Law and Sacrifice

Towards a Post Apartheid Theory of Law

Johan Van der Walt

• Publisher: Birkbeck Law Press
• Year: 2014
• eBook ISBN: 9781134233892
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

In the wake of apartheid, Law and Sacrifice draws on the uniquely expansive protection of fundamental rights now entrenched in the South African Constitution to outline a new theory of law.

The South African Constitution not only protects the rights of people against abuses of power by the state, but also against abuses of power by private legal subjects. Drawing upon the work of contemporary thinkers such as Martin Heidegger, Hannah Arendt, George Bataille, Jacques Derrida Emmanuel Levinas and Jean-Luc Nancy, the author elicits the radical democratic potential of this 'horizontal' notion of rights. Johan van der Walt argues that apartheid must be understood as more than a racist abuse of power, and here he articulates its 'sacrificial logic'. It is in going beyond this logic, he maintains, that the truly democratic potential of the South African Constitution can be understood: in a radical formal and substantive equality that offers the legal basis for rethinking a post-apartheid future.

Combining a rigorous theoretical understanding with a subtle political engagement, Law and Sacrifice is a dazzling interrogation of the limits and possibilities of democratic pluralism. It will be of interest to political and legal theorists as well as to those who are concerned with South African law and politics.

PART 1

STRUCTURAL HORIZONTALITY

Chapter 1
Post-apartheid Constitutional Theory

1. Private apartheid and the promise of revolutionary constitutionalism

The early debates about how the dismantling of apartheid would affect the South African legal system focused on the desirability of introducing a justiciable bill of fundamental rights. During the years of apartheid, the National Party government consistently maintained that a bill of rights was not necessary in the South African legal system, because the regular principles regarding the protection of fundamental rights were already embodied in the Roman Dutch foundations of the South African legal system.¹ However, the clearer the end of white minority rule in South Africa came into sight, the more this same government became interested in a justiciable bill of rights. In 1983 they gave instructions to the South African Law Commission to address the question of a bill of rights for South Africa. The Law Commission eventually recommended that a bill of rights be introduced into the South African Legal System and also articulated a proposal as regards the contents of such a bill of rights. The proposal envisaged a rather standard or classical liberal bill of rights for a future South Africa.² At this point in time, however, exponents of the liberation movement expressly began to reject the idea of a bill of rights for post-apartheid South Africa. They basically argued that a bill of rights would entrench constitutionally the benefits that white South Africans drew from apartheid and thus make it impossible for a majority government fundamentally to transform South African society so as to bring about a truly non-racial society.³

When the negotiation process finally began, however, the debate soon moved away from the question whether South Africa should have a justiciable bill of rights to the question as to what kind of bill of rights should be drafted for post-apartheid South Africa. A key question in this debate concerned the scope of application of the bill of rights. Was the constitution only to apply vertically to the relationship between state and citizens or was it also to apply to the horizontal relationship between citizens. The National Party opted for vertical application. They wanted the bill of rights to apply only to the state. The African National Congress (ANC) opted for horizontal application. They wanted the bill of rights to bind not only the state, but also to bind all private legal subjects. The ANC’s reasoning in this regard was still informed by the concern that a typical liberal constitution that merely shielded the private sphere from undue government interference would impede the radical transformation of South African society that was required to put an end to apartheid. The concentration of wealth in the hands of white South Africans made possible by more than three centuries of racial inequality and four decades of statutory racial segregation could easily have financed and maintained an array of viable if not lucrative private institutions through which the apartheid order of racial segregation could have survived the end of white political power for many years if not indefinitely. A classical liberal constitution aimed at safeguarding a private sphere from government intervention and a classical system of private law based on property rights, freedom of contract and hereditary transfer of wealth would have gone a very long way to keep a system of private apartheid afloat.

The ANC therefore insisted on the need for a constitution that patently provided for the radical transformation of South African society and the need for this constitution to apply to all spheres of social life, not only to the relation between state and citizen. The Constitution of South Africa of 1996 meets both these demands. The preamble of the 1996 Constitution states expressly that the constitution was to ‘heal the divisions of the past and establish a society based on democratic values, social justice and fundamental rights’. In addition, s 8 of the constitution would make it clear that the heart of this transformation-orientated constitution, the bill of rights entrenched in Chapter 2 of the constitution, would apply to all walks of South African life. Section 8(1) stipulates the bill of rights to bind the legislature, the executive and the judiciary. Section 8(2) stipulates the bill of rights to bind all private legal subjects, if applicable, given the nature of the right and the duty that it imposes.⁴

Section 8(2) can be argued to constitute the heart of the post-apartheid law and legal theory that this book endeavours to articulate. The horizontal application for which s 8(2) provides all so expressly and so clearly is what incisively distinguishes the post-apartheid legal order from the regular liberal constitution that only seeks to protect the individual against the state. Rather unfortunately however, s 8(2) would largely come to be ignored in the constitutional jurisprudence that the South African judiciary would develop after 1996. The reason for this is the fact that a more conventional jurisprudence had already set root in South Africa by 1996. This jurisprudence turned on the much less clear application provisions of the interim constitution of 1993 and not even the crystal clear deviation of the 1996 Constitution from the 1993 Constitution regarding the application of the bill of rights would move the judiciary to move towards a full recognition of the horizontal application embodied in the 1996 Constitution.

