n Annual Survey of South African Law - Bill of Rights jurisprudence

Volume 2007, Issue 1
  • ISSN : 0376-4605



The Bill of Rights does not only apply 'vertically' (as against the state); it also applies horizontally (between non-state actors). This is reflected in section 8(2) of the Constitution of the Republic of South Africa, 1996. It stipulates that the Bill of Rights 'binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right'. This test is somewhat uncertain and does not always yield a positive answer. It is thus advantageous for a party seeking to challenge the constitutionality of conduct if the Bill of Rights applies 'vertically' to the matter at hand - it applies with full force to an entity without further ado. In this regard, section 8(1) provides, without qualification, that the Bill of Rights binds the legislature, the executive, the judiciary, and all 'organs of state'. An 'organ of state' is defined in section 239 of the Constitution as (a) a department of state or administration; (b) a functionary or institution exercising a power or performing a function under the Constitution or a provincial constitution; or (c) a functionary or institution 'exercising a public power or performing a public function in terms of any legislation'. A significant aspect of the last category is that it extends the concept of 'organ of state' beyond the state to other bodies that perform public functions or exercise public power (see, for example, 2000 (3) SA 119 (C) at 133).

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