Although the Constitution is mainly concerned with state power and law, a number of provisions of the Bill of Rights place duties on private individuals in certain circumstances.
The stages through which Bill-of-Rights litigation typically proceeds may be summarized as follows: As for the first question, it must be determined whether the applicant is entitled to claim the benefits of the Bill of Rights.
If the Bill of Rights is indirectly applied to the issue, the questions of justiciability, jurisdiction and an appropriate remedy are resolved in terms of ordinary legal rules.
At the substantive stage of Bill-of-Rights litigation, the court is concerned with the substance of the applicant's allegation that a right has been infringed by law, or by the conduct of the other party.
The approach of the court to onus in respect of these stages is set out by Ackermann J in the following extract from Ferreira v Levin NO: The task of determining whether the provisions of [an] Act are invalid because they are inconsistent with the guaranteed rights here under discussion involves two stages, first, an enquiry as to whether there has been an infringement of the [...] guaranteed right; if so, a further enquiry as to whether such infringement is justified under [...] the limitation clause.
In other words, the "threshold enquiry" for a rights-based challenge is aimed at determining whether or not the enactment in question constitutes a limitation on one or other guaranteed right.
[4]If the court determines that a law, or the conduct of the respondent, impairs a fundamental right, a second stage of enquiry ensues: the so-called "limitations exercise".
Generally, it is recognized that public order, safety, health and democratic values justify the imposition of restrictions on the exercise of fundamental rights.
A court cannot determine in the abstract whether the limitation of a right is "reasonable" or "justifiable in an open and democratic society based on human dignity, equality and freedom."
Since section 172 allows a court to limit or suspend the effects of a declaration of invalidity, the respondent will in most cases be called upon to justify such a request.
In order to trigger the jurisdiction of the Constitutional Court, it was, therefore, necessary to show that the Bill of Rights applied directly to the challenged law or conduct.
Although there is, therefore, a difference in principle between direct and indirect application, the problem alluded to by Ackermann J and Sachs J also depends on the extent to which a court is prepared to "pronounce on the meaning" of the Constitution: "Courts generally avoid making extensive pronouncements on what the Constitution demands the common law to be, whether they apply the Bill of Rights directly or indirectly.
"[19] The preferred approach is to give narrow rulings limited to the facts before the court: "Such orders will preserve considerable space for the legislature to reform the common law.
Where the violation of the Constitution is clear and directly relevant to the matter, and there is no apparent alternative form of ordinary relief, it is not necessary to waste time and effort by seeking a non-constitutional way of resolving a dispute.
When read in context, the implication of this provision is that state departments (or the administration) are bound by the Bill of Rights whether they exercise a power in terms of legislation or act in another capacity.
It is to be distinguished from exercises of what can be called private power—the domain of voluntary obligations.When the members of the judiciary (judges and magistrates) act in a judicial capacity—that is to say, when they adjudicate legal disputes—they are required to conduct themselves in a manner that complies with the Bill of Rights.
Some provisions of the Bill of Rights, such as section 35(5), which provides for the exclusion of evidence in certain circumstances, are indeed specifically directed at the conduct of the judiciary when presiding over criminal trials.
"[27] This means that, for practical purposes, private persons will then always be bound to the Bill of Rights, because they will be unable to seek the assistance of the courts to enforce their unconstitutional conduct.
The presence of section 39(2), as Kentridge AJ stated, "prophetically,"[28] in Du Plessis v De Klerk, "makes much of the vertical-horizontal debate irrelevant."
The Constitutional Court expressed "grave doubt" about this approach, which entailed "testing the validity of a contractual term directly against a provision in the Bill of Rights."
This approach leaves space for the doctrine of pacta sunt servanda to operate, but at the same time allows courts to decline to enforce contractual terms that are in conflict with the constitutional values even though the parties may have consented to them.The view of Currie and De Waal is that Barkhuizen "largely renders s 8(2) nugatory.
"In that event," according to Moseneke J in S v Thebus, "the responsibility and power to address the consequences of the declaration of invalidity resides, not with the courts, but pre-eminently with the legislative authority."
Put another way, the rule means that a litigant can only seek constitutional relief for a violation of human rights by conduct that occurred after commencement.
Kriegler J nevertheless stated that if the evidence obtained by way of the search and seizure was tendered in criminal proceedings against the applicant, he would be entitled to raise Constitution-based objections to its admissibility.
While the non-retrospectivity rule prevented the applicant in Key from challenging the provisions of the Investigation of Serious Economic Offences Act[50] before or during the trial, a discretion to exclude otherwise admissible evidence could be developed by indirectly applying the Bill of Rights.
Proceedings that commenced before the coming into effect of the interim Constitution must be dealt with in accordance with the law in force at the time, unless the interests of justice require otherwise.
"[55] The SCA in Afrox "seems to confine itself to the first type of indirect application only" – the development of the common law – neglecting statutory interpretation in line with the spirit of the Bill of Rights.
The case arose from an incident in which the applicants, all South African citizens, had been arrested in Zimbabwe on charges that they had plotted to stage a coup in Equatorial Guinea.
According to the court, to the extent that the Constitution provides the framework for the governance of South Africa, it is territorially bound and has no application beyond the borders of the Republic.
The argument of the applicant, to the effect that section 7(2) places a more extensive obligation on the state to respect, protect and promote the rights of South Africans when they are in foreign countries, was rejected.