applied to the equality
clause, section 8, unless one were to hold
(quite impermissibly
in my view) that for some reason, not evident in text or reason,
freedom of speech and expression is in South
Africa a preferred right
enjoying a higher status than the right to equality.
[
108
]
The direct horizontal application of, for example, section 8 would
lead to consequences so undesirable and unsupportable
that it
demonstrates why, absent the very clearest indication to the contrary
in our Constitution, we ought not to apply the Chapter
3 rights
directly to private legal relations.  I have no doubt that a
similar direct application of other Chapter 3 rights would
lead to
similar unsupportable consequences, but examining  the
consequences in relation to section 8 will suffice.
[
109
]
The direct application route is the one which the
ratio
decidendi
in
Shelley v. Kraemer
3
9
in effect
followed.  At least two eminent American constitutional
scholars, professors Herbert Wechsler and Louis Henkin,
4
0
while applauding the
result
reached by the Supreme Court in this case, have effectively
criticised the
ratio
decidendi
and
demonstrated how the route chosen leads to unsupportable
consequences.
4
1
Professor Wechsler reasons as follows:
Assuming that the Constitution speaks to state
discrimination on the ground of race ... why is the enforcement of
the private covenant
a state discrimination rather than a legal
recognition of the freedom of the individual? That the action of the
state court is action
of the state, the point that Mr. Chief Justice
Vinson emphasizes in the Court
’
s
opinion is, of course, entirely obvious. What is not obvious, and is
the crucial step, is that the state may properly be charged
with the
discrimination when it does no more than give effect to an agreement
that the individual involved is, by hypothesis, entirely
free to
make.  Again, one is obliged to ask: What is the principle
involved? Is the state forbidden to effectuate a will that
draws a
racial line, a will that can accomplish any disposition only through
the aid of the law, or is it a sufficient answer there
that the
discrimination was the testator
’
s and
not the state
’
s? May not the state
employ its law to vindicate the privacy of property against a
trespasser, regardless of the grounds of his exclusion,
or does it
embrace the owner
’
s reasons for
excluding if it buttresses his power by the law?  Would a
declaratory judgment that a fee is determinable if a
racially
restrictive limitation should be violated represent discrimination by
the state upon the racial ground?  Would a judgment
of ejection?
None of these questions has been answered by the Court nor are the
problems faced in the opinions.
4
2
Professor Henkin takes the critical enquiry even
further:
If some may be prepared to go where Professor Wechsler hesitates to
go, even they may hesitate to conclude that the Supreme Court
would
prevent a state from probating a will leaving money to a group or
institution of a particular religious denomination, or from
enforcing
exclusion, on the basis of religious difference, from church, or
church membership, or cemetery, although the state could
not make or
require these discriminations.
Indeed, the difficulty may lie even deeper, as the
testamentary cases would seem to prove. If
Shelley
v. Kraemer
were read to hold that a
state cannot enforce a discrimination which it could not itself make,
the state could not probate, enforce,
or administer many common
bequests. The fourteenth amendment forbids discrimination not only on
the basis of race or color; it also
forbids discrimination on any
basis which is capricious or whimsical. But any bequest which favors
A
rather
than
B
may
be capricious or whimsical. In such a case, the state could not by
statute require the testator to leave his money to
A
.
Apart, then, from bequests to special categories, to wife and
children, for example - where an argument can be made that the
category
is reasonable - no bequest could be enforced if the
enforcement were deemed to make the state responsible for the
“
discrimination.
”
Similarly, so long as an individual may
capriciously decide who may, and who may not enter upon his property,
the enforcement of trespass
would not be possible, even where the
exclusion had nothing to do with racial discrimination but was based
on some other caprice.
In the sale of land, too, the fact that
the vendor arbitrarily contracted to sell to
A
rather than to
B
might be argued to prevent a court from
enforcing the sale because the state would thereby make the arbitrary
selection its own.
4
3
[
110
]
It is true that these learned authors are considering equality
jurisprudence in the context of the Fourteenth
Amendment
“
state
action
”
doctrine;
but their criticism is in fact being directed at the highly
undesirable consequences of the direct horizontal application
of this
constitutional right to private legal relations.  I wish to make
it explicitly clear that I am
not
arguing for a situation where the Constitution or the law in general
must tolerate a situation where bigotry is perpetuated and apartheid
privatized through freedom of contract and other devices of the
common law.  What I
am
contending is that the law can deal effectively with these challenges
through the very process envisaged by section 35(3), namely,
the
indirect radiating effect of the Chapter 3 rights on the
post-constitutional development in the common law and statute law of
concepts such as public policy, the
boni
mores
,
unlawfulness, reasonableness, fairness and the like, without any of
the unsatisfactory consequences that direct application must
inevitably cause.  The common law of this country has, in the
past, proved to be flexible and adaptable, and I am confident
that it
can also meet this new constitutional mandate.
[
111
]
What also needs to be considered carefully is the impact, on the
legislative process, of a directly horizontal
application of Chapter
3 to private legal relationships.  In each case when a final
pronouncement of this nature is made through
this Court, Parliament
will be bound by this Court
’
s
judgment.  The Court has after all pronounced on the meaning and
application of the Constitution in a particular context.
Should
Parliament wish to alter the  law, resulting from such a direct
application of the Chapter 3 rights by this Court, it
will have to
amend the Constitution. I consider this to be a most undesirable
consequence, needlessly inhibiting the normal piecemeal
statutory
modification of the common law.  It is one which directly flows,
however, from a holding which in essence constitutionalises
the
entire body of  private law.  It could never, in my view,
have been the intention of the framers to constitute Chapter
3 as a
super civil code, to which the private common law is directly
subject.
[
112
]
I would sum up my views as follows.  For the reasons given by
Kentridge AJ in his judgment and those advanced
above, the text of
the Constitution, properly construed, strongly favours the conclusion
that the direct horizontal application of
Chapter 3 to private legal
relations is not intended.  Whatever lingering doubts there
might be on this score are resolved by
teleological considerations.
The German experience bears this out.  Direct application of the
Chapter 3 rights, quite
apart from the undesirable consequences
already mentioned, will cast onto the Constitutional Court the
formidable ultimate task of
reforming the private common law of this
country, a consequence which could not have been intended by the
drafters.  It turns
the Constitution, contrary to the historical
evolution of constitutional individual rights protection, also into a
code of obligations
for private individuals, with no indication in
the Constitution as to how clashes between rights and duties are to
be resolved, or
how clashing rights are to be
“
balanced
”
;
section 33(1) was clearly not designed and is quite inappropriate for
this purpose. It would also be undesirable in a broader
constitutional
sense, pre-empting in many cases Parliament
’
s
role of reforming the common law by ordinary legislation.
LWH
ACKERMANN
Justice of the Constitutional Court
[
113
]
KRIEGLER J
:
The questions raised by this case are set out in the judgment of my
colleague Kentridge AJ and repetition is unnecessary.
However,
two of them are of such importance that they require emphasis.
1
They are indeed definitive of the scope of the Constitution with
regard to time and subject matter:  (a) Can the provisions
of
the Constitution be applied to events that took place before it came
into force; and (b) Does Chapter 3 thereof
2
govern only the relationship between the state and the individual or
does it also govern relationships between individuals where
law is
involved?
3
[
114
]
With regard to the first question I agree with Kentridge AJ that the
learned judge in the court below erred in
holding that section 241(8)
of the Constitution was dispositive of the case.  I also agree
with Kentridge AJ that the decision
in
Mhlungu
does not avail the defendants in this case.
4
Mhlungu
’
s
case lends no support to their startling proposition that conduct
which was unlawful when it was committed prior to the advent of
the
Constitution could be rendered lawful by such advent.  The
amendment the appellants sought in the court below was aimed
at
supporting a defence that the supervening protection of freedom of
expression, afforded by section 15(1) of the Constitution,
rendered
lawful a publication which had taken place long before such
protection was created.
5
[
115
]
I do not, however, agree with the reasoning of Kentridge AJ regarding
the effect of sections 251(1), 7(2) and
98(6) of the Constitution.
6
Although section 251(1) fixes the date of commencement of the
Constitution, it does not purport to address the issue of
retroactivity
or retrospectivity.  Nor do I believe that section
7(2) is really germane to that issue.  Section 7 as a whole is
not concerned
primarily, if at all, with time, but with the scope of
application, the reach, of Chapter 3.
7
Certainly subsection (2) does not relate to the possible
retrospective or retroactive operation of Chapter 3.
[
116
]
That issue is, however, specifically addressed in section 98(6) of
the Constitution, which has different rules
for laws that existed at
the time of the commencement of the Constitution and those made
thereafter.
8
With regard to pre-constitutional laws an order of invalidation does
not generally operate retroactively, but the court can
make its order
invalidating a law to apply retroactively so as to
“
invalidate
anything done or permitted in terms thereof before the coming into
effect of such declaration of invalidity
”
.
With regard to post-constitutional laws however, the invalidation, as
a rule, does operate retroactively to the time the law
was made.
[
117
]
Kentridge AJ acknowledges that section 98(6) gives the courts the
authority
“
in the
interests of justice and good government
”
to
pre-date the operation of a declaration of invalidity and contains
“
no express
limit
”
to its
retroactive power, but concludes that
“
it
could hardly be suggested
”
that
the date of commencement of the Constitution is not nevertheless to
be read into section 98(6) as such limit.
9
I am not convinced of the correctness of that conclusion and prefer
to leave open whether a court could, in the
“
interests
of justice and good government
”
,
invalidate something done prior to 27 April 1994 under a law struck
down for its fatal inconsistency with the Constitution.
1
0
Such considerations manifestly do not arise here and I agree that the
appeal against the order
a
quo
refusing the
proposed amendment falls to be dismissed.  I therefore concur in
paragraph 2(a) of the order proposed by Kentridge
AJ.
[
118
]
The second main question presented by this case is of greater
importance for the future of our constitutional
jurisprudence.
It is also considerably more difficult to express with neutral
precision.  In the court below it
was formulated too
broadly.
1
1
This Court
’
s
refinement of the issues still did not focus the question
sufficiently clearly.
1
2
It was only in the course of judicial debate that the real question
became starkly apparent.  It is, quite simply, this:
Does
our constitutional law directly enforce the fundamental rights of
persons proclaimed in sections 8 to 32 of the Constitution
only as
against the state or in all legal relationships?  The learned
judge
a quo
and the majority of my colleagues in this Court have concluded that
the individual
’
s
legal rights guaranteed by Chapter 3 of the Constitution are directly
enforceable against the state alone.  Their reasoning
is cogent;
the judicial and academic authority they cite is impressive.
Nevertheless I am convinced that they err - and do
so fundamentally.
[
119
]
The legal issues involved are inherently complex.   The
conundrum is compounded by perceptions of its
social, political and
economic implications, as also by inarticulate premises, culturally
and historically ingrained.  It is
therefore necessary to strip
the problem down to bedrock.  To that end two basic points
should be made at the outset of the
discussion.  The first is
that the debate is not one of
“
verticality
”
versus
“
horizontality
”
.
As I hope to make plain shortly, it is common cause that Chapter 3
rights do not operate only as against the state but also
“
horizontally
”
as between individuals where statutes
are involved.  It is also common cause that where common law is
involved the Chapter has
a bearing.  The true debate relates to
the manner of its
“
horizontal
”
operation in common law
relationships.
[
120
]
The second point concerns a pervading misconception held by some and,
I suspect, an egregious caricature propagated
by others.  That
is that so-called direct horizontality will result in an Orwellian
society in which the all-powerful state
will control all private
relationships.  The tentacles of government will, so it is said,
reach into the marketplace, the home,
the very bedroom.  The
minions of the state will tell me where to do my shopping, to whom to
offer my services or merchandise,
whom to employ and whom to invite
to my bridge club.  That is nonsense.  What is more, it is
malicious nonsense preying
on the fears of privileged whites,
cosseted in the past by
laissez
faire
capitalism
thriving in an environment where the black underclass had limited
opportunity to share in the bounty.  I use strong
language
designedly.  The caricature is pernicious, it is calculated to
inflame public sentiments and to cloud people
’
s
perceptions of our fledgling constitutional democracy.
“
Direct
horizontality
”
is
a bogeyman.
[
121
]
One must of course, acknowledge that there are genuine
jurisprudential concerns about the possible ramifications
of
“
horizontality
”
.
Kentridge AJ adverts to a formidable body of foreign and South
African learning in support of
“
verticality
”
.
1
3
And my colleague Ackermann J, in a characteristically learned and
thoughtful judgment, has analysed some of the philosophical
foundations supporting the more conservative view held by the
majority of this Court.  His discussion of the development of
the horizontality debate in Germany and of the academic vagaries of
Shelley v Kraemer
1
4
provides much food for thought.
[
122
]
That having been said, I must confess that I still cannot see
the dire consequences feared by some jurists,
including my esteemed
colleague Ackermann J.  Indeed, as I see it, it makes no
fundamental difference with regard to such consequences
whether the
horizontal application of Chapter 3 is direct or indirect.  It
has little, if any, effect jurisprudentially or socially
whether the
Chapter 3 rights are enforced directly or whether they
“
irradiate
”
private legal relationships.
1
5
I stress this point not only because of the impending doom Ackermann
J perceives in the direct horizontal application
of Chapter 3.
I do so also because it would be foolish to ignore the public
utterances of political and legal commentators
in similar vein.
[
123
]
But that is beside the point.  This Court did not draft
the Constitution.  Our duty is to interpret,
protect and uphold
it,
1
6
and to apply it without fear, favour or prejudice.
1
7
Obviously one will not lightly conclude that the drafters of the
Constitution intended it to bear a harsh or inequitable meaning,
for
such would fit ill with their avowed intention declared so solemnly
in the Preamble
1
8
and Postscript
1
9
thereto.  More pertinently, it would be difficult to reconcile
such an interpretation with the spirit of freedom, equality and
justice which pervades Chapter 3.  It is also trite that the
Constitution is to be interpreted purposively and as a whole, bearing
in mind its manifest objectives.  For that reason one would
hesitate to ascribe a socially harmful or disruptive meaning to
an
instrument so avowedly striving for peace and harmony.  One also
knows that the Constitution did not spring pristine from
the
collective mind of its drafters.  Much research was done and
many sources consulted.  It is therefore no surprise that
the
Constitution, in terms, requires its interpreters to have regard to
precedents and applicable learning to be found in other
jurisdictions.
2
0
But when all is said and done, the answer to the question before us
is to be sought, first and last, in our Constitution.
[
124
]
In that regard my approach differs radically from that of the judge
a
quo
2
1
and some of my colleagues who have prepared judgments in this case.
The learned judge in the court below conducted extensive
review of
the constitutions of other countries
2
2
and concluded:
The rule is that fundamental rights and freedoms are protected
against State action only.  Horizontal protection sometimes
occurs
to a limited extent but when it is intended over the broad
field of human rights, it is expressly so stated.
It would in my view, therefore, be the correct approach to the
interpretation of the Bill of Rights provisions in chap 3 of our
Constitution
to take the view that our Constitution is a conventional
constitution unless there are clear indications to the contrary,
either
in respect of chap 3 as a whole or in respect of individual
sections thereof.
There was a pressing need for a bill of rights,
given the suppressive State action of the past.  The call for a
conventional
bill of rights was sharp and clear.  But there were
no such calls for a bill of rights on a horizontal plane.
The
fundamental rights and freedoms now set out in chap 3 had not
been curtailed by our common law.  In fact they can be found
enshrined
therein.  The removal of all authoritarian
encroachment leads to their resuscitation.
2
3
My colleagues have adopted basically the same approach
and came to substantially the same conclusion.
[
125
]
I make no apology for starting the exercise by examining the document
with which we are concerned, the Constitution.
Nor do I think
one errs in commencing the exercise with an open mind, one
untrammelled by subjective perceptions of evils of the
past which the
Constitution was intended to combat.  The way I read the
Preamble and the Postscript,
2
4
the framers unequivocally proclaimed much more sweeping aims than
those identified by the judge
a
quo
,
2
5
and apparently accepted by some of my colleagues.  Our past is
not merely one of repressive use of state power.  It is
one of
persistent, institutionalized subjugation and exploitation of a
voiceless and largely defenceless majority by a determined
and
privileged minority.  The
“
untold
suffering and injustice
”
of
which the Postscript speaks do not refer only to the previous forty
years, nor only to Bantu education, group areas, security and
the
similar legislative tools used by the previous government.  The
Postscript mentions
“
a
divided society characterised by strife [and] conflict
”
.
That is not a reference to governmental action only, or even
primarily.  The
“
reconciliation
and reconstruction
”
mentioned
in the last paragraph relate not so much, if at all, to the oppressed
and the oppressive government, but to reconciliation
of whites and
blacks, to reconstruction of a skewed society.  Likewise, when
the Preamble speaks of
“
citizenship
in a sovereign democratic constitutional state
”
the emphasis immediately falls on
racial equality.
[
126
]
The Constitution bracketed by that Preamble and that Postscript is
unabashedly egalitarian and libertarian;
The past was pervaded by inequality,
authoritarianism and repression.  The aspiration of the future
is based on what is

