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The private domain and the bill
of rights
HA Strydom*
Introduction
There is a fairly wide-spread perception among the legal fraternity in
South Africa that a bill of rights is essentially a public law matter,
affecting only the relationships between the government and the
citizen. Consequently, a certain (private) domain is envisaged which
is beyond the reach of the bill of rights and therefore the jurisdiction
of the courts when human rights norms are applied.
This kind of thinking seems to have influenced the drafting of
Chapter 3 of South Africa’s Interim Constitution (1993) which
contains the provisions for the protection of fundamental rights.
Already in the Law Commission’s reports on Group and Human
Rights, which to a great extent foreshadowed the fundamental rights
clauses in the Constitution, the aim of a human rights declaration
was limited to the protection of the citizen against legislative,
executive and administrative state conduct. This so-called vertical
operation of a bill of rights was distinguished from its horizontal
operation, that is, between individuals and non-state entities. In
explaining this, the Commission stressed the need for a juridical
framework that concentrated on a constitutional remedy against the
violation of human rights by the state, while private law should take
care of the capricious conduct of individuals in their relationships
with one another.'
After considering some additional commentaries on this point, the
Commission compromised on its earlier stance and proposed a clause
providing for the mutual respect of all individuals for the
'Bluris LLM LLD. Professor in International Law, University of the Orange Free
State.
‘SA Law Commission Project 58: Croup and Human Rights (1989) 470-433 and
(1991) 264-265. References are to the Afrikaans text.
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The private domain and the bill o f rights
53
fundamental rights chapter in the Constitution. Furthermore, it
recommended a clause providing for a friendly interpretation of
fundamental rights legislation affecting inter-individual relationships.
In order to bring inter-individual conduct in line with the
fundamental rights provisions, the Commission also favoured the
American example o f enacting civil rights acts, whereby fundamental
rights provisions in the constitution protecting the citizen against the
abuse of state power are transferred to the private sphere in order to
curb the abuse of private power.2
The technical committee responsible for the drafting of the
Constitution reconciled the debates on the vertical and horizontal
application of the chapter on fundamental rights in a rather awkward
way.3 What now adds to the confusion are the private law issues
dealt with in Chapter 3, such as the right to privacy, to free economic
activity, to fair labour practices and to property. Is it fair to conclude
that certain inter-individual activities in these spheres are insulated
from the application o f the fundamental rights provisions in Chapter
3 and henceforth from the jurisdiction o f the courts, or is it intended
that no activity should escape the salutary influence o f our fledgling
human rights civility? These issues form the subject-matter o f my
article.
The scope of application of the chapter on
fundamental rights
According to section 7(1) the fundamental rights in Chapter 3 bind
‘all legislative and executive organs of state at all levels of
government’. This gives effect to the notion of the vertical application
o f the fundamental rights provisions and extends to statutes of
Parliament, the laws o f provincial governments, the by-laws o f local
governments and regulations and other measures of the executive
power at all levels of government. Section 7(2), however, goes beyond
this, making Chapter 3 applicable to ‘all law in force’, and to ‘all
administrative decisions’ and ‘acts’ taken and performed during the
Constitution’s operation. The reference to ‘all law’ in this sub-section
cannot but include common law as well as customary law. Since
private law matters are frequently common law and customary law
concerns, sub-section 7(2) must therefore have a horizontal
2See the 1991 Report 488-493.
3For a general commentary see Cachalia et al Fundamental rights in the new
Constitution (1994) 19 et seq.
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application as well.4 Further proof of an intended horizontal
application of Chapter 3 is the provision in section 33(4) authorising
the enactment of ‘measures designed to prohibit unfair
discrimination by bodies and persons’ not covered by section 7(1). In
this manner, the authors of the Constitution have created an
opportunity for Parliament to pass legislation, in the manner of the
American civil rights acts, which will extend the fundamental rights
norms to the private law sphere. Apart from so direct an effect,
Chapter 3 may indirectly effect private law matters through the
application of section 35(3), which makes it incumbent on courts of
law to follow the values embodied in Chapter 3 when interpreting
any law, including the development and application of common law
and customary law.
As in the case of their foreign counterparts, South African courts will
sooner or later be confronted with challenging questions on the
impact of Chapter 3 in some or other private domain. It is clear that
in terms of section 35(1) South African courts are entitled to consult
comparable foreign case law on this point, but what seems to pose
the real challenge is which example to follow. As far as uniformity in
principle is concerned, foreign decisions are often more confusing
than helpful.5
Some foreign examples
In Shelley v Kraemere the United States Supreme Court held that the
enforcement by state courts of private agreements having as their
purpose the exclusion of persons of a designated race from ownership
or occupancy of real property violated the equal protection clause of
the 14th Amendment. The Court conceded that the 14th Amendment
was directed against state action only, and therefore, ‘the restrictive
agreements standing alone cannot be regarded as violative of any
rights guaranteed ... by the 14th Amendment’. The latter, according
to the Court, ‘erects no shield against merely private conduct,
however discriminatory or wrongful’. However, the denial of rights in
this case involves state action in the form of the judicial enforcement
of the agreements by state courts - actions, which, according to the
Supreme Court, should be regarded as actions of the state within the
4Cf Van der Vyver ‘General principles of the declaration of fundamental rights’,
notes prepared for the course on human rights litigation, University of the Orange Free
State, May-August 1994 par 3.5. See also Van der Vyver ‘The private sphere in
constitutional litigation' 1994 THRHR 378 et seq.
