Social norms and constitutional transformation: tracing the decline of the application distinction in South Africa.

• Published date: 22 September 2010
• Author: Tanzer, Ziona
• Date: 22 September 2010

TABLE OF CONTENTS
                I. INTRODUCTION
                II. APPLICATION CLAUSES AND SOCIAL NORMS: THE INITIAL DEBATE
                III. APARTHEID CONCEPTIONS OF COMMON LAW ADJUDICATION AND FAMILY LAW
                IV. POST-APARTHEID INDIRECT APPLICATION AND BONI MORES: A
                 LOOK AT SAME-SEX AND MUSLIM MARRIAGE
                 A. Evolutionary Common Law Adjudication
                 B. Transformative Common Law Adjudication
                 C. Constitutionalized Common Law and Fourie
                 D. Constitutional Court: Fourie
                V. CUSTOMARY LAW UNION
                 A. Stage One: Non-application of the Constitution
                 B. Stage Two. Common Law and African Customary Law
                 Separate and Equal under the Constitution
                 C. Stage Three: Constitutional Court Response and Bhe
                VI. CONCLUSION
                

I. INTRODUCTION

The question of the relationship between institutions of democracy and societal norms has long troubled legal scholars. The view that constitutional rights operate against the state but do not permeate the private sphere or private law has been subject to waves of devastating criticism. (1) Critics attack what has come to be known as the vertical application of human rights. (2) The verticalist position is based on the understanding that power imbalances experienced in the relationship between citizen and state in the public sphere are not replicated in the private sphere and its governing law, the common law. (3) Coupled with this is the commitment to a conception of the common law as innocuous background law based on freedom and neutrality. (4) The United States' state action doctrine has come to represent the archetypal verticalist approach to constitutional rights. (5)

More recently, an alternative approach has come to prominence--the horizontal application of rights--which signifies that constitutional rights can permeate the private sphere and the common law. (6) Horizontal application has been adopted in various forms by the EU and by several countries, including Canada, Germany, Ireland, and most importantly for the purpose of this paper, South Africa. (7)

Yet it would be a mistake to characterize verticality or horizontality in any absolutist manner, since there are degrees of horizontality both between and within legal traditions. For instance, it is worth noting that even within the verticalist tradition of the United States, there are powerful pockets of horizontal application evident in the decisions of Shelley v. Kraemer (8) and New York Times Co. v. Sullivan. (9) Similarly, the variation in degrees of horizontal application between systems ranges from models of direct horizontal application (10) to the more prevalent positions adopted in Canada (11) and Germany (12) of indirect horizontal application. In those countries, constitutional norms operate frontally or directly when government actors are involved, but indirectly influence the interpretation of doctrine rather than overrule it in cases involving non-state actors. The implication here is that the more indirect judicial intervention is, the less encroachment there will be on the system of common law and individual liberty. A great deal is thought to be at stake in this distinction between direct and indirect horizontal application and what it might signify. Arguably, it is the most contentious issue in the contemporary application debate.

This Article will argue, through a detailed chronological study of South African case law, that the application debates, which have taken the outward form of disputes over the choice between direct and indirect horizontal application and exactly how to understand the difference, amount to very little in the end. In fact, indirect application sometimes leads to more radical intrusion of judges in the private sphere, while direct application often comes to signify judicial unwillingness or inability to intervene. Ultimately, attempting to distinguish instances of direct from indirect application in case law becomes an intractable exercise. (13) However, the debates are still vitally important because they are the site of overlapping conflict among divergent conceptions of common law baselines, constitutional text and purposes, and the appropriate relationships among the following five institutional sources of normative legal authority in South Africa: the drafters of the Constitution, the current South African Government and Parliament, South African society at large, the Constitutional Court, and the common law judiciary.

By way of thematic introduction, I will outline some of the myriad, disparate ways in which the application clauses have functioned within South African common law and customary law jurisprudence. The academic advocates of indirect application were particularly concerned with distinguishing judicial from legislative lawmaking, a position that had deep resonance in the Apartheid-era system of parliamentary sovereignty that was predicated on the supremacy of legislative will. (14) Correspondingly, in pre-constitutional common law discourse, judges maintained that they "made" law in the rarest circumstances. (15) The case law dealing with boni mores, community norms, was an instance of unmasked judicial lawmaking where the common law judicial task was to reflect the community's evolving sense of justice. (16) However, this lawmaking role was strictly limited to adjudication involving open-ended standards inherently thought to require a degree of judicial discretion. (17) Issues involving determinate rules were considered by judges to be out-of-bounds, exclusively within the legislative mandate. (18)

In the post-Apartheid constitutional era, this concept of limited judicial lawmaking and the distinction between open-ended standards and rules feed into the early construction of the distinction between direct and indirect application. Indirect application signifies that through open-ended standards, constitutional norms and values will permeate the common law. Proponents of direct application view both the common law's open-ended standards and its determinate rules as equally subject to constitutional scrutiny and potential striking out for invalidity. (19)

Underlying this distinction are different understandings of the Bill of Rights and the way it functions. In the first view, the Bill of Rights represents the new boni mores in a predominately unaltered common law that continues to reflect changing norms and circumstances. (20) In fact, the constitutional values are construed by judges as representing community norms and values, and the common law judicial role maintains its time-honored function of reflecting social change incrementally.

In opposition to this view is the disconnect often manifested between the empirical values of the community and constitutional values. Here, judges decide that their allegiance is to the new legal order, and as a result the common law judicial role of recognizing boni mores is altered because constitutional values maintain hegemony over community norms and sense of justice. Institutionally, substituting constitutional values for community norms in common law adjudication has, on occasion, allowed High Court judges to overrule appellate court precedent. (21)

A related but distinct issue, also reflected in the difference between direct and indirect application, is the tension between a conception of the common law as a repository of historically accumulated humanitarian and libertarian wisdom and the common law as a product of Apartheid-era politicization and corruption. In the first approach, judges have refused to see a conflict between boni mores and constitutional values, but see constitutional values as codifications of common law freedoms. (22) Alternatively, in the second approach, judges view common law values to be in conflict with constitutional values and ultimately determine that the latter prevails over the former. (23) The rhetoric here pulls in the opposite direction to the common law discourse of inevitability and certainty. This understanding of values in conflict can be seen as the beginnings of the politicization of common law discourse, for when there is conflict, the judge has to make an often politically charged choice. The more explicit the choice between values, the more it looks like legislative rather than judicial lawmaking.

Another frequent instance of the distinction between direct and indirect application is the tension between incremental versus fundamental development of the common law. Here, indirect application becomes associated with the argument that the judicial role should be limited to common law incrementalism, while radical development accompanying direct application should be reserved for the legislature because issues of great social importance should involve the public. The distinction here raises the stark question of whether the court is as legitimate a lawmaker as the legislature, since both are involved in the task of vindicating the Constitution.

In contrast, in the jurisprudence on African customary law, an analogous system of law within South African legal pluralism to which the Constitution equally applies, the distinction between direct and indirect application represents different concerns than those found in common law reasoning. (24) During Apartheid, many African customary law principles and institutions were either denied recognition or granted a secondary status to the common law because they were considered contrary to the empirical community's sense of morality or legal norms. (25) After the demise of Apartheid and the advent of constitutionalism, there was an initial judicial reluctance to enter what was perceived to be a private sphere of culture, governed by its own rules and protected by its own checks and balances. (26) This approach was quickly altered from nonapplication to direct application of the Constitution to customary law. The present difficulty facing judges is identifying the content of actual, lived customary law.

In one judicial approach, common law standards become associated with the subjection of African...