Horizontal vs Vertical Application: How the Bill of Rights Binds State and Private Actors

Does the Bill of Rights apply only to the government, or does it also regulate relationships between private individuals? Understanding vertical and horizontal application is crucial for constitutional law.

What is Vertical Application?

Vertical application means the Bill of Rights binds the state (government and public entities).

Section 8(1): "The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary, and all organs of state."

Who is "the State"?

• Legislature (Parliament, provincial legislatures)
• Executive (President, Cabinet, government departments)
• Judiciary (courts, magistrates)
• Organs of state (public universities, state-owned companies, municipalities)

Example: A student challenges a public university's decision to suspend her without a hearing → The Bill of Rights applies vertically (university is an organ of state).

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What is Horizontal Application?

Horizontal application means the Bill of Rights also applies between private individuals (not just state vs individual).

Section 8(2): "A provision of 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."

Who Are "Private Persons"?

• Individuals
• Private companies
• NGOs
• Religious organizations
• Private schools

Example: An employee sues a private company for unfair discrimination → The Bill of Rights applies horizontally (between private parties).

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Direct vs Indirect Horizontal Application

Direct Horizontal Application

The Bill of Rights applies directly to private parties in certain cases.

Section 8(2) allows this, but only "if, and to the extent that, [the right] is applicable."

Example: Section 9(4) explicitly prohibits private unfair discrimination:
"No person may unfairly discriminate directly or indirectly against anyone..."

Indirect Horizontal Application

The Bill of Rights applies indirectly through:

1. Legislation (e.g., Employment Equity Act, Promotion of Equality Act)
2. Development of common law (Section 39(2))

Example: Defamation law (common law) must be developed to balance freedom of expression (Section 16) and dignity (Section 10) in disputes between private parties.

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How Courts Determine Horizontal Application

Courts use a case-by-case approach, considering:

1. Nature of the Right

Some rights are inherently public (bind only the state).
Others are universal (apply to everyone).

Public rights (vertical only):

• Political rights (Section 19) — Right to vote, stand for office
• Access to information held by the state (Section 32)

Universal rights (can apply horizontally):

• Equality (Section 9)
• Dignity (Section 10)
• Privacy (Section 14)
• Freedom of expression (Section 16)

2. Nature of the Duty

Does the right impose a negative duty (refrain from acting) or a positive duty (take action)?

Negative duties can apply horizontally more easily.
Example: Don't discriminate (Section 9(4)).

Positive duties usually apply only to the state.
Example: Provide access to housing (Section 26).

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Landmark Cases on Horizontal Application

Du Plessis v De Klerk (1996)

Issue: Does the interim Constitution's Bill of Rights bind private parties?

Holding: The interim Constitution applied vertically only (state action doctrine).

Why it matters: This case applied to the interim Constitution (pre-1996). The final Constitution (1996) explicitly allows horizontal application via Section 8(2).

Khumalo v Holomisa (2002) — Defamation

Issue: Must common law defamation be developed to comply with the Bill of Rights in a dispute between private parties?

Holding: Yes. Section 39(2) requires courts to develop common law in line with the Bill of Rights, even in private disputes.

Significance: Confirmed indirect horizontal application through development of common law.

Practical effect: The court introduced a public interest defense in defamation to protect freedom of expression.

Carmichele v Minister of Safety and Security (2001)

Issue: Does the state have a duty to protect individuals from private violence?

Holding: Yes. The state has a positive duty under Section 12 (freedom and security) to protect citizens from private harm.

Significance: Even though the harm came from a private person, the state's failure to act violated the Bill of Rights (vertical application).

Governing Body of Juma Musjid v Essay (2011) Issue: Can a private religious school evict learners for non-payment of fees?

Holding: The school (though private) must consider learners' constitutional rights (education, dignity). The Bill of Rights applies horizontally via the Schools Act.

Significance: Private entities can be bound by the Bill of Rights when exercising public functions (education).

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When Does Horizontal Application Apply?

✅ Horizontal Application Likely:

• Equality (Section 9) — Explicit horizontal application via Section 9(4)
• Dignity (Section 10) — Can apply between private parties (e.g., defamation)
• Privacy (Section 14) — Protects against private intrusion
• Labour rights (Section 23) — Apply in employer-employee relationships
• Expression (Section 16) — Balanced with other private rights (dignity, reputation)

❌ Vertical Application Only:

• Political rights (Section 19) — Only the state can grant voting rights
• Access to state-held information (Section 32) — Only binds the state
• Socio-economic rights (Sections 26-27) — Positive duties on the state

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Study Tips: Vertical vs Horizontal

1. Memorize Section 8

• 8(1) = Vertical (binds the state)
• 8(2) = Horizontal (can bind private parties)

2. Ask: Who Are the Parties?

• State vs individual → Vertical application (Section 8(1))
• Private vs private → Check if horizontal application applies (Section 8(2))

3. Know Which Rights Apply Horizontally

Always horizontal:

• Equality (Section 9(4))
• Labour rights (Section 23)

Sometimes horizontal (via common law development or legislation):

• Dignity, privacy, expression

Never horizontal:

• Political rights, access to state information

4. Section 39(2) is Key

This section requires courts to develop common law to align with the Bill of Rights.

Example: Defamation law (common law) must balance expression and dignity in private disputes.

5. Direct vs Indirect

• Direct = Bill of Rights applies to private parties via Section 8(2)
• Indirect = Bill of Rights applies via legislation (e.g., PEPUDA) or common law development

6. Cite the Cases

• Du Plessis → Interim Constitution (vertical only)
• Khumalo → Horizontal via common law development
• Juma Musjid → Private entities performing public functions

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