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126 Chapter 8
explanation as to why FC section 8 is entitled ‘Application’ and FC
section 39 is entitled ‘Interpretation’. The refusal to take the text
seriously and to claim that no meaningful distinction exists between
FC section 8 and FC section 39(2) flies directly in the face of Justice
O’Regan’s injunction — in Khumalo v Holomisa — that we should not
attribute meaning to one section of the Final Constitution that
renders another section, quite literally, senseless. 14 If FC section 8(2)
and FC section 39(2) both mean the same thing, then one of those
sections is entirely superfluous. In Khumalo, Justice O’Regan quite
rightly held that the attribution of distinct purposes to the two
sections is an absolutely essential exercise. Under FC section 8, the
specific substantive provisions of the Bill of Rights apply to each and
every kind of law, and each and every form of conduct (whether
public or private, where appropriate). FC section 8 does not mean
that the prescriptive content of the substantive provisions in the Bill
of Rights cover each and every legal dispute. Put another way, while
the specific provisions in the Bill of Rights cover a large domain of law
and conduct activity, they do not engage all law and conduct. The
independent purpose of FC section 39(2) is to engage law and conduct
that are not engaged by any of the specific provisions set out in
Chapter 2.
A counterfactual makes this last distinction clear. Assume that FC
section 39(2) and FC section 8 do require the same mode of analysis.
Assume, as Chris Roederer 15 and the Masiya, Barkhuizen and NM
Courts 16 would have us do, that this mode of analysis is purely a
14 Khumalo (n 2 above) para 32 (‘We cannot adopt an interpretation which would
render a provision of the Constitution without any apparent purpose.’)
15 C Roederer ‘Post-matrix legal reasoning: Horizontality and the role of values in
South African law’ (2003) 18 South African Journal on Human Rights 57.
16 Masiya v Director of Public Prosecutions & Others 2007 5 SA 30 (CC), 2007 8 BCLR
(CC). The facts and the outcome of Masiya are clear enough. Mr Masiya had been
convicted in a regional magistrate’s court of the anal rape of a nine-year-old girl.
However, as the law stood prior to conviction, the anal rape satisfied only the
desiderata for a conviction of indecent assault. The magistrate developed the
common-law definition of rape to include non-consensual penetration of the penis
into the vagina or anus of a person and made the common-law definition of rape
gender-neutral. On appeal, the High Court both agreed with the magistrate’s
reasons for developing the definition and confirmed Masiya’s conviction on the
charge of rape. The Constitutional Court was asked to confirm the High Court’s
judgments — and, in particular, its development of the common-law definition of
rape and the attendant alterations of the Criminal Procedure Act 51 of 1977 and
the Criminal Law Amendment Act 105 of 1997. Nkabinde J, writing for the
majority, held that the current definition of rape remained consistent with the
Bill of Rights. (That is, the common law had ‘correctly’ characterised coerced
anal penetration as mere indecent assault.) However, the Masiya court then found
14 that Khumalo the pre-Masiya (n 2 above) definition para 32 (‘We still fell cannot short adopt of the an spirit, interpretation purport and which objects would of
the render Bill a of provision Rights. The of the majority Constitution held that without the definition any apparent of rape purpose.’) must be extended
15 to C Roederer include non-consensual ‘Post-matrix legal anal reasoning: penetration Horizontality of the anus and of the females. Role of The Values same in
majority South African refused Law’ to (2003) extend 18 SAJHR the definition 57. of rape to non-consensual anal