5C f also Forde ‘Non-governmental interferences with human rights’ in 1986 British
Yearbook of International Law 253 et seq.
a334 US 1 (1948).
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The private domain and the bill of rights
55
meaning of the 14th Amendment. This decision is one of many in
which the American Supreme Court has invoked the criterion of state
action in order
to pronounce on, otherwise
insulated,
unconstitutional practices in private law relations. By concentrating
on and barring the state’s involvement in such practices, the Court
succeeds in avoiding the more sticky question of the inherent
illegality of certain inter-individual conduct from a fundamental
rights point of view.
The classification of judicial acts as forms of state action was also
argued before the Canadian Supreme Court in the case of Retail,
Wholesale and Department Store Union v Dolphin Delivery Ltd.7
There the question was whether freedom of expression secured under
section 2(b) of the Canadian Charter of Rights and Freedoms also
protected secondary picketing by members of a trade union in a
labour dispute. One of the issues raised was whether the Charter
applied to private litigation. In dealing with this ‘subject of
controversy’, the Court supported the view, as borne out by most
authorities and articles, that the Charter did not apply to private
litigation. Conclusive in this regard, according to the Court, was
section 32 of the Charter, which made the Charter applicable to ‘the
Parliament and government of Canada’ and ‘to the legislature and
government of each province’. These words were interpreted to mean
the legislative, executive and administrative branches of government,
‘whether or not their action is invoked in public or private litigation’.
It follows then that the Charter ‘will apply to the common law
whether in public or private litigation’, but ‘only in so far as the
common law is the basis of some governmental action which ...
infringes a guaranteed right or freedom’.8
Since, according to this reasoning, the element of governmental
action determines Charter applicablity in an otherwise insulated
private action, the argument was advanced that the state court’s
injunction against the picketing constituted governmental action
interfering with the rights guaranteed under the Charter. Contrary to
the American approach in matters of this nature, the Canadian Court
rejected the argument and concluded:9
While in political science terms it is probably acceptable to treat the
courts as one of the three branches of government... I cannot equate
for the purposes of Charter application the order of a court with an
element of governmental action. ... To regard a court order as an
733 DLR (4th) 174 (1986).
8Ibid 195.
9Ibid 196.
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element of governmental intervention necessary to invoke the
Charter would, it seems to me, widen the scope of Charter
application to virtually all private litigation. ... A more direct and a
more precisely-defined connection [than an enforcement order]
between the element of government action and the claim advanced
must be present before the Charter applies’.
This makes it clear that the connection sought is only be found in an
offending legislative measure, administrative decision or executive
order. A court order, on the other hand, cannot remove a case from
its private enclave.
Within the law of the European Human Rights Convention, the
question of the horizontal application of the Convention’s
fundamental rights provisions has created equally divergent views.
One view advocates the applicability of the human rights provisions
in mutual relations between individuals, while another concedes to
this only if a procedural mechanism exists which enables the
individual to enforce his or her human rights against another
individual. Since the Convention and its procedure are directed
towards the responsibility of the state and not of the private actor, an
individual is without a remedy in respect of a violation of
fundamental rights and freedoms by other individuals.10
However, in states where the provisions of the Convention are
self-executing and their horizontal applicability recognised by the
national courts, individuals can rely on their enforcement in
inter-individual relations.11 The enforcement of the relevant
provisions is then a municipal law issue by which the procedural bar
of the Convention is circumvented in a certain way. Even in the
absence of a self-executing clause in municipal law, the human rights
provisions of the Convention may still find a way to penetrate the
private domain through the operation of article 1 of the Convention
which obliges the member states to ‘secure to everyone within their
jurisdiction the rights and freedoms’ defined in the Convention, a
possibility strengthened by the private law subject-matter of some of
the provisions. However, these are probable interpretations only and
commentators still have diverse views on the scope of the
Convention’s application.
In this regard it may be interesting to examine the decision of the
European Court of Human Rights in the case of X and Y v The
10C f Van Dijk & Van Hoof Theory and practice of the European Convention on
Human Rights (1990) 15.
11Ibid 16.
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T h e private domain and the bill of rights
57
Netherlands.12 There a father filed a complaint concerning a sexual
assault on his mentally handicapped daughter in a mental home, an
incident which caused major mental disturbances in the victim. By
virtue of a lacuna in the criminal code of the Netherlands in respect
of the father’s complaint on behalf of his daughter, the case was
dismissed by a court of appeals. Neither was there any possibility of
appealing on a point of law to the Supreme Court in terms of the law
of criminal procedure. Subsequently the father applied to the
European Commission, claiming that the right of both his daughter
and himself to respect for their private and family life, as guaranteed
by article 8 of the Convention, had been infringed. In addition, it was
also argued that the absence of an effective remedy before a national
authority was contrary to article 13 of the Convention. Following the
Commission’s finding that article 8 had been infringed, the
government of the Netherlands approached the European Court to
find to the contrary. Since the applicability of article 8 was not in
dispute, the Court moved to articulate the object of the article as
‘essentially that of protecting the individual against arbitrary
interference by the public authorities’. However, such a primarily
negative undertaking by the state did not exclude the need for
positive obligations in the form of the ‘adoption of measures designed
to secure respect for private life even in the sphere of the relations of
individuals between themselves’.13
The Court did not elaborate on the choice of measures available to a
state to secure compliance with article 8 in the sphere of private
relations. Its concern was more with the absence of a criminal law
remedy in the law of the Netherlands that could provide an effective
deterrence where fundamental values, such as the respect for private
and family life, were endangered. Not state action, but state inaction
seems to be the focal point of the Court’s treatment of the ‘horizontal’
application of the Convention. In this sense it seems doubtful to
conclude that there is evidence in the Court’s reasoning of a direct
application of the Convention’s fundamental rights provisions in
inter-individual relations. The Court, after all, did not say that article
8 protects the individual against the kind of wrongful conduct
inflicted on the victim by another individual. The ‘horizontal’
application in this case directs itself, once again, at a specific state
function, that is, at providing an effective substantive and procedural
criminal law measure. Thus, it remains a govemment-citizen
relationship.
