BALORO AND OTHERS v UNIVERSITY OF BOPHUTHATSWANA AND OTHERS 1995 (4) SA 197 (B)

1995 (4) SA p197

Citation 1995 (4) SA 197 (B)

Case No CA 319/95

Court Bophuthatswana Supreme Court

Judge Friedman JP

Heard April 20, 1995; April 24, 1995

Judgment June 29, 1995

Annotations Link to Case Annotations

H

[zFNz]Flynote : Sleutelwoorde

Constitutional law - Human rights - Fundamental rights in terms of chap 3 of Constitution of the Republic

of South Africa Act 200 of 1993 - Ambit of I - Such rights, within certain limits, to be applied horizontally

as well as vertically - Preamble to Constitution, ss 7, 8, 33(4), 35, 74(1), 232(4), 'National Unity and

Reconciliation' provisions and 'Constitutional Principles' in Schedule 4 - Horizontal application of chap 3

rights requiring balance to be struck between 'over-use' and 'under-use' - Persons and institutions in

respect of whom chap 3 rights horizontally J applicable listed -

1995 (4) SA p198

A Generally, any activity or enterprise operating in community and open to public subject to horizontal

application of fundamental rights - Test for determination of question whether such rights horizontally

applicable set out - Horizontal dimension not applicable in area of personal and private law.

B Constitutional law - Constitution - Interpretation of - Constitution of the Republic of South Africa Act

200 of 1993 - Movement occurring in South Africa from positivist jurisprudence founded on sovereignty

of Parliament to jurisprudence based on sovereignty of the law in Constitution with justiciable bill of

rights - Courts now directed by s 35 of Constitution C to different form of interpretation, founded on

value judgments - Cognisance to be taken of underlying ideals, principles and concepts of legal system -

Courts, and specifically Judges, now in terms of s 35 cast in additional role of social engineers, social and

legal philosophers to promote values referred to in s 35 - Courts enjoined to be an important D

authority in quest to change South Africa in accordance with aims and spirit of Constitution - United

States cases on bill of rights providing necessary and enlightening comparative material in interpreting

chap 3 of Constitution.

Constitutional law - Constitution - Interpretation of - Constitution of E the Republic of South Africa Act

200 of 1993 - Application of s 35 of Constitution - Court to have regard to circumstances and events

leading up to, and accompanying, framing and adoption of Constitution - Effect to be given to intent of

framers of Constitution and those who adopted it - Court to have regard to objective of its framing and

adoption - Human, F social and economic factors also relevant - Court also to have regard to promotion

of values designed to give effect to purpose of Constitution and standards and principles contained in s

35.

Constitutional law - Constitution - Interpretation of - Constitution of the Republic of South Africa Act 200

of 1993 - Applicability of G fundamental rights in chap 3 of Constitution to 'organs of State' in terms of s

7(1) - Words 'organs of State' to be given extended meaning - Words include statutory bodies; parastatal

bodies; bodies established by statute but managed and maintained privately, such as universities, law

societies, etc; bodies supported by, and operating in co-operation with, H structures of State authority;

and private bodies fulfilling key functions under supervision of organs of State - University of

Bophuthatswana an 'organ of State' as intended in s 7(1) and accordingly bound by chap 3 of

Constitution - Even if University a private institution, horizontal dimension of fundamental rights would

be applicable to it because of I nature of its activities and operation in public domain as important

institution of learning.

University - University of Bophuthatswana - Applicability of fundamental rights in chap 3 of Constitution

of the Republic of South Africa Act 200 of 1993 to 'organs of State' in terms of s 7(1) - Words 'organs of

State' to be given extended meaning - Words include statutory bodies; parastatal J bodies; bodies

established by

1995 (4) SA p199

A statute but managed and maintained privately, such as universities, law societies, etc; bodies

supported by, and operating in co-operation with, structures of State authority; and private bodies

fulfilling key functions under supervision of organs of State - University of Bophuthatswana an 'organ of

State' as intended in s 7(1) and accordingly bound by chap 3 of B Constitution - Even if University a

private institution, horizontal dimension of fundamental rights would be applicable to it because of

nature of its activities and operation in public domain as important institution of learning.

University - Staff - Appointment, tenure and promotion - Interim council of University placing

moratorium on promotion of non-South African C academic staff - South African staff, however,

promoted - Such constituting a gross violation of s 8(2) of Constitution of the Republic of South Africa

Act 200 of 1993.

[zHNz]Headnote : Kopnota

D Having regard to the preamble of the Constitution of the Republic of South Africa Act 200 of 1993, s

7, s 8, s 33(4), s 35, s 74(1), s 232(4), the 'National Unity and Reconciliation' provisions at the end of the

Constitution, and the 'Constitutional Principles' contained in Schedule 4 to the Constitution, and South

African and comparable foreign authorities, the fundamental rights contained in chap 3 of the

Constitution are within certain limits to be applied horizontally as well as vertically. (At 234I.)

In applying the fundamental rights in chap 3 of the Constitution E horizontally, the Court must strike a

balance between 'assertiveness' and 'over-use'. There must be a balance between the tensions of

'under-' and 'over-use'. A polarisation between these tensions must not occur. A golden mean between

these tensions is called for in order to achieve a harmonious application in accordance with the spirit of

the Constitution. Therefore a qualification is needed in regard to the horizontal dimension. (At 238E-G.)

The fundamental rights in chap 3 will apply horizontally to the following:

F (i) Corporations, multinational and local companies engaged in trade, commerce,

business, that deal with the public, have employees and engage in numerous undertakings. The

institutions in this category are subject to the fundamental rights in all their manifold operations

because they deal with the public and are generally no different in power, wealth or influence from the

State, or parastatal companies or statutory bodies.

G (ii) Commercial and professional firms which rely on the public for their custom or

support, and who by the nature of their activities engage with the public.

(iii) Hotels, restaurants, places of public entertainment, all of which rely on public

patronage. Persons cannot be refused admission to them on the grounds of race, colour, creed or

gender, etc. This would constitute discrimination in terms of s 8 of the Constitution.

(iv) Private hospitals, rehabilitation centres, clinics engaging H with the public as

patients, etc (public hospitals funded by the State or the provinces are clearly 'organs of State').

(v) Private universities, schools and institutions of learning funded by individuals

and corporations and which operate in the public domain.

(vi) Sports grounds and clubs which are open to the public.

(vii) Public transport.

This list is not exhaustive. What does appear, however, is a general I principle that any activity,

operation, undertaking or enterprise operating in the community, and open to the public, is subject to

the horizontal dimension of the fundamental rights contained in chap 3, read with ss 33(4) and 35, of

the Constitution. In order to circumscribe the horizontal dimension, the concept of the 'State action'

doctrine in United States law may be usefully followed, with modifications. Before determining whether

the horizontal dimension applies to 'non-State' activities in its extended range, three questions need to

be put:

(a) Whether the activity is a 'public function', ie operating in the J public domain.

1995 (4) SA p200

A (b) Whether the activity is so linked or 'intertwined' with public action that the private actor

becomes equated with the public domain.

(c) Whether the conduct of the private actor (person) complained of has been

approved, authorised or encouraged by the State or public institutions in an adequate manner so as to

be responsible for it.

If any of these three questions are answered in the affirmative, the horizontal dimension is

applicable. (At 238I-239G.)

B In applying the aforegoing tests, regard must be had to the principles of free trade and association.

Given the yeast-like property of the horizontal dimension to expand, an over-proliferation of this

dimension must be guarded against. The horizontal dimension needs to be applied with caution in the

various categories of its operation. Difficulties arise in applying it to personal and private law and it

should not be so applied. There has to be an acceptance and respect for the principles of C privacy and

freedom of choice. An individual has the right to choose his/her own associates, and to construct, mould

and fashion his/her private life as a matter of free choice. (At 239H/I-240B.)

The Courts in South Africa are now confronted by a rapid oscillation from the positivist jurisprudence

founded on the sovereignty of Parliament to a jurisprudence based on the sovereignty of the law

contained in a Constitution with a justiciable bill of rights. The Courts are also directed, if regard is had

to the provisions of s 35 of the Constitution, D to a different form of interpretation, one founded on

value judgments. Certain of the principles of the 'Legal Realism' school of thought, founded in the

United States, are apposite in this regard; a school of thought which rejected the traditional approach of

Anglo-American jurisprudence. The motto of Legal Realism was thus formulated by Oliver Wendell

Holmes: 'The prophecies of what the courts will do in fact, and E nothing more portentous, are what I

mean by the law.' (At 243E-G/H.) The substantial impact of this school of thought was that it drew

attention to 'the human, social and economic aspect of the administration of law which cannot be

expressed by the description of abstract norms and rules'. However, it would be as wrong to dwell on

these aspects exclusively as it would be to ignore them. In dealing with a legal system, due cognisance

must also be taken of the underlying ideals, principles and concepts. These factors implicitly influence

those who operate within the system. F In terms of s 35 of the Constitution the Courts, specifically the

Judges, are cast in the additional role of social engineers, social and legal philosophers in order to

'promote the values which underlie an open and democratic society based on freedom and equality'.

Judges are reluctant to assume this role. (At 243I-244B.) However, s 35 properly construed, read with

the other provisions of the Constitution referred to above, enjoins the Court to be an important

authority in the quest to change South African society in accordance with the aims and spirit of the

Constitution. Clearly the Constitution does not operate mechanically. It G has to be administered and

applied. Therefore the Courts and Judges are instruments that must put the law into effect. The activity

of Judges will not only be confined to the interpretation of existing laws, but they will be obliged to

engage in the more creative activity of generating new laws in terms of s 35, which gives to the Courts in

South Africa a greater and more extensive power than the Courts in the United States. This aspect

becomes important if the Courts are of the view that the existing H law is felt to be 'unjust, ambiguous,

inefficient, or simply obsolete due to changing circumstances'. Section 35 gives Judges an almost

plenipotentiary judicial authority to decide according to a sense of natural justice; 'equity', 'jus naturale',

'aequitas' all being enshrined in the Constitution. Section 35 provides that the Court, in interpreting the

Constitution, 'may have regard to comparable foreign case law'. Judges in the United States have

delivered important judgments on the bill of rights in the Constitution of the United States, and it is

necessary I and indeed enlightening to refer to certain of their approaches in interpreting the bill of

rights, bearing in mind that the burden of responsibility of interpretation is passed on to the Courts,

which 'shall promote . . .', which means, inter alia, 'advance', 'develop', 'further', 'propagate', 'expedite'

and 'facilitate' the objectives contained in s 35 and chap 3. (At 244C/D-H.)

To apply s 35 of the Constitution in order to promote the matters contained therein, a Court is entitled

to have regard to, inter alia, (i) a dispassionate consideration of the circumstances and events which led

up J to, and accompanied, the framing and

1995 (4) SA p201

A adoption of the Constitution; (ii) giving effect to the intent of the framers of the Constitution and of

the people who adopted it; (iii) the objectives of its framing and adoption; (iv) the human, social and

economic aspects relevant to the Court's decision; and (v) the promotion of values designed to give

effect to the purpose of the Constitution, and the standards and principles contained in s 35. (At 245D-

F/G.)

B It is essential that the words 'organs of State' in s 7(1) of the Constitution be given an extended

meaning. The words must include (i) statutory bodies; (ii) parastatal bodies; (iii) bodies or institutions

established by statute but managed and maintained privately, such as universities, law societies, the

South African Medical and Dental Council, etc; (iv) all bodies supported by the State and operating in

close co-operation with structures of State authority; and (v) certain private bodies or institutions

fulfilling certain key functions under supervision of organs of the State. (At 235J-236B/C.)

C Having regard to the provisions of the University of Bophuthatswana Act 10 of 1978 (B), s 1

(definition of 'statutes'), s 16 and s 29 of the University of Bophuthatswana Consolidation Act 33 of 1988

(B) and the extended meaning of 'organs of State' in s 7(1) of the Constitution, the University of

Bophuthatswana (the first respondent in the present proceedings), being subject to the ultimate

exercise of control by the Minister of Education and the Executive Council (see s 29(2)(a) of Act 33 of

1988 (B)), is clearly an organ of State. The vertical dimension of the fundamental rights contained in the

Constitution of the Republic of South D Africa Act 200 of 1993 therefore applies to the University. (At

246F.) Even if the University is a private institution, or should it become a private institution with no

State control or influence over it, the horizontal dimension of the fundamental rights would be

applicable to it because of the nature of its activities and its operation in the public domain as an

important institution of learning. (At 246G.)

E The decision of the Interim Council of the University of Bophuthatswana placing a moratorium on

promotions of non-national (ie non-South African) academic staff with valid contracts of employment,

while promoting members of staff with South African citizenship, is a gross violation of s 8(2) of the

Constitution for the following reasons:

(i) there is no valid reason for their applications for promotion to be subject to a

moratorium while other members of staff receive promotion based, inter alia, on the fact that they are

South African citizens.

F (ii) The words '(n)o person' in s 8(2) of the Constitution also apply to aliens. 'Person'

does not mean only a citizen of South Africa.

(iii) The international standard relating to the treatment of aliens postulates that, if a State

admits an alien into its territory, it must conform in its treatment of him to the internationally

determined standard. This means that the State should accord treatment to the alien which measures

up to the ordinary standards of civilisation. The international standard of G treatment of aliens applies

in respect of fundamental human rights, such as the right to life and integrity of persons, but not to

political rights.

(iv) Having regard to s 8(2) of the Constitution, public international law and foreign

comparable case law, which the Court is, in terms of s 35(1) of the Constitution, entitled to take into

account, an overwhelming case had on the facts been made out that non-national (ie expatriate)

academic staff (the H applicants) had been discriminated against because they were not South African

nationals.

(v) The onus in s 8(4) was applicable and, on the facts, the responses given by the

University and the other respondents were devoid of substance: the qualification for appointment to

the staff of a university was, and should be, merit and suitability for the position, and not ethnic or

national origin. (At 246H-247A, 247E-F/G and 247G/H-J.)

The following decided cases were cited in the judgment of the Court:

I Attorney-General v Moagi 1982 (2) Botswana LR 124

Attorney-General, Namibia, Ex parte: In re Corporal Punishment by Organs of State 1991 (3) SA

76 (NmS)

Banco Na‡ional de Cuba v Cabbatino 376 US 398 (1963) (84 S Ct 923, 11 L Ed 2d 804)

CBS Inc v Democratic National Committee 412 US 94 (1973)

J Civil Rights Cases 109 US 3 (1883) (3 S Ct 18, 27 L Ed 835)

1995 (4) SA p202

FRIEDMAN JP

A De Klerk and Another v Du Plessis and Others 1995 (2) SA 40 (W) (1994 (6) BCLR 124)

Edmonson v Leesville Concrete Co 111 S Ct 2077 (1991)

Eisenstadt v Baird 405 US 438 (1972)

Fullilove v Klutznick 448 US 448 (1980)

Gardener v Whitaker 1995 (2) SA 672 (E) (1994 (5) BCLR 19)

B Georgia v McCallum 112 S Ct 2348 (1992)

Gompers v United States 233 US 604 (1914)

Griffin v Breckenridge 403 US 88 (1971)

Gunaratne v Peoples Bank 1987 CLR 383 (Sri Lanka)

Heart of Atlanta Motel Inc v United States 379 US 241 (1964) (85 S Ct 348, 13 L Ed 2d 258)

C James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd (1977) 2 WLR 107 (CA)

([1977] 1 All ER 518)

Jones v Alfred H Mayer Co 392 US 409 (1968) (88 S Ct 2186, 20 L Ed 2d 1189)

Jurgens v Editor, Sunday Times Newspaper, and Another 1995 (2) SA 52 (W) (1995 (1) BCLR 97)

Khala v Minister of Safety and Security 1994 (4) SA 218 (W) (1994 (2) BCLR 89)

Lochner v New York 198 US 45 (1905)

Mandela v Falati 1995 (1) SA 251 (W) (1994 (4) BCLR 1)

D Marsh v State of Alabama 326 US 501 (1946)

McCulloch v Maryland 17 US (4 Wheat) 316 (4 L Ed 579) (1819)

Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC) ([1979] 3 All ER 21)

Motala and Another v University of Natal 1995 (3) BCLR 374 (D)

New York Times v Sullivan 376 US 254 (1964)

Nyamakazi v President of Bophuthatswana 1992 (4) SA 540 (B) (1994 (1) BCLR 92)

E Patterson v McLean Credit Union 491 US 164 (1989)

Qozeleni v Minister of Law and Order and Another 1994 (3) SA 625 (E) (1994 (1) BCLR 75)

Retail, Wholesale and Department Store Union Local 580 v Dolphin Delivery Ltd (1987) 33 DLR

(4th) 174

Runyon v McCrary 427 US 160 (1976)

S v Mhlungu and Others 1995 (3) SA 867 (CC)

F S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (4) BCLR 401)

Shelley v Kramer 334 US 1 (1948)

Torao Takahashi v Fish and Game Commission 334 US 410

Trop v Dulles 356 US 86 (1958)

United States v Guest 383 US 745 (1966) (86 S Ct 1170, 16 L Ed 2d 239) G

[zCIz]Case Information

Return day of a rule nisi in an application for an order directing the first and second respondents to

convene a staffing committee meeting and ancillary relief. The facts appear from the reasons for

judgment.

