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


   A. Evolutionary Common Law Adjudication
   B. Transformative Common Law Adjudication
   C. Constitutionalized Common Law and Fourie
   D. Constitutional Court: Fourie
   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


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 permeate /per·me·ate/ (-at?)
1. to penetrate or pass through, as through a filter.

2. the constituents of a solution or suspension that pass through a filter.

 the private sphere The private sphere is the complement or opposite of the public sphere. Heidegger argues that it is only in the private sphere that one can be one's authentic self.

See also privacy.
 or private law has been subject to waves of devastating dev·as·tate  
tr.v. dev·as·tat·ed, dev·as·tat·ing, dev·as·tates
1. To lay waste; destroy.

2. To overwhelm; confound; stun: was devastated by the rude remark.
 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 The public sphere is a concept in continental philosophy and critical theory that contrasts with the private sphere, and is the part of life in which one is interacting with others and with society at large.  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 in·noc·u·ous
Having no adverse effect; harmless.

innocuous (i·näˈ·kyōō·
 background law based on freedom and neutrality. (4) The United States' state action doctrine has come to represent the archetypal ar·che·type  
1. An original model or type after which other similar things are patterned; a prototype: "'Frankenstein' . . . 'Dracula' . . . 'Dr. Jekyll and Mr. Hyde' . . .
 verticalist approach to constitutional rights. (5)

More recently, an alternative approach has come to prominence--the horizontal application horizontal application - An application program common to different business processes, e.g. office automation.

Compare vertical 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 Adv. 1. most importantly - above and beyond all other consideration; "above all, you must be independent"
above all, most especially
 for the purpose of this paper, South Africa South Africa, Afrikaans Suid-Afrika, officially Republic of South Africa, republic (2005 est. pop. 44,344,000), 471,442 sq mi (1,221,037 sq km), S 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 United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. , there are powerful pockets of horizontal application evident in the decisions of Shelley v. Kraemer Shelley v. Kraemer, 334 U.S. 1, (1948), is a United States Supreme Court decision involving the enforceability of restrictive covenants which would prohibit a person from owning or occupying property on the basis of race. It is an important civil rights case.  (8) and New York Times Co. v. Sullivan A landmark U.S. Supreme Court case, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), extended the First Amendment's guarantee of free speech to libel cases brought by public officials. . (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 The refusal by a judge to sustain an objection set forth by an attorney during a trial, such as an objection to a particular question posed to a witness. To make void, annul, supersede, or reject through a subsequent decision or action.  it in cases involving non-state actors. The implication here is that the more indirect judicial intervention is, the less encroachment An illegal intrusion in a highway or navigable river, with or without obstruction. An encroachment upon a street or highway is a fixture, such as a wall or fence, which illegally intrudes into or invades the highway or encloses a portion of it, diminishing its width or area, but  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 ar·gu·a·ble  
1. Open to argument: an arguable question, still unresolved.

2. That can be argued plausibly; defensible in argument: three arguable points of law.
, 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 jurisprudence (jr'ĭsprd`əns), study of the nature and the origin and development of law. . The academic advocates of indirect application were particularly concerned with distinguishing judicial from legislative lawmaking law·mak·er  
One who makes or enacts laws; a legislator. Also called lawgiver.

, a position that had deep resonance in the Apartheid-era system of parliamentary sovereignty Parliamentary sovereignty, parliamentary supremacy, or legislative supremacy is a concept in constitutional law that applies to some parliamentary democracies.  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 The legal process of resolving a dispute. The formal giving or pronouncing of a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case.  involving open-ended standards inherently thought to require a degree of judicial discretion. (17) Issues involving determinate DETERMINATE. That which is ascertained; what is particularly designated; as, if I sell you my horse Napoleon, the article sold is here determined. This is very different from a contract by which I would have sold you a horse, without a particular designation of any horse. 1 Bouv. Inst. n. 947, 950.  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 disconnect - SCSI reconnect  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 in·cre·men·tal·ism  
Social or political gradualism.