12(1985) 8 EHRR 235.
13Ibid 239, 240.
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After an intense and protracted debate on the horizontal application
of the fundamental rights in the German Constitution, the matter has
been resolved in favour of a pro-horizontal application. Controversial,
however, is still how and to what extent the fundamental rights
norms impact on inter-individual relations.14 Opinion seems to
vacillate between indirect and direct influence, with the former
gaining in popularity.15 The arguments in favour of an indirect
influence accredit the constitutional rights with an objective value
determining the concretisation of the general principles of all
branches of the law, including private law. This is referred to as the
radiation effect (Ausstrahlungswirkung ) of the constitutional rights
which the courts should honour in interpreting the application of
private law norms.16 Important though, is the observation that such
an influence does not transform private law norms, rights and
obligations into something else; rather it is an endeavour to bring
about a construction and application of general private law principles
in such a way as to make them compatible with the public and
private law provisions of the constitution.17
This line of thought has the backing of the German Constitutional
Court. In September 1950, the chairman of the Hamburg Press Club
launched an oral and written public attack on a well-known German
film director in which the public was encouraged to boycott his films.
The director was known for his anti-semitic sentiments and work,
and the purpose of the attack was to further the purging of German
society and to show the outside world that cultural life in Germany
was serious in its attempt to break with the past, not because of
political opportunism, but because of an inner conviction concerning
reform.
In a subsequent claim against the chairman by two film companies,
a state court found that the encouragement to boycott the films of the
director violated the boni mores principle in the German civil code.
The matter was then brought to the Constitutional Court and article
5 of the German Constitution, which guarantees freedom of speech,
became central to the issue.18 In dealing with this matter, the Court
followed traditional wisdom to declare that constitutional rights were,
in the first instance, meant to protect the sphere of freedom of the
individual against infringements by a public authority.19Equally true,
l4See Alexy Theorie der Crundrechte (1985) 480; Stern Das Staatsrecht der
Bundesrepublik Deutschland vol III/1 (1988) 1531 et seq.
15C f Stern (n 14) 1538 et seq; Alexy (n 14) 481 et seq.
‘6Alexy (n 14) 481.
17/bid; Maunz, Durig & Herzog Crundgesetz Kommentar vol 1 (1976) 66-68.
'"BverfGE 7, 198.
19Ibid 204, 205.
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The private domain and the bill of rights
59
however, was the objective value system to which the constitutional
rights purported to give juridical expression. This value system, the
Court argued, was underpinned by the notion of the free unfolding of
the human personality and dignity in society, a constitutionally
decisive factor valid for all branches of the law. Thus, where the
interpretation of private law measures was at stake, the spirit of this
notion had to be adhered to.20 What emerges from this approach is
not the elimination of the essentially private law nature of the issue,
but a specific giving-of-content to and re-interpretation of the private
law relationship in terms of the fundamental requirement that the
human dignity and personality be protected.
The influence of constitutional rights is especially relevant where
courts have to interpret general principles such as the boni mores.
These principles are the ports of entry for the constitutional rights
into the private law sphere and their application in a specific case
cannot escape the dictates of the overall value system a nation has
chosen for its constitution.21 Approaching the issue from this point
of view, the Court described the constitutional right to freedom of
expression as one of the foremost human rights and the most direct
revelation of the human personality, and essential for a democratic
society. However, this did not absolve the Court from its task to
weigh the protection of such a fundamental right against the interests
of individuals and the relevant private law norms.22
In this respect, the Court was guided by the motive and aim of the
chairman’s accusations. Instead o f being directed at the film
director’s private life and concerned with his self-interest or economic
motivation, these dealt with the formation of public opinion in a
matter which was in the national interest. The encouragement to
boycott the director’s films was regarded as justifiable and his private
and economic interests could not, in the circumstances of the case,
override the constitutional right to freedom of expression. In addition
to this reasoning, the Court also seemed to find refuge in the
argument that the failure of the state court, as the bearer of public
authority, to recognise in its judgment the impact of the
constitutional rights on private law norms, infringed the chairman’s
right to freedom of expression.23 Note the ‘state action’ approach of
the United States Supreme Court.
“ /bid 205, 206.
21Ibid 206.
22Ibid 208-211.
“ Ibid 206 et seq. See also Alexy (n 14) 486.