justifiable in
an open and democratic society based on freedom and equality
’
.
2
6
This
is underscored by the very presence of the Chapter 3 rights.  It
is re-emphasized by the unusual length and detail of the
catalogue of
rights and freedoms listed, as also by the broad sweep of much of its
language.  Nor is it coincidental that the
very first right
enunciated is that of equality before, and equal protection of, the
law.
2
7
It is equally significant that such right is coupled with a most
detailed, if not vehement, proscription of discrimination.
2
8
Viewed in context, textually and historically, the fundamental rights
and freedoms have a poignancy and depth of meaning not
echoed in any
other national constitution I have seen.
[
127
]
It is therefore no spirit of isolationism which leads me to say that
our Constitution is unique in its origins,
concepts and aspirations.
Nor am I a chauvinist when I describe the negotiation process which
gave birth to that Constitution
as unique; so, too, the leap from
minority rule to representative democracy founded on universal adult
suffrage; the Damascene about-turn
from executive directed
parliamentary supremacy to justiciable constitutionalism and a
specialist constitutional court, the ingathering
of discarded
fragments of the country and the creation of new provinces; and the
entrenchment of a true separation and devolution
of powers.
Nowhere in the world that I am aware of have enemies agreed on a
transitional coalition and a controlled two-stage
process of
constitution building.  Therefore, although it is always
instructive to see how other countries have arranged their
constitutional affairs, I do not start there.  And when I do
conduct comparative study, I do so with great caution.  The
survey is conducted from the point of vantage afforded by the South
African Constitution, constructed on unique foundations, built
according to a unique design and intended for unique purposes.
[
128
]
And I respectfully suggest that if one does so logically, applying
the interpretational tools with which lawyers
are familiar, the
Constitution holds no hidden message of so-called verticality.
It is common cause that it nowhere says that
Chapter 3 governs only
the relationship between the state and the individual.  On the
contrary, section 4(1), which governs
the whole of the Constitution,
including Chapter 3, pronounces the Constitution to be
“
the
supreme law of the Republic
”
.
Perhaps the word
“
supreme
”
has been devalued by overuse and
perhaps the word
“
law
”
has become mundane.  But in
combination they have a singular ring, even more tellingly expressed
in the Afrikaans text,
“
die
hoogste reg.
”
By
way of emphasis the subsection expressly sets at nought
“
any
law or act [
“
enige
wet of handeling
”
]
inconsistent with its provisions
”
.
Conformably subsection (2) of section 4 bluntly declares the
Constitution to be binding on
“
all
legislative, executive and judicial organs of state at all levels of
government
”
.
The two subsections, read singly and jointly, are quite unequivocal,
I would suggest.  First the Constitution is elevated
to
supremacy over all law, and then all organs of state are enjoined to
honour and enforce that supremacy.
[
129
]
One then turns to Chapter 3, with which we are more specifically
concerned here.  It is immediately apparent
that section 7(2),
an integral part of the section which governs the scope of Chapter 3,
proclaims that it applies to
“
all
law in force . . . during the period of operation of this
Constitution
”
.
Although the Afrikaans equivalents of the word
“
law
”
are not used consistently in the
Constitution, it is of some significance that in section 7(2) the
words used in the Afrikaans text
is
“
reg
”
,
the generic term for all kinds of law.  Qualified as it is by
the adjective
“
alle
”
(
“
all
”
),
the broad generality of the statement is evident.
[
130
]
On a reading of section 7(2) alone, the scope of application of
Chapter 3 with regard to law therefore seems clear:
It governs
all
law in force during the currency of the Constitution.  There is
no qualification, no exception.  All means all.  As
the
Chapter governs all administrative decisions taken and all
administrative acts performed, so it governs all law.  And it
goes without saying that that is the law the courts of the land, the
“
judicial organs
of state
”
bound
by section 4(2) of the Constitution, are obliged to apply in the
performance of their duties.  The manifest intention of
the
drafters of the subsection was to expand its scope to the widest
limit their language could express.
[
131
]
If one then reads the subsection in the context of section 7 as a
whole, that conclusion is reinforced.
Subsection (1), which
deals with executive and legislative organs of state also casts the
net as wide as language permits.
All of them at all levels of
government are bound.
2
9
In turn subsections (3) and (4), which determine the categories of
persons entitled to invoke the protection of the Chapter,
push back
the perimeter.  The extension of fundamental rights and freedoms
to juristic persons, an unusual step in bills of
rights, is
consistent with the broad generality of subsections (1) and (2).
So is the extension of
locus
standi
in
subsection (4) to representative actors, group, class and even public
interest claimants.
[
132
]
Two further points flow from a reading of section 7.  Having
regard to the clear intention, running throughout
the section, to
stretch the purview of Chapter 3 to its outermost boundaries, is it
at all likely that a limitation as restrictive
as that entailed in
so-called verticality could have been contemplated?   The
Preamble of the Constitution proclaims the
need to create a new order
in which all citizens will be able to exercise their fundamental
rights.  Chapter 3 spells out those
rights and the Postscript
envisages a future founded on their recognition.  Yet it is
contended that, for instance, a woman
whose right to human dignity
under section 10, or to privacy under section 13, is infringed by a
private individual cannot invoke
the protection of those sections
where there is a legal relationship involved.  I find that
startling.  Secondly, if indeed
the drafters had such a major
constraint in mind, why did they not say so?  Instead they wax
expansive, leaving it to the microscope
of a
“
verticalist
”
to pick up hidden clues.
[
133
]
But it is not only section 7 that points, I suggest inexorably, to my
simple conclusion.  It should be read
with section 33(2).
3
0
It says that no legal rule of any kind whatsoever which is not saved
by subsection (1), or by some other provision in the Constitution
itself, limits any right entrenched in Chapter 3.  The sweep of
section 33(2) harks back to the generality of section 7.
If the
Chapter were intended to operate only vertically, or only indirectly
horizontally, why was it necessary, or indeed appropriate,
to declaim
the preservation of rights in such unqualified terms?  What
makes the breadth of section 33(2) more significant is
that it
follows immediately upon and serves to qualify the general saving
clause, section 33(1).
[
134
]
Subsections (1), (3) and (4) of section 33 are themselves wholly
consistent with the plain meaning of section
7(2) for which I
contend.  Nowhere in those subsections is there any suggestion
that Chapter 3 does not apply to all law.
Section 33(4) is seen
by some as supporting a vertical reading of the Chapter.  To my
mind it does nothing of the sort.
The subsection reads as
follows:
This Chapter shall not preclude measures designed to prohibit unfair
discrimination by bodies and persons other than those bound
in terms
of section 7(1).
Section
7(1) applies expressly to organs of state.  With or without
“
measures
designed to prohibit unfair discrimination
”
,
they are prohibited from doing so.  But there is nothing in
Chapter 3 which prohibits any body or person other than an organ
of
state from discriminating, unfairly or otherwise.  What section
33(4) does is to keep the door open for
“
measures
”
,
whether legislative or executive, prohibiting unfair discrimination
in the private sphere.  In short, the government is free
to
introduce a civil rights act, unfair housing practices legislation
and the like.
[
135
]
Interpreting section 33(4) as pointer to verticality illustrates what
I regard as a fundamental misconception
of the true import of Chapter
3.  The Chapter has nothing to do with the ordinary
relationships between private persons or associations.
What it
does govern, however, is all law, including that applicable to
private relationships.  Unless and until there is a resort
to
law, private individuals are at liberty to conduct their private
affairs exactly as they please as far as the fundamental rights
and
freedoms are concerned.  As far as the Chapter is concerned a
landlord is free to refuse to let a flat to someone because
of race,
gender or whatever; a white bigot may refuse to sell property to a
person of colour; a social club may black-ball Jews,
Catholics or
Afrikaners if it so wishes.  An employer is at liberty to
discriminate on racial grounds in the engagement of staff;
a hotelier
may refuse to let a room to a homosexual; a church may close its
doors to mourners of a particular colour or class.
But none of
them can invoke the law to enforce or protect their bigotry.
One cannot claim rescission of a contract or specific
performance
thereof if such claim, albeit well-founded at common law, infringes a
Chapter 3 right.  One cannot raise a defence
to a claim in law
if such defence is in conflict with a protected right or freedom.
The whole gamut of private relationships
is left undisturbed.
But the state, as the maker of the laws, the administrator of laws
and the interpreter and applier of
the law, is bound to stay within
the four corners of Chapter 3.  Thus, if a man claims to have
the right to beat his wife, sell
his daughter into bondage or abuse
his son, he will not be allowed to raise as a defence to a civil
claim or a criminal charge that
he is entitled to do so at common
law, under customary law or in terms of any statute or contract.
That is a far cry from the
spectre of the state placing its hand on
private relationships.  On the contrary, if it were to try to do
so by legislation
or administrative action, sections 4, 7(1) and the
whole of Chapter 3 would stand as a bastion of personal rights.
[
136
]
To all of that there is the overarching qualification contained in
section 33(1), which, it should be noted, draws
no distinction
between different categories of law of general application (
“
algemeen
geldende reg
”
).
A rule of the common law which, for example, infringes a person
’
s
right to privacy or human dignity, can be saved if it meets the
section 33(1) requirements.  And it is irrelevant whether such
rule is statutory, regulatory, horizontal or vertical, and it matters
not whether it is founded on the XII Tables of Roman law, a
Placaet
of Holland or a tribal custom.  That is why section 33(2) makes
plain, without any question, that no law of whatever
kind or origin
can impinge upon any Chapter 3 right unless it is saved by section
33(1) or some other provision of the Constitution.
[
137
]
For the purpose of the present analysis one can skip section 34,
which deals with suspension of rights during
a state of emergency.
It is not relevant to the question under consideration.  That
brings one to section 35, the general
and final provision of Chapter
3.  Section 35(1) is directed at interpretation of the Chapter
itself,
3
1
and subsection (2) at the interpretation of the laws to be measured
against the template of the Chapter.
3
2
Subsection (3), in turn, says how any statute is to be interpreted
and how the common law and customary law are to be applied
and
developed.  Two points should be noted.  The subsection
applies to the whole body of South African law, any statute
and
common law and customary law in general.  And what is more
important, the rules of statutory or other law to which it applies
are not limited to those directly struck by the provisions of the
Chapter.  The intention of the drafters of the Constitution
in
enacting section 35(3), and in adding it as the last word on Chapter
3, therefore seems clear.  Even in those cases where
the
provisions of the Chapter do not directly apply, the rules of law
applicable are to be informed by the
“
spirit,
purport and objects
”
thereof.
[
138
]
The point should also be stressed that on any reading of section
35(3) it obliges all courts to interpret every
law and to apply all
common law in the light of the
“
spirit,
purport and objects
”
of
Chapter 3.  Therefore, if the fundamental objection to my
reading of Chapter 3 is that it superimposes its provisions on legal
relationships between individuals, why is the performance by a court
of the duty imposed on it by section 35(3) regarded as any less
“
undesirable and
unsupportable
”
?
3
3
Also, if the objection is, as was held in the court below, that the
application of Chapter 3 to all law introduces uncertainty
in what
has long been settled, how can it lead to any less uncertainty for
courts to
“
have
due regard to the spirit, purport and objects
”
of
the Chapter?  In fact, resort to section 35(3) is likely to
create even more uncertainty, as the phrase
“
hav[ing]
due regard
”
is
surely a vague concept and
“
spirit,
purport and objects
”
no
less so.
[
139
]
The internal logic and cohesion of Chapter 3 is manifest.  All
organs of state in all their decisions and
actions are bound by the
terms of the rights.  So too are any resorts to law by anybody.
In deciding whether one or other
rights is infringed by such
decision, action or law, a court interprets the Chapter in accordance
with section 35(1).  If the
alleged infringement is caused by a
statute, the court tries to read the statute down in terms of section
35(2).  If, after
all that, an entrenched right is indeed
infringed, the multiple test contained in section 33(1) is applied.
If the infringement
fails to pass that test it must be invalidated to
the extent that it limits the particular entrenched rights.
Over and above
that, all courts at all times in the application of
any legal rule are obliged to consider the possible effect of the
spirit, purport
and objects of the Chapter 3 rights on the particular
cases before them.  Even where a specific right or freedom is
not assailed
or threatened, the Chapter is still relevant and has to
be borne in mind.
3
4
[
140
]
I wish to dwell a little longer on the internal logic of Chapter 3.
Kentridge AJ asks, in relation to section
35(3),
“
why
such a provision would be needed if the Chapter could be directly
applied to common law disputes between private litigants.
”
3
5
The answer, he finds, is that it is
needed to govern that very category of disputes.  That, I would
respectfully suggest, is
begging the question.  And that is
foundational to his reasoning.  I, for my part, agree that
section 35(3) is manifestly
intended to govern a residuary category
not governed by what has gone before in Chapter 3.  But I do not
find it necessary to
make any prior assumption regarding the nature
of that category.  And I do not think section 35(3) answers the
question what
is included in the category.
[
141
]
Section 35(3) answers the question
what
courts do
when
there is no direct infringement or claim of an infringement of a
right protected under the Chapter.  This includes cases
dealing
with statutory law, common law and customary law.  It mandates
that all courts - this Court, the Supreme Court including
the
Appellate Division, the Land Court, the magistrates courts, the
labour courts and all other courts - in
interpreting
statutory law
and
when
applying and
developing common and customary law
,
always have regard to the
“
spirit,
purport and objects
”
of
the Chapter.  This includes courts with constitutional
jurisdiction and courts without constitutional jurisdiction.
The purpose is that this Constitution is to permeate all that judges
do just as it is to permeate all that the legislature and the
executive do, conformably under section 7(1) of the same Chapter.
[
142
]
In what situation then is section 35(3) used?  It is used in all
cases before any court in which there is
no direct challenge based on
one or more of the rights and freedoms protected in Chapter 3.
If a court case involves the interpretation
of a statute and there is
