- C Rickard ‘Tread carefully changing top courts — and don't mess with the Constitution’ Sunday Times (9 July 2000).
- Cf also the strong comments in the column ‘Sergeant at the Bar’ in the Mail & Guardian (23 June 2000).
- Constitution of the Republic of South Africa Act 200 of 1993 (‘interim Constitution’).
- Constitution of the Republic of South Africa Act 108 of 1996 (‘1996 Constitution’).
- 1996 (3) SA 850 (CC).
- 1997 (3) SA 786 (CC).
- 2000 (2) BCLR 187 (T).
- 1998 (4) SA 1196 (SCA).
- Note 5 above.
- Ibid para 60.
- Ibid para 46.
- Ibid para 47. Cf also notes 18 and 20 below for the reference to Shelley v Kraemer and further comments in the Du Plessis judgment on Shelley.
- Ibid para 49(a).
- Ibid para 49(b).
- Ibid para 49(c).
- Ibid para 53.
- Ibid para 57.
- Cf Ferreira v Levin NO 1996 (1) SA 984 (CC); (aspects of s 417(2)(b) of the Companies Act 61 of 1973 reviewed and found to be unconstitutional); Bernstein v Bester 1996 (2) SA 751 (CC) (ss 417 and 418 of the Companies Act 61 of 1973 reviewed and not found to be unconstitutional); Harksen v Lane 1998 (1) SA 300 (CC) (constitutionality of s 21(1) of the Insolvency Act 24 of 1936 reviewed and not found to be unconstitutional); Parbhoo v Getz NO 1997 (4) SA 1095 (CC) (s 415(3) read with s 415(5) of the Companies Act 61 of 1973 reviewed and found to be unconstitutional); De Lange v Smuts NO 1998 (3) SA 785 (CC) (s 65 of Insolvency Act of 24 of 1936 reviewed and found to be unconstitutional).
- Cf K Stern Das Staatsrecht der Bundesrepublik Deutschland Bnd III/1 (1988) 1563. I therefore no longer share Van Aswegen's view that constitutional review of legislation that applies to private relations also constitutes ‘horizontal application’. See A van Aswegen ‘The Implications of a Bill of Rights for the Law of Contract and Delict’ (1995) 11 SAJHR 50, 57. For my earlier endorsement of this view, see J Van der Walt ‘Perspectives on Horizontal Application: Du Plessis v De Klerk Revisited’ (1997) 12 SAPL 1, 19.
- 334 US 1 (1948).
- According to the Constitutional Court's reasoning in Du Plessis v De Klerk (note 5 above), the phrase ‘apply to all law’ was taken not to include cases where the state governs private relations through common law. See text accompanying note 16 above. It was argued in court that it is anomalous to draw a distinction between state action that governed private relations through legislation or executive acts and state action that did so through common law as far as the application of fundamental rights is concerned. Why would the former be bound and the latter not? The Court argued that the former constituted vertical application and the latter horizontal application. Consistent with its view that Chapter 3 was intended to apply vertically only, it excluded the latter. The evidently anomalous nature of the distinction (why would the former constitute vertical and the latter horizontal application?) was evaded by the simple retort that the horizontal approach embodied its own anomalies and that the anomalies of the vertical approach were exaggerated. (Cf Du Plessis (note 5 above) para 50.)