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This decision is generally regarded as directional in the discussion on
the private law effect of constitutional rights and supportive of the
indirect theory on this matter. As such it has won the support of
other decisions by the German Constitutional Court.24
In opposition to this trend, the supporters of the direct theory claim
that this is too limited a way of looking at the influence of
constitutionally entrenched rights in the domain of inter-individual
relations. They argue that the individual can directly invoke and
enforce the constitutional rights in relationships with other
individuals and non-state entities. This means that the application of
constitutional rights in the private law sphere does not depend on
legislation or interpretative intermediate stages, but becomes directly
applicable either in the form of objective-juridical norms or
inter-subjective private law. In this manner, existing private law
norms can be modified or new ones created.25
What concerns the adherents of the indirect theory is that a direct
application may endanger the self-reliant and distinctive quality of
private law by letting it be overawed by public law concerns
associated with the constitutional rights. If this is allowed to happen,
the autonomy of the private law sphere may be seriously
jeopardised.26 This concern is not without justification. The dreaded
result though, is by no means an inevitability.27 In this regard one
should adopt the point of view that private law issues can only be
dealt with in accordance with the dictates of the private law.28 The
fact that a private law issue has been taken up in a public law
document such as a constitution, does not transform the private law
issue into a public law one or cause public law norms to override
private law ones. The formal source of the law (the constitution)
must, after all, not be equated with the materially different legal
rights contained in it. Furthermore, private autonomy itself, and not
only the limitation thereof, is the object of constitutional
guarantees.29
J4See eg BverfGE 66, 116 131 135; Stern (n 14] 1532-1533, 1547.
J5Stern (n 14) 1538, 1539; Alexy (n 14] 482.
28Cf Maunz et al (n 17) 65; Stern (n 14) 1534.
27See also Klein Die Grundrechte im demokratischen Staat (1974) 60.
“ See also Maunz (n 17] 65: ‘Zivilrechtliche Rechtswidrigkeit und Grundrechtswidrigkeit sind nicht identisch, weder im Vertragsrecht noch im Recht der
unerlaubten Handlungen ... Sie konnen auch gar nicht identisch sein, solange man
uberhaupt noch gewillt ist, ein eigenstandiches Privatrecht... anzuerkennen’; Alexy
(n 14] 489.
29Cf Alexy (n 14) 491.
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Towards a different understanding of the so-called
horizontal application
In his analysis of Chapter 3 of South Africa’s Interim Constitution,
Van der Vyver has concluded that as far as state-imposed law is
concerned, the Chapter has a vertical as well as a horizontal
application.30 Legislative, executive and judicial state conduct, in
public as well as private law, will therefore have to comply with the
constitutional provisions of Chapter 3. The sections on which these
contentions are based were mentioned earlier, and if they are
properly construed one is inclined to support this conclusion.
Whether that was indeed intended or foreseen by the drafting
committee, is, of course, a different question.
This, however, seems to be the aspect of the problem on the
horizontal effect of the constitutional rights in Chapter 3 most easily
answered. More challenging is the question about the existence of a
private enclave of law and conduct which cannot be dealt with in
relation to state-imposed law and which may, consequently, escape
the controlling mechanisms of Chapter 3. The acts and conduct
which may fall under this category are those of private persons and
the internal rules of conduct of non-state institutions, such as private
clubs, business enterprises, universities and such like. According to
Van der Vyver these categories form part of an ‘a-constitutional
private sphere’ which is not covered by the provisions of Chapter 3.31
If this construction is adopted - and on the strength of the
Constitution’s terminology it seems a reasonable one - the private
enclave can be penetrated only through the enactment of civil rights
legislation in terms of section 33(4).
However, I am of the opinion that the discussion on the horizontal
effect of the constitutional rights should not end with a construction
- of the Constitution’s terminology. The distinction between a public
and private sphere, accentuated by Van der Vyver’s analysis,
represents the public and private law categories associated with the
modem, differentiated society. These categories, and the public and
private law interests they represent, are antecedent to and not
created by the constitutional provisions of Chapter 3. The latter
merely account for the constitutional status of, and specific giving of
form to, the respective rights and interests. Where private litigation
is based on a private law issue in Chapter 3, it stands to reason that
the relevant constitutional provision finds direct application, the sole
“ Van der Vyver [n 4) par 3.5.
31Ibid par 3.2-3.13.
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62
reason being the fact that the relevant constitutional provision
embodies private law. As indicated earlier, the formal source of the
law should not be equated with the materially different legal rights
and interests contained in it. Even where the state produces civil law,
through its publicly ordered legislation and judiciary, the latter is not
reduced to public law, but retains its irreducible private law
structure, in which all citizens and non-state institutions (including
the state in its capacity as a private law subject) participate on an
equal footing, irrespective of race, religion, origin, gender and social
status. The human rights of civil liberty and equality express the
material limits of state action in the private law sphere, while the
constitutional freedoms pertaining to constitutional law display the
same function in respect to the public law sphere. Their harmonious
co-existence and reciprocal correlation form the very foundation of
the constitutional state. To accomplishing this, and nothing more
remarkable, is the judicial function of the state.32
It has been argued that the Constitution is silent on the issue of
discrimination in, for instance, the law of husband and wife,
succession and contract, and where access to privately owned public
amenities is concerned.33 Thus, the controlling mechanisms of
Chapter 3 can only apply once civil rights legislation extends the
non-discrimination provisions of the Constitution to these private
spheres. It is important to note that these spheres are founded on the
civil law principles of equality and freedom, which included freedom
of choice in selecting a spouse, freedom in deciding on testamentary
bequests and freedom of contract. These principles are constitutive
for a private law order and their negation threatens the very
existence of that order and of individual freedom in general. However,
their application is by no means absolute and rigid, but should be
guided by the law's corrective or regulative principles which, in
modem, differentiated legal systems find expression in the notions of
human dignity, reasonableness, equity and good faith. These
principles embody the modem idea of the law. If they are ignored by
those responsible for the administration of justice or even by the
legislature, we may end up with unjust laws, or gesetzlich.es Unrecht
as the German philosopher, Gustav Radbruch, has called them. Even
in the so-called private enclave or a-constitutional sphere, these
principles prohibit private conduct which disregards human dignity
or goes beyond the exigencies of reasonableness and good faith.
