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
1995 (4) SA p219
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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
1995 (4) SA p221
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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
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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