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130 Chapter 8
those fundamental values, there remains a distinction with a
difference. Rights give rise to rules and enforceable claims. Values do
not. The Masiya, Barkhuizen and NM Courts and Professor Roederer
ignore this distinction at our peril.
The sixth objection expands upon an issue raised above: Unless
the two processes of application — direct and indirect — are identical,
then the various sections of the Bill of Rights that deal with
application (or interpretation) must contemplate at least two distinct
modes of analysis and must employ language that reflects such a
distinction. Here then is my contention. As a matter of logic, one must
know when direct application is or is not required in order to know
when indirect application is or is not required. Direct application
means that the prescriptive content of the substantive rights found in
FC sections 9 through 35 engages the law or conduct at issue. Where
the prescriptive content of the substantive rights found in FC sections
9 through 35 does not engage the law or the conduct at issue, then FC
section 39(2) tells us that the more general spirit, purport and objects
of the chapter may inform our efforts to bring all law into line with
the Final Constitution. If we reverse the spin, and we first use FC
section 39(2) to bring the law into line with the general spirit, purport
and objects of the Bill of Rights, there is simply nothing left to be
done in terms of the direct application of the specific substantive
provisions of the Bill of Rights. The reason is obvious. If the general
spirit, purport and objects of Chapter 2 — which embraces (at a
minimum) the entire value domain reflected by the specific
substantive provisions of the Bill of Rights — does not require a change
in the law (or a change in conduct brought about by a change in the
law), then no narrower set of purposes reflected in a single
substantive provision of the Bill of Rights could be expected to do so.
Contrary to Professor Currie’s take on application, indirect
application was not meant to ‘avoid’ actual constitutional analysis in
terms of the specific substantive provisions of the Bill of Rights. 19
Indeed FC section 39(2) enables a court to go beyond the limited
substantive provisions of the Bill of Rights. FC section 39(2) promises
an expansive understanding of judicial review under the Bill of Rights,
not a cramped understanding. However, before one can engage in
indirect application and the development of new rules of law in terms
of FC section 39(2), one must first delineate the ambits of the specific
constitutional provisions relied upon in the applicant’s challenge to
existing law. Only when one has determined those ambits, and found
19
I Currie & J de Waal The Bill of Rights handbook 5 ed (2005). There is, in the
academic literature an ongoing confusion between ‘reading down’ (which still
requires Bill of Rights interpretation in terms of a specific provision) and indirect
application which requires no such engagement with a specific substantive
provision.