Baloro and Others v University of Bophuthatswana and Others

• Jurisdiction: South Africa
• Judge: Friedman JP
• Judgment Date: 29 June 1995
• Citation: 1995 (4) SA 197 (B)
• Docket Number: CA 319/95
• Court: Bophuthatswana Supreme Court

Baloro and Others v University of Bophuthatswana and Others
1995 (4) SA 197 (B)

1995 (4) SA p197

Citation	1995 (4) SA 197 (B)
Case No	CA 319/95
Court	Bophuthatswana Supreme Court
Judge	Friedman JP
Heard	April 20, 1995; April 24, 1995
Judgment	June 29, 1995

Flynote : Sleutelwoorde H

Constitutional law — Human rights — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Ambit of I — Such rights, within certain limits, to be applied horizontally as well as vertically — Preamble to Constitution, ss 7, 8, 33(4), 35, 74(1), 232(4), 'National Unity and Reconciliation' provisions and 'Constitutional Principles' in Schedule 4 — Horizontal application of chap 3 rights requiring balance to be struck between 'over-use' and 'under-use' — Persons and institutions in respect of whom chap 3 rights horizontally J applicable listed -

1995 (4) SA p198

A Generally, any activity or enterprise operating in community and open to public subject to horizontal application of fundamental rights — Test for determination of question whether such rights horizontally applicable set out — Horizontal dimension not applicable in area of personal and private law.

B Constitutional law — Constitution — Interpretation of — Constitution of the Republic of South Africa Act 200 of 1993 — Movement occurring in South Africa from positivist jurisprudence founded on sovereignty of Parliament to jurisprudence based on sovereignty of the law in Constitution with justiciable bill of rights — Courts now directed by s 35 of Constitution C to different form of interpretation, founded on value judgments — Cognisance to be taken of underlying ideals, principles and concepts of legal system — Courts, and specifically Judges, now in terms of s 35 cast in additional role of social engineers, social and legal philosophers to promote values referred to in s 35 — Courts enjoined to be an important D authority in quest to change South Africa in accordance with aims and spirit of Constitution — United States cases on bill of rights providing necessary and enlightening comparative material in interpreting chap 3 of Constitution.

Constitutional law — Constitution — Interpretation of — Constitution of E the Republic of South Africa Act 200 of 1993 — Application of s 35 of Constitution — Court to have regard to circumstances and events leading up to, and accompanying, framing and adoption of Constitution — Effect to be given to intent of framers of Constitution and those who adopted it — Court to have regard to objective of its framing and adoption — Human, F social and economic factors also relevant — Court also to have regard to promotion of values designed to give effect to purpose of Constitution and standards and principles contained in s 35.

Constitutional law — Constitution — Interpretation of — Constitution of the Republic of South Africa Act 200 of 1993 — Applicability of G fundamental rights in chap 3 of Constitution to 'organs of State' in terms of s 7(1) — Words 'organs of State' to be given extended meaning — Words include statutory bodies; parastatal bodies; bodies established by statute but managed and maintained privately, such as universities, law societies, etc; bodies supported by, and operating in co-operation with, H structures of State authority; and private bodies fulfilling key functions under supervision of organs of State — University of Bophuthatswana an 'organ of State' as intended in s 7(1) and accordingly bound by chap 3 of Constitution — Even if University a private institution, horizontal dimension of fundamental rights would be applicable to it because of I nature of its activities and operation in public domain as important institution of learning.

University — University of Bophuthatswana — Applicability of fundamental rights in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 to 'organs of State' in terms of s 7(1) — Words 'organs of State' to be given extended meaning — Words include statutory bodies; parastatal J bodies; bodies established by

1995 (4) SA p199

A statute but managed and maintained privately, such as universities, law societies, etc; bodies supported by, and operating in co-operation with, structures of State authority; and private bodies fulfilling key functions under supervision of organs of State — University of Bophuthatswana an 'organ of State' as intended in s 7(1) and accordingly bound by chap 3 of B Constitution — Even if University a private institution, horizontal dimension of fundamental rights would be applicable to it because of nature of its activities and operation in public domain as important institution of learning.

