Download this publication - PULP

412 Chapter 17
sections to the same facts as those facts at issue in Du Plessis v De Klerk. Do
not assign Khumalo v Holomisa until you have conducted this part of the
experiment. Some readers may not be au fait with either matter. The two
cases tracked largely identical fact patterns and both cases began as
defamation cases that turned into constitutional matters when the defence
challenged the current common law rules of defamation as violations of the
right to freedom of expression.
Here is the result – identical across three institutions: Columbia Law
School, the University of Pretoria and the University of the Witwatersrand.
Since you have explained that the absence of the words ‘the judiciary’ and
‘applies to all law’ in section 7(1) of the interim Constitution led Kentridge
J to conclude that the absence of these phrases insulated common law
disputes between private parties from the direct application of the
substantive provisions of the Bill of Rights, they will reach the following
conclusions about (direct) application (of the substantive provisions of the
Bill of Rights) under the final Constitution: The inclusion of ‘binds ... the
judiciary’ in section 8(1) of the final Constitution will result in some bright
student concluding that the drafters of the final Constitution meant to
reverse Kentridge J’s conclusion about the extension of section 7(1) of the
interim Constitution: The substantive provisions of the Bill of Rights,
will, where appropriate, apply to appropriate common law disputes
between private parties. Another bright student will remark that the phrase
‘applies to all law’ in section 8(1) of the final Constitution means just that,
namely, that the substantive provisions of the Bill of Rights will apply to all
law – not just statutes – and that law ‘embraces’ common law rules,
subordinate legislation, international covenants, municipal by-laws and
rules of customary law.
It comes as something of a shock, then, when you reveal – or when they
do the reading – that O’Regan J did not interpret section 8(1) of the final
Constitution in that fashion in Khumalo v Holomisa. Instead, you are
obliged to explain that Justice O’Regan was concerned that if she
interpreted section 8(1) in the obvious or natural manner pressed by
counsel, then she would struggle to give meaning – or a purpose – to
sections 8(2) and 8(3). Okay. How then to reconstruct section 8 and section
39(2) for your students in a manner that coheres with the gossamer thin five
paragraphs of Khumalo v Holomisa?
Professor Michelman does not answer that question. What he does,
instead, is supply his own descriptive account of what the Constitutional
Court in fact appears to be doing with these sections, along with an explanation
of why that might strike the Court as the path of least resistance. 55 The question,
however, remains. Where does that realist-style treatment leave us who bear
the responsibility of teaching students, practitioners and jurists what the
55 See Michelman (n 1 above) 8 - 9, 37 - 40.