- The judgment in Du Plessis (note 5 above) expressed a certain reservation regarding the continued applicability of the rule in Shelley in the United States (‘complex case law suggests that the rule in Shelley v Kraemer… is not invariably available in private law disputes’). It also expressed a reservation regarding the desirability of adopting the rule in South Africa (‘[t]he reason behind the decision has also been cogently criticised’) (ibid para 34). And it thereafter went on to argue that the omission of ‘the judiciary’ from section 7(1) excluded the importation of the rule in Shelley to South Africa (cf text accompanying note 12 above.) One must observe, the lady was protesting quite a bit. In any case, as far as the ‘cogent criticism’ against the doctrine in Shelley is concerned, the court apparently considered the matter to be closed by referring only to viewpoints critical of Shelley (Kentridge J cited L Henkin ‘Shelley v Kraemer: Notes for a Revised Opinion’ (1962) 110 Univ of Pennsylvania LR 473; Ackermann J cited additionally H Wechsler ‘Toward Neutral Principles of Constitutional Law’ (1959) 73 Harvard LR 1.) It should be noted, however, that there are also cogent arguments in favour of Shelley that could have been cited. Cf for instance I Nerkin ‘A New Deal for the Protection of Fourteenth Amendment Rights: Challenging the Doctrinal Bases of the Civil Rights Cases and State Action Theory’ (1977) 12 Harvard Civil Rights-Civil Liberties LR 297, 355–60. Nerkin is not oblivious to the doctrinal shortcomings of the rule in Shelley. He acknowledges that the turn given to the state action doctrine in Shelley gave rise to a conceptual disaster area (as Charles Black put it) and should be put on ‘sturdier foundations’ once the historical changes in legal and political thought reflected in the Shelley judgment are better understood (ibid 360). However, Nerkin emphasises the historical purport of Shelley. It signalled the break-down of the particular distinction between private and public which the Lochner Court bequeathed to American constitutional jurisprudence, a distinction that made it possible to rely on the law to entrench the status quo of racial segregation and racial inequality in the private realm. I am indebted to an unpublished paper by Karl Klare ‘Legal Culture and the Problem of Constitutional Application in the United States' (presented at the Judges Conference at Muldersdrift, 22–24 July 1997, organised by the Centre for Applied Legal Studies, University of the Witwatersrand) for the reference to Nerkin's article.
- Cf in this regard the exemplary articulation of the rule in the Lüth case: ‘Das Bundesverfassungsgericht ist auf Grund dieser Erwägungen zu der Überzeugung gelangt, daß das Landgericht bei seiner Beurteilung des Verhaltens des Beschwerdeführers die besondere Bedeutung verkannt hat, die dem Grundrecht auf freie Meinungsäußerung auch dort zukommt, wo es mit privaten Interessen anderer in Konflikt tritt. Das Urteil des Landgerichts beruht auf diesem Verfehlen grundrechtlicher Maßstäbe und verletzt so das Grundrecht des Beschwerdeführers aus Art 5 Abs 1 Satz 1 GG (7 BVErfG 198, 230 emphasis added) The court relied on this wording again and again in subsequent judgments. See 24 BVerfG 278; 25 BVerfG 256; 30 BVerfG 173; 34 BVerfG 35 BVerfG 202; 42 BVerfG 142; 46 BVerfG 325; 54 BVerfG 129; 54 BVerfG 148; 60 BVerfG 234; 61 BVerfG 1; 62 BVerfG 230; 66 BVerfG 116; 73 BVerfG 261.
- Section 36(1) provides: ‘The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open an democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including — (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.’
- The proportionality principle basically involves three questions: Is the purpose for which a right is limited legitimate? Is the limitation of the right reasonable (are there no less intrusive means to pursue the goal at issue)? Is the limitation of the right effective as far as the pursuit of the goal at issue is concerned?
- K Stern (‘Ehrenschutz und “allgemeine Gesetze“’ in G Baumgärtel et al (eds) Festschrift für Heinz Hübner zum 70. Geburtstag (1984) 827–28) is in favour of the proportionality test. H Rüffner (in Isensee/Kirchoff Handbuch des Staatsrechts Bnd V 556–57) favours a practical reconciliation and ordering of legal positions in view of constitutional principles (verfassungbeachtende Zuordnung verschiedener Rechtspositionen im Sinne einer praktischen Konkordanz); Medicus (‘Der Grundsatz der Verhältnismäßigkeit im Privatrecht’ 1992 Archiv für civilistische Praxis 53–54) argues that the proportionality test developed in constitutional law does not apply at all. The proportionality tests developed within private law over centuries and decades should be applied; Oldiges (‘Neue Aspekte der Grundrechtsgeltung im Privatrecht’ in R Wendt et al (eds) Staat, Wirtschaft, Steuern. Festschrift für Karl Heinrich Friauf zum 65. Geburtstag (1996) 308) favours the Untermaßverbot developed by Canaris; Canaris himself (‘Grundrechte und Privatrecht’ 1984 Archiv für die civilistische Praxis 201) suggests that a differentiated approach be followed. The proportionality test (also referred to as the Übermaßverbot) must be applied where a civil law rule positively limits a fundamental right. The Untermaßverbot must be applied where civil law rules fail to provide sufficient protection of a fundamental right.
