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Stu Woolman 119
section 8(1) states that the Bill applies to ‘all law’ and binds ‘the
judiciary’; FC section 8(2) states that the provisions of the Bill will
bind private persons.
In Khumalo, the Constitutional Court accepted the Final
Constitution’s invitation to broaden its conception of the law and the
relationships to which the substantive provisions of the Bill of Rights
apply directly. The signal difference between Du Plessis and Khumalo
is that the Khumalo Court reads FC section 8(2) to mean that some of
the specific provisions of the Bill of Rights will apply directly to some
disputes between private parties some of the time.
The black letter law on application in terms of Khumalo takes the
following form.
FC section 8(1) stands for the following two propositions:
• All law governing disputes between the state and natural persons or
juristic persons is subject to the direct application of the Bill of
Rights.
• All state conduct that gives rise to disputes between the state and
natural persons or juristic persons is likewise subject to the direct
application of the Bill of Rights.
FC section 8(2) stands for the following proposition:
Disputes between natural persons and/or juristic persons may be subject
to the direct application of the Bill of Rights, if the specific right
asserted is deemed to apply.
FC section 8(3) stands for the following proposition:
Where direct application of the right asserted occurs in terms of FC
section 8(2), and the court further finds a non-justifiable abridgment of
that right, then the court must develop the law in a manner that gives
adequate effect to the right infringed. 7
3.2 Good faith reconstruction of Khumalo
For reasons the opinion does not adequately explain, the Khumalo
Court chose to ignore two of FC section 8(1)’s injunctions: that the Bill
7
FC sec 39(2), although not engaged expressly in Khumalo, stands, under a
secondary body of black letter law, for the following propositions: (1) Where an
asserted right is, under FC sec 8(2), deemed not to apply directly to a dispute
between private parties, the court may still develop the common law or interpret
the apposite provision of legislation in light of the more general objects of the Bill
of Rights. (2) Even where a right is asserted directly, the court may still speak as
if a finding of inconsistency or invalidity requires that a new rule of common law
be developed in terms of FC sec 39(2).