Besides, they are indispensable for the progressive development of a
legal order in which the protection of human rights can fit
comfortably. Their enforcement is an inherent task of the judiciary
32C f Klein (n 27) 64.
MVan der Vyver (n 4) par 3.12.
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and does not depend on the mercy of legislative measures in the form
of civil rights legislation, or otherwise. The terminology of
constitutional rights formulations neither pretends to exclude their
operation in a developed legal system nor specifically to exclude them
in any comprehensive way. They simply form an integral part of the
public and private law interests the Constitution purports to protect.
Examples from South African law
The protection of a person’s dignity is a commonly accepted
principle. State constitutions and international documents containing
this principle abound. Section 10 of the Interim Constitution follows
this example and provides that ‘[e]very person shall have the right to
respect for and protection of his or her dignity’. In public law this
principle is further augmented by the equally common prohibition on
cruel, inhuman or degrading treatment or punishment.34 On a recent
occasion, this prohibition has been described35
as nothing less than the dignity of man.... [A] provision that
embodies broad and idealistic notions of dignity, humanity and
decency. It guarantees that punishment or treatment of the
individual be exercised within the ambit of civilized standards. Any
punishment or treatment incompatible with the evolving standards
of decency that mark the progress of a maturing society, or which
involve the infliction of unnecessary suffering, is repulsive. What
might not have been regarded as inhuman decades ago may be
revolting to the new sensitivities which emerge as civilisation
advances.
Within the law of the European Convention discrimination based on
race was considered not only as a form of degrading treatment in
certain circumstances, but also as something which could ‘constitute
a special form of affront to human dignity’.36
Yet the principle of human dignity is not restricted to the relationship
between government and citizen only, but displays a protean
character and asserts itself in all life situations. In the private law
sphere, for instance, we cannot think of human freedoms apart from
how they affect others. Let’s take the example of freedom of contract.
No matter how highly we value such freedom, it cannot serve as a
justification for enforcing private agreements the purpose of which is
the exclusion of persons of a certain race or sexual orientation. If
34See also sec 11 (2) of the Interim Constitution.
35Catholic Commission fo r Justice and Peace, Zimbabwe v Attorney-General,
Zimbabwe 1993 4 SA 239[ZSC) 247-248.
“ Jacobs The European Convention on Human Rights (1975) 35.
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such agreements affect a person’s human dignity, undoubtedly a
situation which calls for redress, including governmental redress,
arises. The judiciary has a pre-eminent responsibility in this regard one which does not depend on civil rights legislation.
Pornography is another example of the violation of human dignity.
The major theme nowadays is not sexuality, but violence and
primarily violence against women. The humiliation, rape, torture and
death of women in pornographic material creates a culture which
swarms with the degradation of females, a situation which cannot be
addressed, as is normally the case, solely with reference to increasing
liberal public morals and the freedom of people to produce and
consume what they like. Human freedom which mocks at human
dignity should be curtailed. What would our reaction be if an
industry of the same magnitude existed which portrayed the
beating-up of blacks and their subjection to various kinds of
humiliating treatment?
The principle of reasonableness was referred to above. In the law on
freedom of contract and restraint of trade there is no lack of examples
in evidence of this principle’s beneficial influence. Individual liberty
in trade relations and freedom of economic activity are not the
inventions of modem societies, but are firmly embedded in the
economic life of antiquity.37 Interference with this liberty on the basis
of reasonableness has also long been regarded as justifiable in order
to strike a balance between the right of the individual to pursue his
or her economic interests and other considerations in need of
protection. Our law in this regard has consistently followed English
principles which, in the well-known case of Nordenfeldt v M axim
Nordenfeldt Guns and Ammunition,38were summarised accordingly:
The true view at the present time ... is this: The public have an
interest in every person’s carrying on his trade freely: so has the
individual. All interference with individual liberty of action in
trading, and all restraints of trade of themselves, if there is nothing
more, are contrary to public policy, and therefore void. That is the
general rule. But there are exceptions: restraints of trade and
interference with individual liberty of action may be justified by the
special circumstances of a particular case. It is sufficient
justification, and, indeed, it is the only justification, if the restriction
is reasonable - reasonable, that is in reference to the interests of the
parties concerned and reasonable in reference to the interests of the
37C f Wacke ‘Wettbewerbsfreiheit und Konkurrenzverbotsklauseln im antiken und
modernen Recht’ 1982 Zeitschrift der Savigny-Stiftung fu r Rechtsgeschichte
Romanistische Abteilung 188.
“ 1894 AC 535 at 565.
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The private domain and the bill of rights
65
public, so framed and so guarded as to afford adequate protection to
the party in whose favour it is imposed, while at the same time it is
no way injurious to the public.
