The South African Constitution and the human-rights obligations of juristic persons

• Author: Meyersfeld, B.
• Pages: 439-478
• Date: 28 September 2020
• Citation: (2020) 137 SALJ 439
• Published date: 28 September 2020

439

THE SOUTH AFRICAN CONSTITUTION AND

THE HUMAN-RIGHTS OBLIGATIONS OF

JUR ISTIC PERSONS*

BONITA M EYERSFEL D†

Associate Profe ssor of Law, University of the Witwat ersrand

The South Af rican Bill of Rights binds bot h state actors and, in certa in cases, natural

and juristic pe rsons. Horizontalit y extends the ambit of th e Constitution beyon d

the regulation of th e state, to include pri vate persons. Thi s article propose s that in

certain cir cumstances h orizontality may inc lude situations whe re private person s,

in particular, jur istic persons, are required to com mit nancially to the fullm ent of the

socio-eco nomic rights of indi gent people.

Human r ights – s 8(2) of the Constit ution – horizontal app lication – jurist ic

persons – pos itive obligat ions – socio-economic r ights

I INTRODUCTION

The horizontal application of the Bill of Rig hts in terms of s 8(2) was a

topic of much discussion in the 1990s, with academics, the Constitutional

Assembly and t he Constitutional Court exploring various interpretations

of the nature a nd content of horizontality.1 And then the s 8(2) discourse

went quiet. One of the reas ons for this is that the Const itutional Court ha s

not been presented with many cases of horizontality in ter ms of s 8(2).2

In fact, of all the sections in the Bill of R ights, s 8(2) of the Constitution

has received comparatively little attention from the Constitutional Court.

This is not to say that the Constitutional Court has not addressed

horizonta lity. It has done so in four broad ways.3

* Thank you to SAIFAC for the opport unity to present thi s work, which

beneted gre atly from the audience’s feedback. I am a lso very g ratefu l to the

reviewers, who have raised the level of this piece ex ponential ly. I also than k

Charles Young for di scussions about the ideas in t his art icle.

† BA LLB LLM JSD (Yale).

1 Const itution of the Republ ic of South Africa, 1996 (‘the Constitution’).

The applicat ion of the Bill of R ights is set out in s 8 of the Constitution. Section

8(1) deals with the various state entities that are bound by the Bill of Rights.

Section 8(2) dea ls with the obligation s of natura l and juri stic person s to protect

human r ights. Sect ion 8(3) denes the opt ions avail able to the court s when

applying a pr ovision of the Bil l of Right s to a natur al or juri stic person. Finally,

s 8(4) conrms t hat a juristic person may a lso be entitled to the rig hts in the Bi ll

of Rights.

2 This point i s echoed by the Constitution al Court in the ca se of AB v Pridwin

Preparatory School [2020] ZACC 12 para 130 (‘A B v Pridwin’).

3 This point was raised by one of the reviewer s of this ar ticle, to whom I am

grateful.

(2020) 137 SALJ 439

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440 (2020) 137 THE SOU TH AFRICAN L AW JOURNA L

The rst is indirect horizontal application in terms of s 39(2). Here the

court inter prets common law or customa ry law to impose dutie s on private

parties to promote ‘the spirit, purport and objects’ of the Bill of Rights.4

The second are case s involving the interpret ation of statutes that i mpose

obligations on private parties as par t of the fullment of the state’s duty

to protect rights. This wa s the position in Ma phango v Aengus Lifestyle

Properties ( Pty) Ltd,5 where the Constitutional Cou rt held that one of

the ways in which ‘the r ight of access to adequate housing r ipples out to

private rights’ is in terms of legislation empowering the state to regulate

the activit y of private persons in the fullment of a r ight.6

The third method of approaching hor izontal ity is the imposition of

duties on private parties th rough the broad remedial discretion of the

court in granting ‘ just and equitable’ remedies in terms of s 172(1)(b) of

the Constit ution. In City of Joha nnesburg Metropolitan Muni cipality v Blue

Moonlight Propert ies 39 (Pty) Ltd,7 for example, the Con stitutional Court

used the ‘ just and equitable’ remedy to balance the rights of property

owners against the right of occupiers to remain in privately owned

property, where their eviction would resu lt in homelessness.