H Lever for the applicants.

J Unterhalter SC for the respondents.

H [The Court confirmed the rule nisi on 14 April 1995 and handed down the following reasons for

judgment on 29 June 1995.]

[zJDz]Judgment

FRIEDMAN JP: In this matter the rule nisi granted by Waddington J was confirmed by me. The

respondents were ordered to pay the costs between I party and party, jointly and severally, the one

paying the others to be absolved. The rule nisi was as follows:

'2. That a rule nisi be and is hereby issued calling on the respondents to show cause, if any,

to this Court on Thursday, 20 April 1995, at 10:00 or as soon thereafter as the matter may be heard why:

(a) the first and second respondents should not be ordered to J convene the

staffing committee of the first respondent with

1995 (4) SA p203

FRIEDMAN JP

A directions to consider and advise on, without delay, the applications for

promotion brought by the applicants;

(b) the first respondent should not be ordered to implement without delay, such

further administrative machinery as may be necessary in order to give effect to the recommendations of

the B said staffing committee;

(c) any promotions which are made should not be ordered to be made

retrospective to the dates when such promotions would have taken place in the ordinary course of

events, were it not for the failure of the staffing committee in 1994 to consider such C promotions;

(d) the third respondent should not be interdicted and restrained from interfering

in the contractual relations between the applicants and the first respondent;

(e) the respondents should not be ordered to pay the costs of this application as

between party and party, the one paying the D others to be absolved.

3. The terms of para 2(d) to operate with immediate effect as an interim interdict.'

The reasons for the confirmation of the said rule are furnished herein.

E A. The issues

[1] The first applicant is an associate professor in the School of Law of the University of

Bophuthatswana. He joined the academic staff of the first respondent in June 1991, and was appointed

to his present position F in January 1992. His country of origin is Ghana.

[2] The second applicant is a senior lecturer in public law of the University of Bophuthatswana. He

received his appointment on 1 June 1992. His country of origin is Zambia.

G [3] The third applicant is a senior lecturer in psychology in the School of Health and Social Sciences of

the first respondent. He was initially appointed as a lecturer on the staff of the first respondent in and

during September 1989. His country of origin is Zambia.

H [4] The fourth applicant is a senior lecturer in physics at the first respondent and he joined the

academic staff of the first respondent in and during March 1987. His country of origin is Sri Lanka.

[5] All the applicants are married and have children.

[6] The first respondent is the University of Bophuthatswana, a body I corporate with juristic

personality, established in terms of the University of Bophuthatswana Act 10 of 1978 (B) as a university

and deriving its powers and duties under and by virtue of a statute, the University of Bophuthatswana

Consolidation Act 33 of 1988 (B) as amended. It is situated in Mmabatho and is in the process of

changing its name to J the University of the North West, but has not as yet effected the change.

1995 (4) SA p204

FRIEDMAN JP

A [7] The second respondent is the present acting Vice-Chancellor of the first respondent and, in

addition thereto, serves as the chairman of the University's staffing committee. He carries out his duties

at the campus of the first respondent.

B [8] The third respondent is the University of Bophuthatswana Staff Association, a voluntary

association being a legal persona with perpetual succession, having the right to own property and

capable of being sued or suing in its own name. The third respondent has its principal office at the

campus of the first respondent.

C [9] The applicants are regarded as foreign nationals and they are sometimes referred to as

'expatriates'.

[10] The applicants have sought promotion in the first respondent and their efforts have been frustrated

and foiled, according to their view, because of their being expatriates.

D [11] The applicants contend that there are other expatriates in a similar position to them and they

regard this application in the nature of a test case.

[12] The attitude of the first respondent regarding its terms of employment and the management of its

human resources is contained, inter E alia, in documents known as 'The conditions of service for full-

time teaching and non-teaching professional staff' and its 'Standing orders on appointment'. The

aforesaid documents contain the following:

'The University of Bophuthatswana aims at providing, within the limitations of facilities and

resources available and specific demands by F the situation, a career, not merely a job, to all its staff

members, regardless of race, sex, nationality or creed, in an organisational climate where personal

objectives can best be achieved through achieving the University's objectives. The University Council

considers its staff as the most important and valuable resources in accomplishing its objectives. This

positive attitude towards the human resources of the University is evident from the spirit of the

University's conditions of G service and other personnel policies and procedures.'

[13] The applicants contend that when they applied for their positions with the first respondent an

important consideration was the said conditions of service and standing orders.

[14] When the applicants applied for positions with the first respondent, H this was pursuant to

advertised vacancies and they were all subjected to the same tests and interviews as South African

nationals. Their applications for the said positions were in competition with other applicants and they

contend that they procured their appointments on merit. After they were appointed to their positions

the applicants relocated from their countries of origin to Mmabatho in order to fulfil I their terms of

service.

[15] Initially their experience within the first respondent was satisfactory, they were able to obtain

satisfaction in their work, and they considered that they had a good future with the University.

[16] In the second half of 1994 the first respondent called upon members J of staff who were foreign

nationals to apply for a renewal of their work

1995 (4) SA p205

FRIEDMAN JP

A and residence permits. In previous years this task was undertaken on behalf of the staff by the first

respondent itself. In so doing, the first respondent urged the authorities to grant the necessary permits,

drew attention to the fact that the positions were widely advertised and that there were no suitably

qualified South Africans available for B appointment. The applicants detected a perceptible shift of

policy on the part of the first respondent, but notwithstanding this, the applicants were willing to

assume the primary responsibility of submitting their own applications for residence and work permits

to the authorities. These applications were supported by the first and second respondents and they C

gave reasons for their support.

[17] Towards the end of October 1994 the third respondent presented a list of demands to the first

respondent. This was annexed to the papers as annexure 'C'. Paragraph 4 thereof calls upon the first

respondent, through its management, to withdraw its recommendations to the Ministry of Home Affairs

by not later

D 'than Monday 31 October 1994 at 10:00 and that all posts occupied by these aliens be

advertised as soon as possible'.

Furthermore, these demands were followed by demonstrations, toyi-toying, disruption of the

University's affairs, harassment and a great deal of shouting and noise. It is important to mention that

the membership of the E third respondent is recruited primarily from 'support staff' of the University

such as cleaners, gardeners, security officers, technicians, clerks and administrative officials. The

applicants maintain that there are few academics who are members of the third respondent and those

that are constitute a small percentage of the membership of the third respondent. According to the

applicants, the overwhelming number of F academics have chosen to belong to the Academic Staff

Union, a body which is not recognised by the first respondent for the purposes of negotiating staff

matters.

[18] In response to the conduct, pressure and demands of the third respondent, the second respondent,

acting on behalf of the first G respondent, addressed a letter to the Department of Home Affairs on 31

October 1994 requesting it to withdraw the first respondent's letters of recommendation and to return

the letters to him pending a decision of the Interim Council of the first respondent.

[19] On or about 26 October 1994 the third respondent made written H submissions to the Department

of Home Affairs. The basis of the third respondent's submissions to the Department, as appears from

annexure 'E', is as follows:

'It is a well-known fact that this University has been attracting the services of aliens, inter alia, to

give an international image and thereby achieve international recognition for the now extinct

Bophuthatswana I bantustan. It is true that the recruitment policy of this University requires that all

vacant positions be advertised publicly. However, it is not true that "the posts were widely advertised in

the Republic of South Africa". Most of these positions in management were not advertised and the

aliens who occupy them did not go through an acid test of an interview as alleged in the letters sent to

you.

In terms of chap 23 of the National Education Commission of 1978 headed by J Professor E P

Lekhela, upon which this University was founded, alien staff

1995 (4) SA p206

FRIEDMAN JP

A members were to be employed only if there were no local people qualified for those

positions and such aliens were to be employed on a three-year contract. These "contracts should be

renewable for further periods where necessary, but there should be a clear understanding in all such

contracts that one of the responsibilities of the incumbent would be actively to pursue the training of

national personnel".

B The Commission further recommended that "in the appointment of staff the University

Council should consider not only academic qualifications but also the academic potential of younger,

less qualified applicants, especially nationals who, with further experience, could become valuable

members of the University staff". This policy has not been adhered to in that aliens occupy key

administrative and authoritative positions and as a C result there is an uncontrolled inflow of their

fellow countrymen and women which is a clear indication of nepotism. What makes matters even worse

is that they have appointed their wives in secretarial positions. All of them look down upon the citizens

of this country. If this behaviour is left to continue, it will definitely undermine the Reconstruction and

Development Programme (RDP).

On the basis of the foregoing we request, firstly, that your kind office D should not renew the

work and residence permits of all those aliens who occupy secretarial and administrative posts.

Secondly, academic posts occupied by aliens should all be advertised and they should not, under any

circumstances, be granted tenure terms. Where there are no suitable local persons, those aliens who

satisfy all the requirements for the posts should all be appointed on contract while strenuous efforts are

made to

E find or develop local persons for those posts. This will assist the Government of National Unity to

combat unemployment and to implement affirmative action more easily.'

[20] The applicants asserted that these allegations are false, and saw no point in debating them for the

purposes of this application.

F [21] Seeing the danger facing the staff of foreign extraction, an informal steering committee of

expatriate staff was formed.

[22] On 28 October 1994 a letter was prepared by the aforesaid steering committee, which was

addressed to the second respondent and signed by 33 members of the expatriate staff.

G [23] On 3 November 1994 the applicants' attorney addressed a letter to the chairperson of the

Interim Council of the University setting out the views of the steering committee in relation to the issue,

and calling upon the first respondent to implement its obligations to the expatriate members of staff,

whose personal situations had been adversely affected by the events H described herein.

[24] The said steering committee only became aware some time after the letter of 26 October 1994 was

written as to its contents. The attorney of the said steering committee addressed a further letter to the

third respondent, dated 14 November 1994, calling upon it, inter alia, to I refrain from interfering in the

contractual relations between the first respondent and its expatriate staff.

[25] In July 1994 a circular letter was sent by the first respondent to all members of its academic staff

inviting applications in appropriate cases for promotion.

J [26] The applicants' case was based on the following:

1995 (4) SA p207

FRIEDMAN JP

A (i) That they are all members of the permanent staff of the first respondent and

have all successfully completed their periods of probation.

(ii) They all applied for promotion within their respective faculties.

(iii) The first applicant has applied to be promoted to the rank of B full professor.

(iv) The second, third and fourth applicants have applied for promotion to the rank

of associate professor.

(v) All the applications were submitted by the applicants to their respective schools

or faculties for consideration.

(vi) The applications of all the applicants were approved by their C respective

schools who, through the deans, made recommendations to the staffing committee for promotion in all

four cases.

[27] The staffing committee of the first respondent meets once a year in November to evaluate and

make recommendations on promotions.

D [28] The procedure is that, if the staffing and promotions committee recommends a promotion, then

further administrative steps occur, which take the form of convening a panel of experts in the field of

the candidate concerned to evaluate and declare upon the standard of achievement attained by the

respective candidate for promotion.

E [29] In 1994 there was a change in the composition of the staffing committee. Members of the third

respondent, many of whom have little or no academic qualifications to speak of, were appointed to the

staffing committee and accordingly were permitted to pronounce on and evaluate the F academic

merit of persons whose qualifications far exceeded their own.

[30] The staffing committee of the first respondent met on 15 November 1994. A certain Professor N

Ahmad, who attested to an affidavit in support of the applicants, was a member of that committee, and

was present when the applicants' cases were dealt with. A copy of the minutes of that G meeting were

handed to the applicants' legal representative by the said Ahmad. Pages 1, 9 and 10 of the said minutes,

being part of annexure 'L', were annexed to the founding affidavit.

[31] In his affidavit the said Ahmad deposes that, when the applicants' cases came up for consideration,

a certain Dire, who was then president of H the third respondent, and who is an administrative officer

in the service of the first respondent, waved a document in the air, which the professor took to be the

third respondent's list of demands, annexure 'E', and said that the third respondent had called for a

moratorium on promotions of expatriate staff and that the first respondent, through its Council, had I

agreed to such moratorium.

[32] The chairman of the said staffing committee, who is the second respondent, ruled in favour of the

point raised by the said Dire, despite the protest by Professor Ahmad that failure to consider the cases

of the applicants was discriminatory. As a result of this meeting, the applications for promotion by the

applicants were not considered by the J staffing

1995 (4) SA p208

FRIEDMAN JP

A committee to the Interim Council. Significantly enough, the applications for promotion by South

African nationals were all dealt with by the said committee.

[33] Having regard to the aforegoing, the applicants contend that they are being unfairly discriminated

against on the grounds of their nationality B and origin. They make the legal submission that the

respondents are infringing their basic rights as contained in the Constitution of the Republic of South

Africa Act 200 of 1993.

[34] The grounds of prejudice alleged by the applicants in having their promotions deferred, by virtue of

the fact that they are not South African C nationals, are as follows:

(a) That there are increases in salary attendant upon promotion and the applicants

are being deprived of such increases. In regard to the first applicant, he is deprived of the allowance

payable to full professors from the resources of the Fidelity Fund, D which is in the region of R13 000

per annum. This is the allowance payable only to full professors. While the increased salary payable to

full professors may be made retrospective, this allowance is not retrospective.

(b) The applicants are also deprived for a period of time of their enhanced status

which promotion would bring them.

E (c) As a result of the conduct of the respondents, the applicants do not have the

assurance that their future careers at the University are secured.

(d) It is not fair to expect the applicants to wait another year or maybe a longer

period for their applications to be processed, F and there is not even a guarantee that their cases will

be heard in November 1995.

(e) The applicants assert that to have their applications for promotion deferred on

the grounds of their national origin is a denial of their fundamental rights as provided in the

Constitution.

G [35] On 8 December 1994 the applicants' attorney of record wrote to the second respondent,

pointing out that the moratorium on promotions is contrary to the first respondent's policy, and in

breach thereof, and called on the first respondent through the second respondent to lift the

moratorium by not later than 16 January 1995.

H [36] A further claim made by the applicants was that the third respondent be restrained from

interfering with the contractual relations existing between the applicants and the first respondent.

Furthermore, the rights of the applicants were being infringed by the third respondent.

[37] The applicants also make out a case for urgency, that is, for the I Court to dispense with the

ordinary rules relating to service. This matter has already been dealt with, as indicated by me, namely

that a rule nisi was issued by Waddington J.

[38] A special order for costs was also sought by the applicants.

[39] In reply to the applicants' founding affidavit the respondents filed J an answering affidavit which

was attested to by a certain M J Melamu,

1995 (4) SA p209

FRIEDMAN JP

A who stated that he is the Vice-Chancellor of the first respondent. He maintains that the period of

office of the Interim Council of the first respondent had ended and a new Council is in the course of

being appointed. Further, the second respondent is not presently the Acting Vice-Chancellor of the first

respondent, but is the Deputy Vice-Chancellor, and is no longer the chairman of the University staffing B

committee.

[40] He emphatically denies that the efforts by the applicants in seeking promotion have been thwarted

by virtue of their place of origin, and submits that the question of their promotion is dependent upon a

decision C of policy by the council of the first respondent. No final decision has yet been taken, but will

be taken soon after the establishment of the first respondent's new council.

[41] He makes the submission that s 8 of the Constitution of the Republic of South Africa is not relevant

to the matter. He submits that s 7 in D chap 3 of that Constitution, that is the chapter on fundamental

rights, binds all legislative and executive organs of the State at all levels of government, and does not

bind the first respondent, being an entirely independent party. The legal point taken by him is that there

is no horizontal nexus between the applicants and the first respondent, so as to enable the applicants to

invoke the fundamental rights as against the E first respondent. Basically his submission is that the

fundamental rights only operate vertically.

[42] In regard to the conditions of service and standing orders referred to in the applicants' founding

affidavit, he points out that the council has an absolute discretion to amend the conditions of service,

including F those conditions referred to in para 1. According to him, such amendments will be

discussed with the president of the University Staff Association. The views of the staff association are

only of an advisory nature.

