INTRODUCTION: BAD THINGS COME IN THREES

The Constitutional Court has been making some controversial decisions in recent
months, with three majority decisions involving the Bill of Rights. These decisions,
Barkhuizen, Masiya, and NM, have been criticized for their murky reasoning and
lack of analytical rigor. The court's preference for outcome-based decision-making
has led to deleterious consequences, including the refusal to engage in direct
application of the Bill of Rights. This strategy, which speaks in terms of three
vaguely defined values — dignity, equality, and freedom — substitutes for more
rigorous interrogation of constitutional challenges in terms of specific substantive
rights found in Chapter 2 of the Constitution. This strategy has freed the court
almost entirely from the text, allowing it to decide each case as it pleases,
unmoored from its own precedent.

The court has also unwittingly undermined the Bill of Rights by continually
relying on s 39(2) of the Constitution to decide challenges both to rules of common
law and to provisions of statutes. This strategy allows the court to skirt the nuanced
process of justification that s 36 of the Constitution or some other express
limitations clause in a specific substantive right might require. This persistent
refusal to give rights identifiable content results in a Bill of Rights increasingly
denuded of meaning.

The over-reliance on s 39(2) also undermins the rule of law, as the interpretative
process engineered by the drafters of the Bill of Rights should produce black-letter
constitutional law. This approach makes it difficult for lower court judges, lawyers,
government officials, and citizens to discern how the basic law will be applied and
to know that the basic law will be applied equally. This failure to develop coherent
doctrines in many areas of fundamental rights jurisprudence not only undermines
the Bill of Rights and the rule of law but also places the court's authority at risk.

MASIYA
Facts and Findings
Masiya, a man convicted of anal rape, was re-defined by the magistrate to include
non-consensual penetration of the penis into the vagina or anus of a person,
making the common-law definition gender-neutral. The High Court agreed with the
magistrate's reasoning and confirmed Masiya's conviction. The Constitutional
Court was asked to confirm the High Court's judgments, particularly the
development of the common-law definition of rape and the subsequent alterations
of the Criminal Procedure Act 51 of 1977 (CPA) and the Criminal Law
Amendment Act 105 of 1997 (CLAA). The majority of the court held that the
current definition of rape remained consistent with the Bill of Rights, but the
Masiya court found that the pre-Masiya definition still fell short of the spirit,
purport, and objects of the Bill of Rights. The majority refused to extend the
definition to non-consensual anal penetration of males, arguing that the law should
not distinguish between men and women.
Analysis
The Chief Justice of the Supreme Court has ruled that distinguishing between men
and women in anal rape is unconstitutional, as it violates the dignity of both
genders. He acknowledges that the recognition of anal rape does not require
legislative intervention, as coerced anal intercourse is anal rape regardless of
whether the victim has a penis or a vagina. The Chief Justice believes that the
common law is adequate to righting/rewriting the law as it stands.

The Constitutional Court's Bill of Rights analysis in this case highlights the need
for addressing specific substantive rights that the current definition violates, such
as dignity, equality, freedom, security, and children's rights. However, the court
does not mention the rights that the common-law definition or relevant statutory
provisions may have directly infringed on. The court invokes Du Plessis v De
Klerk, which emphasized the indirect application of the Bill of Rights to common
law.

Under the interim Constitution, the court could have applied the Bill of Rights
indirectly to common law, but under the final Constitution, the Court committed to
the direct application of fundamental rights to common law. This interpretative
strategy is odd and speaks volumes about the Chief Justice's thoughts on the
majority's errant course. His refusal to adopt the majority's application analysis
reveals his thoughts on the majority's errant course.

Masiya's interpretation of the Bill of Rights does not consider the direct application
of the substantive provisions to the common-law rule regarding the definition of
rape. Instead, the entire analysis of the common-law rule takes place within the
rubric of s 39(2) and in terms of indirect application. Masiya's implicit conclusions
about the application of the Bill of Rights under the Constitution are that there is
no meaningful difference between direct application of the Bill of Rights to the
common law under s 8 and indirect application of the Bill of Rights under s 39(2).
This contradicts O'Regan J's injunction in Khumalo v Holomisa, which
emphasized the importance of attribution of distinct purposes to the two sections.

The specific substantive provisions of the Bill of Rights apply to each kind of law
and conduct, but they do not engage all law and conduct. The independent purpose
of s 39(2) is to engage law and conduct not engaged by any of the specific
provisions set out in Chapter 2.