, 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 This article is about the concept of legal pluralism. For other uses of the term see, see Pluralism.
Legal pluralism allows for moral laws that are unwritten as formal laws.
 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 con·sti·tu·tion·al·ism  
1. Government in which power is distributed and limited by a system of laws that must be obeyed by the rulers.

a. A constitutional system of government.

, 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 customary law to the common law and are considered a colonial vestige vestige /ves·tige/ (ves´tij) the remnant of a structure that functioned in a previous stage of species or individual development.vestig´ial

, causing the ossification ossification /os·si·fi·ca·tion/ (os?i-fi-ka´shun) formation of or conversion into bone or a bony substance.

ectopic ossification
 of African customary law. (27) However, the discourse surrounding application of the Constitution to customary law is used as a way to claim equal space for customary law, and to re-conceptualize African customary law and the common law as parallel systems, equal but separately subject to the Constitution. Here, the role of history, particularly the history of customary law's subjugation Subjugation
Cushan-rishathaim Aram

king to whom God sold Israelites. [O.T.: Judges 3:8]


consigned to servitude in retribution for trickery. [O.T.: Joshua 9:22–27]

Ham Noah

curses him and progeny to servitude. [O.
 to common law, is pivotal in giving content to the distinction's construction.

In cases adopting the opposite approach, direct application and the striking out of customary law rules are employed because the court is deemed to lack institutional competence to develop customary law as it cannot ascertain what actual, lived customary law is. (28) A contrasting judicial approach acknowledges the difficulties of ascertaining actual, lived customary law but maintains that indirect application and the development of a customary law rule should always take priority over striking out the rule in order to preserve, rather than destroy, a system given special recognition by the Constitution. (29) Here, indirect application comes to be equated with survival of African customary law and a greater commitment to multiculturalism, while direct application signifies the limitations of liberal tolerance and judicial institutional competence. Equally, indirect application signifies an increased judicial role, whereas direct application represents the limitation of legitimate judicial reach.

This Article will attempt to tease out how these underlying issues play out in the application clauses jurisprudence, since all these manifestations of the distinction between direct and indirect application raise fundamental questions about the nature of the Bill of Rights. Tension exists over the choice to view the Bill of Rights as a set of libertarian protections against potentially oppressive majoritarian ma·jor·i·tar·i·an  
Based on majority rule: "a naively uncomplicated premise of simple majoritarian democracy" Saturday Review.

An advocate of majoritarianism.
 rule or as a set of principles and commitments to guide a process of social transformation. (30) The application clauses cases also raise essential institutional questions, not only about the crucial relationship between judicial and legislative lawmaking, but also more pointed questions regarding the appropriate relationships and degrees of deference that constitutional and common law adjudicators ought to follow in calibrating (1) divergent norms and values reflected in the pre-constitutional common law, (2) those norms found in constitutional text and history, and (3) those norms currently prevailing in South African society at large.

Part II of this Article reviews the different academic positions on the application debate, which I divide into first and second generations of thought on these issues. Part Ill looks briefly at Apartheid regulation of marriage through the common law, and how the conception of common law boni mores, public policy, was the chief doctrinal doc·tri·nal  
Characterized by, belonging to, or concerning doctrine.

doctri·nal·ly adv.

Adj. 1.
 vehicle by which Apartheid values permeated the fabric of the common law. Through examining the late Chief Justice Michael Corbett's leading law review article in the 1980s, I suggest that the early insistence on constitutional values permeating common law through the vehicle of flexible standards rather than rules was primarily premised upon a particular conception of the role of judges--namely that their policymaking pol·i·cy·mak·ing or pol·i·cy-mak·ing  
High-level development of policy, especially official government policy.

Of, relating to, or involving the making of high-level policy:
 function was largely limited to instances where they were expressly mandated to use open-ended legal standards in adjudication; therefore, when authorized, policymaking was thought to inherently require judicial discretion. (31) The implication here is that for reform of common law rules, the legislature was better suited to carry it out.