[43] According to him, in terms of s 9(1) of the University of G Bophuthatswana Consolidation Act 33 of

1988, the control, governing and executive authority of the University vests in the council of the

University and, in regard to the applicants' cases, the council exercised certain powers and exercised

them lawfully.

[44] In regard to the question of granting the necessary permits to the H applicants, the deponent

states that in previous years, when the first respondent requested that necessary permits be granted to

applicants, the position was that there were no suitably qualified citizens of Bophuthatswana who were

available for appointment. At that time, he asserts, South African citizens were also expatriates.

Consequently, he states, there was no shift in the policy on the part of the first I respondent. Members

of the staff who were foreign nationals were required to apply personally for renewal of their work and

residence permits because, with the reincorporation of Bophuthatswana into the Republic of South

Africa, this was a requirement of the relevant government department.

[45] In regard to the letter addressed to the Department of Home Affairs, J this was due to the fact that

not only was there a demand by the

1995 (4) SA p210

FRIEDMAN JP

A third respondent, but the issue was to be discussed by the Interim Council as was recorded in

annexure 'D'. In addition to the aforegoing, guidelines on expatriates were on the agenda for a meeting

between the Minister of Education and a delegation of the Interim Council, and this was a further

reason for addressing the Department of Home Affairs.

B [46] Regarding the meeting of the staffing committee of the first respondent, Melamu stated that it

is correct that it meets once a year in November, but should it be necessary, a meeting of the committee

can be convened at any other time.

[47] Melamu makes the submission that there were responsible C recommendations which were made

to the staffing committee in respect of the merits of persons whose qualifications were being

considered in regard to the academic staff, and the staffing committee attached great weight to the said

recommendations.

[48] He further averred that the chairman of the staffing committee did D not rule in favour of the

point raised by Mr Dire, but the decision was taken by the majority of the members of the staffing

committee.

[49] He denies that the applicants are being prejudiced, and states that the matters in issue await the

decision of the council, which will be made shortly; furthermore, that the applicants' cases will be

considered just E as soon as the council makes an appropriate decision in regard to the present matter.

[50] An affidavit in support of the respondents' case was filed by W Legotlo, who is the president of the

third respondent. He supports the allegations in the affidavit made by the second respondent, Z

Chuenyane, F which will be dealt with presently.

[51] He admits that members of his association demonstrated, but did so peacefully. Furthermore, there

was no disruption of the University's affairs and he has no knowledge whatsoever of what he terms

'harassment of the innocent'. In regard to the membership of his association, he states G that there is a

substantial number of academics who belong to the third respondent and that their membership is

almost equal to that of the academic staff union.

[52] He denies that the third respondent is interfering with the contractual relations between the

applicants and the first respondent. H Furthermore, he denies that the third respondent or any of its

officers or members have launched any campaign whatsoever against expatriates.

[53] An affidavit in support of the respondents' case was also filed by Z Chuenyane. He denies that there

was any disruption of the University's affairs following upon the presentation of the demands by the

third I respondent.

[54] A further affidavit was filed by N Ahmad, who was a deponent to the applicants' founding affidavit.

In his further affidavit he states that he had attended the meeting of the first respondent's staffing

committee on 28 March, which was conducted under the chairmanship of the second J respondent.

According to him, the second respondent explained that he

1995 (4) SA p211

FRIEDMAN JP

A would conduct that meeting as chairman, and that with effect from the next meeting of the

committee, the new Vice-Chancellor would act as chairman.

[55] He attended the meeting of the staffing committee held on 15 November B 1994. Professor

Melamu did not attend that meeting. He is adamant that the second respondent, in fact, ruled that the

matter of the applicants' promotions be referred back to the council. After that ruling he lodged his

objection. He contends that this extract appears from the minutes of the meeting held on 23 February,

which was annexed as annexure 'P'.

C [56] In regard to the demonstrations organised by the third respondent, he states that its members

demonstrated against expatriate members of the staff. These demonstrations, which he witnessed,

were noisy, undisciplined and intimidatory. In addition, the third respondent organised marches to the

government buildings, and to the Department of Home Affairs, in which its members carried placards

accompanied by a great D deal of shouting, toyi-toying and similar conduct.

[57] The first applicant filed a replying affidavit and the substantial aspect of the reply is that the Interim

Council of the first respondent had already taken a policy decision, even though it may only have

amounted E to a so-called moratorium. He annexes a memorandum emanating from the office of the

Deputy Registrar (Staffing) of the first respondent, marked 'N', which shows that such a moratorium had

been put into effect. He asserts that the fact that the final decision has not been reached does not

detract from the fact that the moratorium is itself discriminatory. F He refers to the memorandum

dated 27 March 1995 from the first respondent's staffing department, which states in para 2.2 thereof

that

'the moratorium placed on the short-listing and or interviewing of non-South Africans; whether

or not they are already in the system'.

The substantial thrust of the first applicant's replying affidavit is that G the decision on the moratorium

is discriminatory and is consequently unlawful.

B. Legal submissions

[58] The principle and substantial issues between the parties, as H indicated in the heads of argument,

are the following:

(a) whether the applicants have the right, which is protected by the Constitution,

not to be discriminated against on the grounds of national origin;

(b) whether the applicants have a contractual right protecting them against

discrimination on the grounds of their nationality; and

I (c) whether the applicants have been prejudiced or unfairly discriminated against.

[59] Mr Lever, on behalf of the applicants, submitted that they rely on s 8(2) of the chapter on

fundamental rights contained in the Constitution of the Republic of South Africa Act 200 of 1993 (the

Constitution), which J prohibits unfair discrimination on the grounds of social origin.

1995 (4) SA p212

FRIEDMAN JP

A Mr Lever, in his heads of argument, referred the Court to the relevant sections of the Constitution,

namely those governing fundamental rights, ie ss 7-35, of which s 8 is an important provision, and he

relied heavily on s 8(2) and s 8(4).

B [60] He also referred the Court to s 35, which is the interpretation clause, and in addition to

numerous authorities dealing with the approach of the Court in interpreting a Constitution with a bill of

rights.

[61] Mr Lever submitted that s 35 favours a generous interpretation rather than a restricted one and

relied on several authorities for his C submission. He argued that on this aspect the fundamental rights

were also of horizontal application and referred to the cases of Mandela v Falati 1995 (1) SA 251 (W)

(1994 (4) BCLR 1) at 257H-J; Jurgens v Editor, Sunday Times Newspaper, and Another 1995 (2) SA 52 (W)

(1995 (1) BCLR 97) and contrasted the judgment of De Klerk and Another v Du Plessis and D Others

1995 (2) SA 40 (W) (1994 (6) BCLR 124). He criticised this last case by submitting that the learned Judge

did not give due recognition and weight to the concept of an open and democratic society based on

freedom and equality. He then proceeded to deal with the contractual rights of the applicants.

E [62] I mean no disrespect to the submissions of counsel if I do not consider all the submissions

advanced by them. Following their suggestion, I would restrict consideration to the one important one,

namely the application of the fundamental rights - whether they are in fact vertical or horizontal or

both.

F [63] Mr Unterhalter, on behalf of the respondents, submitted that, while the applicants may seek

relief in terms of s 7(4)(b) of the Constitution, they may do so only if such relief is sought against the

legislative and executive organs of State, which are bound in terms of s 7(1) of the Constitution. He

contended that there have been recent decisions in our G Courts dealing with the applicability of the

fundamental rights, such as De Klerk's case supra, and Gardener v Whitaker 1995 (2) SA 672 (E) (1994 (5)

BCLR 19), where Froneman J held that there is no uniform or single answer to the question as to

whether an alleged breach of a fundamental right contained in chap 3 of the Constitution can found an

action between private individuals, or whether it only applies between individuals and H State organs.

[64] In regard to the Mandela v Falati case supra, Mr Unterhalter contended that the principle in that

case was applied to the dispute that was presently before the Court, and no general statement was

made as to I the operation of the horizontal nexus in all cases where individuals invoked fundamental

rights in terms of the Constitution, and not in terms of statutes or the common law.

[65] He submitted, therefore, that the De Klerk case should commend itself to acceptance by the Court,

and accordingly it should be held that the J applicants cannot rely on s 8(2) of the Constitution in

respect of their

1995 (4) SA p213

FRIEDMAN JP

A claims, in that the fundamental rights operate vertically between the State and individuals, and not

between persons and persons.

[66] He further submitted that the first respondent, as a university, is an independent body (having the

right) * to decide what it teaches and researches, whom to admit as students, whom it appoints as

professors, B lecturers and staff, and how it administers its affairs.

[67] Consequently, he argued, the council of the first respondent is entitled, as its administrator, when it

comes into office, to consider and decide upon the promotion of its expatriate academic staff in the light

of C its knowledge of the total situation.

[68] He also contended that our Courts have, throughout the years, refused to interfere with the merits

of administrative decisions, and he referred the Court to certain authorities in this respect.

[69] Mr Unterhalter also submitted that the representations made by the D third respondent regarding

the refusal of extensions of the temporary residence permits were reasonable, and not against the

moral convictions of the community.

[70] This, he said, was founded on the basis of the reasons advanced by the third respondent in pleading

for the interests of local academics and E were appropriate factors to place before the director-general

for his consideration. Consequently, he concluded, the actions of the third respondent were not

unlawful, and the applicants have not established an unlawful interference with the said contractual

rights of the applicants.

F C. The law relating to the application of fundamental rights

(i) United States

In United States law, most of the protections for the individual rights and liberties enshrined in the

Constitution apply only to the actions of governmental agencies. The safeguards against infractions of

individual rights appearing in the text of the Constitution specifically have G application to the activities

of state or federal governments only. Similarly the bill of rights, by its terms, has been interpreted to

limit the freedom of the government when dealing with individuals.

With the exception of the Thirteenth Amendment, which reads as follows: H

'Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof

the party shall have been duly convicted, shall exist within the United States, or any place subject to

their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation',

I the protection of the Constitution in respect of its guarantees applies only as against the federal and

state governments. The Constitution designates and determines the relation of persons and citizens to

their government rather than to each other.

1995 (4) SA p214

FRIEDMAN JP

A If the rights in terms of the Constitution are to be extended to private conduct, 'state action' is

required.

This requirement of 'state action', ie providing congressional legislation to extend these rights to private

conduct, is regarded by many as a vital B protection for personal liberty, limiting and circumscribing

government interference with freedom of action and association. This includes the right to use one's

property in a free and unencumbered manner.

Furthermore, proponents of the theory of 'state action' contend that it advances the concept of

federalism by compelling the remedy of relying on state rather than federal law.

C Even the amendments to the Constitution which contain the Bill of Rights, with the exception of the

First Amendment, generally relate only to actions taken by the federal or state governments.

The Thirteenth Amendment, which abolished slavery, is also directed to limiting and regulating the

activity and operation of private individuals.

D Consequently, whenever action is instituted against individuals on the basis that they have indulged

in conduct or taken actions which have violated or infringed the rights of the person aggrieved, the

question that arises is how the actions of private individuals can be limited by these constitutional

provisions.

E 'Generally today, the state action cases resolve into three questions: (1) whether an activity is

a "public function"; (2) whether the government is so significantly involved with the private actor as to

make the government responsible for the private conduct; (3) whether the government may be said to

have approved or authorized (or, perhaps, significantly encouraged) the challenged conduct sufficiently

to be responsible for it.'

F See Barron and Dienes Constitutional Law.

The US Congress can draw on a diverse body of constitutional provisions legislating in support of civil

rights and liberties.

It has used its power in commerce to provide redress against racial discrimination in places of public

accommodation and boarding. See Heart G of Atlanta Motel Inc v United States 379 US 241 (1964) (85

S Ct 348, 13 L Ed 2d 258).

In Title VI of the 1964 Civil Rights Act, Congress made use of its spending power to prohibit racial

discrimination by recipients of federal funds, and it has made use of the same power to prescribe the

use of minority businesses in works relating to public projects for which federal H funds were provided.

See Fullilove v Klutznick 448 US 448 (1980). In that case the Court upheld the Minority Business

Enterprise (MBE) provision of the Public Works Employment Act of 1977, which stipulated that 10% of

federal funds granted for local public projects must be appropriated and applied to obtain services or

goods from firms owned by I members of minority groups. The applicants, ie the parties aggrieved,

were associations of contractors and subcontractors who alleged economic damage and injury from the

enforcement of the MBE provision and contended that their rights were violated under the Fifth and

Fourteenth Amendments. There was no majority opinion. Chief Justice Burger announced the judgment

of the Court upholding the statute. Justices White and Powell J concurred in his opinion.

1995 (4) SA p215

FRIEDMAN JP

A There are other examples of various legislation in terms of constitutional derivation of power. It is

also clear that Congress may legislate even against private misconduct.

The various constitutional amendments make provision for the legislative power to enforce and execute

the constitutional guarantees.

B If Congress could reasonably come to the conclusion that the legislation was consistent with the

guarantees contained in the Constitution, it has power to legislate.

In enforcing the Thirteenth Amendment, which censures and prohibits even private conduct which

violates the right guaranteed, Congress has the broad power to enact legislation necessary and proper

for eradicating 'all C badges and incidents of slavery in the United States, even reaching private

imposition of badges of slavery'. See Barron and Dienes Constitutional Law (op cit at 459).

The watershed case of Jones v Alfred H Mayer Co 392 US 409 (1968) (88 S Ct 2186, 20 LEd 2d 1189)

upheld an 1866 federal law which proscribed even D private discrimination in the rental or sale of real

and personal property.

The Supreme Court, in this decision, decisively gave the anti-slavery amendment a substantial impetus.

The dispute in the case arose when the defendants, a subdivision developer, builder and realtor, refused

as a matter of policy to sell housing or land to blacks. The plaintiffs, E Joseph Lee Jones and his wife,

sued. They were not allowed to buy land because the husband was black. State action was not involved

because facilities such as sewerage, pavements and garbage collection were provided by the developers.

No federal financial aid was involved, which might have involved the defendants being subject to

executive orders or federal statutes which proscribed discrimination in projects which were F financed

publicly. The substantial issue, therefore, was one of private discrimination in refusing to sell houses or

land to blacks. This issue concerned the rights of citizens to buy and lease housing irrespective of their

race.

The Court reasoned (inter alia) that

G 'legislation rationally connected with eradicating slavery is valid under the Thirteenth

Amendment and that private discrimination could constitute such a badge or incident of slavery'.

It then concluded that s 1982, construed as reaching private discrimination in the sale of property, was a

valid enactment under the Thirteenth Amendment. Thus the primary basis upon which the decision H

rested, the Thirteenth Amendment, which had been described as an 'unserviceable antique', had now

become the basis for a broad Congressional protection of civil rights without a 'state action' limitation.

The enabling clause of the Amendment was, the Court held, a grant of power to Congress not only to

outlaw forced labour but also to identify 'badges of slavery' and pass legislation necessary and proper to

I eliminate them.

'If Congress could not act to insure minorities at least the "freedom to buy whatever a white

man can buy, the right to live wherever a white man can live", the Thirteenth Amendment promise of

freedom would be a mere "paper guarantee".'

See John E Nowak and Ronald D Rotunda Constitution Law 4th ed at 920-1. J Justice Stewart for the

Court stated that

1995 (4) SA p216

FRIEDMAN JP

A 'when racial discrimination herds men into ghettos and makes their ability to buy property

turn on the color of their skin, then it is a relic of slavery'.

The question whether federal law forbids and prohibits the denial of admission by private schools to

qualified applicants purely because of their race (a contract right) was determined by the Supreme Court

in B Runyon v McCrary 427 US 160 (1976). The facts were that two privately owned schools had

regularly and widely advertised for applicants. Neither school had ever accepted a black applicant. A

certain Mr and Mrs Gonzales, in response to advertisements and a mailed brochure, submitted an

application on behalf of their son, Colin, to one of the schools, C namely the Fairfax-Brewster School in

Virginia. His admission to the school was refused on the stated ground that the school was not

integrated. An application for the admission of Colin to the Bobbe's Private School in Virginia was

refused on the ground that he was not white. Proceedings were launched against the schools under s

1981 seeking declaratory and injunctive relief and damages. The Court held that s 1981 prohibits

privately owned, commercially operated, non-sectarian schools from denying admission to prospective

students because of their race. The D Court found that s 1981 prohibits racial discrimination in the

making and enforcing of private contracts.

The import of this case is that the Court upheld congressional power under E s 2 of the Thirteenth

Amendment to prohibit discrimination against blacks in their capability and aptitude to 'contract' on the

same footing and basis as white citizens. The Court also rejected submissions that the principle of

freedom of association was violated by the federal law.

