A murky new Bill of Rights
There could be confusion in common law as the new Bill of Rights is not entirely clear on the relationships that exist between private persons
THE coming into operation of the new Constitution on February 4 1997 has heralded a return of the dreaded “horizontality debate”.
Horizontality became entrenched as part of the legal lexicon during the drafting of the interim Bill of Rights. The spatial terminology was intended to distinguish those relationships that existed between the state and its citizens (vertical) from those that existed between private persons (horizontal). The fundamental issue at stake was whether a Bill of Rights should be allowed to intrude into horizontal relationships which were regulated by the common law.
For two years lawyers and judges engaged in a running debate regarding the impact of the interim Bill of Rights in the horizontal realm. The matter was resolved when the Constitutional Court ruled that the interim Bill of Rights had only “indirect” application in common-law disputes between private litigants, since constitutional rights could not be “directly” claimed by one private person against another.
Legal wags with a penchant for sound bites were quick to observe that the interim Constitution was therefore neither horizontal nor vertical: it was diagonal, or supine.
With the new Constitution coming into force this month, the horizontality debate is suddenly up for grabs all over again.
The new Bill of Rights is hardly a model of clarity on this issue. The point has been made (perhaps unfairly) that the new Constitution appears to state in a circular fashion that constitutional rights are applicable in the horizontal realm if they are applicable! Abstruse drafting such as this seems likely to bring grist to the lawyer’s mill, until the matter is resolved by the Constitutional Court.
Even at this early stage, there is an emerging opinion that the new Bill of Rights is more susceptible to a horizontalist reading than was the interim Constitution. What many lawyers have overlooked is that, in two crucial respects, the final Constitution shies away from unequivocal endorsement of direct horizontality.
The new Constitution makes clear that only certain provisions in the Bill of Rights will have direct application in common-law disputes between private persons. A court will be required to consider the nature of each constitutional right in order to consider whether it might appropriately impose burdens on private persons. For example, social-welfare rights to food and housing would almost certainly not bind private parties.
Even where a constitutional right does impose burdens on private persons, a court is required to apply or develop the common law in order to give effect to that conclusion. What this means is constitutional rights will not bind private parties in a free-floating way, for their horizontal operation will be mediated by the intervention of the common law.
These two provisions signify a retreat from a position of direct horizontality, and suggest that the final Constitution is considerably more ambivalent on horizontality than many lawyers have noticed. The final Constitution might perhaps be described in the same manner in which The Twist was said to have been described in the 1950’s: as representing the vertical expression of a horizontal desire.
The new Constitution’s compromise on the issue of horizontality will doubtless be scoffed at by the hardy band of jurists who have hawked their constitutional wares around the law journals in recent years, fiercely advocating a strategy of direct horizontality and branding as “conservative” anyone who saw fit to differ. What these horizontalists never satisfactorily explained is why 2000 years of common-law development should be consigned to the legal scrap-heap by virtue of 10 pages of constitutional rights. Or why those who favoured the indirect application of the Bill of Rights in private-law matters should be regarded as dinosaurs in Roman-Dutch law.
The new Constitution has introduced a subtle but workable compromise regarding these complex issues. It liberates our common law from the past, since legal rules will no longer justify themselves, but must now be justified in terms of constitutional values.