no claim of unconstitutionality, the judge in that case is bound to
have regard to the spirit, purport
and objects of Chapter 3.  If
a court case involves the application of customary law in which there
is no claim of unconstitutionality
based on a Chapter 3 right, the
judge is bound to have regard to the spirit, purport and objects of
the Chapter.  If a matter
before the Appellate Division between
two private parties involves the common law, and there is no claim of
a violation of a Chapter
3 right, the Appellate Division must have
due regard to the spirit, purport and objects of the Chapter.
This is the
“
indirect
”
application of the Chapter sought to
be introduced by Kentridge AJ at paragraph 60 of his judgment.
But such indirect application
can neither be limited to the situation
of common law where both parties are private, nor can it be expanded
to include the common
law where both parties are private where there
is a direct constitutional challenge based on a Chapter 3 right.
[
143
]
Kentridge AJ, in making the category of cases to which 35(3) applies
both over-inclusive and under-inclusive,
is forced to argue that the
“
indirect
”
application is limited to the
jurisdiction of the Supreme Court, but reserving for this Court some
overriding review power akin to
that of our German opposite
number.
3
6
Resort to German jurisprudence or the German constitutional model is
particularly unnecessary and unhelpful here.
3
7
There the system is based on a distinction between private and public
law, which is not appropriate for us.  Second, there
is no clear
indication that section 35(3) should be read to mean that the
Appellate Division as the court of final appeal does the
developing
and applying of the common law
to
the exclusion of this Court
.
On the contrary, section 101(5), which Kentridge AJ seems to
dismiss,
3
8
to my mind establishes that such interpretation cannot possibly be
correct.  Furthermore, section 98(2) gives this Court the
authority to apply and develop the common law in accordance with the
Constitution.
3
9
This Court applies and adapts the common and customary law while
directly applying the Chapter 3 rights.  The Appellate
Division
does it with due regard to the spirit, purport and objects of the
Chapter.
[
144
]
Turning to the particular case before us, in the result, Chapter 3
rights apply to all law, including the common
law of defamation.
In this regard, I endorse the sentiments expressed by Kentridge AJ in
the later part of paragraph 58 of
his judgment regarding the manner
in which the common law should be developed.  Indeed, balancing
the competing rights involved
in defamation (freedom of expression
against the right to human dignity) is not novel.  Nor does the
advent of the Constitution,
which codifies them, warrant the
wholesale importation of foreign doctrines or precedents.  To be
true we are to promote values
not yet rooted in our traditions and we
must have regard to applicable public international law.  We are
also permitted to have
regard to foreign case law.  But that
does not amount to a wholesale importation of doctrines from foreign
jurisdictions.
[
145
]
My reading of Chapter 3 gives to the Constitution a simple
integrity.  It says what it means and means what
it says.
There is no room for the subtleties and nice distinctions so dear to
the hearts of mediaeval theologians and modern
constitutional
lawyers.  The Constitution promises an
“
open
and democratic society based on freedom and equality
”
,
a radical break with the
“
untold
suffering and injustice
”
of
the past.  It then lists and judicially safeguards the
fundamental rights and freedoms necessary to render those benefits
attainable by all.  No one familiar with the stark reality of
South Africa and the power relationships in its society can believe
that protection of the individual only against the state can possibly
bring those benefits.  The fine line drawn by the Canadian
Supreme Court in the
Dolphin
Delivery
case
4
0
and by the US Supreme Court in
Shelley
v Kraemer
4
1
between private relationships involving organs of state and those
which do not, have no place in our constitutional jurisprudence.
Nor are we consigned to the hypocrisy so trenchantly excoriated by
the authors of the two Canadian articles quoted in
Baloro
and Others v University of Bophuthatswana and Others.
4
2
[
146
]
What is more, my reading of the Constitution avoids jurisprudential
and practical conundrums inherent in the vertical
- but - indirectly
- horizontally - irradiating interpretation.  One does not need
to ascertain whether a question is one of
public or private law
(wherever the boundary may lie in our legal system); one is not
confronted with knotty problems where a private
relationship is,
wholly or partially, governed by statute; nor where an organ of state
is a party to a manifestly private law dispute,
for example flowing
from contract or delict.  There are no anomalies where one sues
a policeman and his minister in delict or
when an organ of state and
a private person are co-plaintiffs or co-defendants.  Nor is it
of any consequence that a rule of
the common law derives from an
ancient statute of a former government or from the writings of a
legal sage of old.  The law
is the law; where the Chapter fits,
it is applied; where it does not, its spirit, purport and objects are
duly regarded.
[
147
]
I find it unnecessary to engage in a debate with my colleagues on the
merits or demerits of the approaches adopted
by the courts in the
United States, Canada or Germany.  That pleases me, for I have
enough difficulty with our Constitution
not to want to become
embroiled in the intricacies of the state action doctrine,
Drittwirkung and the like.  I must say, however,
that I agree
with Ackermann J and the eminent authorities he quotes in their
misgivings about the decision in
Shelley
v Kraemer
.
4
3
I do not agree, however, that the decision in that case has any
bearing on the issue now under discussion.  We do not
operate
under a constitution in which the avowed purpose of the drafters was
to place limitations on governmental control.
4
4
Our Constitution aims at establishing freedom and equality in a
grossly disparate society.  And I am grateful to the drafters
of
our Constitution for having spared us the jurisprudential gymnastics
forced on some courts abroad.  They were good enough
to say what
they mean.  The Constitution applies to all three of the pillars
of state and Chapter 3 applies to everything they
do.
[
148
]
There is a further pertinent consequence of my reading of the
Constitution, more particularly of Chapter 3.
That relates to
jurisdiction.  Section 98 of the Constitution created a new
court charged with the duty to exercise jurisdiction
“
as
the court of final instance over all matters relating to the
interpretation, protection and enforcement of
”
its provisions.
4
5
At the same time the Appellate Division of the Supreme Court retained
its status and jurisdiction as the court of final instance
in all
non-constitutional matters.
4
6
Anticipating the jurisdictional confusion that could ensue, the
drafters of the Constitution, although conferring constitutional
jurisdiction on provincial and local divisions of the Supreme Court,
expressly provided in section 101(5):
The Appellate Division shall have no jurisdiction to adjudicate any
matter within the jurisdiction of the Constitutional Court.
Of
course, that refers back to section 98, and more specifically in this
context, to subsection (2)(a) thereof.  That means that
in case
of a claimed violation (or threatened violation) of one or other
right entrenched in Chapter 3, this Court has jurisdiction
to the
exclusion of the Appellate Division.  Where no such violation or
threat is in issue the Appellate Division retains its
erstwhile
jurisdiction.  And subsections (4) to (7), (11) and (12) of
section 102 make detailed provision for the interface
between the
jurisdictions of the two courts of final instance.  The
Appellate Division has been deprived of none of its former
powers.
It has merely not been afforded additional jurisdiction to deal with
constitutional issues, a new category introduced
by the
Constitution.  It follows that the Appellate Division is
certainly not excluded from the purview of section 35(3).
It,
like every other court in the land, is not merely empowered but
mandated to interpret any statute, and to apply and develop the
common law and customary law, with due regard to the spirit, purport
and objects of Chapter 3.  The appeal in every case not
involving one or other of the Constitutional Court
’
s
powers lies to the Appellate Division.  Therefore, if a case
turns on the alleged infringement or threatened infringement of
a
right specified in Chapter 3, this Court has exclusive final
jurisdiction.  Where the issue is whether a statute should be
interpreted or the common law should be adopted to meet the
exigencies of a case not falling within the protective ambit of an
entrenched
right, the jurisdiction of the Appellate Division is not
ousted.
[
149
]
In the instant case the appellants tried to invoke the protection of
section 15(1).  That was clearly a claim
that the common law of
defamation infringed a specific right protected by Chapter 3.
That is an issue falling under section
98(2)(a), in respect of which
this Court has jurisdiction and not the Appellate Division.  The
appellants however must fail
on that issue.  They are not
entitled to invoke the provisions of the Constitution to validate
post-constitutionally what was
unlawfully done before.  They had
and have a direct pecuniary interest in the case and pursued it with
personal, not public,
motives.  To mulct them in costs would
therefore be just.
[
150
]
I would therefore make the following order:
1.         The
appeal is dismissed with costs, including the costs consequent upon
the engagement
of two counsel.
2.         The
two questions referred by the judge
a quo
, as reformulated by
this Court, are answered as follows:
(a)        No: The
defendants in this case are not entitled to invoke the provisions of
the Constitution;
and
(b)        Yes: The
provisions of Chapter 3 of the Constitution are capable of
application to a
relationship other than that between persons and
legislative or executive organs of state at all levels.
3.         The
three subsidiary questions formulated by this Court are answered as
follows:
(a)        No: It was
not competent to raise in this appeal the issue whether the common
law of
defamation should be developed to make it consistent with the
Constitution;
(b)        The development
of the common law is within the jurisdiction of both courts, but the
extent
to which - because of the answer to question (a) - has been
left open;
(c)        Given the
answer to questions (a) and (b), it is not necessary to answer this
question.
JC
KRIEGLER
Justice of the Constitutional Court
Didcott J concurs in the judgment of Kriegler J.
[
151
]
MADALA J
:
I have had the benefit of reading the various  judgments which
have been prepared by my colleagues in this case.
I agree with
the findings of Kentridge AJ on the referral and on retrospectivity.
The advent of the constitutional regime did
not render, and could not
have been intended to render, lawful that conduct which was unlawful
prior to the commencement of the interim
Constitution
(
“
Constitution
”
)
on 27 April, 1994.  Accordingly, I agree that the Defendants in
this case are not entitled to invoke the provisions of the
Constitution.  He has also, correctly in my view, found that in
this case the Defendants can place no reliance on the specific
provisions of Section 15(1) of Chapter 3 of the Constitution, and
that this appeal falls to be dismissed with costs.
[
152
]
At this point I part ways with my colleague Kentridge AJ, when he
states that the provisions of Chapter 3 of the
Constitution
are
not in general capable of application to any relationship other than
that between persons and legislative or executive organs
of the State
at all levels of government
(my underlining).  At paragraph 62 he states that he has come to
the conclusion that:
“
... Chapter 3 does not have a general
direct horizontal application but that it may and should have an
influence on the development
of the common law as it governs
relations between individuals.
”
(Footnotes
omitted)
He has, however, left open the possibility that a
litigant in another case may argue that some particular provision of
Chapter 3 must,
by necessary implication, have direct horizontal
application.  It is on the aspect of the so-called horizontality
that I wish
to explain my position and I shall do so briefly.
[
153
]
The very incisive and analytical judgment of Kentridge AJ might put
to rest, for the time being, at least, and
in respect of this case
only, the much debated and raging controversy around whether or not
Chapter 3 of the Constitution has horizontal
application.  In my
view, Kentridge AJ deals with the question referred to us on too
narrow a basis, yet this is one of the
most controversial issues in
present day South African law.
[
154
]
It is traditionally accepted that Bills of Rights are intended
primarily to correct imbalances between the excesses
of government
power and individual liberty.  This is the so-called vertical
application of the Bill of Rights.  The proponents
of the
verticality approach seek to confine constitutional challenges to
legislative and administrative actions only, arguing that
this is the
primary function of a Bill of Rights, that in such a case the legal
implications are predictable and that any possible
abuse of private
powers should be dealt with through legislation.  I agree that
our Constitution has vertical operation and
deal with this aspect no
further.  However, I do not subscribe to the view that its
operation is limited to verticality only.
In my view, some of
the rights entrenched in Chapter 3 also operate directly in the area
of relations between private individuals.
Those who would widen
the scope of the operation of the Bill of Rights hold the view that
the verticality approach is unmindful of
the modern day reality -
that in many instances the abuse in the exercise of power is
perpetrated less by the State and more by private
individuals against
other private individuals.  Our courts are very divided on the
issue.
[
155
]
In
Mandela v Falati
1
Van Schalkwyk J came to the conclusion that Chapter 3 did have
horizontal application and that the provisions of the Constitution
could be enforced in a private dispute.  His reasoning for this
was based on an analysis of the right in question which, in
the
particular case, was freedom of expression.  He found that any
limitation of this right had to be necessary if the right
is related
to political activity.  And he went on to find that political
activity was not confined to that which occurred between
the State
and the citizen only but also between private citizens or
individuals.  His view was that the spirit, purport and
objects
of Chapter 3 were to extend fundamental rights beyond those
circumstances for which the common law provides. In
Kalla
v The Master & Others
2
Van Dijkhorst J had left open the question whether the Constitution
had horizontal application. In another defamation case,
Gardener
v Whitaker
3
Froneman J, held that the Constitution was obviously primarily
concerned with the protection of individual rights against State
action.
He found, however, that the Constitution was also concerned
that the entire legal system, including the common law and customary
law, should accord with the broader values of the Constitution.
In
De Klerk v Du
Plessis,
4
the forerunner to the present appeal, Van Dijkhorst J found that most
constitutions emphasised the curtailment of State powers and
argued
that ours should be similarly interpreted, unless there were clear
indications to the contrary.  He considered that an
alternative
interpretation, one finding that the Constitution had horizontal
application, was
“
an
extremely unattractive
”
one
and would result in
“
legal
uncertainty on an unprecedented scale
”
.
In
Jurgens v Editor
Sunday Times and Another
5
the question of horizontality was raised in the context of an
application to amend pleadings, but there was no need to decide the
issue at that stage.  In
Motala
and Another v University of Natal
6
Hurt J held that Sections 8 and 32 applied horizontally.  In
Potgieter en