The Court in Jones' case supra found that s 1982 extended to purely F private acts of discrimination.

'Just as in Jones a Negro's (1982) right to purchase property on equal terms with whites was

violated when a private person refused to sell to the prospective purchaser solely because he was a

Negro, so also a Negro's (1981) right to "make and enforce contracts" is violated if a private offerer

refuses to extend to a Negro, solely because he is a Negro, the G same opportunity to enter into

contracts as he extends to white offerers.'

As stated herein, Jones was followed in Runyon, which was in turn specifically reaffirmed by a

unanimous Court in Patterson v Mclean Credit Union 491 US 164 (1989). In both of the later cases some

Justices suggested that Jones had been wrongly decided as a matter of statutory H construction, but

indicated that they would adhere to it because of the importance of following precedent. The Court in

Patterson held that the protection against discrimination in the making of contracts did not extend to

protection against racial harassment on the job. This holding was overruled by the Civil Rights Act of

1991. See Brest Levinson Processes of Constitutional Decision-Making: Cases and Materials 3rd ed at I

1353.

Sections 1 and 5 of the Fourteenth Amendment to the Constitution of the United States, ratified on 28

July 1868, read as follows:

'1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State wherein they reside. No State shall make or enforce

any law which J shall abridge the

1995 (4) SA p217

FRIEDMAN JP

A privileges or immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.'

'5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of

this article.'

B The congressional framers of the Amendments after the American Civil War

'meant them to serve as a basis for a positive comprehensive federal program - a program

defining fundamental civil rights protected by federal machinery against both state and private

encroachment'.

See R Carr Federal Protection of Civil Rights: Quest for a Sword (1947) at C 36. See also Nowak and

Rotunda (op cit at 908-10).

The hearings on the Fourteenth Amendment revealed that

'most of the abuses still being suffered by the Negro were at the hands of individual white

persons rather than state governments or those acting under color of state law. Such private invasions

of civil liberties were testified to by the vast majority of the 125 witnesses appearing before D the

committee. These hearings further demonstrated that the Negro was not alone in his tribulations; white

persons who had supported the Union cause or who were bold enough to advocate civil rights for the

Negro were also the victims of terrorism in the South. These factors were thus clearly in the minds of

the committee members when they drafted the all-important first section of the Fourteenth

Amendment. The demonstrated fact that violations of civil rights were primarily the product of

individual rather E than state action made it unreasonable for the committee to limit the scope of the

amendment to state action.'

See Grossman 'The Unhappy History of Civil Rights Legislation' (1952) 50 Mich L Rev 1323 at 1329-30.

In the Civil Rights Cases 109 US 3 (1883) (3 S Ct 18, 27 L Ed 835) the F Supreme Court, per Justice

Bradley, gave a narrow interpretation to s 5 by holding that the Civil Rights Act of 1875, which

proscribed racial discrimination in places of public accommodation, was unconstitutional.

The learned Judge began from the premise that s 1 of the Fourteenth Amendment applied only to state

action which it prohibited. He stated:

'Individual invasion of individual rights is not the subject-matter of the G amendment.'

Relating to s 5, he said as follows:

'(T)he last section of the (Fourteenth) Amendment invests Congress with power to enforce it by

appropriate legislation. To enforce what? . . . It does not invest Congress with power to legislate upon

subjects which are within the domain of state legislation; but to provide modes of relief H against state

legislation, or state action. . . . It does not authorize Congress to create a code of municipal law for the

regulation of private rights; but to provide modes of redress against the operation of state laws, and the

action of state officers . . . (C)ivil rights, such as are guaranteed by the Constitution against state

aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in

the shape of laws, customs, or judicial or executive I proceedings.'

As a result of this decision and others, Congress legislated the Civil Rights Act of 1964, which provided,

inter alia, for 'injunctive relief' against inequity and discrimination in public places.

The basis of this legislation was derived from the powers of Congress under its interstate powers, and

not pursuant to s 5 of the Fourteenth J Amendment.

1995 (4) SA p218

FRIEDMAN JP

A In 1966 the Supreme Court in United States v Guest 383 US 745 (1966) (86 S Ct 1170, 16 L Ed 2d 239)

questioned the apparent absolute prohibition against congressional use of s 5 of the Fourteenth

Amendment to extend to private conduct. This case recognised an extensive power in Congress to

enforce this Amendment.

B Justice Stewart's opinion for the Court was founded on the basis that the indictments which alleged

infractions of federal civil rights laws contained an allegation of state involvement, or an allegation of

interference with interstate travel rights, a fundamental right in terms of the Constitution which is not

limited to state action.

Six Justices who concurred in Guest pointed out that Congress was C possessed of power in terms of s 5

to legislate in terms of the Fourteenth Amendment against private interference with the rights to use

state-owned facilities free from racial discrimination.

The import of this decision is that six members of the Court went on record as approving legislation by

Congress that impinged on private acts D of discrimination. The conclusion of the learned six Justices

was not, however, expressed as 'a holding'.

Justice Douglas, in his opinion in the Guest case, added:

'Viewed in its proper perspective, s 5 of the Fourteenth Amendment appears as a positive grant

of legislative power, authorizing Congress to exercise its discretion in fashioning remedies to achieve

civil and political E equality for all its citizens.'

In Barron and Dienes (op cit at 469) the learned authors stated:

'The scope of congressional power to protect civil rights through the Commerce Clause, the

Spending Power, and the Thirteenth Amendment, has F made it unnecessary to determine the full

scope of congressional power to reach private action under Fourteenth Amendment, s 5. See Griffin v

Breckenridge (1971), upholding application of a federal civil rights statute authorizing damages against

private individuals interfering with various constitutional rights on the basis of the Thirteenth

Amendment and the right of interstate movement. The Court specifically noted that the allegations of

the complaint did not require consideration of the scope of G congressional power under s 5 of the

Fourteenth Amendment.'

Clearly Guest's case, in view of the concurring opinions, gave Congress the power to punish private

action interfering with Fourteenth Amendment rights.

A question that was raised in the case of Marsh v State of Alabama 326 US H 501 (1946) was whether a

possibility existed that the First Amendment might create rights of access in relation to private property

against the owner's consent. In this case, the Court reviewed the case of a Jehovah's Witness for

handbilling on the streets of a business district of a company town. The Court stated:

I 'The more an owner, for his advantage, opens up his property for use by the public in general,

the more do his rights become circumscribed by the statutory and constitutional rights of those who use

it.'

According to American authorities, Marsh still survives, but in a limited form.

In Shelley v Kramer 334 US 1 (1948) the decision of the Court suggested J that any state enforcement of

private racial discrimination

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FRIEDMAN JP

A would constitute state action. Vinson CJ, in delivering the opinion of the Court, held that while the

private restrictive covenant would not do violence to the Fourteenth Amendment, the Court in

enforcing the agreement did violate the Constitution.

State action is therefore held to be present when reluctant parties are B forced by the government to

discriminate on racial grounds. If persons are not forced or coerced to discriminate, state action is not

present.

The case of New York Times v Sullivan 376 US 254 (1964) declared that, where an elected public official

institutes action for defamation against a citizen who criticises the government, a 'citizen critic' must

enjoy a C qualified immunity from damages in order to permit him to perform his right to criticise his

government in the same manner as the government official enjoys immunity so as to enable him to

perform his duties as an employee of government.

Justice Brennen in a famous passage stated:

D 'The First Amendment was said to reflect this nation's profound commitment to the principle

that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include

vehement, caustic, unpleasantly sharp attack on government and public officials.'

In Edmonson v Leesville Concrete Co 111 S Ct 2077 (1991) the Court, per Kennedy J, held that use by a

private litigant in a civil trial of a E peremptory challenge to exclude juries on the basis of race violated

'the excluded juries' equal protection rights'. The Court held that the litigant who used the said

challenge was a state actor for constitutional purposes.

Justice O'Connor, joined by Chief Justice Rehnquist and Justice Scalia, dissented. O'Connor J stated:

F 'A peremptory challenge by a private litigant (is) not a traditional government function. . . .

(In) order to constitute state action under this doctrine, private conduct must not only comprise

something that the government traditionally does, but something that only the government traditionally

does. Even if one could fairly characterize the use of a peremptory strike as the performance of the

traditional government G function of jury selection, it has never been exclusively the function of the

government to select juries; peremptory strikes are older than the Republic. . . .'

In Georgia v McCallum 112 S Ct 2348 (1992) the Court held that a defence attorney in a criminal trial

who utilises peremptory strikes on a racially H discriminatory basis is a government actor for

constitutional purposes.

From the aforegoing cases it would appear that:

(i) there are important instances of the horizontal application of the Bill of Rights in

the United States.

I (ii) The United States Supreme Court, in order to proscribe discriminatory practices in

private-law relations, has invoked the concept of state action, thereby justifying its conclusions and

quest to strike down discriminatory conduct. Notwithstanding the method employed, it is clear that the

Courts have applied a horizontal dimension of the Bill of Rights, notwithstanding its enshrined vertical

application and J the principle that Congress was authorised

1995 (4) SA p220

FRIEDMAN JP

A only 'to provide modes of redress against the operation of state laws,

and the actions of state officials, executive or judicial'.

In fact Bradley J in the Civil Rights Cases (supra) stated:

'It is state action of a particular character that is prohibited. Individual invasion

of human rights is not the subject-matter of B the Amendment.'

(iii) In several cases the Supreme Court questioned the seemingly absolute prohibition

against congressional use of s 5 of the Fourteenth Amendment to extend to private conduct. (See Guest

case supra.) See also Griffin v Breckenridge 403 US 88 (1971).

(iv) The latest view in American constitutional thinking is that the C provisions of the Bill of

Rights do not only impinge on 'state action'. In the Jones case supra the Thirteenth Amendment was, in

fact, applied in private-law relationships. See the views expressed by Professors Van der Vyver and Van

der Westhuizen quoted in the South African Law Commission's Interim Report on Group and Human

Rights at 491-3.

D (v) Courts have realised that there may well be a government's positive obligation

to control private power. In American constitutional jurisprudence the dominant tradition is to conjoin

and correlate limitations on government with individual freedom. In the Court's opinion in Marsh's case

supra there is E a suggestion that a necessary, essential prerequisite for freedom may, in certain

circumstances, cause the government to intercede and intrude to curb and place a limitation on private

power. There is also a view that laws affecting the 'hearts and minds' of blacks 'in a way unlikely ever to

be undone' are F not permissible in terms of the Constitution. It has been pointed out that, when the

government intervenes in private affairs to guard and preserve individual freedom, a concomitant result

is the restriction of such freedom. See the opinion of Chief Justice Burger in the case of CBS Inc v

Democratic National Committee 412 US 94 (1973).

G Clearly, in the Marsh case, the decision of the Court gave the

government the authority to protect the First Amendment rights of Marsh, but at the expense of the

property rights of the owner of the company town.

(vi) The exigencies of life and society and the forces at play H which, in their wake, have

resulted in private acts of discrimination, and which in certain cases have a historic tradition, have

caused the Courts to apply the Bill of Rights in a horizontal manner despite the 'traditional view held

that a bill of rights operates vertically only'. According to this view, a bill of rights operates and restricts

government legislative and executive acts relating to individuals. It I does not provide for, neither does

it create, rights between individuals.

(vii) A distillation of the aforegoing authorities in American law reveals that, once a bill of

rights is brought in and operates inside the bounds of positive law, it will also operate in some shape or

structure in relations as between persons. The fundamental issue that remains is how these rights

should be J applied. The vertical

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FRIEDMAN JP

A application presents no difficulty. Do they apply horizontally and, if so, what is the limit of the

horizontal application? I shall attempt to delineate this issue when I deal with the Constitution of South

Africa.

(ii) Germany

B The position in Germany has been summarised by Professors Van der Vyver and Van der Westhuizen

in the Interim Report on Group Human Rights (supra) at 490-1 as follows:

'The Bill of Rights in the Basic Law (Constitution) of the Federal Republic of Germany, as a

general rule, has been held to have mediate C (indirect), and not immediate (direct), Drittwirkung; that

is to say, the restraints emanating from the constitutional rights and freedoms of the individual apply to

the powers of governmental administration and legislation only and do not govern the rights and duties

of a person in private-law relations, but when interpreting all legislation, including Acts regulating

matters of private law, the courts are required to take cognizance of the provisions of the Bill of Rights

and as far as possible to give such legislation a meaning that coincides with the juridical values

embodied in the Constitution (Manfred Lepa, 1985, at 13-15; and see D also Karl Doehring, 1984, at

207-9; Konrad Hesse, 1985, para 351-7). In one instance, though, the German Bill of Rights does

immediately operate within the realm of private-law relations: Section 9(3) GG guarantees freedom of

association in the context of labour relations and expressly provides that any agreement purporting to

limit or exclude this freedom E would be null and void (see Manfred Lepa, 1985, at 176).'

(iii) Canada

The Constitution of Canada contains a Canadian Charter of Rights and Freedoms, being Schedule B to

the Constitution Act of 1982. Part 1 F thereof relates to the Canadian Charter of Rights and Freedoms.

The application of the Charter is dealt with in s 32(1), which provides as follows:

'32(1) This Charter applies (a) to the Parliament and Government of Canada in respect of all

matters within the authority of Parliament, including G all matters relating to the Yukon Territory and

Northwest Territories; and (b) to the legislature and government of each province in respect of all

matters within the authority of the legislature of each province.'

Clearly, therefore, the Charter of Fundamental Rights applies only to the organs of State, that is the

Legislature and Executive.

In the important case of Retail, Wholesale and Department Store Union H Local 580 v Dolphin Delivery

Ltd (1987) 33 DLR (4th) 174 the Canadian Supreme Court held that the said Charter does not overrule or

supersede the common law, save and except where the legislative and executive arms of government

are concerned. The Supreme Court found that the Charter did not apply as the case involved private

parties and there was no I governmental action.

This decision has been severely criticised, not only in Canada but in other countries as well, as being

contrary to the spirit of the Charter.

The issue in the Dolphin case supra was raised in its stark reality by David Beatty in an article entitled

'The Coercive Authority of Courts' in (1987) Toronto Law Journal at 186, and I quote:

J 'Grounded in the proceedings of the Joint Senate-Commons Committee on

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A the Constitution and the text of the Charter itself, the argument is that the Constitution

protects our fundamental rights and freedoms only against invasions by our governors and not from

abuse by our neighbours and fellow citizens. On this view, only when Canadians "act" through the

legislative and executive branches of our government, and not when we act either as ordinary citizens or

as Judges, do we have to respect the rights and B freedoms that our Constitution declares to the rest of

the world as being one of the most distinguishing characteristics of the "Canadian community".'

There was even more devastating criticism of this case in an article entitled 'Private Rights/Public

Wrongs; The Liberal Lie of the Charter' by Allan C Hutchinson and Andrew Peter in the (1988) 38

University of Toronto C Law Journal at 297, where the learned authors write as follows:

'The Charter forces us to cram the rich complexity of social life into an abstract and simplistic

framework. Distinctions like those developed in Dolphin provide formal paraphernalia behind which

private power thrives relatively unchecked and substantive issues are arbitrarily and unjustly D

resolved. Liberal rights-talk constrains our choices and makes us look at the world in the absolutist and

static terms of a black-and-white photograph. The Courts reinforce this monochromatic impoverishment

of democratic politics and its vivid possibilities. They contribute to the failure to see and participate in

the world as an iridescent and dynamic experience in which each person can play an active role in

constructing an E egalitarian society. By abandoning liberal individualism and engendering a more

open-ended form of social democracy, it might be possible not only to comprehend the world in its

many drab shades of existential grey, but, as Frances Olsen suggests, also to envision it in bright blues,

yellows, and reds.'

(iv) India

F The Constitution of India deals extensively with fundamental human rights in ss 15-30. It also

contains rights to constitutional remedies. An important aspect is the Directive Principles of State Policy

contained in ss 36-51. These are means of promoting as effectively as may be practicable the welfare of

the people

G 'by securing and protecting as effectively as it may a social order in which justice, social,

economic and political, shall inform all the institutions of the national life'.

These directives are not justiciable.

The relationship and interaction between fundamental rights and the said H directive principles

relating to the Supreme Court in India have been summarised by Bertus de Villiers in an article 'The

Socio-economic Consequences of Directive Principles of State Policy: Limitation on Fundamental Rights'

in (1992) 8 South African Journal on Human Rights at 198-9, and I quote:

I '(iv) The Supreme Court has gone through various phases in interpreting the relationship

between fundamental rights and directive principles. Initially there was a firm adherence to the

supremacy of fundamental rights. After several constitutional amendments, public debate and disputes

over Court decisions, the Supreme Court has adopted a more balanced and integrated approach in order

to interpret harmoniously the two chapters.