Part IV of this Article traces the issues of recognition of same-sex and Muslim marriages through the post-Apartheid courts and argues that the prevailing form of application has been indirect. Courts used the traditional common law vehicle of public policy to import the egalitarian values of the Constitution with varying implications for judicial articulation of the relationship between social norms and constitutional values. This part explores three different approaches to the construction of the relationship between boni mores and constitutional values and argues that each approach represents an increasingly constitutionalized understanding of common law adjudication. By this I mean that common law concepts, reasoning, and baselines seem to merge into and become indistinguishable from constitutional inquiry. The traditional common law judicial function of reflecting change in societal norms incrementally is slowly deconstructed by the judicial problematizing of the notion of a coherent community with homogenous homogenous - homogeneous  values. (32) What ultimately emerges is the exact opposite view. Even if the community disagrees with the outcome, common law judicial allegiance is not to the norms of the empirical community, but rather to the vindication VINDICATION, civil law. The claim made to property by the owner of it. 1 Bell's Com. 281, 5th ed. See Revendication.  of constitutional values. (33)

This part further argues that simultaneously, each approach becomes increasingly constitutionalized. The form of indirect application deployed in cases combines elements of direct application into an indirect applications analysis. This culminates in the Supreme Court of Appeal decision in the Fourie (34) case, which can be seen as an example of a "one law" approach (35) and stands as an example of constitutionalized common law. Here, it is difficult to see whether the case is one of direct or indirect application. Hence the distinction becomes, for all intents and purposes Adv. 1. for all intents and purposes - in every practical sense; "to all intents and purposes the case is closed"; "the rest are for all practical purposes useless"
for all practical purposes, to all intents and purposes
, insignificant.

Part V of this Article looks at African customary law and its structural and ideological relationship to both the Constitution and the common law. Initially, post-Apartheid courts showed reluctance to enter into the substance of African customary law and left law reform in this area to the legislature. (36) This approach quickly changed in the case of Mabuza v. Mbatha, (37) where a High Court developed a customary rule of marriage and asserted that customary rules that did not comply with the Constitution would be invalidated. Consequently, the discourse of non-application was altered, positioning customary law as equally subject to judicial scrutiny for constitutionality. Ultimately, in the groundbreaking Bhe case, (38) the Constitutional Court used direct application to strike out the customary law rule of primogeniture primogeniture, in law, the rule of inheritance whereby land descends to the oldest son. Under the feudal system of medieval Europe, primogeniture generally governed the inheritance of land held in military tenure (see knight). .

Part VI concludes that there is a new stage in common law discourse, evidenced in the arena of family law, where indirect application has subsumed direct application to the point that it makes little sense to talk meaningfully about the distinction--there is little direct application could have achieved that could not otherwise be reached by indirect application. By contrast, in the context of applying the Constitution to African customary law, common law incrementalism and indirect application are strikingly rejected in favor of direct application. Both within the common law tradition and African customary law, the moment has arrived when the distinction between direct and indirect application is less significant than is the realization that the judicial branch is taking upon itself a greater lawmaking role than it previously enjoyed under the system of parliamentary sovereignty. (39) While the significance of this once controversial distinction appears to dissolve, the discourses animating each type of application still bear an imprint of the attitudes towards common law and social transformation that framed the initial debate.


The application clauses are among the most innovative and progressive provisions of the new Constitution of the Republic of South Africa, with their sanction of greater scope for the horizontal application of the Bill of Rights and the potential consequent constitutionalization of the common law. (40) Section 8(2) of the Constitution provides the apparent mandate for direct application in its provision that the Bill of Rights "binds a natural or a juristic person A juristic or juridical person is an artificial entity through which the law allows a group of natural persons to act as if it were a single composite individual for certain purposes, or in some jurisdictions, for a single person to have a separate legal personality other than  if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right." (41) Section 8(3) further elaborates that in order to give effect to a right, courts "must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right[,] and may develop rules of the common law to limit the right." (42) At the same time, Section 39(2) authorizes indirect application, providing that "[w]hen interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights." (43) This part of the Article traces a shift in the application debate over the last sixteen years of South African constitutionalism and what are arguably two generations of thought on the philosophical, institutional, and technical implications of the transition.