University — Staff — Appointment, tenure and promotion — Interim council of University placing moratorium on promotion of non-South African C academic staff — South African staff, however, promoted — Such constituting a gross violation of s 8(2) of Constitution of the Republic of South Africa Act 200 of 1993.

Headnote : Kopnota

D Having regard to the preamble of the Constitution of the Republic of South Africa Act 200 of 1993, s 7, s 8, s 33(4), s 35, s 74(1), s 232(4), the 'National Unity and Reconciliation' provisions at the end of the Constitution, and the 'Constitutional Principles' contained in Schedule 4 to the Constitution, and South African and comparable foreign authorities, the fundamental rights contained in chap 3 of the Constitution are within certain limits to be applied horizontally as well as vertically. (At 234I.)

In applying the fundamental rights in chap 3 of the Constitution E horizontally, the Court must strike a balance between 'assertiveness' and 'over-use'. There must be a balance between the tensions of 'under-' and 'over-use'. A polarisation between these tensions must not occur. A golden mean between these tensions is called for in order to achieve a harmonious application in accordance with the spirit of the Constitution. Therefore a qualification is needed in regard to the horizontal dimension. (At 238E-G.) The fundamental rights in chap 3 will apply horizontally to the following:

(i)

F Corporations, multinational and local companies engaged in trade, commerce, business, that deal with the public, have employees and engage in numerous undertakings. The institutions in this category are subject to the fundamental rights in all their manifold operations because they deal with the public and are generally no different in power, wealth or influence from the State, or parastatal companies or statutory bodies.

(ii)

G Commercial and professional firms which rely on the public for their custom or support, and who by the nature of their activities engage with the public.

(iii)

Hotels, restaurants, places of public entertainment, all of which rely on public patronage. Persons cannot be refused admission to them on the grounds of race, colour, creed or gender, etc. This would constitute discrimination in terms of s 8 of the Constitution.

(iv)

Private hospitals, rehabilitation centres, clinics engaging H with the public as patients, etc (public hospitals funded by the State or the provinces are clearly 'organs of State').

(v)

Private universities, schools and institutions of learning funded by individuals and corporations and which operate in the public domain.

(vi)

Sports grounds and clubs which are open to the public.

(vii)

Public transport.

This list is not exhaustive. What does appear, however, is a general I principle that any activity, operation, undertaking or enterprise operating in the community, and open to the public, is subject to the horizontal dimension of the fundamental rights contained in chap 3, read with ss 33(4) and 35, of the Constitution. In order to circumscribe the horizontal dimension, the concept of the 'State action' doctrine in United States law may be usefully followed, with modifications. Before determining whether the horizontal dimension applies to 'non-State' activities in its extended range, three questions need to be put:

(a)

Whether the activity is a 'public function', ie operating in the J public domain.

1995 (4) SA p200

(b)

A Whether the activity is so linked or 'intertwined' with public action that the private actor becomes equated with the public domain.

(c)

Whether the conduct of the private actor (person) complained of has been approved, authorised or encouraged by the State or public institutions in an adequate manner so as to be responsible for it.

If any of these three questions are answered in the affirmative, the horizontal dimension is applicable. (At 238I-239G.)

B In applying the aforegoing tests, regard must be had to the principles of free trade and association. Given the yeast-like property of the horizontal dimension to expand, an over-proliferation of this dimension must be guarded against. The horizontal dimension needs to be applied with caution in the various categories of its operation. Difficulties arise in applying it to personal and private law and it should not be so applied. There has to be an acceptance and respect for the principles of C privacy and freedom of choice. An individual has the right to choose his/her own associates, and to construct, mould and fashion his/her private life as a matter of free choice. (At 239H/I-240B.)

The Courts in South Africa are now confronted by a rapid oscillation from the positivist jurisprudence founded on the sovereignty of Parliament to a jurisprudence based on the sovereignty of the law contained in a Constitution with a justiciable bill of rights. The Courts are also directed, if regard is had to the provisions of s 35 of the Constitution, D to a different form of interpretation, one founded on value judgments. Certain of the principles of the 'Legal Realism'...