n
ander v Kilian
7
McLaren J was faced with the problem
of deciding whether the provisions of Chapter 3 of the Constitution
apply not only as between
the State and the individual, but also
between private entities.  He came to the conclusion that there
was no indication in
the history and origin of the Constitution that
Chapter 3 was intended to have horizontal application.
[
156
]
Because of these conflicting decisions, clarity on the issue is
needed and the ruling of the Constitutional Court
is eagerly
awaited.  The question involves a consideration of whether or
not a private individual can institute action or sustain
a defence
against another private individual on the basis of the violation of a
right contained in Chapter 3.  There is no simple
answer to the
question whether an alleged breach of a fundamental right contained
in Chapter 3 could found an action between private
individuals, but
the answer to this question must be sought in the provisions of the
Constitution itself, having regard to the underlying
values and
objects of the Constitution.
[
157
]
I begin my analysis of the matter

back-to-front
’
,
and consider first the underlying values and objects of the
Constitution in general and Chapter 3 in particular.  Our
Constitution
has both a pre-amble and what has variously been called
a post-amble, after-amble, post-script or epilogue.  Whichever
term
one uses, both the pre-amble and the post-amble indicate the
general purpose for which the people ordained and established the
Constitution.
The pre-amble envisages the creation of as
democratic a climate as is possible in the ushering in of a
democratic Constitution for
a new legal order and emphasises
equality, fundamental rights and freedoms, national unity and a
restructuring of society.
It is a document that seeks to
transform the
status
quo ante
into a new
order, proclaiming that -
“
... there is a need to create a new order
in which all South Africans will be entitled to a common South
African citizenship in a
sovereign and democratic constitutional
state in which there is equality between men and women and people of
all races so that all
citizens shall be able to enjoy and exercise
their fundamental rights and freedoms
”
;
The post-amble reminds us that the Constitution is a -
“
...historic bridge between the past of a
deeply divided society characterised by strife, conflict, untold
suffering and injustice,
and a future founded on the recognition of
human rights, democracy and peaceful co-existence and development
opportunities for all
South Africans, irrespective of colour, race,
class, belief or sex.
”
Section
35(1) provides that in interpreting the Bill of Rights a court shall
promote the values which underlie an open and democratic
society
based on freedom and equality. Freedom and equality underlie the
vision of democracy embodied in the Constitution.
The
Constitution sets out the values which we must uphold, and in
particular enjoins us to recognise a person
’
s
status as a human being.
[
158
]
My colleague, Mahomed J (as he then was), dealing in
S
v Makwanyane
and
Another
8
with the values and objects of our Constitution, states that -
“
The South African Constitution is
different:  it retains from the past only what is defensible and
represents a decisive break
from, and a ringing rejection of, that
part of the past which is disgracefully racist, authoritarian,
insular, and repressive and
a vigorous identification of and
commitment to a democratic, universalistic, caring and aspirationally
egalitarian ethos, expressly
articulated in the Constitution.
The contrast between the past which it repudiates and the future to
which it seeks to commit
the nation is stark and dramatic.  The
past institutionalized and legitimized racism.  The Constitution
expresses in its
preamble the need for a

new
order .. in which there is equality between ... people of all
races
’
.  Chapter 3 of the
Constitution extends the contrast, in every relevant area of
endeavour (subject only to the obvious limitations
of section 33).
The past was redolent with statutes which assaulted the human dignity
of persons on the grounds of race and
colour alone;  section 10
constitutionally protects that dignity. The past accepted, permitted,
perpetuated and institutionalized
pervasive and manifestly unfair
discrimination against women and persons of colour; the preamble,
section 8 and the postamble seek
to articulate an ethos which not
only rejects its rationale but unmistakenly recognises the clear
justification for the reversal
of the accumulated legacy of such
discrimination.  The past permitted detention without trial;
section 11(1) prohibits
it.  The past permitted degrading
treatment of persons;  section 11(2) renders it
unconstitutional.  The past arbitrarily
repressed the freedoms
of expression, assembly, association and movement;  sections 15,
16, 17 and 18 accord to these freedoms
the status of "fundamental
rights".  The past limited the right to vote to a
minority;  section 21 extends it
to every citizen.  The
past arbitrarily denied to citizens on the grounds of race and
colour, the right to hold and acquire
property;  section 26
expressly secures it.
”
In
a nutshell, these are the underlying values and objects of the
Constitution. These are the imbalances which the Constitution seeks
to redress.  The theme of
“
an
open and democratic society based on freedom and equality
”
runs throughout the Bill of Rights
9
- obviously to facilitate the transition from an apartheid society to
a democratic society.
[
159
]
The first question to be asked, it would seem, is whether the
provisions of Chapter 3 apply to the common law.
Put
differently, the question at issue is whether or not a rule of common
law can be attacked on the basis of Chapter 3 in litigation
between
private parties not involving any legislative or executive
authority.  In my view, there can be no doubt that the
provisions
of Chapter 3 do apply to the common law.  Section
4(1) of the Constitution proclaims the supremacy of the Constitution
and the
subjection of any law or act to its provisions, stating that:
“
... any law or act inconsistent with its
provisions shall, unless otherwise provided  expressly or by
necessary implication in
this Constitution, be of no force and effect
to the extent of the inconsistency.
”
In
my view, this language is broad enough to include the common law.
To hold otherwise would, in my view, exclude from Chapter
3
application a whole body of the common law which to a great measure,
governs the rights and obligations of individuals.
1
0
Section 7 (2) puts the matter beyond any doubt, that
Chapter 3 of the Constitution applies to the common law.  This
Section states:
“
This Chapter shall apply to
all
law in force
and all administrative
decisions taken and acts performed during the period of operation of
this Constitution.
”
(My
underlining)
In
interpreting Section 7 (2), read systematically broadly and
teleologically in conjunction with the pre-amble, which proclaims
“
a
need to create a new order
”
,
the broad view must prevail so that
“
all
law
”
includes
statutory, common and customary law.  That Chapter 3 applies to
the common law is further evidenced by Sections
33 (2) and (3) which
state:
“
(2) Save as provided for in subsection (1)
or any other provision of this Constitution, no law, whether a rule
of the
common law
,
customary law or legislation, shall limit any right entrenched in
this Chapter.
(3) The entrenchment of the rights in terms of
this Chapter shall not be construed as denying the existence of any
other rights or
freedoms recognised or conferred by
common
law
, customary law or legislation to
the extent that they are not inconsistent with this Chapter.
”
(My underlining)
Furthermore, in my view, certain provisions contained in
Sections 33(2)-(4) would have been unnecessary as regards private law
matters
if the fundamental rights provisions applied only
vertically.  It is, therefore, my view that our Chapter 3 has
not gone as
far as subjecting the State to its rigours only, but that
it has ventured out and colonised the common law.
[
160
]
The second leg of the inquiry then is  whether such application
of Chapter 3 to the common law is to arise
in consequence of the
direct application of the relevant Chapter 3 right, or through the
mechanism of interpreting, applying and
developing the common law by
having regard to the spirit, purport and objects of the Chapter in
terms of Section 35(3),  or
both.  It is my view  that
our Constitution provides for both.
[
161
]
If the proposition is accepted that the basic concern of the
Constitution is to transform the South African society
and the legal
system into one that upholds democratic principles and  human
rights, between,
inter
alia
, the State and
the individual and between individuals
inter
se
, there must be
instances which call, in so far as private relationships between
individuals are concerned, for the direct application
of the
provision of Chapter 3 between such individuals. As a matter of
interpretation, certain provisions of the Chapter have direct
horizontal application.  We should examine every enumerated
right and decide whether it can sensibly be applied in the private
domain.  In support of this approach, it all depends on the
nature and extent of the particular right, the values that underlie
it, and the context in which the alleged breach of the right
occurs.
1
1
As
stated above, Chapter 3 has several provisions that specifically
regulate labour relations.  Section 27 gives every person
the
right to fair labour practices and further gives workers the right to
form and to join trade unions, to organise and bargain
collectively
and to strike and similar or related rights.  Further, Chapter 3
provides for the establishment of private educational
institutions on
the one hand but prohibits discrimination on the basis of race on the
other,
1
2
that every child shall have the right not to be subjected to neglect
or abuse,
1
3
and that every person shall have the right to an environment which is
not detrimental to his or her health or well-being.
1
4
It is, however, not necessary for purposes of this judgment, nor was
it argued before us, that we should provide guidelines
for
determining which provisions of Chapter 3 apply directly horizontally
or to enumerate them.  Consequently I concur with
Mahomed DP on
this score.
[
162
]
I have had the benefit of perusing the learning of a few foreign
jurisdictions on the application of their Bills
of Rights to private
relations.  In most instances, and that is why direct
horizontality has been rejected, there were no problems
in the
relationships of the citizens
inter
se
as they were
from relatively homogeneous societies.  On this issue our Bill
of Rights, because of the peculiar circumstances
and the period
within which it was drafted, cannot be properly or fairly compared to
oft quoted instruments such as the Canadian
Charter, the United
States Constitution and the German Basic Law.  The German Basic
Law was a reaction to the genocide perpetrated
on the minority by the
government of the day.  Canadian jurisprudence does not support
direct horizontality.
1
5
Canadian authorities supporting this view state -
“
Such actions as an employer restricting an
employee
’
s freedom of speech or
assembly, a parent restricting the mobility of a child or a landlord
discriminating on the basis of race in
his selection of tenants
cannot be breaches of the Charter, because in no case is there any
action by the Parliament or government
of Canada or by the
Legislature or government of a province.  In cases where private
action results in a restriction of a civil
liberty, there may be a
remedy for the aggrieved person under a human rights code, under
labour law, family law, tort law, contract
law or property law, or
under some other branch of the law governing relations between
private persons; but there will be no breach
of the Charter.
”
1
6
[
163
]
Ours is a multi-racial, multi-cultural, multi-lingual society in
which the ravages of apartheid, disadvantage
and inequality are just
immeasurable.  The extent of the oppressive measures in South
Africa was not confined to government/individual
relations but
equally to individual/individual relations.  In its effort to
create a new order, our Constitution must have been
intended to
address these oppressive and undemocratic practices at all levels.
In my view our Constitution starts at the lowest
level and attempts
to reach the furthest in its endeavours to restructure the dynamics
in a previously racist society.
[
164
]
I agree with Kentridge AJ on the interpretation of Section 35(3)
which explicitly provides that our courts should
develop the common
law and customary law with due regard to the
“
spirit
purport and objects
”
of
Chapter 3.  This, in my view, provides for the indirect
horizontal
“
seepage
”
in those areas which are not touched
directly by the provisions of Chapter 3.  As Froneman J put it
in
Gardener v
Whitaker
:
1
7
“
After all, the

past
of a deeply divided society characterised by strife, conflict, untold
suffering and injustice
’
(words used
in the