(v) The current attitude of the Supreme Court is that fundamental rights should be understood

within the framework of directive principles. J Legislation

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A which may limit fundamental rights is upheld if it is reasonable, in the public interest and

shows a clear nexus with the directive principles.

(vi) The Supreme Court has, by adopting a very active role, extended the scope of fundamental

rights and directive principles in order to improve the position of the average person on the street.

B (vii) No Court can force the government to implement the provisions of the directive

principles. Such implementation is a legislative and executive function which falls outside the scope of

the judiciary. However, the judiciary can encourage the government to take steps, lay down guidelines

and uphold legislation promulgated in the furtherance of the directive principles.

(viii) The justiciability of fundamental rights and non-justiciability C of directive principles

should not be equated with the first versus second-generation human rights debate. Various "second"

generation social, economic and cultural rights are included as enforceable rights in the chapter on

fundamental rights. The duties placed on the State by directive principles cannot be "individualized" by

including them as fundamental rights. However, that does not mean that they are of lesser value. It is

the duty of the legislative, executive and judicial branches to see that a balance is found between the

two constitutionally entrenched D sets of principles.'

The Indian experience reveals that the Supreme Court has, as a result of dynamic activity, applied

fundamental human rights in a horizontal manner E in confronting the economic and social problems of

that country.

(v) Namibia

The fundamental human rights and freedoms contained in the Namibian Constitution are protected by

Article 5, which provides:

F 'Article 5 Protection of Fundamental Rights and Freedoms

'The fundamental rights and freedoms enshrined in this chapter shall be respected and (upheld)

by the Executive, Legislative and Judiciary and all organs of the Government and its agencies and, where

applicable to them, by all natural and legal persons in Namibia, and shall be enforceable by the Courts in

the manner hereinafter prescribed.'

G (My emphasis of heading to art 5.) The operation of these fundamental rights and freedoms in this

Constitution is both vertical and horizontal.

(vi) Sri Lanka

The Supreme Court of Sri Lanka in the case of Gunaratne v Peoples Bank 1987 CLR 383 held that

constitutional guarantees of some fundamental H rights not only provide protection against State

action but can also be maintained to control the acts of other bodies.

The following appears at 396, and I quote:

'If we are to go by analogy with the Indian provisions on which Dr Cooray relied, we find that his

statement that art 19 is directed against the I State is correct. To compensate for any such limitations,

the Courts have been progressively extending the concept of State and today it has come to include

almost any institution performing public functions.

Indian Courts have held that art 19 "provides protection for the freedoms and rights" mentioned

therein against arbitrary invasion by the State - Shamdasani v Central Bank of India AIR 1952 SC 59.

Article 12 in chap III containing fundamental rights defines the expression "the State" as J follows:

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A ". . . (I)ncludes the Government, the Parliament of India and the Governments and

Legislature of each of the States and all local or other authorities within the territory of India or under

the control of the Government of India."

The words "other authorities" have given rise to a great deal of case law. Beginning with a

somewhat restricted interpretation, the Courts have now discarded the eiusdem generis rule in this

context and given the B expression a much wider and extensive connotation. In Electricity Board,

Rajasthan v Mohan Lal AIR 1967 SC 1857, the Supreme Court held that the Rajasthan Electricity Board

would fall within the definition of "the State". The majority took the view that it was not necessary that

the statutory authority should be engaged in performing government or sovereign functions and that

other "authorities" covered bodies created for the purpose of promoting the economic interests of the

people.

C In Sukhdos Singh v Bhagat Ram (1977) 1 SCC 421, Mathew J was of the view that the public

corporation is a new type of institution which has grown up from the new social and economic functions

of Government. He pointed out that institutions engaged in matters of high public interest or

performing public functions should be regarded, by virtue of the nature of the functions performed, as

Government agencies and that activities which are too fundamental to society are by definition too

important not to be

(vii) South Africa

The Constitution of the Republic of South Africa Act 200 of 1993, F herinafter referred to as the

Constitution, contains the fundamental rights in chap 3 thereof.

In order to ascertain whether the fundamental rights (in ss 7-35) are to be applied vertically or

horizontally or in both instances, it is necessary to determine the intention of the framers of the

Constitution.

G The Constitution seeks to restructure the legal, social, and economic order of this society and

country.

(i) The preamble reverberates with the avowed proclamation of

'a need to create a new order in which all South Africans will be entitled

to a common South African citizenship in a H sovereign and democratic constitutional State in which

there is equality between men and women and people of all races so that all citizens shall be able to

enjoy and exercise their fundamental rights and freedoms'.

Sachs J is correct in his views on the significance of a Preamble as

expounded by him in the unreported case of Mhlungu and Four Others v The State heard in the

Constitutional Court I of South Africa under case No CCT/25/94, * where the learned Justice states:

'The Preamble in particular should not be dismissed as a mere

aspirational and throat-clearing exercise of little interpretive value. It

1995 (4) SA p225

FRIEDMAN JP

A connects up, reinforces and underlies all of the text that follows. It helps

to establish the basic design of the Constitution and indicate its fundamental purposes.'

(Paragraph [112] at pp 88-9.) *

In passing the Constitution Act, Parliament set itself the task B of

redressing the inequities and discrimination of the past, and has initiated the quest for an egalitarian

society in this country, as evidenced by the preamble.

(ii) The Constitution binds the legislative, executive and judicial arms of the State at all

levels of government.

C (iii) The fundamental rights are catalogued in chap 3 (ss 7-35), and are expressed in clear,

unambiguous language.

(iv) The Constitution is the supreme law of the land, and inconsistencies with this law shall

be of no force and effect 'to the extent of the inconsistency' (s 4).

D (v) Schedule 4 to the Constitution contains the Constitutional Principles, which are

binding on the Constitutional Assembly in the writing of the final or new Constitution for South Africa.

The task of certifying that the new Constitution accords with the Constitutional Principles contained in

Schedule 4 is entrusted to the Constitutional Court, and they are the only provisions of the Constitution

that are entrenched. They are so to say 'cast in stone', and cannot be amended (s 74(1)). E See also

Dion Basson South Africa's Interim Constitution: Text and Notes at 344.

A mere cursory glance at these Constitutional Principles makes it clear that the object thereof is to

safeguard and entrench the enshrined values of equality and freedom, and to protect the fundamental

rights in terms of F a justiciable bill of rights. The ideal envisaged is that of a Rechtsstaat (the emphasis

is mine).

An understanding of these entrenched Constitutional Principles is fundamental to a determination

relating to the application of the fundamental rights. The Constitutional Principles contain, inter alia, G

the following:

'I The Constitution of South Africa shall provide for the establishment of one sovereign

State, a common South African citizenship and a democratic system of government committed to

achieving equality between men and women and people of all races.

II Everyone shall enjoy all universally accepted fundamental rights, H freedoms and civil

liberties, which shall be provided for and protected by entrenched and justiciable provisions in the

Constitution, which shall be drafted after having given due consideration to inter alia the fundamental

rights contained in chap 3 of this Constitution.

III The Constitution shall prohibit racial, gender and all other forms of discrimination and

shall promote racial and gender equality and I national unity.

IV The Constitution shall be the supreme law of the land. It shall be binding on all organs of

State at all levels of government.

V The legal system shall ensure the equality of all before the law and an equitable legal process.

Equality before the law includes laws, programmes

1995 (4) SA p226

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A or activities that have as their object the amelioration of the conditions of the

disadvantaged, including those disadvantaged on the grounds of race, colour or gender.'

These principles accord with the objective of the Constitution as B adumbrated in the preamble and

the fundamental rights contained therein.

The Constitution, at root, seeks to found a democratic society in this country with an affirmation of faith

in religious and liberal principles. Each person is viewed as an end in himself/herself, and not as a means

to an end. The Constitution makes provision for persons to participate in C the South African society

and body politic as an 'iridescent and dynamic' experience, in which each person is permitted to play an

active role in constructing an egalitarian society.

The application of fundamental rights is contained in s 7 (1) of chap 3, which reads as follows:

'This chapter shall bind all legislative and executive organs of State at D all levels of

government.'

It is significant that the judicial arm of the State is omitted.

The bill of fundamental rights was drafted by a technical committee consisting of Professor L M du

Plessis as chairperson, Professor H M Corder, Mr G Grover, Mrs D S Nene and Advocate Z Yacoob. For

the E background and negotiations relating to the adoption of the said Bill of Rights, see the South

African Law Commission Final Report on Group and Human Rights at 9-10.

It is interesting to consider the 'Background to and Exposition of the Application and Enforcement

Clauses in the Chapter on Fundamental Human F Rights in the Transitional Constitution of 1993' as

appears from a paper read by Professor L M du Plessis, chairman of the said technical committee, at a

Conference on the Implications of the Constitution and Chapter on Fundamental Human Rights for

Business during the Period of Transition, and I quote:

'The verticality of chap 3

G 'It was a matter of contention among parties participating in the multi-party negotiating

process whether the provisions of chap 3 should be enforceable against the state and its organs only or

whether they should bind both the state and private social institutions and persons. In the end it was

agreed that the chapter should operate vertically only but that provision be made for a seepage to

horizontal relationships. As a result H a subsection was included in the interpretation clause requiring a

court of law applying and developing the existing law to have due regard to the spirit, purport and

objects of chap 3 (s 35(3)). To allay fears that the predominantly vertical operation of chap 3 may be

construed as authorising "privatised apartheid", a provision was also included in the limitation clause (s

33) permitting measures designed to prohibit unfair I discrimination by (private) bodies and persons

not explicitly bound by the chapter (s 33(4)). I shall elaborate on these provisions in the next

presentation.

The scope of chap 3

Section 7(2) provides that chap 3 shall apply to all law in force and all administrative acts

performed during the period of its operation. "All law in force" does not only refer to legislation but also

to the common law and customary law. "Administrative acts performed" includes, apart from J

legislative

1995 (4) SA p227

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A administrative acts, administrative decisions as well as acts performed to implement and

execute decisions. From this follows that administrative decisions taken before the commencement of

the Constitution cannot be challenged in terms of chap 3 while administrative acts performed to

implement or execute such decisions can.

B Juristic persons

Section 7(3) provides that all juristic persons are entitled to the rights entrenched in chap 3

where, and to the extent that, the nature of the rights permit. The fear existed among some of the

negotiators at Kempton Park that corporations may abuse this provision to try and constitutionalise (and

thereby over-complicate) issues which should rather be adjudicated on another basis. Does a juristic

person, for instance, C have a "dignity" or a "privacy" of its own? And should it be possible for

companies, whose activities are restricted by (say) environmental legislation, to claim that they are

being discriminated against? In view of these concerns it was thought that a wording which requires an

analysis of the nature of the right in question is more restrictive than one requiring an analysis of the

nature of the juristic person itself. An entity can, in other words, more readily be "humanised" or

"personalised" D than a right.

Without a provision such as s 7(3), chap 3 would at any rate have been out of step with other

bills of rights of recent origin.

The interpretation clause

Chapter 3 contains at least one section (s 35) which deals with its E interpretation in explicit

terms. According to s 35(1) a court interpreting the provisions of the chapter is firstly required to ("a . . .

court . . . shall") promote the values which underlie an open and democratic society based on freedom

and equality. This formula opens the door to the evolution of a teleological approach to the

interpretation of chap 3 which, amongst others, allows for the interpretive adaptation of the human

rights norms enshrined in it to constantly changing F circumstances. This can be done without

necessarily compromising the element of constancy inherent in the chapter and embodied in durable

values fundamental to any (hypothetically) open and democratic society based on freedom and equality.

The mandatory nature of this intrinsically teleological interpretation formula is bolstered up by two

further provisions forming part of s 35(1), namely that, where applicable, a court shall have regard to

applicable norms of international law (note the mandatory language) and that it may have regard to

comparable foreign case G law (the court, in other words, has a discretion).

Section 35(2) provides, in a more "technical" vein, that no law tested against the provisions of

chap 3 shall be invalid solely by reason of the fact that the wording used prima facie exceeds the

permissible limits imposed in the chapter, provided that it (in other words the law tested) is reasonably

capable of a more restricted interpretation which does not exceed such limits, in which event it shall be

understood to have the more H restricted meaning. Apart from constitutionalising a widely accepted

interpretive procedure, this provision also curbs the judicially over-active striking down of legislation

and thus enhances legal certainty during the transition.

The interpretation clause is tailored to the exigencies of the period of I transition, and it

endeavours to guide a judiciary unaccustomed to the peculiarities of bill of rights interpretation in

adapting itself to the new situation. Depending on how long the transition is going to last, similar

provisions may not be out of place even in a final constitution.'

See also Du Plessis and Corder Understanding South Africa's Transitional Bill of Rights at 110-14.

G The fundamental rights as stated herein are binding on all legislative

1995 (4) SA p228

FRIEDMAN JP

A and executive organs of State at all levels of government. This is clearly the vertical dimension. A

view has been expressed by the Law Commission in its Final Report supra at 10 that 'limited application

of the bill of fundamental rights to bodies other than those of the State is possible as a result of s 35(3)'.

Section 35 reads as follows:

B '(1) In interpreting the provisions of this chapter a court of law shall promote the values

which underlie an open and democratic society based on freedom and equality and shall, where

applicable, have regard to public international law applicable to the protection of the rights entrenched

in this chapter, and may have regard to comparable foreign case law.

C (2) No law which limits any of the rights entrenched in this chapter, shall be constitutionally

invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this

chapter, provided such a law is reasonably capable of a more restricted interpretation which does not

exceed such limits, in which event such law shall be construed as having a meaning in accordance with

the said more restricted interpretation.

D (3) In the interpretation of any law and the application and development of the common law

and customary law, a court shall have due regard to the spirit, purport and objects of this chapter.'

According to their view, s 35 was added in order to

'facilitate the incorporation of values embodied in the Bill of fundamental rights throughout the

legal system as it allows for judicially controlled "Drittwirkung" '.

E According to the views expressed by Cachalia, Cheadle, Davis, Haysom, Maduna and Marcus in

Fundamental Rights in the New Constitution at 20, the reason why the horizontal effect of rights is

provided for was:

'For those lawyers who supported a more extensive scope for the interim Constitution, limiting

the scope of the Constitution to State action only F did not take into account the realities of the

modern distribution of power where in many instances it was not the State but the exercise of private

power that posed the greatest threat to the exercise of fundamental rights. Moreover in South Africa,

where economic power remained in the hands of whites, an equality provision in the Constitution

applicable only to the State would not address the process of privatizing apartheid. Accordingly they

called for the chapter of rights to have G 'horizontal effect' or what the Germans call "Drittwirkung", ie

an application of the fundamental rights as between citizens. This would mean that an ordinary citizen

who faced discrimination at the hands of another, such as a hotelier, restaurateur or employer, could,

relying on the fundamental right to equality in the Constitution, enforce the right as against such a

person. The compromise was to shift the emphasis from who bears the correlative duties to the rights

contained in the chapter, H ie: the employer, hotelier, etc to legal relations between private parties.

The law accordingly becomes the focus. In this way private law becomes subject to the strictures of chap

3. (For a further discussion on the debate in South Africa see South African Law Commission Interim

Report on Group and Human Rights August 1991 at 489-94 and the references cited therein.)'

Professor Dion Basson is of the view that 'the provisions on fundamental I rights operate "horizontally"

' in addition to 'vertically'. See South Africa's Interim Constitution Text and Notes (op cit at 15).

Section 7(4)(a) of the Constitution is as follows:

'(a) When an infringement of or threat to any right entrenched in this chapter is alleged, any

person referred to in para (b) shall be entitled to apply to a competent court of law for appropriate

relief, which may J include a declaration of rights.'

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FRIEDMAN JP

A The 'infringement' or 'threat' to any right is stated generally. It does not include the words 'the State'

in para (b) of s 7(4), which enumerates the persons who may seek the relief referred to in (a) above as

being:

'(i) a person acting in his or her own interest;

(ii) an association acting in the interest of its members;

B (iii) a person acting on behalf of another person who is not in a position to seek such relief

in his or her own name;

(iv) a person acting as a member of or in the interest of a group or class of persons; or

(v) a person acting in the public interest.

As I interpret s 7(4)(a) and (b), any infringement of a fundamental right C is justiciable. Nowhere is it

restricted to actions by the State. In fact the State is conveniently left out of this section. I agree with

Professor Basson that this section is a further indication that the provisions of the fundamental rights

operate horizontally as well as vertically.