A counterfactual makes this distinction clear: if ss 39(2) and 8 require the same
mode of analysis, the correct reply is that the drafters intended for two different
processes: direct application, which takes the rights and freedoms and general rules
derived from them, and indirect application, which allows for a mode of analysis
that neither specifies whether a particular right demands vindication nor permits it.
The Masiya court's argument that there is a meaningful difference between analysis
under sections 8 and 39 is incorrect. The court claims that since section 39 requires
analysis of specific substantive rights, rules of common law, or provisions of
statutes in light of the same five core values, such as openness, democracy, human
dignity, equality, and freedom, we must engage in a global assessment of rights,
rules, and statutory provisions. However, this is false. When interpreting a statutory
provision or rule of common law, we do not engage in a global assessment of
competing Bill of Rights considerations.

The Masiya court's collapse of the rule/value distinction better justifies the result in
Masiya. This broad enquiry makes questions about the distinct kinds of application
required by sections 8 and 39 superfluous, violating the non-redundancy
requirement articulated by O'Regan J in Khumalo.

The Constitutional Court's distinction between rules and values and the different
uses to which the Constitution puts them is also important. In Minister of Home
Affairs v National Institute for Crime Prevention, the NICRO court held that
values are of fundamental importance but do not give rise to discrete and
enforceable rights in themselves. While the fundamental values articulated in the
Constitution will shape the rules expressed therein, there remains a distinction with
a difference: rights give rise to rules and enforceable claims, while values do not.
The Masiya court ignores this distinction at our peril.

BARKHUIZEN

Facts and Findings

Napier v Barkhuizen involved a case where the plaintiff, Barkhuizen, was denied a
claim for negligence due to a clause in his insurance policy. The High Court upheld
the claim, arguing that the clause violated the right of access to courts. The
Supreme Court of Appeal reversed the High Court's decision. The Constitutional
Court decided to determine if the clause was contrary to public policy, focusing on
constitutional values, particularly the Bill of Rights. The majority concluded that
Barkhuizen had adequate access to court, despite evidence of a contract not being
freely concluded or unaware of the clause. The Chief Justice, Langa CJ, refused to
apply the Bill of Rights directly to contracts between private parties. The case
highlights the importance of considering public policy and the Bill of Rights in
legal cases.

Analysis
Napier v Barkhuizen was a case where the plaintiff, Barkhuizen, was denied a
claim for negligence due to a clause in his insurance policy. The High Court upheld
the claim, arguing that the clause violated the right of access to courts. The
Supreme Court of Appeal reversed the High Court's decision, and the
Constitutional Court decided to determine if the clause was contrary to public
policy, particularly the Bill of Rights. The majority concluded that Barkhuizen had
adequate access to court, despite evidence of a contract not being freely concluded
or unaware of the clause. The Chief Justice, Langa CJ, refused to apply the Bill of
Rights directly to contracts between private parties.

The most important sections on application in the Constitution are s 8(1) and s (2).
Section 8(1) subject all legal disputes that engage a specific substantive provision
of the Bill of Rights to the direct application of the Bill of Rights. Section 8(2)
states that the Bill of Rights will apply to disputes between private parties if the
rights asserted were deemed applicable. In Khumalo, the court held that a
defamation action between two private parties was subject to the direct application
of s 16, the right to freedom of expression, of the Bill of Rights. However, the
Barkhuizen court wrote that the section 34 argument raises the fundamental
question of the appropriateness of testing a contractual provision directly against a
provision in the Bill of Rights, raising the question of horizontality.

The Khumalo and Barkhuizen courts have contradicted themselves in their

statements regarding the Bill of Rights. The Khumalo court stated that natural and
juristic persons are bound by provisions of the Bill of Rights, while the Barkhuizen
court did not differentiate between the two. The Barkhuizen court's holdings
contradict the Khumalo court's conclusions, as they both questioned whether a
delictual dispute between private parties could be subject to the direct application
of the Bill of Rights. The Barkhuizen court attempted to address this issue by
asserting that there is no law at issue, only a private contract and the common-law
commitment to the sanctity of contract. However, the Khumalo court did not
entertain this proposition, as it would have rejected it as a ground for avoiding
direct application. The Barkhuizen court also denied that s 8(2) and (3) dictate the
direct application of the Bill of Rights to the instant matter, but later stated that
courts are empowered to develop the rules of the common law to limit a right in
the Bill of Rights, provided that the limitation is in accordance with section 36(1).
The Barkhuizen court refuses to explain how it squares its rejection of s 8(3) for
direct application with its apparent willingness to deploy s 8(3) for indirect
application.