unity and reconciliation
’
section of the Constitution) is not merely a
history of repressive State action against individuals, but it is
also a history of structural
inequality and injustice on racial and
other grounds, gradually filtering through to virtually all spheres
of society since the arrival
of European colonists some three and a
half centuries ago, and it will probably take generations to correct
the imbalance.
But the development
of the law by the courts is by its very nature dependent on
litigation and therefore likely to be incremental
and perhaps slow,
hence the provision for State intervention also, by virtue of section
33(4), to prohibit unfair discrimination
by private persons and
bodies
.
”
(My
underlining)
The
provisions of Section 35(3) are in effect an express adoption of the
German model of
“
Drittwirkung
”
.
In my view, it is the task of the Supreme Court to oversee this
development.  The law is always changing.  The Supreme
Court has always participated on an active basis in the adjudication
of the common law rules.  What is now required of it is
that in
disputes between private individuals it should balance their
competing rights as envisaged in the Constitution.
[
165
]
In the result and as already indicated, I agree with paragraphs 1 and
2 (a) of the order proposed by Kentridge
AJ.  On the question of
horizontality, I am of the view that some of the rights in Chapter 3
lend themselves to direct horizontality
while in respect of others,
Chapter 3 is indirectly horizontally applicable.  However, the
defendants in the present case cannot
rely on the provisions of
Section 15 of the Constitution.
T MADALA
Justice of the Constitutional Court
[
166
]
MOKGORO J
:
Having had the privilege of reading the judgments both of
Kentridge AJ, and of Kriegler J, I concur in the judgment
of
Kentridge AJ and in the order he proposes.   I also find
myself  in respectful agreement with the views expressed
in the
concurring opinion of  Mahomed DP.
[
167
]
The importance of  the application question prompts me to write
this brief concurring note to emphasise my
view that, notwithstanding
that Chapter 3 of the Constitution may not be invoked by one private
litigant against another to challenge
a rule of common or customary
law, section 35(3) of the Constitution assigns to courts an
affirmative
responsibility
to
apply and develop both common law and customary law in a manner that
imbues both systems of law with the values embodied in Chapter
3.
[
168
]
The unique and stark reality in South Africa is that decades of
injustice associated with apartheid gave
rise to gross socio-economic
inequalities that persist at every level of our society.
The disparities between the beneficiaries
of state-imposed racial
discrimination and its victims, which will doubtless endure for many
years to come, makes oppression and
discrimination in the
“
private
”
sphere both possible and likely.
Indeed, in practical terms, the average South African may now be more
likely on a day-to-day
basis to have her or his human dignity and
other fundamental rights threatened by the actions of entities and
individuals who are
not in any sense organs of state, than by agents
clothed with public power.
[
169
]
But however desirable it might be that Chapter 3 should have what has
been termed
“
direct
horizontal
”
application,
the better to swiftly mitigate the worst of those inequities which
cannot be ascribed to actions or neglect of the public
authorities of
the present day, after considering the incisive textual analysis
contained in the opinion of Kentridge AJ, I find
myself persuaded
that the Constitution we are called upon to interpret today simply
does not make provision for such
“
private
”
application in the ordinary course.
[
170
]
That said,  I would underscore what my brothers Kentridge and
Kriegler have both made clear: the Constitution
is the
“
supreme
law of the Republic
1
",
and Chapter 3 thereof  applies to
“
all
law in force
2
",
which includes common and customary law, as well as statutory law.
It follows that the realm of so-called private
law, whether
embodied in legislation, common law, or customary law, is by no means
immunised from the values of the Constitution
as a whole or from
those articulated in Chapter 3 in particular.  And by virtue of
section 35(3), which is phrased in the imperative,
courts are obliged
to bring to bear the spirit, purport and objects of Chapter 3 in the
interpretation of all law and in the development
of the common law
and customary law.  While that obligation is imposed upon all
courts, I recognise that the primary burden
in that regard will fall
upon the Supreme Court.
[
171
]
How precisely courts will go about the business of giving effect to
Chapter 3 pursuant to section 35(3) is not
spelled out in the text of
the Constitution.  I note that that section must in any event be
read together with Section 33(3),
which provides that rights and
freedoms
“
recognised
or conferred by common law, customary law or legislation
”
will continue to apply to the extent
they are not inconsistent with Chapter 3.  It has always been in
the nature of the judicial
function to fashion appropriate remedies
on a case-by-case basis, having balanced and accommodating competing
rights and interests.
Courts will no doubt proceed in a similar
manner in giving effect to section 35(3).
[
172
]
In that connection, I would like to draw attention briefly to a
matter that has been somewhat neglected in the
application debate:
the implications thereof for South African customary law in
particular.  Under the pre-Constitutional order,
customary law
was lamentably marginalised, and allowed to degenerate into a
vitrified set of norms alienated from its roots in the
community.
3
There is hence significant scope for the dynamic application and
development of customary law by the courts in a manner that
has
“
due
regard to the spirit, purport and objects
”
of
Chapter 3.
4
I note in that regard that the Constitution specifically provides
that
“
[i]ndigenous
law shall be subject to regulation by law.
”
5
As my brother Kriegler points out,
6
the Constitution requires that judges be proactive in their
application of section 35(3).  Indeed,  in a matter
involving
customary law, a court is bound to have regard to the
values of Chapter 3 even where there is no claim of
unconstitutionality raised.
7
I am convinced that the observations of Mahomed J in his concurring
opinion in this matter, with respect to the
need to actively develop
the common law,
8
apply
a fortiori
to customary law.
[
173
]
It is not within the scope of my brief concurring opinion in this
matter to pass upon the precise manner in which
a court is to go
about applying
“
indirectly
”
the fundamental rights provisions in
the customary law setting.  It suffices for present purposes to
observe that, at minimum,
where customary law assigns -- as
often it does -- an area of discretion to a judicial officer, it is
incumbent upon her or him to
be fully cognisant of the values
articulated in Chapter  3 in exercising that discretion.
9
Where a written decision is handed down, and fundamental
constitutional values are manifestly implicated, it would be
appropriate for the court to articulate in its judgment how it
weighed the relevant constitutional considerations.
[
174
]
This harmonisation exercise will demand a great deal of judicious
care and sensitivity.  Sections 33(3) and
181(1) of the
Constitution acknowledge the continued existence of customary law.
Moreover, the guarantee of persons
’
right
to participate in the cultural life of her or his choice contained in
section 31 of the Constitution, even if interpreted narrowly
as
guarding only the individual
’
s
freedom of cultural affiliation, would appear to require that
customary law, which remains integral to the domestic culture of
millions
of South Africans, be accorded due respect.  Although
harmonisation will inevitably be an incremental process -- no one
should
expect customary law to be transformed overnight -- the
delicate and complex nature of the task cannot justify courts in
avoiding
their responsibility to accommodate customary law to the
“
values which
underlie an open and democratic society based on freedom and
equality.
”
1
0
Y
MOKGORO
Justice of the Constitutional Court
[
175
]
SACHS J
:
Given a choice between two well-reasoned but conflicting arguments on
the question of horizontality and verticality, each with considerable
support in the text, I would prefer the one which leads to the
outcome I regard as being most consistent with the well-functioning
constitutional democracy contemplated by the Constitution.
[
176
]
Much of the discussion on the question seems, in my view, to conflate
two issues that should really be kept separate.
The one is the
question of the scope of Chapter 3, and the other the matter of how
the framers intended the Chapter to be put into
operation.  By
running the two issues into one, an argument in favour of the
broadest possible constitutional reach is unfortunately
converted
into a claim for the widest possible judicial remedy.
[
177
]
I have no doubt that given the circumstances in which our
Constitution came into being, the principles of freedom
and equality
which it proclaims are intended to be all-pervasive and
transformatory in character.  We are not dealing with a
Constitution whose only or main function is to consolidate and
entrench existing common law principles against future legislative
invasion.  Whatever function constitutions may serve in other
countries, in ours it cannot properly be understood as acting
simply
as a limitation on governmental powers and action.  Given the
divisions and injustices referred to in the postscript,
it would be
strange indeed if the massive inequalities in our society were
somehow relegated to the realm of private law, in respect
of which
government could only intrude if it did not interfere with the vested
individual property and privacy rights of the presently
privileged
classes.  That, to my mind, is not the issue.  I accept
that there is no sector where law dwells, that is not
reached by the
principles and values of the Constitution.  If there is indeed
an area of human activity exempt from legal regulation
in terms of
constitutional principles, it is not because the Constitution must be
interpreted in a negative way so as to limit its
impact, but because
the Constitution itself protects such a sphere from legal
intervention.
[
178
]
The real issue, in my opinion, is
how
the Constitution intends fundamental rights in the broadest meaning
of the term to be protected.  More particularly, is the
Constitution self-enforcing in all respects, or does it require
legislative intervention to make it implementable in certain areas,
especially as far as positive rights are concerned?  The
question, then, is not only what balance we should strike between the
respective roles of our Court and that of the Appellate Division, but
what spheres of decision-making belong in the first place to
Parliament, and what to ourselves.  This is therefore a question
of separate but complementary powers as well as one of separate
but
complementary judicial functions.  Should we be in effect
legislating on matters of great social and political concern,
leaving
it to Parliament to fill in the gaps between our judgments, or should
Parliament have the principal task of deciding on appropriate
legal
rights and duties, with ourselves basically standing as sentinels to
ensure that Parliament does not stray beyond the framework
within
which the Constitution requires it to function?
[
179
]
A major advantage of following the indirect  approach and
allowing the Appellate Division to develop the
common law in keeping
with the soul of the Constitution, is that the decisions of that
court would not have the entrenched permanence
automatically
resulting from our judgments.  Parliament could, following
normal procedures, opt for amending or even abrogating
Appellate
Division decisions, provided that it legislated within the range of
possibilities permitted by Chapter 3.  Such alterations,
however, would be severely limited in relation to determinations by
our Court, where only a constitutional amendment, or at most,
cautious navigation by Parliament around the prescriptive rocks of
our judgments, could produce the change.
[
180
]
The matter is not simply one of abstract constitutional theory.
The judicial function simply does not lend
itself to the kinds of
factual enquiries, cost-benefit analyses, political compromises,
investigations of administrative/enforcement
capacities,
implementation strategies and budgetary priority decisions, which
appropriate decision-making on social, economic, and
political
questions requires.  Nor does it permit the kinds of pluralistic
public interventions, press scrutiny, periods for
reflection and the
possibility of later amendments, which are part and parcel of
Parliamentary procedure.  How best to achieve
the realization of
the values articulated by the Constitution, is something far better
left in the hands of those elected by and
accountable to the general
public, than placed in the lap of the courts.
[
181
]
The Constitution contemplates a democracy functioning within a
constitutional framework, not a dikastocracy
1
within which Parliament has certain residual powers.  The role
of the courts is not effectively to usurp the functions of the
legislature, but to scrutinize the acts of the legislature.  It
should not establish new, positive rights and remedies on its
own.
The function of the courts, I believe, is, in the first place, to
ensure that legislation does not violate fundamental
rights,
secondly, to interpret legislation in a manner that furthers the
values expressed in the Constitution, and, thirdly, to ensure
that
common law and custom outside of the legislative sphere is developed
in such a manner as to harmonise with the Constitution.
In this
way, the appropriate balance between the legislature and the
judiciary is maintained.
[
182
]
The above points can well be illustrated by four examples.  They
deal with defamation, private discrimination,
labour law and
customary law, respectively.
[
183
]
The first example relates to the kind of
defamation
case before us at the moment.  If we followed the indirect or

