b) Discussion points
(1) Students must study the section 8 and s 39 provisions in the Bill of Rights and must understand that these provisions both deal in some way with the horizontal application of the Bill of Rights and must understand how these provisions make the Bill of Rights applicable, either directly or indirectly, to all law in South Africa. This means that any development of the common law or any interpretation of legislation must now be conducted with reference to the provisions in the Bill of Rights.
(2) Its important to understand the terminology: what is horizontal application and what is vertical application of the Bill of Rights? What is indirect horizontal application and what is direct horizontal application of the Bill of Rights. Is there indeed a real distinction between the latter two concepts?
(3) Van der Walt sets out the way in which South African Courts have dealt with the issue of the horizontal application of the Bill of Rights. Students should note that there are textual differences between the provisions relating to the horizontal application in the 1993 and the 1996 Constitutions. Students should note in particular what s 8 and 39 of the 1996 Constitution says about the horizontal application of the Bill fo Rights and what this means in practice. Note that one can draw a distinction between direct and indirect horizontal application. The former invokes the provisions of the Constitution directly in a dispute between two private parties without reference to the common law and the latter is only invoked throughd evelopment of the common law.
(3) Van der Walt also criticises other authors who wish to make a distinction between the direct application of the bill of rights and the indirect application of the bill of rights and who argue that the latter is non-constitutional action. In this way these authors attempt to draw boundaries between the private law and common law on the one side and the Constitution on the other. He argues that this is the wrong way to look at the horizontal application of the bill of rights because in the end we always have to balance certain values, those values we find in the bill of rights, against each other and the enquiry is basically the same, whether we do this with reference to the direct application of the bill of rights or the indirect application. Do you agree with this view? Also note the way in which Van der Walt uses this discussion to show how the horizontal application of the Bill of Rights permeates the common law.
(4) Students must also study the groundbreaking case of Barkhuizen v Napier
to see how the various judges of the Constitutional Court deals with
the horizontal application of the Bill of Rights in the law of contract
and to note that the majority in essence agrees with the position taken
by Van der Walt.? Note the different approaches taken by different
judges and whether they rely on section 8 or section 39.
|Point to ponder
Write an essay about the horizontal application of the Bill of Rights with special reference to the Constitutional Courts' approach to the law of defamation in the light of the right to freedom of expression. In your essay you must explain the difference between direct and indirect horizontal application (if any) and must explain how this concept will change the way we deal with legal developments.