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120 Chapter 8
of Rights applies to ‘all law’ and that the Bill of Rights binds ‘the
judiciary’. One might have thought that such an explanation was
warranted, given that it was precisely the absence of these phrases —
‘all law’ and ‘binds the judiciary’ — in a comparable section of the
Interim Constitution that led the Du Plessis Court to reach the
conclusion that the Interim Constitution’s Bill of Rights did not apply
directly to disputes between private parties governed by the common
law. The Khumalo Court claims instead that had it given FC section
8(1) a gloss that ensured that the substantive provisions of the Bill of
Rights applied to all law-governed disputes between private parties —
regardless of the provenance of the law — it would have rendered FC
section 8(3) meaningless. That particular assertion is unfounded — or
at the very least radically under-theorised.
While it is quite easy to poke holes in the gossamer thin fabric of
Khumalo, such victories, pyrrhic as they are, do not advance
understanding; thus the need for a good faith reconstruction of
Khumalo. This good faith reconstruction fleshes out the Khumalo
Court’s conclusions in a manner that simultaneously coheres with its
jurisprudential commitments, avoids surplusage in so far as the
Court’s pre-commitments permit, and satisfies basic considerations of
textual plausibility and naturalness. The good faith reconstruction
begins with a perfectly understandable and workable distinction
between a constitutional norm’s range of application and that same
norm’s prescriptive content. The ‘range of application’ speaks to FC
section 8(1)’s commitment to ensuring that each and every genus of
law is at least formally subject to the substantive provisions of the Bill
of Rights. The ‘prescriptive content’ speaks both to FC section 8(2)’s
invitation to apply the substantive provisions of the Bill of Rights to
disputes between private parties and to the interpretative exercise
required to determine whether a given substantive provision of the
Bill is meant to engage the kind of dispute before the court. However,
even this effort to put Khumalo on the most solid footing possible
comes up short in six significant ways.
3.3 The critique of the black letter law & the good faith
reconstruction
The Khumalo Court quite consciously crosses over the public-private
divide. The text of the Final Constitution left it little choice. But
Khumalo’s one step forward is followed by two steps back. Whereas
all disputes between the state and an individual are subject to the
direct application of the Bill of Rights under the Final Constitution,
Khumalo tells us that only some disputes between private parties will
be subject to some of the provisions of the Bill of Rights. This revised
public-private distinction in application jurisprudence creates the
following anomaly.