diagonal
’
approach to applicability, the
Appellate Division would remain in the picture.  Say, for
purposes of argument, it decided to
uphold the approach adopted in
the carefully articulated judgment by Cameron J
2
in terms of which the plaintiff would have to prove negligence on the
part of the publisher.  Parliament could then examine
the
Appellate Division
’
s
decision, decide to refer the matter to the Law Commission for
investigation, and finally opt for a completely different approach.
[
184
]
Say that Parliament eventually came to the conclusion that a better
approach would be that when publishing defamatory
material about
someone in the public domain, the media must take reasonable steps to
verify the accuracy of the statements, and that
the more injurious to
the personal as opposed to the political reputation of the person
concerned the more stringent should the investigation
be; say that
the legislators felt that when there is a manifest invasion of the
privacy of someone in public life, it is not for
the plaintiff to
prove negligence or absence of justification on the part of the
publishers, but for the publishers to establish
that the invasion of
privacy was in all the circumstances justified in the interest of the
public knowing about the lives of such
figures.  Legislation
could then be adopted to these effects, and if any publishers felt
aggrieved, they could approach this
Court and ask us to strike down
the offending provisions.  We would then weigh up the matter,
decide whether the legislation
conforms to the principles of free
speech and respect for dignity and privacy and make an appropriate
ruling, bearing in mind a number
of factors, such as the powers of
reading down, severance and total invalidation subject to the
discretionary power granted to us
in section 98(5).
Furthermore, in determining the justifiability of the legislation in
terms of section 33, we would decide
whether the path followed by
Parliament was one of many reasonably permissible options, not
whether we thought it the best one.
[
185
]
Assume, on the other hand, that the matter was regarded as one of
direct, self-enforcing horizontal application,
with the result that
the Appellate Division was excluded, and our Court came to the very
same conclusion as that posited above for
the Appellate Division.
Parliament would no longer be able to pass the legislation it thought
appropriate, unless it was willing
to amend the Constitution for this
purpose, or, unless, possibly, it could come up with an alternative
proposal that met constitutional
criteria and did not conflict with
the ratio of the Constitutional Court
’
s
judgment.  Whatever position we adopted when confronted with the
issue, our dilemma would be profound.  If we made no
reformulation whatsoever and simply left the matter open, the
Appellate Division would be out of the picture, and each Division of
the Supreme Court could develop its own rulings, with the result that
a plaintiff could win in one part of the country and lose in
another,
the publication being exactly the same in both.  If, on the
other hand, we reformulated the common law ourselves in
the manner we
thought most consonant with the Constitution, we would solve the
problem of divided decisions, but tie the hands of
Parliament until
death or a constitutional amendment did us part.  There would be
little or no scope for Law Commission enquiry,
little chance for
subsequent amendments in the light of experience and public opinion.
Parliament would have to defer to our
discretion in the matter,
seeking to find some margin of appreciation left in our judgment
within which it could dot i
’
s,
cross t
’
s and
seek alternative, not incompatible, solutions.
[
186
]
Similar problems would arise if we were to attempt ourselves to solve
difficult questions which might have to
be confronted when dealing
with
de facto
discrimination
.
Although considerable progress has been made in this field, our
country still abounds with inequality and bigotry.  It
is not
just a question of bad and insulting behaviour.  People are
denied access to jobs, facilities and accommodation on a
daily basis
purely because of the colour of their skin.  It would be a
strange Constitution indeed that had nothing to say about
such
flagrant denials of dignity and equality.  I have no doubt that
the Constitution speaks to such issues. Yet in my opinion
it would be
quite inappropriate to say that each and every violation of personal
rights in such a situation raised a constitutional
question for
ultimate determination by our Court. The appropriate manner for such
issues to be dealt with would be through legislation
pioneered
perhaps by the Human Rights Commission.  Litigation is a clumsy,
expensive and time-consuming way of responding to
the multitudinous
problems of racist behaviour.  Mediation and education could
produce results far more satisfactory for the
injured person, and
considerably more transformatory for the perpetrator.
Widespread research and consultation would be needed
to decide
precisely where to establish the cut-off point in each situation: in
many countries, persons employing only a handful of
workers in a
close and intimate work environment, or a landlady letting one room
in her house, or social activities of a genuinely
private character,
are expressly excluded from anti-discrimination legislation.
The problems of sex discrimination might be
considerably different
from those related to race discrimination, or discrimination on
grounds of disability.  It is Parliament,
and not the courts,
that investigates these matters and decides on appropriate
interventions and remedies.
[
187
]
I am not aware of what remedies in the private sphere could be
invoked to enforce what are said to be directly
enforceable
constitutional rights.  A purely defensive remedy to someone
denied access to a restaurant or promotion at work,
would not be very
meaningful.  Specific performance would not be appropriate where
the complaint is refusal to enter into a
contract, rather than
failure to fulfill a contact. I have found nothing in the
Constitution to suggest that the framers envisaged
a new form of
damages for violation in the private sphere of constitutional
rights.  In the United States, special civil rights
legislation
was passed to enable persons to be sued or prosecuted for violation
of or conspiracy to violate the civil rights of another.
The
European Court of Human Rights has express power to order damages in
the case of violation of individual rights, but then only
against
governments, not against private parties.  What clearly seems to
have been contemplated by Chapter 3 is that persons
whose rights have
been violated not by the government but by private actors, must find
their remedies either through legislation
[section 33(4)] or else by
means of constitutionally-adapted common law.  Thus, even in the
absence of anti-discrimination legislation,
a person turned
away from a hotel because of his or her race might be able to pursue
a claim for
injuria
;
report the offender to the licensing authorities; or lay a complaint
with the Human Rights Commission.  Without such legislation,
however, I have difficulty seeing this or any other court finding in
the Constitution authority to entertain or develop an action
for
damages for violation of constitutional rights where the State itself
has not been the offending party.
[
188
]
The constitutionalizing of private relationships in the industrial
sphere could also have unacceptable consequences.
Much of
labour law
has a procedural and framework character, leaving it to workers and
employers to establish their own agreements in the light of their
respective needs and interests.  Collective bargaining plays a
central role in establishing appropriate balancing of interests.
Granting fundamental rights of a constitutional character to
individual employees could destroy decades of arrangements, formal
and
informal, between representatives of employers and employees.
Agreements involving closed shop and stop-order facilities for
union
dues from salary might be regarded by some as controversial and
contestable.  I do not wish in any way to prejudge the
interpretation of constitutional or other provisions relating to
labour law.  Yet it does seem to me at first sight that the
remedy for such persons should be to launch any challenges they may
have, either in the legislature or in the many bodies, statutory
and
otherwise, concerned with industrial relations, not in the
Constitutional Court.
[
189
]
Finally, sooner or later, the question of the relationship between
the Constitution and customary or
indigenous
law
will have to be
confronted.  I have difficulty in seeing how this Court could
effectively examine the constitutional propriety
of institutions like
lobola or bohadi and each and every one of their myriad inter-related
rules and practices.  Patriarchy
permeates many aspects of
customary law as it has been developed and applied in the courts over
the last century.  The direct
enforceability of Chapter 3 could
require this Court, if asked to do so, to indulge in a wholesale
striking down of customary law
because of violation of the equality
clause in Chapter 3.  The indirect approach would permit courts
closer to the ground to
develop customary law in an incremental,
sophisticated and case-by-case way so as progressively, rapidly and
coherently to bring
it into line with the principles of Chapter 3.
At the same time, Parliament could throw the matter open to public
debate involving
all interested parties, secure investigation by the
Law Commission, and come up eventually with what it considers
appropriate legislation.
[
190
]
The issue, then,  is not about our commitment to the values
expressed by the Constitution, but about which
institutions the
Constitution envisages as being primarily responsible for giving
effect to those values. From the above reasoning,
it should be clear
that I support the judgment of Kentridge AJ on the question of
horizontality/verticality.  Since I agree
with his approach on
the other matters raised, I wish to express my overall concurrence
with his judgment and with the order he proposes.
A
SACHS
Justice
of the Constitutional Court
Case
No
:           CCT
8/95
Counsel
for the Appellants (Defendants)
:
GJ
Marcus
M Chaskalson
Instructed
by
:           Webber
Wentzel Bowens
Counsel
for the Respondents (Plaintiffs) :
TJ Kruger S.C.
J van der Westhuizen
N Davis
Instructed
by
:           Van der
Walt and Hugo
Date
of Hearing
:           7
November 1995
Date
of Judgment
:           15 May
1996
[1]
As
deprecated in many judgments, including
Davies
and Others v Lombard
1966 (1) SA 585
(W).
[2]
This
defence was presumably based on the judgment in
Zillie
v Johnson and Another
1984 (2) SA 186
(W) subsequently overruled by the Appellate Division in
Neethling
v du Preez and Others; Neethling v The Weekly Mail and Others
[1993] ZASCA 203
;
1994 (1) SA 708
(A) at 777 - 8; and no doubt foreshadowed a
submission that the
Neethling
judgment required reconsideration in the light of the provisions of
the Constitution.
[3]
De
Klerk and Another v Du Plessis and Others
1994
(6) BCLR 124 (T).
[4]
1994
(4) BCLR 79
(T).
[5]
Supra
n3 at 127G.
[6]
[1995] ZACC 4
;
1995
(3) SA 867
(CC);
1995 (7) BCLR 793
(CC) - delivered 8
th
June, 1995.
[7]
Id
per Mahomed J at paras 24 and 30.
[8]
Id
per Mahomed J at para 46; per Kriegler J at paras
91 and 98.
[9]
1995
(2) SA 642 (CC); 1995 (4) BCLR 401 (CC).
[10]
Id
at para 65.
[11]
Shewan
Tomes and Co. Ltd v Commissioner of Customs and Excise
1955
(4) SA 305
(A) at 311;
Van Lear v Van
Lear
1979 (3) SA 1162 (W).
[12]

I agree fully with both Kentridge AJ and
Mahomed J on the question of the non-retroactivity of Chapter 3"
-
supra
n6 at para 132.

Chapter 3
... is not applied retrospectively to undermine the validity of
proceedings up to 27 April 1994, or to negate rights which
had
already accrued at that date

-
supra
n6
at para 144.
[13]
The
distinction between paragraph (a) and (b) of the sub-section is
logical. A statute passed after the commencement of the Constitution
and inconsistent with it, must in terms of section 4(1) never have
been of any force and effect. A statute passed before the
commencement
of the Constitution would not have suffered from
initial invalidity - inconsistency could only arise as from the
commencement of
the Constitution.  To back-date its invalidity
to a time before the Constitution existed would therefore be to deem
that which
was undoubtedly valid at that time to have been invalid.
One would require clearer words than those in sub-section (6) to
bring about such a result.  See however the reservation in para
20
infra
.
[14]
Issue
(a), set out in para 10.
[15]
As
in
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC), and
S
v Williams and Others
1995 (3) SA 632
(CC); 1995 (7) BCLR 861 (CC).
[16]
See
the cases in n15.
[17]
S
v Mhlungu and Others, supra
n6 at para
8, per Mahomed J.
[18]
See
section 12(2)(d) of the Interpretation Act 33 of 1957.
[19]
Marais
J has, however, taken the opposite view in
S
v Coetzee and Others,
unreported
decision of the Witwatersrand Local Division, 28 September 1995,
case number 70/92.
[20]
Cf.
Viljoen F

A Perspective on
Retrospectivity of Fundamental Rights under the Interim
Constitution

Occasional Paper No.
5, Centre for Human Rights, University of Pretoria, December 1994 at
15.
[21]
See
any elementary textbook, such as
Maasdorp

s
Institutes of South African Law II The Law of Things
,
7
th
edition at 1.
[22]
Cf.
Logan v. Zimmerman Brush Co.,
455
U.S. 422
(1982) in which the United States Supreme Court held that a
cause of action was property, protected by the due process clause of
the Fourteenth Amendment.  See also
Hewlett
v Minister of Finance and Another
1982
(1) SA 490
(ZSC) at 494, holding that a debt is a right of property
protected under the Zimbabwe Constitution.
[23]
It
follows that the judgment of Cameron J in
Holomisa
v Argus Newspapers Ltd
, unreported
decision of the Witwatersrand Local Division, 14 February 1996, case
number 19883/95, was wrong on this point.
As, however, appears
from page 10 of the typed judgment it was not the subject of
argument before him.
[24]
Constitutional
Law of Canada
3 ed (1992) at para
33.10 (Citations omitted).
[25]
(1984)
8 C.R.R. 136.
[26]
(1988)
33 C.R.R. 107.
[27]
Id
at 122.
[28]
Id
at 128.
[29]
Id
at 131- 2.
[30]
Supra
n26 at 108.
[31]
(1986)
20 C.R.R. 278.
[32]
It
is right to add that the Court of Appeal observed that there was no
simple principle which would govern the result in all cases
(
Id
at 284).  The Supreme Court of Canada approved the
Lucas
and
Neely
decision in
R v. Stevens
(1989)
35 C.R.R. 107.
See also
Jack and
Charlie v. The Queen
(1986) 21 D.L.R.
(4
th
)
641 where the Supreme Court of Canada held that the freedom of
religion right could not be relied upon as excusing an offence
committed before the Charter came into force.
[33]
Supra
para 11.
[34]
See
Zantsi v Council of State, Ciskei and
Others
[1995] ZACC 9
;
1995 (4) SA 615
(CC); 1995 (10)
SA BCLR 1424  (CC)  at para 1;
S
v Mhlungu and Others, supra
n6 at para
57.
[35]
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
(A) at 549-50.
[36]
1995
(1) SA 282
(A) at 289.
[37]
1924
AD 226
at 229.
[38]
See
Zantsi
,
supra
n34
at para 6.
[39]
Supra
n6 at para 56.
[40]
[1995] ZACC 5
;
1995
(3) SA 262
(CC);
1995 (7) BCLR 851
(CC) at para 12.
[41]
1994
(6) BCLR 124
(T) at 128J - 29B;  Cf.  the dictum of
Froneman J in
Qozoleni v Minister of
Law and Order and Another
1994 (1)
BCLR 75
(E) at 81;  that the fundamental

mischief

remedied by the new Constitution is the old
constitutional system.
[42]
Id
at 131C.
[43]
1994
(4) BCLR 1 (W).
[44]
1995
(3) BCLR 374
(D).
[45]
1995
(11) BCLR 1498 (N).
[46]
The
Thirteenth Amendment (outlawing slavery and involuntary servitude)
has by reason of its language been held to impose direct
obligations
on individuals in private law relationships.
[47]
334
U.S. 1
(1948).
[48]
Id
at 16.
[49]
[1964] USSC 41
;
376
U.S. 254
(1964), especially per Brennan J at 265.
[50]
See
Tribe LH
American Constitutional
Law
2
ed (1988) Chapter 18; Gunther G
Constitutional Law
12 ed (1991) at 902 -12.
[51]
See
e.g. Henkin L

Shelley v
Kraemer
: Notes for a Revised Opinion

,
(1962)
University of Pennsylvania Law
Review
473.
[52]
See
e.g.
Burton v Wilmington Parking
Authority,
[1961] USSC 58
;
365 U.S. 715
(1961).
[53]
[1991]
I.L.R.M. 268.
See also Casey J
Constitutional
Law in Ireland
2 ed (1992) at 378 - 9.
[54]
We
have been furnished only with a typed version of four chapters of
this work (perhaps in translation), which itself appears to
be part
of a larger work on constitutional interpretation, published in
1994.
[55]
(1987) 33 D.L.R. (4
th
)
174.
[56]
Id
at 196.
[57]
Id
at 195.
[58]
Lavigne
v. Ontario Public Service Employees Union
(1991)
81 D.L.R. (4
th
)
545.
[59]
1995
(8) BCLR 1018
(B) 1018 at 1042.  Friedman JP also considers the
law of the United States, Germany, India, Namibia and Sri Lanka.
[60]
Supra
para 36.
[61]
(1989)
48
Maryland Law Review
247-346.
[62]
See
Quint,
Id
at  263 - 4.
[63]
For
the facts and arguments in L
h
th,
Id
Quint
at 252 - 5;  Barak,
supra
para 36 at 20 - 21.  See also Van der Vyver,

The
private sphere in constitutional litigation

(1994)
57
THRHR
378
at 379 - 80.
[64]
See
Quint
supra
n61 at 318 ff; on
Mephisto
at 290 ff. , 302 - 3; on
Deutschland-Magazin
at 318 ff.
[65]
Id
at 327.
[66]
Although
the term

state action

does not appear in the Fourteenth Amendment to
the United States Constitution it is principally around this
Amendment that the doctrine
seems to have developed.
[67]
Supra
n61 at 273-4.
[68]
Including
Cockrell A,
Horizontal Application of
the Interim Bill of Rights,
unpublished seminar paper, U.C.T., 1995; Van der Vyver JD,
supra
n63;  Strydom HA,

The private
domain and the bill of rights

(1995)
10
SAPR/PL
52; Van Aswegen A,

The Implication
of a Bill of Rights for the Law of Contract and Delict

(1995) 11
SAJHR
50
; De Waal J,

A Comparative
Analysis of Provisions of German Origin in the Bill of Rights (1995)
11
SAJHR
1; Marcus G,

Freedom of Expression
Under the Constitution

(1994)
10
SAJHR
140
at 143; Cachalia
et al
,
Fundamental Rights in the New
Constitution
(1994) at 19-21; Woolman
S,

Application

,
in
Constitutional Law of South Africa
,
ed. Chaskalson
et al
(1996) at 10-1.
[69]
Id
Cockrell.
[70]
Hiemstra
and Gonin,
Trilingual Legal Dictionary
s. v.
reg
.
[71]
On
the status of the Afrikaans version of the Constitution see De Waal,
supra
n68
in n4, at 4.
[72]
S
v Moroney
1978 (4) SA 389
(A) at 409.
[73]
Such
as the
audi alteram partem
rule.
[74]

Traditionally
Bills of Rights have been inserted in constitutions to strike a
balance between governmental power and individual
liberty; to
constitute a precaution against State tyranny.  That was the
reason for its insertion in the United States

constitution.