Taking its lead from this example, South African law will regard a
contract in restraint of trade as reasonable only if the party imposing
it seeks to protect a proprietary interest, such as trade secrets or
trade connections, and not if the constraint merely seeks to eliminate
competition.39The notion of reasonableness as a regulative principle,
even in the law of contract, signifies a meaningful break with the
Hobbesian command that ‘men must perform their covenants
made’.40 What Hobbes has articulated is the Renaissance mood of ‘no
moral rule beyond the letter of the law’ according to which the free
play of economic forces was considered to take place in an ethically
neutral zone. This tyranny of the contract soon exhibited a poignant
disharmony between the sanctity of covenants on the one hand and
considerations of just relations between individuals on the other. The
unbridled exploitation of relations of dependence and domination in
terms of the classical theory of free marketeering accentuates a kind
of trade practice unnerving to our perceptions of what constitutes
acceptable and proper contractual relations in modem society. Thus,
in interpreting section 26(1) of the Interim Constitution which
guarantees the right to freedom of economic activity and to pursue
a livelihood anywhere in the country, there is little danger that the
wholesome influence of the regulative principles referred to above will
be discarded in favour of the classical notion of the unrestrained free
play of social forces in economic life. It should be noted that
interference with the freedoms envisaged by section 26(1) is justified
in terms of section 26(2), if undertaken for the promotion of economic
growth, social justice, human development, fair labour practice and
so on. Since this sub-section deals with government measures in
pursuit of the listed aims, it is strictly speaking not relevant to the
issue under discussion. Suffice it to mention that the principle of
proportionality as developed by the European Court of Human
Rights41 will be a useful guide for South African courts in this regard.
Some aspects of our law of succession should finally be considered
here. South African law of succession is based on the principle of
freedom of testation. Subject to only a few limitations, such as public
policy, vagueness, uncertainty and illegality, a testator enjoys
complete freedom of testation and may dispose of his property as he
39C f Recycling Industries (Pty) Ltd v Mohammed 1981 3 SA 250(SEC); Magna
Alloys and Research (S A ) (Pty) Ltd v Ellis 1984 4 SA 874(A); Rawlins v Caravantruck
(Pty) Ltd 1993 1 SA 537(A).
40See Hobbes Leviathan (1968) ch XV.
41See inter alia Van Dijk and Van Hoof (n 10) 583 et eq.
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or she pleases.42 Of particular concern in this regard is the approach
of the courts in cases where conditions imposed on testamentary
bequests were challenged.
Precedents show that the courts are more inclined to disallow a
condition calculated to cause the break-up or prevention of a
marriage than a condition interfering with freedom of movement or
religion or with freedom from discrimination. Furthermore, the issue
of the rights of the beneficiary is usually overshadowed by the courts’
concentration on the clarity or lack thereof of the testator’s
terminology and intention. The result is that the law of succession
does not provide us with a body of practice sensitive to the weighing
of rights and interests compatible with the notion of an open and
democratic society based on freedom and equality. A few examples
will illustrate this point.
The institution of marriage has rightly been protected by the courts
where conditions were calculated to harm the marriage bond. In Levy
v Schwartz 43 the testator left certain benefits to his one daughter on
condition that she receive these only if her marriage were to be
dissolved by death, or any other cause, before the date of
distribution. Declaring the condition invalid, the court invoked the
boni mores principle and stated that ‘the laws of all civilized
countries are unanimous in declaring that conduct calculated to
break up a marriage is contra bonos mores’. A condition preventing
someone from marrying has likewise been declared to be invalid.
Thus, in D e W ayer v SPCA Johannesburg 44 a condition restraining
the heir, a bachelor, from marrying was found to be contra bonos
mores and invalid.
Restraining someone from remarrying is, on the other hand, not
invalid. In Ex parte Gitelson45 the applicant was appointed the
heiress of the will of her late husband subject to the condition that
she paid to each of the testator’s children a certain sum of money
should she remarry. Referring to several Roman-Dutch authorities,
the court found in favour of the disputed condition and suggested
that the views of those authorities should be accepted in our modem
law. The court also relied on the consideration in English law that it
was right and proper for a man to prevent his widow from
42Cf Van der Merwe and Rowland Die Suid-Afrikaanse erfreg [1990) 612; Corbett
et al The law of succession in South Africa (1980) 33, 34.
431948 4 SA 930(W). See also Oosthuizen v Bank Windhoek Ltd N O 1991 1 SA
849(Nm).
441963 1 SA 71 (T).
451949 2 SA 881(0).
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remarrying, under the belief that if his spouse remarried his children
might be less well cared for in view of die spouse’s second alliance.
In this case the court seemed to rely on the motive of the testator.
Were the motive not to provide proper care for the children, but to
encourage the beneficiary to remain unmarried, the condition might
be considered invalid. Other cases emerge more clearly in favour of
the intention of the testator as opposed to the tendency of the
conditions to interfere with the rights of the beneficiary. In Barclays
Bank v Anderson46 the testator bequeathed portions of a farm to his
childem subject to the condition that every beneficiary ‘shall
personally, permanently and beneficially occupy’ the land
bequeathed to them. Medical and health reasons on the part of the
beneficiaries, together with the business commitments of their
husbands, prevented them from complying with this condition and,
in the subsequent application to have their rights in the bequests
nullified, they argued that the conditions were void, as they tended
to bring about a separation between husband and wife. After
consideration of the position in English law and in Roman and
Roman-Dutch law the court concluded that
mere tendency seems... to be an unsatisfactory test.... If the object
of a particular provision is to interfere with or disrupt a marital
relationship there can be no doubt that the provision should be
regarded as contra bonos mores.... But in my opinion, a condition or
provision in a will which is not inserted for the purpose of causing
any interference in the marital relationship... but for some other legal
purpose, is quite valid even though there may exist a tendency for
disruption to arise in such relationship as a consequence thereof...