Section 35(1) obliges a court of law to promote ('shall promote') in D peremptory language the values

'which underlie an open and democratic society based on freedom and equality'. Furthermore, s 35(3)

refers to 'any law' and the 'application and development of the common law and customary law'. A

court, again in peremptory terms, 'shall have due regard' to the objective and spirit of the Constitution

as already dealt with.

E Section 35 read with s 7 lead me to the conclusion that the provisions on fundamental rights must

also operate between third parties, that is not only between the State and a person, otherwise terms

such as 'any law' and 'common law and customary law' are mere pleonasms without any meaning, if

only a vertical application is relied on.

F Section 8 is an important section in enumerating human rights, inter alia, and reads as follows:

'(1) Every person shall have the right to equality before the law and to equal protection of the

law.

(2) No person shall be unfairly discriminated against, directly or indirectly, and, without

derogating from the generality of this provision, on one or more of the following grounds in particular:

race, gender, sex, G ethnic or social origin, colour, sexual orientation, age, disability, religion,

conscience, belief, culture or language.

(3)(a) This section shall not preclude measures designed to achieve the adequate protection and

advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in

order to enable their H full and equal enjoyment of all rights and freedoms.

(b) Every person or community dispossessed of rights in land before the commencement of this

Constitution under any law which would have been inconsistent with ss (2) had that subsection been in

operation at the time of the dispossession, shall be entitled to claim restitution of such rights subject to

and in accordance with ss 121, 122 and 123.

I (4) Prima facie proof of discrimination on any of the grounds specified in ss (2) shall be

presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the

contrary is established.'

This section, being part of chap 3, must be applied by the Courts in terms of s 35. Subsection (4) of s 8

clearly contains a reverse onus.

It is, in my view, a further and strong indication that not only a vertical application of the fundamental

rights, but a horizontal J application is also

1995 (4) SA p230

FRIEDMAN JP

A envisaged and intended because of the language contained therein, and the duty of the Court to

apply the provisions thereof, as provided for in s 35.

If it was intended that the fundamental rights were to be applied only vertically, the section would have

had some reference to the State or B government or executive. Sections 7, 8 and 35 indicate more than

a mere 'seepage' to horizontal relationships.

A further useful aid in the interpretation of the fundamental rights is contained in s 232(4), which reads

as follows:

'In interpreting this Constitution a provision in any Schedule, including C the provision under

the heading "National Unity and Reconciliation", to this Constitution shall not by reason only of the fact

that it is contained in a Schedule, have a lesser status than any other provision of this Constitution which

is not contained in a Schedule, and such provision shall for all purposes be deemed to form part of the

substance of this Constitution.'

In terms of this section the Schedules to the Constitution are given an D elevated status. In interpreting

the Constitution, attention must, therefore, be paid to the Schedules.

The values contained in the Constitutional Principles (Schedule 4), which are, as stated herein, 'cast in

stone', as well as those requiring national unity and reconciliation, point to an interpretation wider than

a E vertical one. The objectives of the Constitution in remodelling South African society and the body

politic along the lines of a Rechtsstaat properly construed, embraces a wider application than the

vertical dimension only. It is not only a question of the relationship between the State and the

individual, but also between corporations, clubs, local authorities, educational institutions, etc and the

individual. The F horizontal application of the fundamental rights needs to be applied to deal with

inequalities and racial discrimination in society, and to advance, cause and develop a democratic society.

Professor L M du Plessis in an article entitled 'The Genesis of the Provisions Concerned with the

Application and Interpretation of the G Chapter on Fundamental Rights in South Africa's Transitional

Constitution' in (1994) 4 Tydskrif vir die Suid-Afrikaanse Reg at 709-10 correctly, in my view, draws

attention to the extended meaning of 'organs of State' as follows:

'3.1 The verticality of chap 3.

Section 7(1) provides that chap 3 "shall bind all legislative and H executive organs of

State at all levels of government". The expression "organ of State" includes any statutory body or

functionary. Whether a body or functionary is an organ of State will depend largely on the extent to

which it is integrated into the structures of authority in the State rather than on the nature of the

statutory source to which it owes its existence. An organ of State can itself be established by a specific

statute or else by virtue of a statute providing for the establishment of I bodies or functionaries of that

kind. The constitutional status of the following statutory bodies, the existence of which is in some or

other way related to a statute, can briefly be considered by way of example:

3.1.1 Bodies established by statute as organs of government. Two recent examples

are the National Council on Indemnity established by s 5 of the Further Indemnity Act to advise the State

President on granting amnesty to officials for offences J committed "with a political object", and the

1995 (4) SA p231

FRIEDMAN JP

A Magistrates' Commission established by s 2 of the Magistrates' Act * to regulate issues

related to the appointment, conditions of service and the vacation of office by magistrates and other

judicial officers.

3.1.2 Bodies or institutions established by statute but managed and B maintained

mainly through private initiative. Examples are universities and the controlling bodies of professions,

such as law societies or the South African Medical and Dental Council. As a rule these bodies will qualify

to be executive organs of State for purposes of s 7(1), because they fulfil public functions, depend on

infrastructural support by the State and therefore function in close co-operation with structures of State

authority, as is mostly evidenced by provision for State representation in their management structures.

C 3.1.3 Private bodies or institutions not established by (or by virtue of) any statute but

fulfilling certain of their key functions under the supervision of organs of the State. The Aged Persons

Act, for example, provides for the registration of (and State aid to) private homes for the aged and

furthermore subjects these homes to inspection by social welfare officers. Bodies or institutions in this

category are probably also executive D organs of State for purposes of s 7(1), at least to the extent that

they function under supervision of the State.

3.1.4 Private companies incorporated under the Companies Act. Although it could be

argued that such companies are established by virtue of an Act of Parliament, they can hardly be

"statutory bodies" as contemplated in the Constitution because in their day-to-day functioning they are

not integrated into E the State's structures of authority.

Section 7(1), as an opening statement to chap 3, clearly indicates that the chapter is

predominantly vertical in its operation. Its provisions definitely bind organs or functionaries of the State

but cannot be invoked to compel other (private) bodies or persons to conduct conducive to the aims

and objects enshrined in it. The matter is, however, more intricate F than may appear at first glance.'

In dealing with the horizontal application of the Bill of Rights in the said article the author makes the

following comments at 712, and I quote:

'In recent years the tendency worldwide has been to recognise the need for the horizontal

application of bills of rights but not unqualifiedly so. Essentially bills of rights have always been

perceived as instruments G constraining the abuse of power. This perception translates into the

traditional notion that a bill of rights is an instrument protecting the individual against abuse of State

power. But power relationships in modern-day societies are more complicated than this. Private

individuals and private business enterprises are, for example, very often not de facto equals. For this

reason bills of rights have been invoked in recent years, with varying degrees of intensity, to curb the

exertion of superior H social power outside the traditional domain of "State authority".'

At 702 the author provides a salutory caution in dealing with the operational provisions in chap 3 by

stating:

'The operational provisions in chap 3 itself as well as other provisions I in the Constitution

pertaining to the actualisation of the fundamental rights entrenched in chap 3, make South Africa's first

bill of rights a potentially user-friendly instrument at the disposal of those protected under it. The

success of chap 3 during the transition and in the long run will not only depend on how the judiciary or

the legal profession deal with it, but also on how assertively and

1995 (4) SA p232

FRIEDMAN JP

A judiciously those whose rights are entrenched are going to invoke this user-friendly

instrument. Assertiveness is necessary to avoid a situation where chap 3 runs the risk of being

abrogated by disuse. At the same time, however, judiciousness is called for to help prevent its

subversion through over-use.'

The view of Professor Du Plessis in dealing with the application of the B fundamental rights is that it is

predominantly vertical, and that there is a limited horizontal seepage as a result of the operation of ss

35(3) and 33(4) (the prohibition of unfair discrimination by persons and bodies on the horizontal level; ie

private bodies and individuals). See also the South African Law Commission's Final Report on Group and

Human Rights (supra at 121).

C Clearly s 33(4) is inherently potent in the language used to effect a horizontal application of certain

aspects of s 8 (the equality clauses) as it empowers the Legislature and the administration to enact

measures to counter unfair discrimination on any of the grounds mentioned in s 8(2).

I respectfully disagree with Professor Du Plessis that there is a limited D horizontal 'seepage' of the

application of fundamental rights. To me the word 'seepage' in all its connotations in this context

detracts from the principles enshrined in the Constitution and I will attempt to show why later herein.

D. Recent decisions on the fundamental rights contained in chap 3 of the E Constitution

In Mandela v Falati 1995 (1) SA 251 (W) (1994 (4) BCLR 1) Van Schalkwyk J held that the right of freedom

of expression in chap 3 (fundamental rights) is of horizontal application. In this regard the learned Judge

stated as follows at 257I-J:

F 'The rights especially protected under subpara (bb) include the right of freedom of expression

(s 15) ". . . insofar as such right relates to free and fair political activity". Political activity occurs not only

between the State and its organs and the citizenry, ie vertically, but also, and more especially, between

citizen and citizen, which is the level at which all political contests are fought. The drafters of the

Constitution must therefore have envisaged that the rights necessary to conduct such G activity could

be enforced as between individuals.

Section 35(3) requires that in the interpretation of any law the Court "shall have due regard to

the spirit, purport and objects" of the chapter on fundamental rights. The spirit, purport and objects of

the chapter are to extend the fundamental rights, many of which are already recognised by the common

law, beyond those circumstances for which the common law makes H provision. The broader and more

liberal interpretation of the Constitution urged upon me by Mr Unterhalter would accord with this

injunction. The more restrictive interpretation contended for by Mr Kuny would not.'

In dealing with this aspect in the case of De Klerk and Another v Du Plessis and Others 1995 (2) SA 40 (T)

(1994 (6) BCLR 124) Van Dijkhorst J concluded that the fundamental rights contained in chap 3 of the I

Constitution were intended to be of vertical application only. In dealing with the approach of Van

Schalkwyk J as outlined above, Van Dijkhorst J commented at 49F-I:

'I respectfully differ. The conclusion is a non sequitur. This reasoning one can apply to virtually

all fundamental rights and freedoms in all bills of rights. Murders are rife and civil suits by dependants in

motor J collision cases abound,

1995 (4) SA p233

FRIEDMAN JP

A yet no one has yet argued that s 9 of the Constitution (the right to life) should be invoked

against the culprit. There are adequate remedies in criminal and civil law. And not in vague terms, but

developed in detail over many centuries. So too in the case of impairment of the fama or dignity.

I cannot imagine that the drafters of the Constitution intended the whole B body of our private

law to become unsettled. Are we to see the invasion of private property justified by the trespasser on

the strength of the right to freedom of movement (s 18) or the right to freely choose a place of

residence anywhere in the national territory (s 19)? Surely this was not intended. There was no need for

constitutional invasion of the private law. Parliament is empowered to alter the existing law wherever

the shoe pinches.'

C In Gardener v Whitaker 1995 (2) SA 672 (E) (1994 (5) BCLR 19) Froneman J came to the conclusion, in

considering the question of the 'vertical' and 'horizontal' application, that there is no single and uniform

answer to the question. He stated (at 684H-685F (SA) and 31B-G (BCLR)):

D 'There is no uniform and single answer to the question whether an alleged breach of a

fundamental right contained in chap 3 of the Constitution can found an action between private

individuals and entities, or whether it only applies between individuals and State organs. It all depends

on the nature and extent of the particular right, the values that underlie it, and the context in which the

alleged breach of the right occurs. Each right needs to be interpreted and applied

E ". . . by having regard to the disciplines as well as the liberating forces released by the

Constitution. There must be recognition that the right . . . is not an absolute right; that the purpose of

the Constitution in conferring it must be established so that proper boundaries can be put in place, not

merely in dealing with limitations under s 33(1) but, where necessary, with the content of the right

itself; that all indications from the wording of the section, whether F they tend towards extending or

qualifying the right, must be given proper weight, and that it is essential to have regard to the

underlying spirit of the Constitution and the mischief it is designed to exclude, which must be

ascertained from a reading of the Constitution as a whole.'

(Per Jones J in Phato and Others v Attorney-General, Eastern Cape, and Others (supra at 25).)

G The basic concern of the Constitution, viz to transform the South African legal system into

one concerned with openness, accountability, democratic principles, human rights and reconciliation

and reconstruction (Qozeleni's case supra at 634B-F; Phato's case supra at 16-25), would in particular

instances call for explicit application of the provisions of chap 3 of the Constitution between individuals

themselves. After all, the "past of a deeply divided society characterised by strife, conflict, untold

suffering H and injustice" (words used in the "unity and reconciliation" section of the Constitution) is

not merely a history of repressive State action against individuals, but it is also a history of structural

inequality and injustice on racial and other grounds, gradually filtering through to virtually all spheres of

society since the arrival of European colonists some three and a half centuries ago, and it will probably

take generations to correct the imbalance. But the development of the law by the Courts is I by its very

nature dependent on litigation and therefore likely to be incremental and perhaps slow, hence the

provision for State intervention also, by virtue of s 33(4), to prohibit unfair discrimination by private

persons and bodies.'

In Motala and Another v University of Natal 1995 (3) BCLR 374 (D) Hurt J J rejected the view expressed

by Van Dijkhorst J in De Klerk's case

1995 (4) SA p234

FRIEDMAN JP

A supra, that were the entrenched rights to be applied inter personae, it would have a chaotic effect

on the common law. Hurt J concluded on this aspect at 382F-H in the following terms:

'It must, in my respectful view, be the task of the Courts, armed with the powers conferred on

them by ss 7, 33 and 35 (and not the task of B Parliament) to define the limits of the entrenched rights

where they appear to encroach upon each other and at the same time to blend them into the common

law, modifying the latter wherever necessary so as to achieve a harmonious amalgam.

It goes without saying that many of the entrenched rights are, by their very nature, exclusively

"vertical" in their operation. But many of them are, in my view, not. For the purpose of furnishing these

reasons I need C only say that I consider that the rights entrenched in ss 8(1), 8(2) and 32, which are

the only entrenched rights in issue before me, are enforceable not only against the State or its organs as

defined, but also against individuals, natural or juristic who may be disposed to threaten them or

interfere with the exercise of them.'

I respectfully agree with the conclusions arrived at by Van Schalkwyk J, Froneman J and Hurt J, namely

that there exists a horizontal application D in regard to the fundamental rights contained in the

Constitution.

In my view Van Dijkhorst J erred in his conclusion by not interpreting s 35(3) correctly, by stating that s

35(3) does not widen the scope of the rights to include their direct horizontal application. The learned

Judge only mentions s 35(1) in passing without considering its import and E analysing it. In fact, the

difficulties raised by the learned Judge are more attractive than the conclusion at which he arrives.

The words 'a court of law shall promote the values which underlie an open and democratic society

based on freedom and equality' in no uncertain terms also mean an application horizontally of the

fundamental freedoms. F There would otherwise be no point in the words referred to, if they were

confined only to the State and the individual and did not also operate on a horizontal plane.

The learned Judge erred in opining (1995 (2) SA at 51A) that s 35(3) is

'therefore an aid to interpretation and development of law and custom not G found in chap 3.

It is not intended for the interpretation of chap 3 itself. That is dealt with in s 35(1).'

Section 35 must be considered in its totality. The distinction drawn by the learned Judge is artificial,

more particularly if one has regard to the words 'in the interpretation of any law' and 'a court of law

shall have due regard to the spirit, purport and objects of this chapter', H contained in s 35(3). The

conclusion by the learned Judge that the fundamental rights operate only vertically is due mainly to an

incorrect interpretation of s 35 of the Constitution.

From the aforegoing provisions of the Constitution and the authorities referred to herein, I have come

to the conclusion that the fundamental rights contained in chap 3 of the Constitution are within certain

limits I (which I will attempt to detail herein) to be applied horizontally as well as vertically for the

following reasons:

The Constitution, in its provisions relating to fundamental rights, as well as Schedule 4, which contains

the Constitutional Principles, which are binding, s 74(1) thereof, and ss 35 and 232(4) clearly legislate for

a J new chapter in the history of South Africa with a society and body politic

1995 (4) SA p235

FRIEDMAN JP

A 'founded on the recognition of human rights, democracy and peaceful co-existence and

development opportunities for all South Africans, irrespective of colour, race, class, belief or sex'.

The Constitution contains a most vivid and elaborate illustration of a B vision of fundamental rights,

expanded almost to the limits for the manifold application of human rights to life in this country by the

government and the Courts, in order that principles of justice operate in the formation of an egalitarian

society. As the great philosopher Kant said: 'If justice is subverted, man's existence on earth is of no

value.'