-
per Van Dijkhorst J in the court below, at 130E.
[75]
Section
33(4) presumably envisages legislative measures which would apply
the principles of section 8 to relationships between private
persons.
[76]
Supra
para 43 above.
[77]
Cf.
the Canadian position, set out in paras 37 and 38 above.
[78]
This
must be read subject to the express provisions of section 98(5) and
(6).
[79]
As
in
Brink v Kitshoff NO
,
CCT 15/95  (argued on 9
th
November 1995), in which the validity of  a section
of the Insurance Act 27 of 1943, was contested in proceedings
between the executor of an estate and the surviving spouse.
[80]
Thus
in
Shabalala and Others v The
Attorney-General of the Transvaal and Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC);
1995 (12) BCLR 1593
(CC) , the prosecutor

s
common law

docket privilege

recognised in
R v
Steyn
1954 (1) SA 324
(A) and relied
upon by the state was held by this Court to be unconstitutional.
[81]
See
para 38, n58 above.  Cf
Swedish
Engine Drivers

Union v.
Sweden
(1979-80) 1 E.H.R.R. 616.
[82]
The
General Law Fourth Amendment Act 132 of 1993
.
[83]
See
section 229 of the Constitution.
[84]
See
Quint,
supra
n61 at 270-1; Gunther,
supra
n50 at 902-912.
[85]
Eg
Woolman
supra
n68 at 10-15 to 10-18.
[86]
Not
in all cases.  Cf  the Irish case referred to in para 35
above, and cf
Shabalala

s
case,
supra
n80 where the removal of an unconstitutional accretion to the law of
privilege left the previously understood law in place.
[87]
Defendants

counsel raised the problem of how a private
prosecution for defamation would fit into this scheme.  Whether
a private prosecutor
is exercising a governmental power is a point
which need not now be decided.  It may be argued that the
private prosecutor
is not vindicating a private right, but is
invoking the power of the state to punish crime.
Sections 12
and
13
of the
Criminal Procedure Act 51 of 1977
reflect the state

s
continuing interest in a private prosecution.
[88]
Supra
para 49, n80.
[89]
As
in the dissenting judgment of White J in
Gertz
v. Robert Welch, Inc.,
418 U.S. 323
(1974).  See also A Lewis
Make No
Law
(1991).  The author in
general favours the
Sullivan
rule, but points out the difficulties and anomalies which surround
the concept of

public person

.
He also observes that whereas the confidentiality of sources had
been regarded as one of the pillars of freedom of the press,
the
Sullivan
rule requires that a plaintiff may minutely investigate the
editorial process (at 201-2).  See also Epstein,

Was
New York Times v Sullivan
Wrong?

(1986) 53
University
of Chicago Law Review
782.
[90]
(1995)
126 D.L.R. (4
th
)
129.
[91]
Theophanous
v Herald and Weekly Times Ltd.
(1994)
124 ALR 1
;
Stephens v West Australian
Newspapers Ltd.
(1994) 182 ALR 211.
[92]
The
solitary judgment to the contrary in
Hassen
v Post Newspapers (Pty) Ltd
1965 (3)
SA 562
(W) was overruled in
Suid-Afrikaanse
Uitsaaikorporasie v O

Malley
1977 (3) SA 394
(A) at n96
infra.
[93]
Eg
in
R v Bunting
1916 TPD 578
at 582-3;
S v Gibson
NO and Others
1979 (4) SA 115
(D);
Government of the Republic of South
Africa v Sunday Times Newspapers and Another
1995
(2) BCLR 182
(T) at 188.
[94]
As
in
Farrar v Hay
1907 T.S. 194
at 199, per Innes CJ;
Die
Spoorbond and Another v South African Railways; Van Heerden and
Others v South African Railways
1946
AD 999
at 1013;
Argus Printing and
Publishing Co. Ltd and Others v Esselen

s
Estate
1994 (2) SA 1
(A) at 25 and the
unreported judgment of Eloff JP in
Bogoshi
v National Media Ltd and Others
,
Witwatersrand Local Division, 7 February 1996, case number
29433/94.  See also  Burchell JM,
The
Law of Defamation in South Africa
(1985) at 26.
[95]
Perhaps
building on the remarks of Ludorf J in
Pienaar
and Another v Argus Printing and Publishing Co. Ltd
1956 (4) SA 310
(W).
[96]
See
Suid-Afrikaanse Uitsaaikorporasie
,
supra
n92;
Pakendorf en Andere v de
Flamingh
1982 (3) SA 146
(A).
[97]
I
note in passing that in
Gardener v
Whitaker
1994 (5) BCLR (2) SA 19 (E)
Froneman J arrived at a different reformulation of the law of
defamation.
[98]
Supra
at para 21, n23, and para 59.
[99]

Die
nachfolgenden Grundrechte binden Gesetzgebung, vollziehende Gewalt
und Rechtsprechung als unmittelbar geltendes Recht.

[100]
(1992)
8 C.R.R. (2d) 173.
[101]
Id
at 185 and 189.
[102]
(1994)
108 D.L.R. (4
th
)
178 at 185ff.
[103]
Id
at 186a-b.
[104]
Id
at 156.
[105]
Including,
of course, customary law.  The development of customary law in
accordance with
section 35(3)
must be one of the major tasks facing
the judiciary.
[106]
See
para 40 above.
[107]
[1970]
A.C. 874
(H.L.) at 898-9.
[108]
[1974]
A.C. 810
(P.C.) at 819.  See also
Morgans
v.
Launchbury
[1972] UKHL 5
;
[1973] A.C. 127
(H.L.) at 137, per
Lord Wilberforce.
[109]
(1968)
at 250.
[110]
R.
v.
National
Insurance Commissioners, ex parte Hudson
[1972]
A.C. 944
, per Lord Diplock at 1015, per Lord Simon at 1026.
[111]
Supra
n50 at 27-32.
[112]
(1974)
24
University of Toronto Law Journal
170.
[113]
287
U.S. 363-5
(1932).
[114]
404
U.S. 105-8
(1971).
1
S
v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC).
2
Id
at para 48 (paragraph 1 of the order).
3
Id
at paras 39 and 41.
4
See
the judgment of Madala J at paras 161 and 165.
5
Judgment
of Kriegler J at para 135.
6
Judgment
of Kentridge AJ at para 55.
7
Judgment
of Kentridge AJ at para 56.
8
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA
391
(CC);
1995 (6) BCLR 665
(CC) at paras 17 and 19;
Westinghouse
Brake & Equipment (Pty) Ltd v
Bilger Engineering (Pty) Ltd
1986 (2)
SA 555
(A) at 562D-563A;
Black-Clawson
International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G.
[1975] UKHL 2
;
[1975] A.C. 591
H.L.(E).
9
Cf
Shelley v. Kraemer,
334
U.S. 1
(1948).
10
See,
for example,
Makwanyane, supra
n7 at paras 155-6, 220-4, 262, 311-3, 322-3;
Mhlungu,
supra
n1 at para 8;
Shabalala
and Others v Attorney-General, Transvaal, and Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC);
1995 (12) BCLR 1593
(CC) at paras 25-6 and see
the judgment of Cameron J in
Holomisa v
Argus Newspapers Ltd
(WLD) Case No
95/19883 14 February 1996, unreported.
1
See
Van der Vyver JD

Constitutional
Options for Post-Apartheid South Africa

(1991)
40
Emory Law Journal
745
, 785-787, 789.
2
"The
dignity of man is inviolable. To respect and protect it shall be the
duty of all public authority.

(For
English renderings of provisions of the GBL the official translation
of June 1994 issued by the Press and Information Office
of the
Federal Government has been used).
3
It
is generally recognised that Art 1 constitutes an unmistakeable
rejection of totalitarianism and the ideology of national socialism
(

you are nothing , your nation is
everything

). See, for example, von
M
h
nch/Kunig
Grundgesetz-Kommentar
Band
1(1992) 4 Aufl Art 1 Rn 6.
4

Die
nachfolgenden Grundrechte binden Gesetzgebung, vollziehende Gewalt
und Rechtsprechung als unmittelbar geltendes Recht.

The phrase

unmittelbar
geltendes Recht

(directly
enforceable law) was intended to avoid repetition of experiences in
the Weimar period where the numerous fundamental rights
in the
constitution were viewed as nothing more than non-binding guidelines
for the state and were thus ignored with impunity.
See Stern
Staatsrecht
III/1 (1988) 1427.
5
See,
for example, von M
h
nch/Kunig
supra
n3,
Vorb Art 1-19 Rn 31; Maunz/D
h
rig
Grundgesetz Kommentaar
(1994) 6 Aufl Art 1(3) Rn 121; Jarass/Pieroth
Grundgesetz
fur die Bundesrepublik Deutschland
(1995) 3 Aufl Art 1 Rn 22 and 24; Hesse
Grundz
h
ge
des Verfassungsrechts der Bundesrepublik Deutschland
(1993)
19 Aufl Rn 355; Hesse in Benda, Maihofer, Vogel
Handbuch
des Verfassungsrechts
(1994) 2 Aufl
138 Rn 22, 152-3 Rn 59; Stern
supra
n4, 1531-33, 1547, 1553-4, 1561-2, 1578, 1582, 1583, 1586 and the
authorities cited at 1531 n118; BVerfGE 7, 198[203-7]; BVerfGE
7,
230[233ff]; BVerfGE42, 143[148]. It is generally accepted that there
is direct Drittwirkung in the case of Art 9(3), which specifically
provides that agreements aimed at preventing the formation of

associations in order to safeguard
and improve working and economic conditions

are
void; BVerfGE 73, 261[269].
6
BVerfGE
7, 198[203-7]; BVerfGE 35, 79[112-114]; von M
h
nch/Kunig
supra
n3,
Vorb Art 1-19 Rn 22, 31.
7
BVerfGE
39, 1[41].
8
Supra
n3, Vorb Art 1-19 Rn 31.
9
Id
.
10
Art
3(1):

All people are equal before
the law.

11
Maunz/D
h
rig
supra
n5,  Art 1(3) Rn 119; Pieroth/Schlink
Grundrechte,
Staatsrecht II
(1994) 10 Aufl 50-51 Rn
192-193; BVerfGE 54, 117.
12
Hesse
Grundz
h
ge
supra
n5, 159 Rn 354; Stern
supra
n4, 1546, 1555-6.
13
Hesse
in Benda, Maihofer, Vogel
Handbuch des
Verfassungsrechts supra
n5, 153 Rn 60;
Stern
supra
n4, 1513, 1553; R
h
fner
in Isensee/Kirchhof
Handbuch des
Staatsrechts V: Allgemeine Grundrechtslehren
(1994) 554 Rn 65.
14
Pieroth/Schlink
supra
n11, 50 Rn 191ff.
15
[1995] ZACC 3
;
1995
(3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 156.
16
See,
for example, sections 8(3), 116, 119, and 121 to 123 of the
Constitution.
17
Pieroth/Schlink
supra
n11, 49 Rn 186; Jarass/Pieroth
supra
n5, Art 1 Rn 24 and Vorb Art 1 Rn 5-11.
18
Arts
9(3), 20(4), and 38(1) read with 48(2). Although Articles 20(4) and
38(1) are not formally part of the basic rights chapter
they are
regarded as quasi-fundamental rights (

grundrechtsgleiche
Rechte

) in terms of  Art
93(1)(4a).
19
Pieroth/Schlink
supra
n11, 49 Rn 188.
20
Art
2(1). See
Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and Others
1996
(1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at paras 83 to 87.
21
See
Pieroth/Schlink
supra
n11, Rn 142-152.
22
Hesse
Grundz
h
ge
supra
n5, 159 Rn 354; Hesse
supra
n13
,
153
Rn 60; Stern
supra
n4, 1545, 1554. Direct application of the equality provision would
forbid an employer from taking a prospective employee

s
political views into account in deciding whether to employ her; a
testator would not be allowed to decide to leave all his property
to
his sons rather than leaving equal shares to his daughters too. See
Hesse
Grundz
h
ge
supra
n5, 159 Rn
356.
23
Jarass/Pieroth
supra
n5,  Art 1 Rn 24 and Vorb Art 1 Rn 5-11; Pieroth/Schlink
supra
n11, 49 Rn 188.
24
Jarass/Pieroth
supra
n5,
Art 1 Rn 23.
25
Pieroth/Schlink
supra
n11, 6-13 Rn 18-39; 49 Rn 188; Stern
supra
n4, 1515-1518; BVerfGE 7, 198[204-5].
26
Compare
Wassermann (ed)
Alternativ
Kommentar zum Grundgesetz
(1989) 245 Rn 33; Stern
supra
n4, 1498.
27
BVerfGE
7, 198[207] (the L
h
th
case). The word

radiating

seems preferable to the somewhat pejorative term

seepage

.
28
Id
at 206.
29
Translation
by Kommers DP in
The Constitutional
Jurisprudence of the Federal Republic of Germany
(1989) 370-371.
30
Pieroth/Schlink
supra
n11, 51 Rn 193; R
h
fner
in Isensee/Kirchhof
supra
n13, 557 Rn 73.
31
BVerfGE
73, 261[269]; Maunz/D
h
rig
supra
n5,  Art 1(3) Rn 132. See, also sections 157, 242 and 826 of
the Civil Code.
32
Supra
n4, 1557-1558, 1584.
33
BVerfGE
7, 198[206ff]; BVerfGE 34, 269[280]; BVerfGE 54, 117[124]. A
striking and more recent (1993) example of this approach is
provided
by BVerfGE 89, 214, instructively commented on by Dr HA Strydom

