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116 Chapter 8
black letter law on the general framework for application analysis and
the black letter law on the meaning of its various textual components
constitutes one of the primary grounds for rejecting the Court’s
current application doctrine. In its stead, I offer a preferred reading
that meets all of the doctrinal objections to Khumalo and,
concomitantly, gives each of the constituent parts of the text, and the
related doctrines they generate, a reading that fits the general
framework for application. 4
2 Application doctrine under the Interim Constitution
The Constitutional Court answered the question of burdens under the
Interim Constitution in Du Plessis & Others v De Klerk & Another. 5 The
facts. The thumbnail sketch of Du Plessis that follows merely
adumbrates the choices that the Constitutional Court had before it
under the Interim Constitution and some of the arguments that the
Constitutional Court once again engaged, at least tacitly, in Khumalo
under the Final Constitution.
According to the prevailing pre-Du Plessis discourse, the
Constitutional Court had two options. It could take a vertical
approach. On such a reading of the text, the Bill of Right’s substantive
provisions engaged directly only legal relationships between the state
and the individual. It could take a horizontal approach. On such a
reading, all legal relationships between the state and the individual
and all legal relationships between private persons would have been
4 For those readers who wish to immerse themselves in some of the finer points of
application doctrine, a detailed appendix in S Woolman ‘Application’ (n 3 above)
at 31-132 — 31-168, takes stock of the most important interventions made by
other commentators on this subject. These academic contributions ought not to
be considered mere arcana. At their best, these arguments develop, in full,
theories of application merely hinted at in judicial opinions and about which the
text is, inevitably, mute. As to other points of entry into this debate, the full
chapter offers the only available comprehensive account of the subject in the
South African literature.
5 1996 3 SA 850 (CC), 1996 5 BCLR 658 (CC). In 1993 the Pretoria News published a
series of articles dealing with the supply of arms by South Africa to UNITA in
Angola. The articles suggested that private air operators and airstrip owners —
the plaintiffs — were aiding the Department of Foreign Affairs in fuelling the
Angolan war. The plaintiffs instituted a defamation action in May 1993. The
defendants filed pleas denying that the articles suggested wrongful conduct by
the plaintiffs or defamed the plaintiffs. The defendants argued, in the
alternative, that even if the articles were defamatory, they were published in the
public interest. In October 1994 — after the Interim Constitution came into effect
— the defendants asked to amend their plea in order to claim that the right of
freedom of expression, IC sec 15, afforded them a new defence. The
Constitutional Court held that the substantive provisions of Bill of Rights of the
Interim Constitution were not, in general, capable of application to any legal
relationship other than that between legislative or executive organs of state at all
levels of government and natural or juristic persons. In particular, IC sec 15,
freedom of expression, was not capable of application to any legal relationship
other than that between persons and legislative or executive organs of the state
at all levels of government and natural or juristic persons.