Karl Klare Karl E. Klare is a Matthews Distinguished University Professor of labor and employment law and legal theory at Northeastern University School of Law in Boston, Massachusetts, and the current coordinator of the International Network on Transformative Employment and Labor Law  coined the expression "transformative constitutionalism," which has become a catchphrase Noun 1. catchphrase - a phrase that has become a catchword
catch phrase

phrase - an expression consisting of one or more words forming a grammatical constituent of a sentence
 to describe South African constitutionalism. (44) Unlike classical liberal constitutions, the South African Constitution guarantees economic, social, and cultural rights, embraces a substantive vision of equality, and imposes affirmative duties on the state to promote social welfare and assist individuals in the exercises of their rights. (45) Klare calls such a characterization "post-liberal" as it seeks to guarantee maximum freedom by simply prohibiting state intervention in private matters and is concerned with transformation, not preservation, of the status quo [Latin, The existing state of things at any given date.] Status quo ante bellum means the state of things before the war. The status quo to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy. . (46) The clauses of the Constitution dealing with its application to the common law are an outstanding example of this transformative agenda. (47) Yet a transformative text does not necessarily translate into transformative jurisprudence, especially given the judicial institutional scheme set in place under the interim Constitution that essentially created separate but parallel constitutional and common law jurisdictions and threatened to insulate in·su·late  
tr.v. in·su·lat·ed, in·su·lat·ing, in·su·lates
1. To cause to be in a detached or isolated position. See Synonyms at isolate.

 the common law from constitutional interference. (48) It quickly becomes apparent that an analysis of the manner in which the application clauses have functioned in post-Apartheid common law jurisprudence raises the larger question of the institutional and cultural impact of the Bill of Rights on the traditional common law judiciary and its mode of jurisprudence.

In the first generation of the debate, direct application of the Bill of Rights to private legal relations was considered by some academics to be the more progressive stance because it could reach areas of private inequity traditionally thought to be outside the reach of law. (49) On the other hand, indirect application signified the influence of constitutional values over the interpretation of common law doctrine without overriding it. (50) Further, indirect application was considered more conservative because its construction of horizontality signified that the Constitution would limit itself to ensuring that legal norms comported with it, yet constitutional values would not have direct access to "extra-legal" social spaces. (51) Provisions of the Constitution would operate in the context of private disputes, not as statements of subjective rights, but as values guiding the development of law. (52)

This understanding was voiced in the first generation of thought by the authors of The Bill of Rights Handbook ("The Handbook"), which defines indirect application as a set of values that must be respected whenever ordinary law is interpreted, developed, or applied. (53) The Handbook states that with indirect application, the Bill of Rights does not override ordinary law or generate its own remedies. (54) Rather, the Bill of Rights respects the procedural rules and remedies of ordinary law, but does require the operation of ordinary law to further the values of the Bill of Rights. (55) In contrast, direct application indicates the types of legal disputes to which the Bill of Rights is directly applicable. (56) In these cases, the Bill of Rights generates its own set of remedies and overrides ordinary law as well as any conduct inconsistent with the Bill of Rights. (57)

The authors of The Bill of Rights Handbook comment that the distinction between direct and indirect application is not merely technical, but rather fundamental, as the purpose and effect of each differs. (58) While the purpose of direct application is to uncover any inconsistency among law, conduct, and the Bill of Rights, the purpose of indirect application is to determine whether inconsistency between the law and the Bill of Rights can be avoided by a proper interpretation of the two. (59) According to according to
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

 The Handbook, "direct application rules out certain possibilities as constitutionally invalid (they are struck down) whereas an indirect application merely proposes a possible construction of the law that conforms with the Constitution." (60)

Advocates of direct application criticized indirect application as "potentially immunizing from direct constitutional scrutiny a whole range of feudal and racist relationships" and is thus ill suited "Ill Suited" is the first episode of Kim Possible's fourth season, which premiered on Disney Channel on February 10, 2007.[1] After misunderstanding a conversation between Kim Possible and Monique, Ron Stoppable fears that he isn't good enough to be her  for the radical social transformation required of South African society. (61) They feared that choices made with respect to application would reflect traditional liberal political theory, which requires liberty to include government nonintervention non·in·ter·ven·tion  
Failure or refusal to intervene, especially in the affairs of another nation.

 in the private affairs of individuals. (62) They were concerned that covert white interests in limiting the reach of transformation were behind the advocacy for indirect application. (63)

This topic came before the Constitutional Court in Du Plessis v. De Klerk de Klerk   , F(rederik) W(illem) Born 1936.

