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142 Chapter 9
the interim Bill of Rights did not have direct application in so-called
‘horizontal’ disputes; that is to disputes between private litigants
governed by the common law. This was principally because of the
absence of the word ‘judiciary’ in IC section 7: ‘[The Bill of Rights]
shall bind all legislative and executive organs of state at all levels of
government’. The omission meant that the Bill of Rights placed duties
to uphold constitutional rights only on the legislative and executive
organs of state. Individuals were not directly bound by the Bill of
Rights. The interim Bill of Rights did however have indirect
application. Even if individuals were not directly bound by the Bill of
Rights, the courts had to interpret legislation and to develop the
common law so that the ordinary law recognised and protected the
rights in the Bill of Rights. Note that this approach requires a strong
distinction to be maintained between two forms of application of the
Bill of Rights: direct and indirect.
With the Du Plessis decision in mind, and concerned that confining
the Bill of Rights to direct vertical application would result in the
toleration of private violations of rights, the Constitutional Assembly
created a different application and jurisdictional scheme in the Final
Constitution with the intention of providing for direct horizontal
application. The textual changes were:
(a) the addition of the words ‘judiciary’ and ‘all law’ in section 8(1),
missing from the corresponding application provision of the Interim
Constitution;
(b) the direct imposition of duties to uphold rights on individuals in
section 8(2) ‘to the extent that [the right] is applicable, taking into
account the nature of the right and the nature of any duty imposed by
the right’;
(c) while envisaging direct horizontal application in ‘applicable’ cases,
the 1996 Bill of Rights also required the courts to apply the Bill of Rights
indirectly, in similar terms to section 35(3) of the Interim Constitution.
FC section 39(2) states: ‘When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must promote the spirit, purport and objects of the Bill of Rights’.
There is no doubt that these changes were intended to introduce
direct horizontal application. However, they also created a number of
interpretative puzzles that make up what we are calling the ‘burdens
issue’: (a) what is the impact of including the judiciary in section 8(1),
the direct application provision of the Final Constitution? (b) what on
earth does section 8(2) mean and how does it interact with section
8(1)? (c) when, in horizontal cases, will it be appropriate to use
section 39(2) (ie indirect rather than direct application)?
The judiciary dealt with these puzzles using an ancient judicial
strategem: It ignored them. The presence of the indirect application
provisions of section 35(3) of the Interim Constitution (and now in