The provisions of National Unity and Reconciliation are, and I quote:

'National Unity and Reconciliation

C This Constitution provides a historic bridge between the past of a deeply divided society

characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition

of human rights, democracy and peaceful co-existence and development opportunities for all South

Africans, irrespective of colour, race, class, belief or sex.

The pursuit of national unity, the well-being of all South African D citizens and peace require

reconciliation between the people of South Africa and the reconstruction of society.

The adoption of this Constitution lays the secure foundation for the people of South Africa to

transcend the divisions and strife of the past, which generated gross violations of human rights, the

transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and

revenge.

E These can now be addressed on the basis that there is a need for understanding but not for

vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.'

There is a desire by the Legislature to establish a new society in this F country on the foundation of new

and noble aspirations. There is a quest for a new development through the application of just laws, and

a new mode of life in this country. There is an expression of faith, and of affirming moral values,

emphatically in a new and just society, and the invariable and necessary characteristics for this purpose

are protected in the legislation to safeguard the values contained in the Constitution.

It is clear that the administration of justice and the law in action touch G human life and society in

many aspects and situations.

The objective of the Constitution is, to borrow the words of Roscoe Pound in his comment on the

dissent by Justice Holmes in the case of Lochner v New York 198 US 45 (1905) at 74,

'the best exposition we have of the movement for the adjustment of H principles and doctrines

to the human conditions they are to govern rather than to assumed first principles, the movement for

putting the human factor in the central place and relegating logic to its true position as an instrument'.

If the fundamental rights are to be of vertical application only, between the State and the individual,

then the refreshing breeze of humanism I calculated to blow through the Constitution would be

relegated to the cellar in the hierarchy of values contained therein.

The individual, apart from his relations and encounters with the State, would be moored between the

sacred (the vertical application) and the profane (the horizontal application). This cannot have been the

intention of the framers of the Constitution.

J (1) It is essential that the words 'organs of State' in s 7(1), as

1995 (4) SA p236

FRIEDMAN JP

A Professor Du Plessis has pointed out, be given an extended meaning. They must include

(i) statutory bodies; (ii) parastatals; (iii) bodies or institutions established by statute but managed and

maintained privately, such as universities, law societies, the South B African Medical and Dental

Council, etc; (iv) all bodies supported by the State and operating in close co-operation with structures of

State authority; and (v) certain private bodies or institutions fulfilling certain key functions under the

supervision of organs of the State.

All the aforegoing can conveniently be grouped under the extended C meaning of

'organs of State'.

If the application of the said rights is founded on verticality only, then clearly large

corporations, multinational conglomerates, often with more wealth, power and influence than 'organs

of State', who may practise discrimination, would be immune from the application of chap D 3. What

about large private hospitals, schools and private universities who might practise elements of

discrimination - are they also immune? Clearly not. It could never have been the intention to combat

discrimination on the level of the State only, and allow it to continue and proliferate on other levels.

E (2) If the fundamental rights are restricted to a purely vertical application, negative results

must flow between the government and the individual or between the individual and corporations or

private institutions, such as referred to herein, which will cause further social ills or problems.

F (3) The provisions of s 33(4) distinctly encroach on the domain of private law, certainly in

regard to unfair discrimination, ie the horizontal dimension. See SA Law Commission Final Report on

Group and Human Rights (supra at p 124) and the examples there quoted. For example, a restaurant

owner would be entitled to refuse admission to a person improperly dressed, but a school, whether G

public or private, would not be entitled to refuse a pupil admission on the grounds of the pupil's race or

colour. This would amount to unfair discrimination.

(4) As has been illustrated in the United States, in order to combat race discrimination the

horizontal dimension of fundamental rights is applied.

H In his article, 'Racial Discrimination: The Role of the Civil Law' in Current Legal Problems

vol 41 at 244, Sir Nicolas Browne-Wilkinson says the following:

'The first question is whether the enforcement of civil rights can provide an effective

remedy to racial discrimination. I think the I answer is affirmatively 'yes', as the experience in the

United States has demonstrated. In the course of the years, decisions given in class actions under Title 7

have been at the very forefront of the civil rights movement. Only as a result of such civil actions has

desegregation occurred, equal educational opportunities been obtained and a substantial shift towards

equality of economic opportunity been achieved. This success has been due to vigorous, well-informed

and J serious black

1995 (4) SA p237

FRIEDMAN JP

A civil rights lawyers working in conjunction with equally vigorous, well-informed serious

white lawyers, who have the additional advantage of wealth and status. Generously funded public

organisations also aided such litigation. Cases came before Federal Courts presided over by Judges of

great moral (and sometimes physical) courage who construed the legislation in a purposive manner with

a view to achieving the object of the Civil Rights Act. Those B Courts had the ability to handle the large

class actions, giving rise to awards of damages sufficiently large to make even the biggest corporation

pause to reflect whether it might not be cheaper, in the long run, to abandon racially discriminatory

practices.

To these damages, the American Courts could and did add mandatory C orders,

regulating the future ethnic balance. To the American ethnic minorities the Courts have given redress

for unlawful discrimination on the same basis as redress for any other legal wrong. The Courts are

perceived by the ethnic minorities to be their protectors.'

Contrast this with what Martin Luther King Jr said before leading protest marches through Birmingham,

Alabama:

D 'We are now confronted with recalcitrant forces in the Deep South that will use the

Courts to perpetuate the unjust and illegal system of racial separation. . . . This is raw tyranny under the

guise of maintaining law and order. We cannot in all good conscience obey such an injunction. . . . We

do this not out of any disrespect for the law but out of the highest respect for the law. This is not an E

attempt to evade or defy the law or engage in chaotic anarchy. Just as in all good conscience we cannot

obey unjust laws, neither can we respect the unjust use of the Courts.'

(The emphasis is mine.)

Section 35 makes provision for a horizontal application of the fundamental F rights, in order to

'promote the values which underlie an open and democratic society based on freedom

and equality'.

This cannot be achieved if the application of s 7 is to be of a vertical dimension only.

(5) In recent times the Courts in the United States and elsewhere, for G example India and Sri

Lanka, have recognised a strong necessity and requirement for the horizontal application of bills of

rights but not without qualification. In this regard private individuals and large corporations are very

often not equals in power or wealth, and in order to curb the application of power beyond the domain

of 'State H authority bills of rights have been invoked'. See Du Plessis (op cit at 712).

(6) A cogent argument against limiting the scope of the fundamental rights to State action only

was that the effect thereof would leave the incidence of 'privatising apartheid' untouched.

I (7) In considering the application of the fundamental rights it is imperative that we think the

provisions through to their factual consequences. This is the only way of coming face to face with them.

A vertical application means that the Constitution protects fundamental rights and freedoms only

against invasion by the State and not from abuse by our neighbours and fellow citizens. J Consequently

private power remains relatively unbridled, and

1995 (4) SA p238

FRIEDMAN JP

A fundamental rights, in this context, are subverted, resulting in betrayal and

disillusionment in the efficacy of the Constitution, other than on a State level. There is the provision in

the Constitution of equality before the law. At its minimum the B Constitution commands even-handed

justice that forbids discrimination.

There is also another dimension, namely the role of Judges in the sense of positive commands in the

interpretation of the Constitution, as provided for in s 35. A good example regarding positive action is

contained in the Irish Constitution.

C Articles 40 and 45 of the Irish Constitution emphasise the duty of the government to take positive

action to reduce and eliminate social discrimination and to achieve equal opportunity.

Articles 40 and 45 provide as follows:

'40. The State guarantees in its laws to respect and, as far as practicable, by its laws to defend

and vindicate the personal rights of the citizen.'

D '45. The State shall strive to promote the welfare of the whole people by securing and

protecting as effectively as it may a social order in which justice and charity shall inform all the

institutions of the national life.'

Therefore, if the Courts are to discharge their functions in terms of s 35, the said rights must also be

applied horizontally.

E E. Qualification of the horizontal dimension

As already indicated herein, in applying the fundamental rights horizontally, the Court must strike a

balance between 'assertiveness' and 'over-use'. There must be a balance between the tensions of

'under-' and F 'over-use'. A polarisation between these tensions must not occur. A golden mean

between these tensions is called for in order to achieve a harmonious application in accordance with the

spirit of the Constitution.

Therefore a qualification is needed in regard to the horizontal dimension.

G I will now attempt to formulate a series of rules and qualifications for the horizontal application of

the fundamental rights, which I do with some trepidation and diffidence because of the complexity of

the application.

Since no one else has performed this exercise in South Africa as far as I am aware, I am disposed to try

my hand at it. If those who are expert in H this field find here some new point of view, so much the

better; if not, no harm is done:

I have found that the horizontal dimension is applicable in the 'non-State' sphere.

Therefore it would apply to the following:

I (i) Corporations, multinational and local companies engaged in trade, commerce,

business, that deal with the public, have employees, engage in numerous undertakings. This category is

subject to the fundamental rights in all their manifold operations because they deal with the public and

are generally no different in power, wealth or influence from State, or J parastatal companies, or

statutory bodies.

1995 (4) SA p239

FRIEDMAN JP

A (ii) Commercial and professional firms which rely on the public for their custom or support,

and who by the nature of their activities engage with the public.

(iii) Hotels, restaurants, places of public entertainment, ie all of which rely on public

patronage. Persons cannot be refused B admission on grounds of race, colour, creed or gender, etc.

This would constitute discrimination in terms of s 8 of the Constitution.

(iv) Private hospitals, rehabilitation centres, clinics engaging with the public as patients, etc.

Public hospitals funded by the State or provinces are clearly 'organs of State'.

C (v) Private universities, schools, institutions of learning funded by individuals and

corporations, which operate in the public domain.

(vi) Sports grounds and clubs which are open to the public.

(vii) Public transport.

This list is by no means exhaustive. What does appear, however, is a general principle that any activity,

operation, undertaking or enterprise D operating in the community, and open to the public, is subject

to the horizontal dimension of the said rights contained in chap 3 read with ss 33(4) and 35.

An interesting approach that may be usefully followed, subject, however, to modification, in order to

circumscribe the horizontal dimension, is the E concept of the 'state action' doctrine in United States

law. Before determining whether the horizontal dimension applies to 'non-State' activities in its

extended range, three questions need to be put:

(i) Whether the activity is a 'public function', ie operating in the public domain.

F (ii) Whether the activity is so linked or 'intertwined' with public action that the private actor

becomes equated with the public domain.

(iii) Whether the conduct of the private actor (person) complained of has been approved,

authorised or encouraged by the State or G public institutions in an adequate manner so as to be

responsible for it.

If any of these questions is answered in the affirmative, the horizontal dimension is applicable.

The public domain may be significantly so intertwined with purported and H theoretical private

individuals, groups, clubs and associations as to make 'private action' out of place. These groups may

perform functions of so public a nature in quality and calibre that the activity remains essentially public

even though performed by private persons or actors.

In applying the aforegoing, regard must also be had to the principles of I freedom of trade and

association. Given the yeast-like propensity of the horizontal dimension to expand, one must guard

against an over-proliferation of this dimension.

The horizontal dimension needs to be applied with caution in the various categories of its operation.

Difficulties arise in applying it to personal and private law, and it should not be so applied, otherwise

there is no limit to its application. J A

1995 (4) SA p240

FRIEDMAN JP

A blanket and indiscriminate application will result in multitudinous cases before the Courts. There is

no provision for this type of application in the Constitution.

There must be an acceptance and respect for the principles of privacy and freedom of choice. An

individual has the right to choose his/her own B associates, and to construct, mould, and fashion

his/her private life as a matter of free choice.

The right to freedom of movement does not involve the corollary that trespass is justified. The individual

has and retains the right to choose where to live, with whom to associate, contract, marry. In other

words C the ordinary incidents of private law, and their relationships, are not subject to the horizontal

dimension and application of the fundamental rights. An important consideration in this respect is that

now we have a free society, and private rights such as marital and family privacy, to raise a family and

marry, are of momentous and primary importance.

'The right of privacy involves the right of the individual, married or D single, to be free from

unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to

bear or beget a child.'

See Eisenstadt v Baird 405 US 438 (1972).

F. The interpretation of the Constitution and the role of the Court

In the recent case of S v Zuma and Others 1995 (2) SA 642 (CC) at E 650H-653A Kentridge AJ restates

and analyses the principles upon which a constitutional bill of fundamental rights should be interpreted.

He referred to recent decisions such as Nyamakazi v President of Bophuthatswana 1992 (4) SA 540 (B)

(1994 (1) BCLR 92); Khala v Minister of Safety and Security 1994 (4) SA 218 (W) (1994 (2) BCLR 89);

Qozeleni v Minister of Law and Order and Another 1994 (3) SA 625 (E) (1994 (1) BCLR F 75), and of

course Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC) ([1979] 3 All ER 21) on the

subject and concludes as follows (para [18] at 653A-B):

'We must heed Lord Wilberforce's reminder that even a constitution is a legal instrument, the

language of which must be respected. If the G language used by the lawgiver is ignored in favour of a

general resort to "values" the result is not interpretation but divination. If I may again quote S v Moagi

(supra at 184), I would say that a constitution

"embodying fundamental rights should as far as its language permits be given a broad

construction".'

H I respectfully agree with the view expressed by the learned Judge, and would add in addition 'a

purposive' construction of a bill of rights is also necessary by virtue of the mandatory tenor of the

interpretation clause, s 35 of the Constitution.

Consequently a synthesis of what Kentridge AJ said in Attorney-General v I Moagi (1982 (2) Botswana

LR 124, as referred to herein, plus the added principles of a 'purposive' construction, in my view

constitute in general a useful guideline for the interpretation of the Bill of Rights contained in the

Constitution.

A further useful aid in the interpretation of the fundamental rights is contained in s 232(4), which reads

as follows:

'In interpreting this Constitution a provision in any Schedule, including J the

1995 (4) SA p241

FRIEDMAN JP

A provision under the heading "National Unity and Reconciliation", to this Constitution shall

not by reason only of the fact that it is contained in a Schedule, have a lesser status than any other

provision of this Constitution which is not contained in a Schedule, and such provision shall for all

purposes be deemed to form part of the substance of this Constitution.'

This Constitution has a dynamic tension because its aims and purport are B to metamorphose South

African society in accordance with the aims and objects of the Constitution. In this regard it cannot be

viewed as an inert and stagnant document. It has its own inner dynamism, and the Courts are charged

with effecting and generating changes.

C It is therefore appropriate to refer to what was observed by Warren CJ in Trop v Dulles 356 US 86

(1958) as follows:

'The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are

vital, living principles that authorise and limit governmental powers in our Nation. They are rules of

government. When the constitutionality of an Act of Congress is challenged in this Court, we must apply

those rules. If we do not, the words of the Constitution D become little more than good advice.'

This approach was followed by the Namibian Supreme Court in Ex parte Attorney-General, Namibia: In

re Corporal Punishment by Organs of State 1991 (3) SA 76 (NmS), a case concerning the constitutionality

of corporal punishment, where Mahomed AJA said (at 86I-87A/B):

'It is, however, a value judgment which requires objectively to be E articulated and identified,

regard being had to the contemporary norms, aspirations, expectations and sensitivities of the Namibian

people as expressed in its national institutions and its Constitution, and further having regard to the

emerging consensus of values in the civilised international community (of which Namibia is a part) which

Namibians share. This is not a static exercise. It is a continually evolving dynamic. What may have been

acceptable as a just form of punishment some F decades ago, may appear to be manifestly inhuman or

degrading today. Yesterday's orthodoxy might appear to be today's heresy.'

See also the judgments of Kentridge AJ in S v Mhlungu and Others (unreported case No CCT/25/94 at

para [63] at p 53), * where he refers to a 'purposive construction', and Sachs J at para 122 at p 94,

where he uses G the phrase 'a context-based purposive approach'. **

I respectfully agree with the views expressed by the said learned Judges. A purposive approach to

interpretation, insofar as the language permits, is called for, more particularly in view of the use of the

words 'a court of law shall promote' in s 35.

H The pragmatic approach of European Judges, as explained by Lord Denning in the case of James

Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1977] 2 WLR 107 (CA) ([1977] 1 All ER

518) at 112 (WLR) and 522j-523b (All ER), can be stated as follows:

'(They) adopt a method which they call in English by strange words - at I any rate they were

strange to me - the "schematic and teleological" method of interpretation. It is not really so alarming as

it sounds. All it means is that the Judges do not go by the literal meaning of the words or by the

grammatical structure of the sentence. They go by the design or purpose which lies behind it.

