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Reply - Iain Currie 145
39(2): 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.
In horizontal disputes This applies where s 8
where sec 8(2) does not does not: in cases
apply the Bill of Rights where ‘the prescriptive
content of the
must be indirectly applied.
substantive provision
of the Bill of Rights
does not engage the
and
rule of law or conduct
at issue’. b Even
though no specific
‘Even where a right is right can be relied on
asserted directly, the by a party challenging
a rule or the ex-
court may still speak as
if a finding of inconsistency
or invalidity re-
if a rule of law, the
isting interpretation
quires that a new rule of courts must interpret
common law be developed
in terms of FC op the law in light of
legislation and devel-
section 39(2)’. a the general objects
of the Bill of Rights.
a. See Woolman (n 2 above) 31-45 n 1. I think the ‘black-letter’ authority for this is
Thebus (n 6 above) and K (n 7 above).
b. Woolman (n 2 above) 31-46 and Woolman (n 3 above) 13.
So the reconstructive aspects of the Woolmanian reading are:
giving section 8(1) a far greater role to play in horizontal disputes —
indeed it, and not section 8(2) is the default basis for application;
confining section 8(2) to (rare) cases of a ‘gap’ in the law not
adequately governing private conduct; similarly demoting section
39(2) to apply only in instances where section 8 does not apply. The
attractions of this reading are numerous: It coheres with the doctrine
of objective constitutionality (which makes the form of a dispute (ie,
who the parties happen to be) irrelevant to the objective
constitutional issues it raises); it provides a nice solution to the
problems raised by the SCA’s doctrine of stare decisis in Afrox; 19 it
gives the central role to direct application that the drafters of section
8 probably had in mind, while reducing section 8(2) and all its opaque
qualifiers to a minor role. But it remains, as Stu admits, a theoretical
reading that faces two practical difficulties: It is not what the
Constitutional Court said in Khumalo; it is not what the courts post-
Khumalo seem to be making of the application issue.
19 Afrox Healthcare Bpk v Strydom 2002 6 SA 21 (SCA), [2002] 4 All SA 125 (SCA).