South African president (1989-1994) who shared the 1993 Nobel Peace Prize for his efforts toward ending apartheid in South Africa.
, (64) the first case to consider the question of applying the interim Constitution to the common law. (65) There, the majority of the Constitutional Court cast its vote with indirect application. Acting Justice Sydney Kentridge, writing on behalf of the majority, affirmed Canadian precedent by finding that in a constitutional democracy, it is the legislature and not the judiciary that has the major responsibility for law reform. (66) He also wrote that the task of the judiciary is to confine itself to those developments necessary to keep the common law in step with society. (67) Methodologically, he maintained that the common law develops incrementally, not by being stricken. (68) He also did not think the role of the Constitutional Court was to decide between competing versions of the common law. (69) While rejecting the possible invalidation in·val·i·date  
tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates
To make invalid; nullify.

 of common law rules on the basis of unconstitutionality, Kentridge endorsed a conception of indirect application where constitutional values permeated the common law in all its aspects. (70) The implication here was that indirect application correlated to incremental development, whereas direct application signified an out-of-bounds, more radical development. (71)

However, the mandate to common law transformation Du Plessis put in place gained urgency in the 2001 case of Carmichele v. Minister of Safety. (72) As if in response to an institutional reluctance of common law courts to fully engage with constitutionalism, the Constitutional Court imposed a non-discretionary obligation on common law judges to interrogate (1) To search, sum or count records in a file. See query.

(2) To test the condition or status of a terminal or computer system.
 and transform common law rules found to be constitutionally wanting. (73) Although the Court again acknowledged that it is the legislature and not the courts that have the major responsibility, it added that the duty cast upon judges in South Africa is different in degree to those of judges in foreign jurisdictions because the:
   interim Constitution brought into operation in one fell swoop, a
   completely new and different set of legal norms, and in these
   circumstances the courts must remain vigilant and should not
   hesitate to ensure that the common law is developed to reflect the
   spirit, purport and objects of the Bill of Rights. (74)

The implication is that law takes the lead in the evolutionary processes of society, and the common law judicial role is no longer limited to reflecting incremental developments necessary to keep law in step with society.

The judgment in Carmichele was a call for accelerated or strengthened indirect application, which significantly upped the ante of the Du Plessis majority's formulation of judicial function in common law adjudication. (75) The decision can be seen to signify the beginnings of a second generation of thought on application, where constitutional values are considered in all cases and the compartmentalization of common law and constitutional law can no longer be easily maintained. (76)

Another view, finding its thematic expression in both first and second generation scholars, contended that what was important about the application debate was not the question of protection for the status quo, since it was clear from the text of the Constitution that it was a transformative document. (77) This approach claimed that the important question was whether the legislature or the judiciary was best suited to the transformation of social institutions and the private sphere. (78) In the second generation, Sprigman and Osborne argue that indirect is different from direct application. (79) In the former, a court's application decision is not a constitutional ruling but a common law ruling made in light of constitutional values; it is both amenable to repeal, and, within its duty of systematic, large-scale law reform, "unconstrained by the preclusive effect of the judiciary's ad hoc For this purpose. Meaning "to this" in Latin, it refers to dealing with special situations as they occur rather than functions that are repeated on a regular basis. See ad hoc query and ad hoc mode.  direct application of the Bill of Rights." (80)

However, Sprigman and Osborne take their point further than the narrow jurisdictional one, arguing that those who worry that anything less than strong horizontalism will allow privatized Apartheid to flourish indefinitely mistakenly assume that Parliament will be unwilling to enact corrective legislation. (81) They conclude that such a lack of faith in the democratically elected legislature, accompanied by a high degree of confidence in the courts, reflects potent counter-majoritarianism. (82) In their view, direct application is an instance of gratuitous Bestowed or granted without consideration or exchange for something of value.

