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Periodical article | Leiden University catalogue | WorldCat |
Title: | The horizontal application of the Bill of Rights: a reconciliation of sections 8 and 39 of the Constitution |
Author: | Bhana, Deeksha |
Year: | 2013 |
Periodical: | South African Journal on Human Rights (ISSN 0258-7203) |
Volume: | 29 |
Issue: | 2 |
Pages: | 351-375 |
Language: | English |
Geographic term: | South Africa |
Subjects: | constitutional law constitutions 1996 |
External link: | https://doi.org/10.1080/19962126.2013.11865078 |
Abstract: | Whilst the judiciary accepts that the Bill of Rights must apply horizontally, there remains considerable ambivalence about the precise interplay between the Bill of Rights and private law; an ambivalence that reveals itself in the debate about the extent to which, and the manner in which, our traditional system of private law should be constitutionalised. In this article, the author revisits the South African concept of horizontality with a view to determining precisely how ss 8 and 39(2) of the Constitution envisage the constitutionalisation of private law. To date, the horizontality debate has focused largely on whether direct or indirect horizontal application is to be preferred, with s 8 generally being associated with direct horizontality and s 39(2) with indirect horizontality.The author argues here that this position is flawed. In particular, he shows that ss 8 and 39 of the Constitution largely transcend the direct-indirect horizontality debate. The author then goes on to explain the distinct roles that each subsection is required to play if our courts effectively are to constitutionalise our private law. Notes, ref., sum. [Journal abstract] |