Download this publication - PULP

114 Chapter 8
Application
8(1) The Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if,
and to the extent that, it is applicable, taking into account the nature of
the right and the nature of any duty imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or juristic
person in terms of subsection (2), a court (a) in order to give effect to a
right in the Bill, must apply, or if necessary develop, the common law to
the extent that legislation does not give effect to that right; and (b) may
develop rules of the common law to limit the right, provided that the
limitation is in accordance with section 36(1).
(4) A juristic person is entitled to the rights in the Bill of Rights to the
extent required by the nature of the rights and the nature of that
juristic person.
1 Introduction
When jurists, lawyers and academics say they wish to talk about the
application of the Bill of Rights under the Final Constitution, by and
large, they have a single vexed question in mind: Upon whom do the
burdens of the Bill of Rights fall? That is, they want to know (or they
want to tell us), as a general matter, which kinds of persons or parties
may have the substantive provisions of the Bill of Rights enforced
against them, what kinds of laws attract meaningful scrutiny and what
conditions or circumstances must obtain for a substantive provision to
be said to apply to a given dispute.
My answer to this vexed and complicated question takes the
following form. I rehearse briefly the terms and the outcome of the
application debate under the Interim Constitution. I do so because
past is, quite obviously, prologue: The drafters of the Final
Constitution spoke directly to concerns about the text of the Interim
Constitution; the Constitutional Court accepted the invitation of the
drafters of the Final Constitution to revisit — and to recast — the
application doctrine developed under the Interim Constitution. In
addition to an abbreviated analysis of the Court’s application doctrine
under the Interim Constitution, this chapter contains an assessment
of the general jurisprudential concerns that framed the initial debate
and that recur, albeit in transmogrified form, under the Final
Constitution.