- Cf 7 BVerfG 198, 211–12. This stance of the court has been subject to severe criticism in the German debate on Drittwirkung. Cf Stern (note 26 above) 818. However, I believe public interest is in any case the criterion that underlies the various balancing procedures that are offered as solutions in this regard. The assessment of public interest in a particular situation is of course a very problematic issue, which I cannot attempt to address here. Cf J Van der Walt ‘Die Onderskeid Tussen die Publieke en die Private in die Lig van die Horisontale Werking van die Grondwet’ (2000) JSAL 605, 605–18 for an attempt to come to terms with this issue. The resort to public interest as a criterion for the balancing of competing rights has found expression in South African constitutional jurisprudence in Bernstein v Bester NO 1996 (2) SA 751 (CC) 799F-G (remote privacy interests weighed up with public interest in ‘ascertaining the truth surrounding the collapse of company’). Cf also the earlier references to ‘the conflicting rights of the community’ (ibid 788D). I am reluctant to simply equate public interest and rights (or interests) of the community, but cannot pursue this matter here. Cf also the interpretation of the impact of fundamental rights on restraint of trade agreements in terms of public policy in Coetzee v Comitis 2001 (1) SA 1254 (C) 1273H.
- C Sprigman & M Osborne ‘Du Plessis is Not Dead: South Africa's 1996 Constitution and the Application of the Bill of Rights to Private Disputes’ (1999) 15 SAJHR 25, 37. The authors do not actually forward this argument clearly. It has been put forward much more forcefully by L Wolhuter ‘Horizontally in the Interim and Final Constitutions’ (1996) 11 SAPL 524. The arguments of Sprigman and Osborne are vague and unconvincing (if not inane — cf especially the last paragraph on 34, first paragraph on 35) and show tell-tale signs of rather haphazard research. Not only do they attribute my note on the Du Plessis case (‘Justice Kriegler's Disconcerting Judgment in Du Plessis v De Klerk: Much Ado About Direct Horizontal Application (Read Nothing)’ (1996) JSAL 737) to my friend and colleague André van der Walt (which is rather flattering), but they simply make no mention of the more substantial discussion of the case in Van der Walt (note 19 above). I have mixed feelings about the note in the Journal of South African law. I still believe I sensed something important in it, but also erred seriously in the way I articulated my thoughts. See the discussion of the note in Van der Walt (note 19 above) 11–12. I also regret today the somewhat intemperate way in which I engaged with Kriegler J's judgment in Du Plessis. His judgment did call for sharp criticism, but not in the tone in which I articulated it.
- I have done so elsewhere. See Van der Walt (note 19 above) 20. However, it must be noted that the interpretation of s 8(1) and/or s 8(3) as threshold or restrictive provisions as regards the direct horizontal application provided for in s 8(2), thereby effectively reducing it to indirect application, would constitute a rather artful evasion of the obvious meaning of s 8(2). That such artful evasions in the face of burning questions are not beyond the judges of the Constitutional Court is clear from the invocation of s 26(2) as a restriction on s 26(1) in Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC) 1188G-1193C. There is certainly no rule or principle of constitutional interpretation that required this move.
- 1997 (3) SA 786 (CC).
- The court was referring to the interim Constitution, but included a note here to state that s 39(2) has the same purport.
- Fose (note 30 above) 820B (emphasis added).
- Ibid 828 B.
- This does not imply that the Constitutional Court would rule out direct horizontal application in all respects. It may well come into play when remedies other than compensation for damages are sought from the Court.
- Note 5 above 720d-g (para 135).
- Note 7 above.
- Ibid 190C.
- Ibid 193B–J.
- Ibid 196I-197D.
- I am indebted for this phrase to an as yet unpublished and insightful comment on the case by Anel Boshoff.
- Botha v Jooste (note 7 above) 197F–J.
- Ibid 193G-I. Van Dijkhorst equivocates as to whether it is a right or a remedy that is to be created, but given the substance of the exception that he had to consider, namely, that the plaintiff had not disclosed a cause of action (ibid 190A), I assume that it is the creation of new causes of action that he had in mind.
- G Dürig ‘Grundrechte und Zivilrechtsprechung’ in Festschrift für Hans Nawiasky (1956) 179.