The nal method is ‘direct’ horizonta l application under s 8(2), which

is the focus of this article. It is remarkable th at this sect ion, which is the

most concrete provision in terms of imposing huma n-right s duties on

juristic persons, has received such little attention from the Constitutional

Court. Given corporations’ ever-increasing economic power, and the

global movement to highlight and address corporate contr ibutions to

human-r ights violations, s 8(2) is a gold-standard constitutiona l provision

to address cor porate accountability for human-rights violat ions. The time

is ripe to test the muscles of s 8(2) and to think about how this provision

may be an untapped resource for human-rights protection.

In the last decade, the Constitutional Cour t undertook a tent ative

exploration int o s 8(2) in the 2011 case of Gover ning Body of the Juma Musjid

Primary S chool v Essay NO8 and in the 2017 case of Daniels v Scr ibante.9

Unfortunately, both cases ma ke limited a nd, at times, confusing com-

ments about the inter pretation of s 8(2). To a very limited extent, this

was ameliorated in the 2020 Con stitutiona l Court case of AB v Pridwin

Preparatory School,10 which is discussed fur ther below.

4 See for example Ba rkhuizen v Napier 2007 (5) SA 323 (CC), dea ling with the

application of horizonta lity to contracts be tween private persons.

5 2012 (3) SA 531 (CC) (‘Maphango’).

6 Ibid para 34.

7 2012 (2) SA 104 (CC) (‘Blue Moonlight’).

8 2011 (8) BCLR 761 (CC) (‘Juma Musjid’ ).

9 2017 (4) SA 341 (CC) (‘Daniels’ or ‘Daniels v Scr ibante’).

10 Supra note 2 para 120.

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THE HUM AN-RIGHTS OBL IGATIONS OF JURISTIC PE RSONS 441

Nonetheless, these cases provide an oppor tunity to explore the scope of

s 8(2) and, in particular, the nature of jur istic persons’ duties in respect of

the Bill of Rights.

In Juma Mu sjid, the court held that juristic per sons only have negative

duties under s 8(2): in other words, they must refrain from conduct that

will v iolate the huma n rights of others. In Daniels, however, we see an

inection point where, for the rst time, the court held that there is

the possibility that private persons may have positive obligations to full

the Bill of Rights. The door to positive obligat ions has been opened.

This ar ticle makes proposals about what m ay legitimately lie behind it.

The question I address in this article is whether horizonta lity entails

only negative obligations to abstain from rights-violating conduct, or

whether private persons may have positive obligations to f ull human

rights a nd, if so, what the parameters of those obligations should be.11

My argument is that the South African Con stitution does indeed envisage

situations where private persons — particu larly jur istic persons — have

positive obligations. Specically, I argue that, in particular circumstances,

juristic persons may be requ ired to commit nanci ally to the ful lment of

the socio-econom ic rights of i ndigent people.

II THE MEA NING OF SECTION 8(2)

(a) The language

Section 8(2) of the Const itution provides:

‘A provision of the Bil l of Rights binds a nat ural or jurist ic person if, and to

the extent th at, it is applica ble, taking into account the nature of the r ight

and the nature of any duty i mposed by the right.’

At rst blush the language of s 8(2) appears circular and u nclear.12

It seems to say that s 8(2) will apply to pr ivate persons if it is applicable.

11 I use the l anguage of ‘f ull’ hum an rights, a s opposed to ‘protect’, ‘promote’

or ‘respect’ hum an right s. Ful llin g human ri ghts, as oppo sed to protecting,

promoting or respectin g, demands s ome positive assistance or ser vices nece ssary

to ensure th at the substance of rig hts is met. See United Nation s ‘The foundation

of international hum an rights law’ avail able at https://www.un.org/en/sections/

universal-declaration/foundation-international-human-rights-law/index.html, accessed on

8 June 2020, in w hich it is stated : ‘Internat ional hum an right s law lays down

obligat ions which State s are bound to respe ct. By becoming p arties to i nternation al

treaties, States as sume oblig ations and dut ies under internationa l law to respec t,

to protect and to ful l human ri ghts. The obl igation to re spect means t hat States

must refra in from int erferi ng with or curtail ing the enjoyment of human r ights.

The obliga tion to protect require s States to protect ind ividuals and g roups against

human r ights abuse s. The obligation t o full means that S tates must take pos itive action

to facilitate the e njoyment of basic hu man rights.’ (Empha sis supplied.)

12 See David Bi lchitz ‘Corpor ate law and the Con stitution : Towards

binding hu man rig hts responsibilitie s for corporat ions’ (2008) 125 SALJ 754 at

775–6. T his has a lso been sugg ested by Chr is Sprig man & Michael Osborne

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