The Barkhuizen court, in a case involving contracts between private parties, claims
that the applicant cannot rely on common law as pacta sunt servanda to ground a
constitutional challenge in terms of a specific substantive provision of the Bill of
Rights. However, this assertion is incorrect. The Khumalo court argues that the
specific substantive provisions of the Bill of Rights can be applied directly where
there is no law at all. However, the law of contract is relied upon by all parties in
this matter.

The Constitutional Court has not shied away from applying the Bill of Rights
directly to conduct, as seen in Hoffmann v SAA. In this case, the Court used s 9 to
find that the applicant had been unfairly discriminated against because of his HIV
status and ordered his hiring (not reinstatement) as a cabin steward. The absence of
law only mattered in so far as SAA was denied an opportunity to justify its conduct
in terms of s 36. Whether the unfair discrimination analysis took place in terms of s
9(3) or (4), we have no reason to believe that the court's conclusion would have
differed. Had SAA been a private carrier, the Hoffmann court would have found its
conduct to be unfair discrimination in terms of s 9(4).

The Constitutional Court's argument that its approach to issues of application

differs from the High Court's approach to application is entirely parasitic on the
existence of a meaningful distinction between indirect application and direct
application. If the two processes of application are identical, then the various
sections of the Bill of Rights that deal with 'Application' or 'Interpretation' must
contemplate at least two distinct modes of analysis and employ language that
reflects such a distinction.

Indirect application was not meant to 'avoid' actual constitutional analysis in terms
of the specific substantive provisions of the Bill of Rights. It enables a court to go
beyond the limited substantive provisions of the Bill of Rights, but it does not
necessarily mean that the analysis of the specific provisions of the Bill of Rights
and the consistency of law or conduct with those provisions should be prior to the
analysis of the common law in terms of the general spirit, purpose, and objects of
the Bill of Rights. When s 39(2) — indirect application — is given priority over s
8, it does too much work and turns all of s 8 into surplusage.
The Barkhuizen court explains that Section 34 is an express constitutional
recognition of the importance of fair resolution of social conflict by impartial and
independent institutions. It emphasizes the importance of access to court as a
bulwark against vigilantism and chaos in society. The court argues that Section 34
not only reflects the foundational values that underlie our constitutional order but
also constitutes public policy.

Section 34 provides the measure against which all other law and conduct, and
therefore public policy, are assessed. The Constitution is supreme, and any law
inconsistent with its provisions is invalid. Courts are required to develop the
common law of contract in a manner that promotes the spirit, purport, and objects
of the Bill of Rights. Courts are equally empowered to develop the rules of the
common law to limit a right in the Bill of Rights, provided that the limitation is in
accordance with section 36(1).

The court's analysis suggests that the proper approach to this matter is to determine
whether clause 5.2.5 is inimical to the values that underlie our constitutional
democracy, as given expression to in section 34 and thus contrary to public policy.
This suggests that they are all one and the same thing, even when the NICRO court
has told us that they are not. By asking whether the clause at issue is "inimical to
the values that underlie our constitutional democracy," the court seems to obviate
the need to ask what, if anything, s 34 demands, so long as what it demands is not
inimical to the values that underlie our constitutional democracy.

The collapsing of the distinction between value analysis, rights analysis, and public
policy analysis allows the court to ask whether contractual time limitation clauses
are contrary to public policy.

The Barkhuizen court's assertion of the 'proper approach' is not valid, as it cannot
provide a specific definition or distinguish it from the Beinash court's approach.
Beinash used a two-step rights analysis and limitations analysis to challenge a rule
of law, while Barkhuizen focused on a contract between private parties grounded in
common law of property. This distinction should not secure the court any traction
in its notion of the 'proper approach'. In previous cases, challenges to common law
governing conduct between private parties were subject to direct application of s
16, Hoffmann, and Bhe, while Beinash unsuccessfully brought s 34 to bear on an
underlying dispute. The Barkhuizen court's approach should not be taken as the
'proper approach'.