The South African common law and the Constitution: Revisiting horizontality
Authors Nick Friedman
Affiliations: DPhil Candidate, Faculty of Law, University of Oxford
Source: South African Journal on Human Rights, Volume 30 Issue 1, 2014, p. 63 – 88
Despite an initial flurry of interest in the direct horizontality of human rights, the doctrine’s place in South African constitutional law is now accorded a diminishing importance in judgments and journals. I argue that this is a result of a misunderstanding, by both courts and academics, of what horizontality is for and how it works. Since direct horizontality, properly understood, is central to the coherent development of South Africa’s rights jurisprudence, I aim to reinvigorate debate about horizontality by offering a new and comprehensive account of its mechanics and purpose. The account turns on a distinction between ‘horizontality’ and ‘direct horizontal application’, the implications of which run counter to some of the most widely accepted views about the Constitution’s influence on the private law.