The term gratuitous is applied to deeds, bailments, and other contractual agreements.
 countermajoritarianism because judicial review poses a unique threat in the context of a purely private dispute. (83) The reason for this is that in vertical cases, individual rights are in conflict with the state, while in horizontal cases, individual rights are in conflict with one another. Consequently, in horizontal disputes the question is not whether there has been violation of a right--as is in a vertical dispute--but rather which party's rights should prevail. In cases of direct application, this decision is a constitutional ruling that strikes the balance once and for all. (84) According to Sprigman and Osborne, this task of ranking rights requires a political choice that lies within the mandate and competency of the legislature because it can subject political choices to investigation, deliberation, and amendment by ordinary procedures. (85) It is also these characteristics that give the legislative process a democratic legitimacy that can never be attained by judicial value selection. (86)

From the start, the question of direct or indirect application seemed to correlate, in both legal doctrine Legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case.  and legal reasoning, with a larger theme of the post-Apartheid South African constitutional project as being committed to both continuity and change, and both stability and transformation. (87) Indirect application seemed to defer to a conception of incremental change and wariness about creating vacuums in the common law, whilst proponents of direct application seemed to advocate a more fundamental change in the sense that the constitution could invalidate in·val·i·date  
tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates
To make invalid; nullify.

 a common law provision. (88) Similarly, indirect application was limited to existing common law causes of action and remedies, whereas direct application did not appear to be limited by existing doctrines. (89) Proponents of indirect application were viewed as either or both politically and socially conservative by those who felt that their approach left undisturbed all social relationships in which extant common law provided no cause of action. (90) Philosophically, indirect application seemed to reflect a more deferential deferential /def·er·en·tial/ (-en´shal) pertaining to the ductus deferens.

Of or relating to the vas deferens.


pertaining to the ductus deferens.
 attitude towards the evolutionary reasonableness or equitability of the common law, whereas direct application often reflected an understanding of common law as political and tainted by Apartheid ideology. (91) Institutionally, advocates of indirect application were concerned that judges not be allowed to intervene in the private sphere, and that transformation here was exclusively within the mandate of the legislature. (92) Proponents of direct application were concerned that indirect application would result in the immunization immunization: see immunity; vaccination.  of common law liberty from constitutional scrutiny. (93)


Historically, according to South African common law, a marriage was a "legally recognized voluntary union for life in common of one man and one woman, to the exclusion of all others while it lasts." (94) The late South African writer, H. R. Hahlo, wrote that although marriage is a contract based on the consent of the parties, consent is not sufficient to create a legal marriage because the relationship it creates is not an ordinary contractual relationship, but involves a status of public character. (95) Consequently, certain marriage contracts were considered to be against public policy and thus void. (96) The most significant of such marriages was the polygamous polygamous

as a male or female, having more than one mate.
 union, which was considered to be fundamentally opposed to South African principles and institutions and hence unenforceable Adj. 1. unenforceable - not enforceable; not capable of being brought about by compulsion; "an unenforceable law"; "unenforceable reforms"
enforceable - capable of being enforced
. (97)

The positivist pos·i·tiv·ism  
1. Philosophy
a. A doctrine contending that sense perceptions are the only admissible basis of human knowledge and precise thought.

 version of this argument was that because the monogamous marriage of Roman Dutch law Roman Dutch law is a legal system based on Roman law as applied in the Netherlands in the 17th and 18th century. As such, it is a variety of the European continental Civil law or ius commune.  came to South Africa with the first Dutch settlers, it was the only form of marriage recognized by South African law, and "is open to members of all population groups, irrespective of irrespective of
Without consideration of; regardless of.

irrespective of
preposition despite 
 race, nationality or religion." (98) However, a natural law conception that African customary marriages and Muslim marriages be refused recognition on the basis that polygamy polygamy: see marriage.

