Section 8 Explained: Application of the Bill of Rights — Vertical and Horizontal Application

Section 8 is crucial because it determines who the Bill of Rights binds. Does it apply only to the state, or also to private individuals and companies?

Understanding Section 8 is essential for analyzing any Bill of Rights problem.

The Text of Section 8

Section 8(1): Vertical Application

"The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary, and all organs of state."

Section 8(2): Horizontal Application

"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."

Section 8(3): Duties Imposed by Rights

"When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court—
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1)."

Section 8(4): Juristic Persons

"A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person."

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Breaking Down Section 8(1): Vertical Application

"The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary, and all organs of state."

What is Vertical Application?

Vertical application means the Bill of Rights binds the state in its dealings with individuals.

Visual:

        STATE (Government)
            ↓
      Individual/Company

The power flows downward (vertically) from the state to the individual. The Bill of Rights regulates this relationship.

Who is "The State"?

Section 8(1) binds:

1. The Legislature

• National Parliament
• Provincial legislatures
• Municipal councils (when making by-laws)

Example: Parliament cannot pass a law that violates freedom of expression (Section 16) unless the limitation is justified under Section 36.

2. The Executive

• The President
• Cabinet ministers
• Government departments
• Municipal executives

Example: A minister cannot deny someone a passport without following fair administrative procedures (Section 33 — just administrative action).

3. The Judiciary

• All courts (Constitutional Court, Supreme Court of Appeal, High Courts, Magistrates' Courts)
• Tribunals

Example: Courts must develop the common law to align with the Bill of Rights (Section 8(3)(a)).

4. All Organs of State

Section 239 defines "organ of state" as:

• Any department of state or administration
• Any functionary or institution exercising a public power or performing a public function

Includes:

• Public universities
• State-owned enterprises (Eskom, Transnet, SAA)
• Municipalities
• Public hospitals and schools
• Police and correctional services

Key case: Governing Body of Juma Musjid v Essay (2011) — Even a private school can be an "organ of state" when performing a public function (education).

What Does "Applies to All Law" Mean?

The Bill of Rights applies to:

• Legislation (Acts of Parliament, provincial laws, by-laws)
• Common law (judge-made law)
• Customary law (traditional law)
• Administrative action (government decisions and conduct)

Effect: Any law or government action inconsistent with the Bill of Rights is invalid (Section 2 — constitutional supremacy).

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Breaking Down Section 8(2): Horizontal Application

"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."

What is Horizontal Application?

Horizontal application means the Bill of Rights applies between private parties (individuals and companies).

Visual:

Individual/Company ↔ Individual/Company

The relationship is horizontal (equal power, not state vs individual).

When Does Horizontal Application Apply?

Section 8(2) does not make all rights apply horizontally. It depends on:

1. The Nature of the Right

Some rights are inherently public (only make sense against the state):

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

These rights do NOT apply horizontally.

Other rights are universal (apply in all relationships):

• Equality (Section 9) — Explicitly applies to private parties via Section 9(4)
• Dignity (Section 10)
• Privacy (Section 14)
• Labour rights (Section 23)

These rights CAN apply horizontally.

2. The Nature of the Duty

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

Positive duties (take action) usually apply only to the state.
Example: Provide housing (Section 26) — only the state must do this, not private landlords.

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Direct vs Indirect Horizontal Application

Direct Horizontal Application

The Bill of Rights applies directly between private parties.

Example: Section 9(4) states:
"No person may unfairly discriminate directly or indirectly against anyone..."

This explicitly binds private individuals and companies.

Key case: Hoffmann v SAA (2001) — South African Airways (a private employer) could not refuse to hire an HIV-positive cabin attendant. This was unfair discrimination under Section 9.

Indirect Horizontal Application

The Bill of Rights applies indirectly through:

1. Legislation (e.g., Employment Equity Act, Promotion of Equality and Prevention of Unfair Discrimination Act)
2. Development of common law (Section 8(3)(a))

Example: Defamation law (common law) must be developed to balance freedom of expression (Section 16) and dignity (Section 10) in disputes between private parties (Khumalo v Holomisa 2002).

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Breaking Down Section 8(3): Development of Common Law

"When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court—
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law..."

What Does This Mean?

Courts must develop the common law to align with the Bill of Rights, even in disputes between private parties.

Example: Khumalo v Holomisa (2002)

• Issue: Does common law defamation comply with the Bill of Rights in a dispute between two private individuals?
• Holding: Yes, but the common law must be developed. The court introduced a public interest defense to protect freedom of expression.

Principle: Common law evolves to reflect constitutional values.