- I have made this point before with reference to Wesley Hohfeld's analysis of rights and liberties and duties and no-rights. The law is not only involved in a social dispute when it provides a remedy, that is, when legal rights and duties are involved in the dispute. It is also involved in a social dispute when it does not provide a remedy, that is, when the dispute (only) involves legal liberties and non-rights. The relation between liberties and non-rights remains a legal relationship, irrespective of the law's apparent refusal to intervene in the relationship. A legal system that allows for the existence of liberties and non-rights (the absence of a right that would terminate the liberty and change it into a duty) that are inconsistent with constitutional principles would not be able to claim that it is not itself involved in the unconstitutional behaviour. See Van der Walt (note 19 above) for a more extensive discussion of this issue.
- See Van der Walt (note 28 above) 740–41.
- Note 8 above.
- For a discussion of the early cases heard by the High Courts during this time, see J Van der Walt ‘Freedom of Expression and Defamation: a Reflection on Recent Developments’ (1998) JSAL 198.
- Note 5 above.
- Note 8 above.
- Cf the discussion above.
- 1994 (1) SA 708 (A).
- 1982 (3) SA 146 (A).
- 1996 (2) SA 588 (W).
- The way General Neethling's name popped up again and again in the hearings of the Truth and Reconciliation Commission (cf for instance the Special Hearing on Chemical Warfare — especially in Wouter Basson's statements before the Commission — and the hearings on Dirk Coetzee and Eugène de Kock's amnesty applications) must have added significantly to this embarrassment. See the TRC's website at www.truth.org.za.
- 1997 (1) SA 391 (A). In Hix the Appellate Division found that the ‘balancing the conflicting interests of the press and the individual… can well be accommodated within the four corners of the established rules.’ (ibid 401D-E). The ‘established rules’ were the rules laid down in the Neethling case. As stated above, they did not even mention Neethling, but cited extensively (ibid 400G-I) a ridiculously irrelevant (irrelevant as far as applicable law was concerned) dictum of Rumpff JA in Publications Control Board v William Heinemann Ltd 1965 (4) SA 137 (A) 160E-G to show that freedom of speech had all along been recognised properly in our law of defamation.
- Neethling and Visser also found the court's failure to mention the Neethling case to be remarkable. Cf their comment ‘Die Lasterreg en die Media: Strikte Aanspreeklikheid Word ten Gunste van Nalatigheid Verwerp en ‘n Verweer van Mediaprivilegie Gevestig’ (1999) 62 THRHR 442, 446. I do not share Van der Merwe's understanding of the case (‘Constitutional Colonisation of the Common Law: A Problem of Institutional Integrity’ (2000) JSAL 15–22). This was not a case of surreptitiously taking over constitutional jurisprudence at the expense of common law reasoning (ibid 21). Cf also in this regard the matter of fact observation to the contrary in J Burchell ‘Media Freedom of Expression Scores as Strict Liability Receives the Red Card: National Media Ltd v Bogoshi’ (1999) 116 SALJ 1, 5: ‘The judgement in Bogoshi is based on the common law rather than an evaluation of the constitutional emphasis on freedom of expression.’) It was, if anything, the opposite or inverse of constitutional law surreptitiously displacing common law. It was a case of obscuring the impact of the new constitutional dispensation on an embarrassing development in our common law for which the court had to take responsibility. Be that as it may, the Supreme Court of Appeal's failure (refusal?) to address the legacy of the Neethling case, also made it possible for them not to face up to the courageous judgment of Kriegler J in the trial court hearing of Neethling. The position taken in Bogoshi is substantially a restatement of Kriegler J's position in the Neethling case.
- Note 8 above 1214–15.
- See note 1 above.
- Cf the clear indication of this attitude in PJ Visser ‘A Successful Constitutional Invasion of Private Law’ (1995) 58 J f or Contemporary Roman-Dutch Law 745–50.
