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146 Chapter 9
5 Theory v practice
Why is there this gap between theory and practice? Why are the
theoreticians so vexed about this aspect of application while the
courts go about the business of indirect horizontal application with no
trace of vexation and as though Du Plessis was still the law? I think
much is explained by the widespread conviction that the form of
application makes no difference: That indirect and direct application
of the Bill of Rights to the common law are just different ways, as Stu
puts it, of singing the same song. In addition, whereas under the
Interim Constitution there were important jurisdictional consequences
that followed the form of application, those consequences
are of greatly diminished importance under the unitary jurisdictional
scheme of the Final Constitution. 20 If that is so then there really is not
much worth fussing about in the application issue. The Final
Constitution applies to the law and, in the case of the common law
(‘the courts’ own law’ as Moseneke J puts it in Thebus), 21 the correct
approach is to assess its constitutionality and to change it where
necessary. The only reason these days to go to all the trouble of
deploying direct horizontal application (which requires grappling with
Khumalo and with section 8(2)) would be to take advantage of the
holding of the SCA in Afrox that courts in direct application cases are
not bound by pre-1994 decisions. 22
So, despite its theoretical attractions, why bother with the
Woolmanian approach at all? Much turns on the correctness of the
conviction that, when it comes to the common law, the form of
application — whether direct or indirect — makes no practical
difference since the outcome of the use of either form of application
is the same. Robert Alexy, writing about the theories used to explain
the horizontal effect of the German Constitution, calls this outcomeneutrality.
23 Are direct and indirect horizontal application under the
South African Constitution outcome-neutral? If they are not, then the
courts’ indirect-application-by-default approach will have to be
20 Under the Interim Constitution only direct application was within the
Constitutional Court’s jurisdiction. Indirect application was not.
21
Thebus (n 6 above) para 31.
22 This is why Khumalo (n 4 above) was pitched as a direct application case — to
bypass the SCA’s negative holding on the issue of the plaintiff’s onus in National
Media Ltd & Others v Bogoshi 1998 4 SA 1196 (SCA), 1999 1 BCLR 1 (SCA), [1998] 4
All SA 347 (SCA) (which was, sort of, an indirect application case).
23 R Alexy A theory of constitutional rights trans J Rivers (2002) 357: ‘Two juridical
constructions are outcome-neutral if every outcome which could be achieved in
the context of one could also achieved in the context of the other’. There are,
according to Alexy, theoretical reasons for arriving at the correct account of the
effect of constitutional norms on private relations but no practical implications:
‘Each theory [indirect effect, direct effect, mediation by rights against the state]
expresses an aspect of the same matter. Which is chosen in the process of legal
justification is a question of utility. None of them can claim primacy over the
others’.