Section 8(3)(b): Limiting Rights Through Common Law Development

Courts may develop common law rules that limit rights, but only if the limitation is justified under Section 36.

Example: Defamation law limits freedom of expression (Section 16), but this limitation is justified to protect reputation and dignity (Section 10).

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Breaking Down Section 8(4): Rights of Juristic Persons

"A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person."

What is a Juristic Person?

Juristic persons include:

• Companies (Pty Ltd, public companies)
• Non-profit organizations (NPOs, NGOs)
• Trusts
• Universities
• Religious organizations

Which Rights Apply to Juristic Persons?

Not all rights apply to companies. It depends on the nature of the right.

✅ Rights that Apply to Juristic Persons:

• Property rights (Section 25) — Companies can own property
• Access to information (Section 32) — Companies can request information
• Administrative justice (Section 33) — Companies can challenge unfair government decisions
• Access to courts (Section 34) — Companies can sue and be sued

❌ Rights that Do NOT Apply to Juristic Persons:

• Human dignity (Section 10) — Companies don't have "human" dignity
• Life (Section 11) — Companies can't "live"
• Bodily integrity (Section 12) — Companies don't have bodies
• Political rights (Section 19) — Companies can't vote

⚠️ Grey Area:

• Freedom of expression (Section 16) — Companies can claim this (e.g., advertising, corporate speech)
• Privacy (Section 14) — Some privacy protections may apply (e.g., confidential business information)

Key case: Investigating Directorate v Hyundai (2001) — A company can claim privacy rights for business documents, but the protection is weaker than for individuals.

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Key Cases on Section 8

Du Plessis v De Klerk (1996)

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

Holding: Under the interim Constitution (pre-1996), the Bill of Rights applied vertically only (state action doctrine).

Significance: This case applied to the old Constitution. The 1996 Constitution (Section 8(2)) explicitly allows horizontal application.

Khumalo v Holomisa (2002)

Issue: Must defamation law (common law) comply with the Bill of Rights in a private dispute?

Holding: Yes. Section 8(3)(a) requires courts to develop common law to align with the Bill of Rights.

Principle: Indirect horizontal application through common law development.

Hoffmann v SAA (2001)

Issue: Can a private employer refuse to hire someone based on HIV status?

Holding: No. This violates Section 9 (equality), which applies horizontally via Section 9(4).

Principle: Direct horizontal application of equality rights.

Governing Body of Juma Musjid v Essay (2011)

Issue: Can a private school evict learners for non-payment of fees?

Holding: The school must consider the learners' constitutional rights (education, dignity). Private entities performing public functions are bound by the Bill of Rights.

Principle: Private institutions can be "organs of state" when performing public functions.

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Practical Application: How to Use Section 8

Step 1: Identify the Parties

• State vs Individual? → Section 8(1) applies (vertical application)
• Private vs Private? → Check Section 8(2) (horizontal application)

Step 2: Determine if the Right Applies Horizontally

• Nature of the right: Is it universal (dignity, privacy) or public (political rights)?
• Nature of the duty: Negative (don't discriminate) or positive (provide housing)?

Step 3: Apply Directly or Indirectly

• Direct: Does the right explicitly bind private parties? (e.g., Section 9(4))
• Indirect: Must common law or legislation be developed to give effect to the right? (Section 8(3))

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📚 Study Tips: Mastering Section 8

1. Memorize the Structure

• Section 8(1) = Vertical (state)
• Section 8(2) = Horizontal (private)
• Section 8(3) = Common law development
• Section 8(4) = Juristic persons

2. Ask: Who Are the Parties?

Always start here:

• State vs individual → Section 8(1)
• Private vs private → Section 8(2)

3. Know Which Rights Apply Horizontally

Always horizontal:

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

Sometimes horizontal:

• Dignity, privacy, expression (via common law development)

Never horizontal:

• Political rights (Section 19)
• Access to state information (Section 32)

4. Understand Direct vs Indirect

• Direct = Right applies to private parties via Section 8(2)
• Indirect = Right applies via legislation or common law development (Section 8(3))

5. Cite Section 8 in Every Rights Question

Always state who the Bill of Rights binds before analyzing the substantive right.

6. Link to Section 39(2)

Section 39(2) requires courts to promote the Bill of Rights when interpreting any legislation or developing common law. This supports indirect horizontal application.

7. Know the Key Cases

• Du Plessis (1996) — Interim Constitution (vertical only)
• Khumalo (2002) — Common law development (indirect horizontal)
• Hoffmann (2001) — Equality applies horizontally
• Juma Musjid (2011) — Private entities performing public functions

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