To be sure, the preamble of the 1993 Constitution also expressly invoked ‘the need to create a new order’ of gender and racial equality that will enable all citizens to enjoy their fundamental rights and freedoms. However, the scope of application of the bill of rights embodied in Chapter 3 of the 1993 Constitution was markedly less expansive than that of the 1996 Constitution. Section 7(1) of the 1993 Constitution, the equivalent of s 8(1) of the 1996 Constitution, stipulated the bill of rights to bind only the legislative and executive organs of state. The omission of the judiciary from s 7(1), we shall see, would in itself become a pivotal point on which the conventional constitutional jurisprudence of the South African Constitutional Court would come to turn and eventually remain to turn even after the enactment of the 1996 Constitution. The 1993 Constitution made no express provision for the application of the bill of rights to the private sphere. The closest it came to such a provision was the duty that s 35(3) imposed on the judiciary to have due regard for the spirit and purport of the bill of rights when they interpreted legislation and when they applied and developed common law and customary law.⁵ Section 35(3) suggested that the 1993 Constitution would have some but at most indirect impact on the relations between private legal subjects, but this suggestion was vague enough to give rise to considerable confusion in the South African High Courts between 1994 and 1995. It was also vague enough to move the Constitutional Court eventually to resolve this confusion in 1995 with a rather conservative and conventional constitutional jurisprudence.

During 1994 and 1995 the South African High Courts decided a number of defamation cases in which they handed down a number of diverging judgments as regards the application of the bill of rights.⁶ These judgments ranged from stances in favour of direct or indirect application of the constitution in the private sphere⁷ to stances completely averse to the application of the constitution in the private sphere.⁸ Towards the end of 1995, only months before the 1996 Constitution came into force, the Constitutional Court finally came to address the matter of the application of the bill of rights in the case of Du Plessis v De Klerk.⁹ The court decided that the 1993 Constitution applied only to the vertical relation between state and citizens. It did recognise, however, the impact the bill of rights would have on the future interpretation and application of South African law, private law included, as a result of the provisions of s 35(3). In other words, the Constitutional Court recognised the indirect horizontal application of fundamental rights. The bill of rights would affect private relations to the extent that the interpretation and application of all statutory and common law rules and principles that governed or affected private law would henceforth have to be reconcilable with and indeed promote the values embodied in the bill of rights.¹⁰

The notion of the indirect horizontal application of the constitution thus adopted by the Constitutional Court in 1995 would seem to be quite simple. The Constitution affects the private sphere to the extent that it is the fundamental law of South Africa with which all other legal rules and principles, private law rules and principles included, must comply. However, there is a remarkable question hidden in this simple statement regarding the subsidiary order in the South African legal system, a question that would burst into view in the separate judgment of Justice Kriegler AQ Kriegler J etc throughout???in Du Plessis v De Klerk. Justice Kriegler’s judgment was offered as a dissenting judgment, but it will soon become clear that there was nothing dissenting about it. The judgment claimed to be a statement in favour of the (direct) horizontal application of the bill of rights rejected by the majority judgment.¹¹ It did so with reference to the clear call for a fundamental transformation of South African society in the preamble of the 1993 Constitution. But for Justice Kriegler too, the bill of rights only applied to the private sphere to the extent that it applied to the law that governed. The two key passages that require attention here are the following:

Our past is not merely one of repressive use of state power. It is one of persistent, institutionalized subjugation and exploitation of a voiceless and largely defenceless majority by a determined and privileged minority. The ‘untold suffering and injustice’ of which the Postscript speaks do not refer only to the previous forty years, nor only to Bantu education, group areas, security and the similar legislative tools used by the previous government. The Postscript mentions ‘a divided society characterised by strife [and] conflict’. That is not a reference to governmental action only, or even primarily. The ‘reconciliation and reconstruction’ mentioned in the last paragraph relate not so much, if at all, to the oppressed and the oppressive government, but to reconciliation of whites and blacks, to reconstruction of a skewed society. Likewise, when the Preamble speaks of ‘citizenship in a sovereign democratic constitutional state’ the emphasis immediately falls on racial equality.¹²

[Chapter Three of the Constitution] has nothing to do with the ordinary relationships between private persons or associations. What it does govern, however, is all law, including that applicable to private relat...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Preface
• Table of Contents
• Introduction
• Part 1: Structural Horizontality
• Part 2: Temporal Horizontality
• Appendix: The impossibility of two together when it matters: Alaw and literature excursion
• Bibliography
• Table of cases