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414 Chapter 17
customary law) should not be governed by section 8(1) or, even more
appropriately post-Khumalo, by section 8(2) of the final Constitution.
Now why should that be so? It is certainly not what the text says. Nor
does it make any sense of the distinction between the text of the interim
Constitution and the text of the final Constitution. Why does ‘applies to all
law’ not mean what it says? Why does the binding of ‘the judiciary’ not
overcome Kentridge J’s objections in Du Plessis? Should not Kentridge J’s
reading of the interim Constitution lead us to the conclusion that common
law disputes are subject to the direct application of the substantive
provisions of the Bill of Rights in terms of section 8(1) of the final
Constitution? Professor Michelman and I might well agree that the drafting of
sections 8 and 39 of the final Constitution is so shoddy that some ‘surplusage’
is inevitable. But that hardly justifies the absence of an attempt to give
sections 8(1), 8(2), 8(3) and 39(2) distinct and independent roles – after all,
the non-redundancy requirement laid out by Justice O’Regan in Khumalo is
what obliged her to give sections 8(2) and 8(3) the roles that she assigned to
them.
As imperfect as it may be, my good faith reconstruction of Khumalo
does greater justice to the text and the non-redundancy requirement laid out
by Justice O’Regan in Khumalo. That good faith reconstruction takes
account of such banal questions as ‘Why is section 8 of the final Constitution
called “application”?’ and ‘Why is section 39 called “interpretation”?’ 56
56 And what of sec 8(2) of the Constitution? On Frank’s account, everything anyone could
ever want to do under sec 8(2) can be done under sec 39(2) of the Constitution. When
would one rely on sec 8(2) to govern common law disputes between individuals and
when would sec 39(2) kick in? Why are we not to take the non-redundancy requirement
laid out by Justice O’Regan in Khumalo seriously? Or how could you teach Khumalo in
class, and then tell your students to ignore its reasoning entirely. That genuine trouble
regarding the interpretation of sec 8 and sec 39(2) remains is evident from extra-curial
remarks made by Deputy Chief Justice Moseneke in an article in the Stell LR: ‘In
Khumalo v Holomisa, which was decided under the new Constitution, the Court refused
the invitation to overrule Du Plessis v De Klerk. It nonetheless decided that the right to
freedom of expression is of direct horizontal application, even when the invasion of the
right could have been occasioned by a person other than the state or one of its organs.’
D Moseneke ‘Transformative constitutionalism: Its implications for the law of contract’
(2009) Stell LR 1 8. The Deputy Chief Justice’s footnote is truly disconcerting. The final
Constitution expanded expressly the direct application, in terms of sec 8, of the
substantive provisions of the Bill of Rights to cover disputes between private parties
governed by common law. The interim Constitution, by leaving out such phrases as
‘binding of the judiciary’ and ‘all law’ in sec 7(1) of the interim Constitution, was read
restrictively by a majority of the Du Plessis Court to mean that the interim Constitution’s
Bill of Rights did not apply directly to common law disputes between private parties. A
unanimous Constitutional Court in Khumalo, on law and facts identical in all
meaningful ways to the law and facts at issue in Du Plessis, held, unequivocally, that sec
8 of the final Constitution does what sec 7 of the interim Constitution did not: namely,
in terms of secs 8(2) and 8(3), rules of common law governing disputes between private
parties are subject to the direct application of the specific substantive provisions of the
Bill of Rights (where appropriate). Several questions arise: (1) Can the silence of the Court
about the status of Du Plessis be read to mean that the central holding of Khumalo did