Progressive Indirect Horizontal Application of the Bill of Rights: Towards a Co-Operative Relation between Common-Law and Constitutional Jurisprudence

ABSTRACT

This article addresses the widespread perception that there is a rivalry between the Constitutional Court of South Africa and the Supreme Court of Appeal through an analysis of decisions relating to the horizontal application of rights in the interim and 1996 Constitutions. Beginning with an exposition of the doctrinal stance in favour of indirect horizontal application in Du Plessis v De Klerk 1996 (3) SA 850 (CC) (the leading case under the interim Constitution), the article takes stock of the changes brought about by the 1996 Constitution. The only remaining significant difference between the indirect and direct horizontal application of rights in light of these changes, it is argued, concerns the need to create new causes of action where none exists at private law. This point is best illustrated by the approach adopted to a claim for parental care under s 28 of the 1996 Constitution in Jooste v Botha 2000 (2) BCLR 187 (T). The low-water mark of the jurisprudence in this area, in turn, is illustrated by the conceptually manipulative defamation-law decision in National Media v Bogoshi 1998 (4) SA 1196 (SCA). In eschewing the kind of reasoning adopted in this judgment, South African courts should embrace their historical responsibility to co-operate in forging a progressive jurisprudence on the indirect horizontal application of rights in accordance with the values enshrined in the 1996 Constitution.