- The difference between ‘common law jurisprudence’ and ‘constitutional law jurisprudence’ that Van der Merwe invokes is not helpful in this regard. Nowhere does his explanation of the tension or difference between common law institutions and constitutional principles progress beyond the insistence on the institutional nature of the former and the political or policy nature of the latter. (See Van der Merwe (note 56 above) 29, 31.) There is a certain equivocation in his argument as far as the political or policy character of constitutional jurisprudence is concerned and it is not at all clear from his argument why and how one should distinguish between policy and politics. Cf the following two phrases: ‘By… simply colonising the common law with the core policy concerns of constitutional debate, the judge usurps constitutional policy-making and ultimately collapses law into constitutional policy’ (ibid 29); ‘Failure to realise the distinct but complementary natures of… “common law argument” and “constitutional argument” and the need to retain this distinctiveness, will collapse law into politics' (ibid 31). Again, it is not clear from this (or the rest of the article) whether constitutional argument should be understood as policy or politics and what the difference between these two terms would involve. I believe it is fair to say (considering the article as a whole) that Van der Merwe thinks of constitutional argument in terms of political policy, something that is somehow essentially different from the legal policy arguments that play a role in the common law itself. This will become clearer below. Be it as it may, the insistence on a strict difference between law and politics or political policy is the well-known stance of formalist legal theorists. However, the assertion that constitutional principles are a matter of political policy and not of law, would even astound formalists. But let us consider the matter more incisively. Legal formalism claimed (unconvincingly, of course) to insulate law from politics and/or policy by restricting legal reasoning to a matter of strictly formal, logical or conceptual inference. The institutional theory of law does not take this hard line. As Van der Merwe puts it, the institutional theory of law heeds ‘substantively practical reasons’ for purposes of developing or reorganising legal institutions. These ‘substantively practical reasons’ include the ‘values, goals, and preferences reflecting the dynamic social conditions that shape and define a community’. These values, goals and preferences, he argues, also include ‘those values guaranteed in the constitution as fundamental human rights' (ibid 26). Two questions arise from this understanding of the institutional theory of law: (1) On what basis can the institutional legal theorist claim access to a purely legal or principled institutional and therefore non-political (or non-policy) distinction between ‘substantively practical reasons’ or ‘values, goals and preferences reflecting the dynamic social conditions that shape a community’, on the one hand, and ordinary or broader political considerations, on the other? (On what purely legal, purely legal political or purely legal policy basis can institutional legal theory distinguish between the politics of law and law as politics?) (2) Why would constitutional values or constitutional policies be a matter of mere political policy until such time as a common lawyer purifies them by invoking them from within the institutional parameters of common law? (Are constitutional values not in the strictest possible sense legal principles that bind the state (s 8(1)) and private legal subjects (s 8(2))? Are these constitutional legal principles not, institutionally or formally speaking, more fundamental than any common law principle? Does the former therefore not self-evidently constitute the criterion for the validity of the latter, rather than the inverse?) Van der Merwe's assessment of the judgment in Bogoshi has found enthusiastic support from Van Zyl J in a contribution to the seminar Constitution and Law held at the Potchefstroom University for Christian Higher Education, 2–3 November 2000. Cf Seminar Report, Constitution and Law IV: Developments in the Contemporary Constitutional State (2001) 169, 171. It should be clear from the above (see note 56 above) that I do not share his views in this regard. However, Van Zyl J touches upon an important issue in the course of his argument. He refers to an earlier essay of Van der Merwe (‘Iudicis est ius dicere, non dare: Judicial Law Making by Institutional Development of the Common Law’ in Nihil Obstat: Huldigingsbundel vir W. J. Hosten (1996) 225) which took the common law reasoning of the Supreme Court of Appeal (then still the Appellate Division) to task for lacking a historical consciousness, that is, for dealing with the law as if it is a stock of goods which either includes or does not include a particular rule of law, rather than developing existing law in order to provide for such a rule should the historical circumstances and the principles of reasonableness, equity and justice require that. Cf also Van der Merwe ‘Juridical Institutions in the Civil Law: Towards a Theory for Common Law Adjudication’ (1993) JSAL 580–96; Van der Merwe ‘Es läßt sich nicht lesen — Reflections on the status and continued relevance of the South African common law’ (1994) JSAL 660–81. These articles of Van der Merwe are among the finest on South African common-law reasoning ever written. It is a pity that the central argument in these articles in favour of a regard for the historical context in which the common law has to be applied (the argument, in other words, against the understanding of the common law as an a-historical and thus closed system of rules that either includes or does not include a particular rule), does not prevail in his assessment of the Bogoshi judgment. If anything, the Bogoshi judgment was again a case of manipulative conceptual argument to determine whether a particular rule (in this case, strict liability of the press) was or was not part of our law. It was a case of not facing up to the historical context in which Bogoshi had to be decided. The context at issue was this: The law of defamation developed by the Appellate Division (as it then was) had for long time been echoing and complementing the destruction of freedom of speech and freedom of the press by the apartheid government. The new constitutional dispensation in which freedom of speech and freedom of the press are recognised as fundamental rights, demanded that this law now be changed fundamentally.
