Du Plessis is Not Dead: South Africa's 1996 Constitution and the Application of the Bill of Rights to Private Disputes

Abstract

Section 8 of the 1996 Constitution, which determines the application of the Bill of Rights, does not demand direct horizontal application, but in fact allows for ‘indirect’ horizontal application along the lines of the approach taken by the Constitutional Court in Du Plessis v De Klerk 1996 (3) SA 850 (CC) with respect to the application of the interim Constitution. The conventional wisdom among South African legal academics that direct horizontality will be the rule under the 1996 Constitution and that Du Plessis is therefore a dead letter, is wrong. When the question comes before the Constitutional Court it should rule that while the application provision of the 1996 Constitution is ambiguous, the structure of government created by the Constitution, understood as the culmination of the struggle for majority rule in South Africa, demands that courts should not, in general, directly enforce the Bill of Rights against private parties.

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