Freedom of Contract and
Constitutional Rights: A Noteworthy Decision by the German
Constitutional Court

1995 (58)
THRHR
696.
In this case the German Constitutional Court used the

general

provisions of section 138 of the Civil Code as
well as section 242 (which obliges the debtor to perform in good
faith) as a medium
through which indirectly to apply Article 2(1) of
the Basic Law (guaranteeing a person

s
private autonomy) to a contract of suretyship. The Court struck down
the suretyship, in which the surety had undertaken an exceptionally
high risk without obtaining any benefit in the credit supplied,
because the bank had failed to inform the surety about the nature
and scope of her obligations, thus violating the principle of
contractual equality.
34
Supra
n4,
1556.
35
Id
1548.
36
The
Bundesarbeitsgericht, whose first president was originally the chief
champion of the idea of direct horizontal application.
37
Examples
which readily come to mind are: the

essential
content of the right

provision in
section 33(1)(b); the concept of a separate constitutional court
with circumscribed constitutional jurisdiction; the
Constitutional
Court

s jurisdiction in section
98(2)(c),(d)(read with subsection(9)) and (e); the section 102(1)
and (2) referral procedures. See further,
De Waal J

A
Comparative Analysis of the Provisions of German Origin in the Bill
of Rights

(1995) 11
SAJHR
1.
38
For
example the formulation of the rights in section 27 (labour
relations) and section 30 (children).
39
334
U.S. 1
(1948).  Kentridge AJ refers to the case in paragraph 34
of his judgment.
40
Both
were in their day Harlan Fiske Stone Professor of Constitutional Law
at Columbia University Law School.
41
Professor
Herbert Wechsler

Toward Neutral
Principles of Constitutional Law

73
Harvard Law Review
1
(1959) and Professor Louis Henkin

Shelley
v. Kraemer:
Notes for a Revised
Opinion

110
University
of Pennsylvania Law Review
473 (1962).
The latter article was referred to in a different but related
context in my judgment in
Ferreira
supra
n20 at para 53 n60.
42
Supra
n41 at 29-30, footnotes omitted.
43
Supra
n41 at 477. It is interesting to note
that Hesse,
supra
n22, is concerned about virtually identical applications and for the
same reason.
1
In
paras 10 and 11 of the judgment.
2
Which
lists, from section 8 to section 32, the fundamental rights and
freedoms of every person.
3
The
first is generally referred to as one of retrospectivity or
retroactivity, and the second as one of verticality versus
horizontality.
4
S
v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) (delivered after the judgment below in
this case).
5
Set
out in para 5 of the judgment by Kentridge AJ.  See para 12.16
of the envisaged plea.
6
Set
out in para 14 of the judgment by Kentridge AJ.
7
Section
7 of the Constitution states:
7. Application.
(1) This Chapter shall bind all legislative and executive organs of
state at all levels of government.
(2) This Chapter shall apply to all law in force and all
administrative decisions taken and acts performed during the period
of
operation of this Constitution.
(3)  Juristic persons shall be entitled to the rights contained
in this Chapter where, and to the extent that, the nature
of the
rights permits.
(4) (a) When an infringement of or threat to any right entrenched in
this Chapter is alleged, any person referred to in paragraph
(b)
shall be entitled to apply to a competent court of law for
appropriate relief, which may include a declaration of rights.
(b) The relief referred to in paragraph (a) may be sought by
(i) a person acting in his or her own interest;
(ii) an association acting in the interest of its members;
(iii) a person acting on behalf of another person who is not in a
position to seek such relief in his or her own name;
(iv) a person acting as a member of or in the interest of a group or
class of persons; or
(v) a person acting in the public interest.
8
Section
98(6) of the Constitution states:
(6) Unless the Constitutional Court in the interests of justice and
good government orders otherwise, and save to the extent that
it so
orders, the declaration of invalidity of a law or a provision
thereof
(a) existing at the commencement of this Constitution, shall not
invalidate anything done or permitted in terms thereof before
the
coming into effect of such declaration of invalidity; or
(b) passed after such commencement, shall invalidate everything done
or permitted in terms thereof.
9
In
para 14 of his judgment.
10
In
paragraph 20 of his judgment, Kentridge AJ opines that the
consequences of his finding with regard to retrospective application
of the Constitution as to action that occurred before the
commencement of the Constitution is

not
necessarily invariable

.  This
I believe to be correct and furthermore believe that section 98(6)
of the Constitution provides this Court with such
authority to make
such a decision in the circumstances of gross injustice and
abhorrence as mentioned by Kentridge AJ.
11
"[W]hether
the Constitution has horizontal application

.
12
The
directions of the Court dated 9 June 1995 directed the parties to
address,
inter alia
,
the following issue:
Are the provisions of chapter 3 of the Constitution - and more
particularly section 15 - capable of application to any relationship
other than that between persons and legislative or executive organs
of state at all levels of government?
13
At
paras 33-41 of his judgment.
14
334
U.S. 1
(1948).
15
To
use the German term of art referred to by Ackermann J at para 103 of
his judgment.
16
Section
98(2) of the Constitution commences as follows:
(2) The Constitutional Court shall have jurisdiction in the Republic
as the court of final instance over all matters relating to
the
interpretation, protection and enforcement of the provisions of this
Constitution, including . . . .
17
The
judicial oath of office, contained in Schedule 3 to the
Constitution, reads, in part, as follows:
. . . [to] uphold and protect the Constitution of the Republic and
the fundamental rights entrenched therein and in so doing administer
justice to all persons alike without fear, favour or prejudice, in
accordance with the Constitution and the Law of the Republic.
18
The
first paragraph of the Preamble declares:
Whereas there is a need to create a new order in which all South
Africans will be entitled to a common South African citizenship
in a
sovereign and democratic constitutional state in which there is
equality between men and women and people of all races so
that all
citizens shall be able to enjoy and exercise their fundamental
rights and freedoms.
19
The
opening paragraph of the Postscript reads:
This Constitution provides a historic bridge between the past of a
deeply divided society characterised by strife, conflict, untold
suffering and injustice, and a future founded on the recognition of
human rights, democracy and peaceful co-existence and development
opportunities for all South Africans, irrespective of colour, race,
class, belief or sex.
20
See
section 35(1) of the Constitution, which provides as follows:
(1) In interpreting the provisions of this Chapter a court of law
shall promote the values which underlie an open and democratic
society based on freedom and equality and shall, where applicable,
have regard to public international law applicable to the protection
of the rights entrenched in this Chapter, and may have regard to
comparable foreign case law.
21
De
Klerk and Another v Du Plessis and Others
1995
(2) SA 40
(T);
1994 (6) BCLR 124
(T).
22
The
United States, Canada, Brazil, Germany, Ireland, India, Malaysia,
Nigeria, the former Bophuthatswana and Namibia.
23
Supra
n21 at 48G-I; 131C-E.
24
Quoted
in part in n18 and n19
supra
.
25
Supra
n21 at 46E; 128J and the passage quoted in para
11
supra
.
26
Per
Mahomed DP in
Shabalala & Others
v
Attorney-General, Transvaal and
Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC);
1995
(12) BCLR 1593
(CC) at para 26.
27
S8(1).
28
S8(2).
29
The
expansive intention is underscored by the definition of

organ
of state

in section 233 of the
Constitution as including

any
statutory body or functionary

.
30
Section
33(2) reads as follows:
(2) Save as provided for in subsection (1) or any other provision of
this Constitution, no law, whether a rule of the common law,
customary law or legislation, shall limit any right entrenched in
this Chapter.
31
Supra
n20.
32
Section
35(2) reads as follows:
(2) No law which limits any of the rights entrenched in this
Chapter, shall be constitutionally invalid solely by reason of the
fact that the wording used
prima facie
exceeds the limits
imposed in this Chapter, provided such law is reasonably capable of
a more restricted interpretation which does
not exceed such limits,
in which event such law shall be construed as having a meaning in
accordance with the said more restricted
interpretation.
33
The
epithets used by Ackermann J in para 108 of his judgment.
34
I
believe it is also safe to say that in such a case a court will have
regard to the tenor of section 33(1).  If the infringement
of a
specific right can be saved, the same must apply to an infringement
of its spirit.  But the point was not argued before
us and is
not at issue here.  No more should therefore be said about it.
35
At
para 46 of his judgment.
36
At
para 63 of his judgment.
37
See
also para 60 of the judgment of Kentridge J.
38
At
para 63 of his judgment.
39
See
specifically sections 98(2)(g) and (a) and generally section 98(2).
40
Retail,
Wholesale & Department Store Union, Local 580 et al. v. Dolphin
Delivery Ltd.
(1987), 33 D.L.R. (4th)
174.
41
Supra
n14.
42
1995
(8) BCLR 1018
(B) at 1042A-F.  See the judgment of Kentridge AJ
at para 38.
43
In
para 109 of his judgment.
44
The
First Amendment, eg commences:

Congress
shall make no law . . .

.
45
See
section 98(2), which reads as follows:
(2) The Constitutional Court shall have jurisdiction in the Republic
as the court of final instance over all matters relating to
the
interpretation, protection and enforcement of the provisions of this
Constitution, including
(a) any alleged violation or threatened violation of any fundamental
right entrenched in Chapter 3;
(b) any dispute over the constitutionality of any executive or
administrative act or conduct or threatened executive or
administrative
act or conduct of any organ of state;
(c) any inquiry into the constitutionality of any law, including an
Act of Parliament, irrespective of whether such law was passed
or
made before or after the commencement of this Constitution;
(d) any dispute over the constitutionality of any Bill before
Parliament or a provincial legislature, subject to subsection (9);
(e) any dispute of a constitutional nature between organs of state
at any level of government;
(f) the determination of questions whether any matter falls within
its jurisdiction; and
(g) the determination of any other matters as may be entrusted to it
by this Constitution or any other law.
46
See
sections 101(2) and (3), read with section 241(1).
1
1994
(4) BCLR 1
(W) at 7C-D.
2
1994
(4) BCLR 79
(T) at 88J.
3
1994
(5) BCLR 19
(E) at 30G-I.
4
1994
(6) BCLR 124
(T) at 131F-G.
5
1995
(2) SA 52
(W)
.
6
1995
(3) BCLR 374(D)
at 382G-H.
7
1995
(11) BCLR 1498
(N).
8
[1995] ZACC 3
;
1995
(3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 262.
9
See
Sections 26, 33(1) and 35(1).
10
Retail,
Wholesale & Department Store Union, Local 580 et al. v. Dolphin
Delivery Ltd
1987 33 D.L.R. (4th) 174
at 191.
11
See
Gardener v Whitaker
supra
n3
at 684.
12
Section
32(c).
13
Section
30(1)(d).
14
Section
29.
15
Paras
37-38 of Kentridge AJ

s judgment.
16
Hogg
P
Constitutional Law of Canada
3 ed (1992) at 848.
17
Supra
n3 at 31E-G.
1
Section
4(1).
2
Section
7(2) (emphasis added).
3
See
Dlamini CRM

The Role of Customary
Law in Meeting Social Needs

African
Customary Law
(1991) 71 at 74; Currie
I in Chaskalson et al (ed)
Constitutional
Law of South Africa
(1996) at para
36.1.
4
See
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 383 (

there
are many aspects and values of traditional African law which will .
. . have to be discarded or developed in order to ensure
compatibility with the principles of the new constitutional order.

)
(
per
Sachs J).
5
Section
181(2).
6
At
para 142 of his judgment.
7
The
application of customary law has long been subject to public policy
considerations, under the so-called

repugnancy
proviso.

See Bennett
TW
Human Rights and African Customary
Law
(1995) 58-60.  Under
section
1(1)
of the
Law of Evidence Amendment Act, 45 of 1988
, courts may
not apply provisions of indigenous law that are contrary to

principles of public policy and
natural justice.

Needless to
say, the legitimacy of such a constraint was dubious during the time
when the legal system operated within the framework
of  a
regime of racial domination, but a different approach may be
warranted if the values against which customary law is
to be tested
are derived from a politically legitimate constitution.  But
see Bennett at 60 (

it seems quite
wrong to use the repugnancy proviso -- a mark of colonial
paternalism -- as the medium for scrutinising the constitutional
validity of customary law.

);
Currie I,
supra
n3 at para  36.4(c) (

[m]ost
post-colonial states in southern Africa have removed repugnancy
clauses from the statute book, regarding them as a humiliating
index
of the subordination of indigenous law in the dual legal systems
established under colonialism.

)
8
"The
common law is not to be trapped within the limitations of its past.
It needs not to be interpreted in conditions
of social and
constitutional ossification.  It needs to be revisited and
revitalised with the spirit of the constitutional
values defined in
Chapter 3 of the Constitution and with full regard to the purport
and objects of that Chapter.

Per
Mahomed at para 86.
9
See
Bennett
supra
at 39 (recommending adaptation of the German doctrine of
mittelbare
Drittwirkung
to deal with customary
law:

[i]n Germany fundamental
rights  become applicable where rules of private law are
general and abstract in their formulation.
Customary law, too,
is pervaded by generalized norms, usually characterised by a
requirement for reasonable behaviour, which provide
a starting point
for the introduction of fundamental rights.

)
(footnote omitted).
10
Section
35(2).
1
I
have coined this word to indicate a country ruled by judges - from
the Greek word dikastos = judge.  The term juristocracy
has
also been used.
2
Discussed
in the judgment by Kentridge J at n23, where a full reference is
given