In Ex parte Higgs: In re Estate R a n ga sa m t 7 this ‘intention theory’
was also invoked by the court to dismiss an application challenging
a condition restraining the beneficiaries from leaving the parental
roof, marrying and setting up a home elsewhere. According to the
court the testator’s intention was clear, namely to keep his property
and family intact. In Ex Parte Dessels 48 a bequest was made subject
to the condition that payments were to cease if (1) the testator’s
widow lived an immoral life, or if (2) she permitted a stranger to live
with her, except one regarded as a visitor who stayed no longer than
a week per year, and who, if a male person, was accompanied by his
wife. The court held that a condition that a person should not live in
immorality was not against public policy and did not unreasonably
interfere with personal freedoms. Condition (2) on the other hand was
considered too vague and was deleted by the court.
481959 2 SA 478(T).
471969 1 SA 56(D).
481976 1 SA 851(D).
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These cases illustrate how adversely onerous provisions may effect
the beneficiaries where the courts unduly yield to the volition or
caprice of the testator. In none of these cases was an attempt made
to properly consider the effect of the conditions on the beneficiaries’
right to freedom of movement and residence, the right to marry and
to found a family. They further illustrate how insensitive our courts
have sometimes been to thinking elsewhere in the world on matters
relating to human rights and freedoms. Perhaps an over-developed
devotion to Roman-Dutch and English authorities in this regard
should carry part of the blame.
More than forty years ago, one of South Africa’s eminent legal
scholars, HR Hahlo, strongly reacted to our courts’ avoidance of the
fundamental issues involved in cases of this nature. Most remarkable
at the time was his admonition that the principle of public policy,
often relied upon by our courts to adjudge the validity of a will,
should include the individual’s unfettered freedom of choice in
religion and marriage. These issues were obscured by their being
linked with financial considerations from which they should have
been free. Moreover,49
whatever the position in the seventeenth and eighteenth centuries
may have been, it is repugnant to modern notions that a testator
should direct his descendants in matters which ought to be left to
the free and unfettered decision of the individual.
Hahlo’s comment at the time was directed at the decision of the
Appeal Court in the case of Aronson v Estate Hart,50 which dealt
with a testamentary condition compelling a beneficiary to remain in
the Jewish faith and to marry only a Jew. As in the cases referred to
above, the court concentrated on the intelligibility of the testator’s
language and upheld the condition. In regard to the applicant’s
argument that the condition was against public policy, in that it
improperly restricted freedom of choice in marriage and religion, the
court responded that there was no principle in law which would
make it contrary to public policy for a testator to safeguard his
descendants from the perils of inter-religious tensions and stresses.
Some time after this decision CP Joubert published a well-researched
article in which it was shown that even the Roman-Dutch authorities
frowned upon faith and race clauses in wills, and for no other reason
than freedom of religion.51
49Hahlo ‘Jewish Faith and Race Clauses in Wills’ (1950) 67 S A U 231, 242.
“ 1950 1 SA 539(A).
51Joubert ‘Jewish faith and race clauses in Roman-Dutch law’ (1968) 85 SALJ 402,
417-418.
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It is regrettable that our highest court missed the opportunity to
shape the law on this point. As Hahlo has shown, there was no
binding precedent, as in the case of English law where judges
confessed their dislike for this kind of clause but were unable to hold
such clauses invalid for considerations of public policy. Moreover, the
fundamental issues before the Appeal Court were not whether
inter-religious marriages are good or bad, as the court seemed to have
understood it, but52
whether it is in accordance with or contrary to our notions of what
is decent and proper that a testator should be permitted by means
of financial penalties to direct his descendants ‘from the grave’ in the
choice of a mate or of a religion.
When matters of this nature come before our courts in the future, it
is hoped that they will have regard for a wider spectrum of
considerations than the will or intention of the testator. The
laissez-faire doctrines of the past are ill-equipped to deal with modem
constitutionalism, in which not only constitutional law norms reign
over the branches of state authority, but certain individual
preferences must be weighed in the balance against the equitable
treatment of others. The regulative principles, referred to earlier, of
which our courts can avail themselves, are by no means exclusively
the creatures of constitutions, but form part of our idea of the law, or
as Hahlo53 has called it, ‘our notions of propriety’.
Conclusion
On a deeper level the whole discourse on the horizontal effect and
application of a bill of rights is very much influenced and shaped by
the erstwhile liberal idea of the constitutional state as formulated by
John Locke. Thus, for a better understanding of the conceptual flaws
in this discourse, it may be worthwhile to deal, in brief outline only,
with this historical moment in the development of the human rights
philosophy.
It is common cause that Locke’s Two Treatises o f Government,
published in 1690, embodies two emerging and powerful ideas which
came to fruition in the crucible of enlightened thought: securing
moral restraints on state power and the subordination of government
to law; and the preservation of individual rights. In the mind of Locke
the realisation of these ideas was based on the ideal that the state
exists to preserve life, liberty and property, while the indefeasibility
“ Hahlo (n 49) 242.
53Ibid 240.
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of these individual rights constitutes the limitation on state
authority.54 However, Locke’s conception of individual rights focuses
on civil law to which freedom, equality and property are indeed basic.