- See the excellent discussion of this tension in A Cockrell ‘Substance and Form in the South African Law of Contract’ (1992) 109 SALJ 42–43; “Can You Paradigm?’ — Another Perspective on the Public Law/Private Law Divide’ 1993 Acta Juridica 228–30.
- Canaris (note 26 above) 208.
- Cf Joseph Story's words at his inauguration at Harvard: ‘The lawyer's most glorious and not infrequently perilous duty was to guard the sacred rights of property from the rapacity of the majority.’ Cited by EV Mensch ‘The History of Mainstream Legal Thought’ in D Kairys (ed) The Politics of Law (1990) 14. I am not suggesting that vested common-law rights should not be considered at all as worthy of protection. Nor am I suggesting this in my eulogy on piracy (‘Piracy, Property and Plurality. Re-reading the Foundations of Modern Law’ (2001) JSAL (forthcoming)). I am only suggesting that vested common law rights should not be deemed to be legally unassailable. Horizontal application requires that vested rights always be subject to a balancing process when the fundamental rights of others are also at stake. I believe this is what Josman AJ grasped well when he judged that, by reason of s 26(3) of the 1996 Constitution, an eviction order should not be granted without considering circumstances over and above mere illegal occupation. See Ross v South Peninsula Municipality 2000 (1) SA 589 (C) 596D-H. This is also what Flemming DJP failed to see in Betta Eiendomme (Pty) Ltd v Ekple-Epoh 2000 (4) SA 468 (W). I am not saying that the latter decision to grant the eviction order was wrong. On the merits of the case, the same decision may well have followed from a due balancing of competing fundamental rights. However, Flemming DJP's assertion that a vested common law property right and illegal possession should as such decide the case (ibid 475F–I) is simply inconsistent with the demands of the new constitutional dispensation. I am indebted to Theunis Roux for pointing out the significance of these cases for my argument.
- Dieter Medicus has argued in the German debate on Drittwirkung that the law should not be called upon to address the laziness of some people. Cf Medicus (note 26 above) 62: ‘Etwa das Übergewicht des Fleiβigen gegenüber dem Faulen zu beseitigen wäre eher verfassungswidrig als von der Verfassung gefordert.’ It is amazing to encounter such words in a law journal, but I guess this is also what Story had in mind (see note 63 above): Not just the masses, but the lazy masses who never worked and therefore have no property. How often has one not heard people ascribe the social ills of the South African society to the laziness and lack of industriousness of certain population groups? However, one would expect legal theorists not to be seduced by the self-serving popular ignorance of the fact that a lack of industriousness (should it for argument sake indeed be assumed to be an ingredient of a specific instance of social malaise while nevertheless resolutely dissociating oneself from the accusatory purport of the word ‘laziness’) could be and most often is the result of debilitating social structures. And would the transformative deconstruction of such debilitating social structures not be the fundamental purpose of constitutional review, constitutional review, that is, that would include the constitutional review of private legal relations?
- See J Van der Walt ‘Law as Sacrifice’ 2001 JSAL (forthcoming).
- We do, however, have to be mindful of the possibility that constitutional jurisprudence can itself become a self-serving and inhospitable affair. The history of the Lochner Court in the United States is a clear point in case. The Rehnquist Court seemed to do its best to compete in this regard. Cf MJ Horwitz ‘The Supreme Court 1992 Term — Foreword: The Constitution of Change. Legal Fundamentality Without Legal Fundamentalism’ (1993) 107 Harvard LR 30, 117. Horwitz refers to the renewed formalism of the Rehnquist Court, a formalism with a very clear political agenda at that, as a ‘return to Lochner’ (98–114). Nerkin, incidentally, earlier referred to the judgment in Shelley as an ‘undeniable break’ (however unrealised) with Lochner (see Nerkin (note 22 above) 366). This may well be an indication of how much there is at stake in the jurisprudence on horizontal application our courts are going to develop. Cf also my arguments in Van der Walt (note 27) 612–13. It should be noted that the recent judgments of Davis J (Grootboom v Oostenberg Municipality 2000 (3) BCLR 277 (C)) and Yacoob J (note 29 above) in the High Court and Constitutional Court hearings of the Grootboom case already give us pause to reflect on the possibility of the Constitutional Court shying away from a courageously progressive judgment (albeit one that is fraught with highly problematic and surprisingly formalist legal reasoning) of a High Court judge.
South African Journal on Human Rights
Volume 17, 2001 - Issue 3