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Stu Woolman 131
that they do not speak to the issues raised by an ordinary rule of law,
can one turn to the more open-ended invitation of FC section 39(2).
Analysis of the specific provisions of the Bill of Rights — and the
consistency of law or conduct with those provisions — must be
logically prior to the analysis of the common law or the interpretation
of statutes in terms of the general spirit, purpose and objects of the
Bill of Rights. When FC section 39(2) — indirect application — is given
priority over FC section 8 — it does too much work and turns all of FC
section 8 — the entire section on Application — into surplusage. Again
FC section 39(2), on such a reading, does exactly what Justice
O’Regan, in Khumalo, says we must not do: it makes FC section 8(1),
FC section 8(2) and FC section 8(3) entirely redundant. 20
4 The preferred reading
There is a better way. My preferred reading satisfies the demands of
naturalness, textual plausibility, coherence, surplusage and ideology,
and, just as importantly, meets the objections lodged against both
Khumalo and the good faith reconstruction of Khumalo. That
preferred reading takes the following form.
FC section 8(1) covers ‘all law’ — regardless of provenance, form,
and or the parties before the court. FC section 8(1) also covers all
state conduct — by all branches of government and all organs of the
state — whether that conduct takes the form of law or reflects some
other manifestation or exercise of state power. In sum, FC section
8(1) should be understood to stand for the following proposition:
All rules of law and every exercise of state power are subject to the
direct application of the Bill of Rights.
FC section 8(2) covers dispute-generating conduct between private
actors not ‘adequately’ governed by an express rule of law. There are
two basic ways to read ‘not governed adequately by an express rule
of law.’ First, it could contemplate the possibility of a dispute over an
aspect of social life that is not currently governed by any rule of law
at all. Such instances are rare. Indeed there is good reason to believe
that such instances do not exist at all. The second and better reading
views non-rule governed conduct in a much narrower sense. In many
instances a body of extant rules — or even background norms — may
be said to govern a particular set of private relationships. FC section
8(2) calls our attention to the fact that these rules of law may not give
adequate effect to the specific substantive provisions of the Bill of
Rights and may require the courts to develop a new rule of law that
does give adequate effect to a particular provision in the Bill of Rights
20 Khumalo (n 2 above) para 32.