‘Property’ is for Locke a generic term, including the sum of all
subjective rights, for the protection of which all individuals unite
under the social contract to form the civil state.55 By limiting the
purpose of the state to the preservation of inter-individual relations
in which the free play of social economic forces holds sway - this idea
of the body politic was later referred to as the ‘Nachwdchterstaat’ Locke could not but identify the legal idea of the public interest with
the protection of individual rights. Thus, he could write that the
‘great and chief end of men uniting into commonwealths, and putting
themselves under governments, is the preservation of their property;
to which in the State of nature there are many things wanting’.56
Where he assigned the realisation of this end to the legislature as the
supreme power in the civil state - and not to ‘indifferent and upright
judges, who are to decide controversies by those laws’ - Locke states
that all this shall ‘be directed to no other end but the peace, safety
and public good of the people’.57
This attenuation of the function of the constitutional state to a
one-dimensional objective is irreconcilable with the nature of the
constitutional state as a public legal community of government and
citizens. Such a state has the task of determining the course and
limits of its own activities as well as the citizen’s spheres of liberty in
terms of the demands of justice. It involves the manner in which the
state’s law-makers, including Locke’s indifferent and upright judges,
give positive form to the material principles of the law in the legal
spheres of public and private law.58 Civil liberties and the norms
emanating from them play a fundamental role in this regard. Their
^ C f Sabine and Thorson A history of political theory (1973) 483 et seq.
55Locke Two treatises of government (1924) ch 9.
M/Wd.
57Ibid. See also Mekkes Proeve eener critische beschouwing van de ontwikkeling
der humanistische rechtsstaatstheorieen (1940) 214-215; Pretorius Die begrip
openbare belang en burgervryheidsbeperking LLD thesis, University of the Orange
Free State (1986) 64 et seq.
“ See also the following observations of the German constitutional theorist Stahl Die
Philosophic des Rechts vol 2 (1963) 137, 138: ‘Der Staat soil Rechtsstaat sein, das ist
die Losung und ist auch in Wahrheit der Entwicklungstrieb der neueren Zeit. Ersoll
die Bahnen und Grenzen seiner Wirksamkeit wie die freie Sphare seiner Burger in der
Weise des Rechts genau bestimmen und unverbrichlich sichern.... Dies ist der Begriff
desRechsstaates, nichtetwadassderStaatblossdieRechtsordnung handhabeohne
administrative Zwecke, oder vollends bloss die Rechte der Einzelnen schiitze, er
bedeutet iiberhaupt nicht Ziel und Inhalt des Staates, sondem nur Art und
Charakter dieselben zu verwirklichen’. (My italics).
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The private domain and the bill of rights
71
application and progressive development by the courts are neither
based on the forbearance of the legislature nor limited to only certain
spheres of law or human activity only.
Locke’s identification of the common good with the protection of the
individual’s civil welfare by the state raises the question of the
relationship between government authority and its utilisation in the
common interest in a trans-individual sense, on the one hand, and
the protection of individual rights and freedoms, on the other, within
the communal bond of the state. In the old liberal programme of
non-interference, according to which the body politic was supposed
to refrain from interfering with non-political society - viewed by
liberal economic theory as an exclusively economic aspect and
sharply distinguishable from the body politic - government and
citizen, with their respective and mutually exclusive claims, came to
face each other in an irreconcilable poise. This image of the
relationship between government and citizen has not totally lost its
appeal for some scholars. The notion that civil rights legislation is
needed to effect the horizontal application of constitutional rights and
freedoms is a case in point. Civil rights legislation - a practical
solution to an otherwise unsolvable problem - is seen as the umbilical
cord spanning the liberal divide between citizen and government and
providing the courts with the necessary instrument and authority for
taking the provisions of the constitution into the otherwise
impenetrable private sphere.
This approach is not able to be reconciled with the idea of the
constitutional state in its material or substantive form. In this sense
the constitutional state must be conceptualised along the lines of an
idea that avoids a restrictive concentration on the formal frame of the
state-constitution and explores the fundamental principles of public
and private law underlying the constitutional rights and freedoms,
which, after all, express the inner limits of the state over and against
those of non-state social institutions and individual conduct.59
Maintaining and progressively developing these principles (including
the regulative principles referred to above), in accordance with the
demands of justice in both the private and public spheres, is
essentially a state function. This function does not derive from the
constitution or any other kind of legislation, but from the nature of
the state as a public legal community. Undertaking this function in
the public interest means that the state must have regard to the
materially different and multi-facettedness of legal interests in the
territory of the state. It means too that the state cannot follow a
59C f Van Eikema Hommes ‘The material idea of the law-state’ 1978 Ph.ilosoph.ia.
Reformata 49,50-51.
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policy of non-intervention, where individual conduct exceeds its inner
limits and threatens the plurality and integrated co-existence of legal
interests.
LLM course in Advanced Public International Law and
International Economic Law
The Department of Constitutional and Public International Law of the
University of South Africa offers LLM (B curriculum) papers in Public
International Law (MPINLW-Y) and International Economic Law
(MIECLW-5).
The first course deals with the nature and sources of public
international law with particular emphasis on the interplay between
treaty and custom; the relationship between public international and
municipal law; jurisdiction, including problems surrounding extra­
territorial and trans-border legislation;and act of state and arbitration
in a comparative and international context.
The second course examines the nature and sources of international
economic law including the international lex mercatoriai juridical.
regulation of international trade and of international economic
organisations; international economic legal transactions with
particular reference to the contract for the international sale of goods;
and the nature and role of money in public international: law including
the payment of foreign monetary obligations, monetary sovereignty;
exchange control measures and international arbitration.
Students interested in registering for these courses and who require
additional information, may contact Professors Neville Botha (012-429
8398) or Hercules Booysen (012-429 8372) of the Department of
Constitutional and Public International Law or Mr GW Cox of the
: Department of Postgraduate Student Affairs (012-429 2805)