1995 (4) SA p242

FRIEDMAN JP

A When they come upon a situation which is to their minds within the spirit - but not the letter

- of the legislation, they solve the problem by looking at the design and purpose of the Legislature - at

the effect it was sought to achieve. They then interpret the legislation so as to produce the desired

effect. This means they fill in gaps, quite unashamedly, without hesitation. They ask simply: what is the

sensible way of dealing with this situation so as to give effect to the presumed B purpose of the

legislation. They lay down the law accordingly.'

This approach commends itself for its practical and realistic method.

See also the judgment of Sachs J supra at p 94. *

While suggesting these 'new' and different principles of interpretation, other principles of statutory

interpretation may also be usefully C enlisted. These may be useful in construing language and textual

interpretation.

A correct approach to the role of interpreting the Constitution in the legal system aimed for by the

Constitution, and within an open and democratic society, is contained in Cachalia et al (op cit at 11 and

9) respectively:

D 'The Constitution cannot be read clause by clause nor can any clause be interpreted without

an understanding of the framework of the instrument. In interpreting a constitutional instrument Courts

have to strike a balance between allowing the democratic process of an elected Parliament to take its

natural course while ensuring that the framework of values as contained in the instrument continue to

form the broad context within E which social, political and economic activity take place.'

In dealing with the purposive approach, which seems to be accepted in this country by several Judges,

the comments of Beaudoin and Ratushny (eds) in The Canadian Charter of Rights and Freedoms 2nd ed

(1989) at 27 are instructive:

F 'The purposive approach requires a distillation of the underlying values that a specific right or

freedom is meant to protect, and an analysis drawn from our legal system, or from broader historical

tradition, which reflect these values in order to ensure that the purpose of the right or freedom is

advanced by the interpretation adopted.'

G In this regard, as well as generally pertaining and relating to the interpretation of the Constitution

and statutes, it is necessary to refer in passing to the doctrine of stare decisis.

In the whole process of interpretation, a new and different role is assigned to our Courts in terms of the

Constitution. Consequently the H American experience relating to the concept of stare decisis in

constitutional precedents is worth examining.

This aspect is dealt with by Stone et al in their work on Constitutional Law 2nd ed at 955 as follows:'The

obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With

Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in

every case that raised it. See B Cardozo, The Nature of the Judicial Process at 149 (1921). Indeed, the

very concept of the rule of law underlying our own Constitution requires such continuity over time that

a respect for precedent is, by definition, indispensable. See Powell, 'Stare Decisis and Judicial Restraint'

1991 Journal of Supreme Court

1995 (4) SA p243

FRIEDMAN JP

A History 13, 16. At the other extreme, a different necessity would make itself felt if a prior

judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason

doomed.

Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually

foreordained, it is common wisdom that the rule of stare decisis is not an "inexorable command", and

certainly it is not B such in every constitutional case, see Burnet v Coronado Oil Gas Co 285 US 393 at

405-11 (1932) (Brandeis J dissenting). See also Payne v Tennessee 501 US (1991) (Souter J, joined by

Kennedy J concurring); Arizona v Rumsey 467 US 203 at 212 (1984). Rather, when this Court re-examines

a prior holding, its judgment is customarily informed by a series of prudential and pragmatic

considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of

law, and to C gauge the respective costs of reaffirming and overruling a prior case. Thus, for example,

we may ask whether the rule has proved to be intolerable simply in defying practical workability, Swift &

Co v Wickham 382 US 111 at 116 (1965); whether the rule is subject to a kind of reliance that would lend

a special hardship to the consequences of overruling and add iniquity to the cost of repudiation, eg,

United States D v Title Ins & Trust Co 265 US 472 at 486 (1924); whether related principles of law have

so far developed as to have left the old rule no more than a remnant of abandoned doctrine, see

Patterson v McLean Credit Union 491 US 164 at 173-4 (1989); or whether facts have so changed or come

to be seen so differently, as to have robbed the old rule of significant application or justification, eg

Burnet, supra, at 412 (Brandeis J dissenting).'

E The Courts in South Africa are now confronted by a rapid oscillation from the positivist jurisprudence

founded on the sovereignty of Parliament to a jurisprudence based on the sovereignty of the law

contained in a Constitution with a justiciable bill of rights.

Having regard also to the provisions of s 35, the Courts are now directed F to a different form of

interpretation, founded on value judgments.

In this regard, certain principles of the school of thought termed 'Legal Realism', founded in the United

States, are apposite. Significantly, its proponents were primarily Judges and lawyers. It rejected the

traditional approach of Anglo-American jurisprudence.

G The motto of Legal Realism was formulated by Justice Oliver Wendell Holmes when he stated:

'The prophecies of what the courts will do in fact, and nothing more portentous, are what I

mean by the law.'

See Collected Legal Papers (New York, 1920) 173.

H Justice Gray, an advocate of the said school, quoted with endorsement the remark made by a Bishop

in England in 1717, and I quote:

'Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly

the Lawgiver to all intents and purposes and not the person who first wrote or spoke them.'

I See The Nature and Sources of the Law by Justice Gray 125.

The substantial impact of this school of thought was that it drew attention to 'the human, social and

economic aspect of the administration of law which cannot be expressed by the description of abstract

norms and rules'. However, it would be as wrong to dwell on these aspects J exclusively as to ignore

them. In dealing with a legal system, due

1995 (4) SA p244

FRIEDMAN JP

A cognisance must also be taken of the underlying ideals, principles and concepts. These factors

implicitly influence those who operate within the said system.

In terms of s 35 the Courts, and I deal here specifically with Judges, are cast in the additional role of

social engineers, social and legal B philosophers in order to

'promote the values which underlie an open and democratic society based on freedom and

equality'.

Judges are reluctant to assume this role and one can understand the comments by Chief Justice M M

Corbett in expressing the judiciary's opposition to the possibility of the horizontal dimension of the bill

of C rights. He was of the view that it required the judiciary to adjudicate matters of political

controversy, which was not its function. See the South African Law Commission Final Report (supra at

123).

However, s 35 properly construed, read with the other provisions of the D Constitution that I have

referred to, enjoins the Court to be an important authority in the quest to change South African society

in accordance with the aims and spirit of the Constitution. Clearly the Constitution does not operate

mechanically. It has to be administered and applied. Therefore the Courts and Judges are instruments

that must put the law into effect. The activity of Judges will not only be confined to the E interpretation

of existing laws, but they will be obliged to engage in the more creative activity of generating new laws

in terms of s 35, which gives to the Courts in South Africa a greater and more extensive power than the

Courts in the United States. This aspect becomes important if the Courts are of the view that the existing

law is felt to be 'unjust, ambiguous, inefficient, or simply obsolete due to changing circumstances'. F

Section 35 gives Judges an almost plenipotentiary judicial authority to decide according to a sense of

natural justice; 'equity', 'jus naturale', 'aequitas' all being enshrined in the Constitution.

Section 35 provides that the Court, in interpreting the Constitution, 'may G have regard to comparable

foreign case law'. Judges in the United States have delivered important judgments on the bill of rights in

the Constitution of the United States, and it is necessary and indeed enlightening to refer to certain of

their approaches in interpreting a bill of rights, bearing in mind that the burden of responsibility of

interpretation is passed on to the Courts, which 'shall promote', which means, inter alia, 'advance',

'develop', 'further', 'propagate', H 'expedite' and 'facilitate', the objectives contained in s 35 and chap

3.

The following pronouncements are relevant.

(1) Judge Cardozo over half a century ago said:

'(T)he chief lawmakers . . . may be and often are, the Judges, I because they are the

final seat of authority. Every time they interpret contract, property, vested rights, due process of law,

liberty, they necessarily enact into law parts of a system of social philosophy.'

See Benjamin N Cardozo The Nature of the Judicial Process (1949) at 171.

(2) In McCulloch v Maryland 17 US (4 Wheat) 316 (4 L Ed 579 (1819)) Justice Marshall

formulated a classical canon of interpretation of J the United States Constitution by stating:

1995 (4) SA p245

FRIEDMAN JP

A 'We must never forget, that it is a Constitution we are expounding . . . intended to endure for

ages to come, and consequently to be adapted to the various crises of human affairs. . . .'

(The emphasis is mine.)

(3) In his eulogy on Justice Brandeis, Chief Justice Harlan F Stone said B that for Brandeis the

Constitution was

'primarily a charter of government. . . . Hence its provisions were to be read not with the

narrow literalism of a municipal code or a penal statute, but so its high purposes should illumine every

sentence and phrase of the document and be given effect as a part of a harmonious framework of

government. See 317 US XLII, XLVII (1942).'

C (4) In the celebrated case of Gompers v United States 233 US 604 (1914) at 610 Justice Oliver

Wendell Holmes said:

'The provisions of the Constitution are not mathematical formulas having their essence in their

form; they are organic living institutions. . . . Their significance is vital not formal; it is to be gathered not

simply by taking words and a dictionary but by considering their origin and the D line of their growth.'

(5) To apply s 35 in order to promote the matters contained therein, a Court is entitled to have

regard to, inter alia:

(i) a dispassionate consideration of the circumstances and events which led up to,

and accompanied, the framing and adoption of E the Constitution;

(ii) effect must also be given to the intent of the framers of the Constitution and of the

people who adopted it;

(iii) the objectives of its framing and adoption;

(iv) the human, social and economic aspects relevant to its decision;

F (v) the promotion of values designed to give effect to the purpose of the

Constitution, and the standards and principles contained in the said section.

See also the interesting article by Professor D M Davis entitled 'Integrity and Ideology: Towards a Critical

Theory of the Judicial G Function' in (1995) 112 South Africa Law Journal at 104-30.

G. Conclusions

The first respondent as a juristic person and body corporate was originally established as a university by,

and derived its existence under, the University of Bophuthatswana Act 10 of 1978 (B). It is at H present

controlled, administered and conducted in terms of the provisions of the University of Bophuthatswana

Consolidation Act 33 of 1988 (B), hereinafter referred to as 'the Act'.

As far as I am aware the Act has not been repealed, although certain steps have been taken to rename

the first respondent as the University of the I North West.

The first respondent at present and at the time of the hearing of the application operated as aforesaid.

I refer to certain provisions of the Act that are relevant in the instant matter. Section 16 thereof

provides that:

'Subject to the provisions of this Act, the salary scales, salaries and other allowances, the leave

and other privileges and all other terms and J conditions of

1995 (4) SA p246

FRIEDMAN JP

A service of persons in the employment of the University shall be as determined by the Council

and approved by the Minister.'

The Minister referred to in the Act is the Minister of Education.'Statutes' are defined in terms of s 1 of

the Act as meaning 'any statutes of the University contemplated by s 29 . . .'. I may mention that the

definition section of the Act includes the statutes.

Section 29 of the Act contains the following provisions:

'(1) The Council shall have the power to frame for the University statutes which are not

inconsistent with the provisions of this Act or any other law, in relation to any matter which, in terms of

this Act, shall or may be prescribed, determined or governed in or by the statutes, or in C order to give

effect to any law relating to the University, and for the general and effective government and control of

the University. . . .

(2)(a) Every statute framed under ss (1) shall be submitted to the Executive Council for its

approval.

(b) A statute shall acquire legal force and effect only if and insofar as it has been approved by

the Executive Council, and then only with effect from the date upon which the Minister, by notice in the

Gazette, D conveys the Executive Council's approval in regard to such statute which shall be

promulgated in the same Gazette under cover of the same notice.'

Since the reincorporation of Bophuthatswana into the Republic of South Africa, and the establishment

of the North West Province with its E government, the Minister of Education of the Executive Council of

the North West Province would be the Minister in terms of the Act. He was regarded as such in that a

meeting was arranged between him and the Interim Council regarding the expatriates.

Having regard to the aforegoing, and the extended meaning that I have given to 'organs of State' in s

7(1) of the Constitution, the first F respondent, being subject to the ultimate exercise of control by the

Minister and the Executive Council, is clearly an organ of State. Therefore, the vertical dimension of the

fundamental rights of the Constitution in terms of s 7(1) applies to the first respondent.

Even if it can be argued that it is a private institution, or should it G become a private institution with

no State control or influence over it, the horizontal dimension of the fundamental rights would be

applicable to it, because of the nature of its activities and its operation in the public domain as an

important institution of learning.

It ill behoves an institution of learning which propagates the credo of 'academic freedom' to indulge in

or to be party to acts of discrimination H against any persons, let alone members of its staff, no matter

what their ethnic or social origin is.

Clearly the demonstrations against the 'expatriates', and the decision of the Interim Council of the first

respondent to place a moratorium on promotions of non-national staff (expatriates), while promoting

members of I staff with South African citizenship, are a gross violation of s 8(2) of the Constitution for

the following reasons:

(i) The applicants are members of the academic staff of the first respondent with

valid contracts of employment. Why must their applications for promotion be subject to a moratorium,

while other members of staff receive promotion based, inter alia, on J the fact that they are South

African citizens?

1995 (4) SA p247

FRIEDMAN JP

A (ii) The words '(n)o person' in s 8(2) also apply to aliens. 'Persons' does not mean only a

citizen of South Africa.

(iii) In American law, according to the Corpus Juris Secundum vol III at 792:

'Aliens residing in the United States, while they are permitted to B remain, are

entitled to the safeguard of the Constitution with regard to their rights of person and property and to

their civil and criminal responsibility.'

Warwick McKean in his book Equality and Discrimination under International Law at 97, in quoting

Banco Nacional de Cuba v Cabbatino 376 US 398 (1963) (84 S Ct 923, 11 L Ed 2d 804) in the US Court of

Appeal Second Circuit, C wrote that

'when a State . . . treats aliens of a particular country discriminatorily to their

detriment, that State violates international law'.

In the leading case of Torao Takahashi v Fish and Game Commission D 334 US

410 (1948) at 431, the Supreme Court decided, in an opinion by Black J, in which six other Justices

joined, that a California statute forbidding the issuance of commercial fishing licences to aliens ineligible

to citizenship violated the constitutional right of such aliens to the equal protection of the laws. The

contention that the statute might be supported as a conservation measure was rejected.

E The international standard relating to the treatment of aliens postulates that, if

a State admits an alien into its territory, it must conform in its treatment of him to the internationally

determined standard. This means that the State should accord treatment to the alien which measures

up to the ordinary standards F of civilisation. The international standard of treatment of aliens applies

in respect of fundamental human rights, such as the right to life and integrity of persons but not to

political rights, in respect of which an alien can only expect equality of treatment or even less than

equality, with that accorded to the State's own nationals. See Halsbury's Laws of England 4th ed (by G

Lord Hailsham of St Marylebone) vol 18 para 1723. See Nyamakazi's case supra at 578-9.

(iv) Section 35(1) of the Constitution permits me to take into account public international

law and foreign comparable case law that are applicable to the fundamental rights in the Constitution.

H Therefore, in applying the principles enunciated in (ii) and (iii) hereof

and s 8(2) supra, an overwhelming case has been made out that the applicants have been discriminated

against because they are not South African nationals.

(v) The onus in s 8(4) applies and the responses given by the I respondents are

fatuous, lame and devoid of any substance. To argue that, before reincorporation, South African citizens

were expatriates and because there were no suitably qualified citizens of Bophuthatswana they were

appointed, is absurd. The qualification for appointment to the staff of a university is, and should be,

merit and suitability for the position, and not J ethnic or national origin.

1995 (4) SA p248

FRIEDMAN JP

A (vi) The question of the issue of work and residence permits was attended to by the

applicants. If those are the regulations, so be it. What are not regulations, nor policy, nor principles, are

moratoriums on groups selected for special treatment because they happen to be expatriates.

B (vii) The excuse that a new council will be appointed is unacceptable. As long as the

respondents select groups for special treatment on an ethnic or national basis, academic freedom and

the lofty aims and ideals of a university will be in jeopardy.

Mr Lever is correct in his submission that the fundamental rights apply in the instant matter, and that

the conduct of the respondents was in C violation of s 8 of the Constitution.

The respondents failed to discharge the onus resting on them.

In the premises I had no hesitation in confirming the rule with costs.

Applicants' Attorney: A K Ahmed. Respondents' Attorneys: Tlhapi & D Mookeletsi.

* Editorial insertion.

* Reported as S v Mhlungu and Others 1995 (3) SA 867 (CC) - Eds.

* See 1995 (3) SA at 913H - Eds.

* Act 90 of 1993 - Eds.

* 1995 (3) SA 867 (CC) at 896I/J - Eds.

** 1995 (3) SA at 916C/D - Eds.

* 1995 (3) SA at 916C-F - Eds