Marriage to more than one spouse at a time. Although the term may also refer to polyandry (marriage to more than one man), it is often used as a synonym for polygyny (marriage to more than one woman), which appears
 is "reprobated by the majority of civilized peoples on the ground of morality and religion" also filtered through judicial pronouncements. (99) In the case of Ismail v. Ismail, (100) the Appellate Division declared a religious Muslim marriage contract to be unenforceable, holding that these contracts were not contra bonos mores CONTRA BONOS MORES. Against good morals.
     2. All contracts contra bonos mores, are illegal. These are reducible to Several classes, namely, those which are, 1. Incentive to crime. A claim cannot be sustained, therefore, on.
 in the natural law meaning of being immoral or reprehensible rep·re·hen·si·ble  
Deserving rebuke or censure; blameworthy. See Synonyms at blameworthy.

[Middle English, from Old French, from Late Latin repreh
, but in the wider, positivist implication of being contrary to the "accepted customs and usages of a particular social group, that are usually morally binding upon all members of the group and are regarded as essential to its welfare and preservation." (101) The judge added that in light of the growing trend in favor of equality between spouses, the recognition of polygamous unions might even be regarded as a retrograde retrograde /ret·ro·grade/ (ret´ro-grad) going backward; retracing a former course; catabolic.

1. Moving or tending backward.

 step. (102)

The primary policy of non-recognition was given effect in common law terms through the regulative concepts of boni mores or public policy. (103) The conceptions of boni mores and public policy were explained in what is still a much cited 1987 South African Law Journal article on the role of policy in common law adjudication. (104) There, the late Chief Justice Michael Corbett Michael Corbett can refer to any of the following people
  • Michael Corbett (ice hockey), a former ice hockey player in the National Hockey League.
  • Mike Corbett (Power Rangers), a fictional character from Power Rangers.
 wrote about the important policymaking function that South African courts perform in the process of developing the common law and adjusting it to the ever-changing needs of society. (105) Corbett questioned whether judges should embark on policymaking decisions or whether these matters should be left to the legislature, acting on the recommendations of experts. (106) He wrote that since public policy reflects the mores and fundamental assumptions of the community, it is only natural that perceptions as to what is or is not contrary to public policy will vary from era to era and that "in appropriate circumstances the courts may consequently introduce new categories of public policy or abandon or restrict old ones." (107)

As to what would constitute such an appropriate circumstance, Corbett wrote that when a court is confronted with a legal problem in the common law for which there is no precedent or authority, then the court makes use of flexible standards such as public policy, boni mores, legal convictions of the community, or reasonableness. (108) In explaining how courts give meaning to these concepts, he wrote:
   [T]he policy decisions of our courts which shape, and at times
   refashion the common law must also reflect the wishes, often
   unspoken, and the perceptions, often but dimly discerned, of the
   people. A community has certain common values and norms.... In the
   last resort the judge will often be required to perform a balancing
   act between two competing values, each in itself a worthy or
   desirable one.... And the balance which is eventually struck must
   accord with society's notions of what justice demands." (109)

On this account, the judicial function in common law cases, prior to the advent of constitutionalism and judicial review, is not political in the sense that it involved choice. Rather the judge is seen as reflecting, and therefore "discovering," society's sense of justice. (110) In this sense, judicial lawmaking or policymaking is legitimate, because judges would not invent the boni mores, but rather their decisions would reflect a slowly changing society's sense of justice back to itself.

Corbett's article was especially significant when viewed against the backdrop of the South African system of parliamentary sovereignty and the common understanding of the judicial role as limited to declaring rather than making the law. (111) It amounted to an important acknowledgement by the judiciary of its own policy-making or lawmaking function. (112) Yet, his article also revealed that he perceived policy-based decision-making to be an exceptional circumstance, occurring only where there is no precedent and judges adjudicate adjudicate (jōō´dikāt´),
 based on "society's notions of what justice demands." (113) There is doubtlessly a certain disconnect between the explicit Apartheid ideology incorporated into case law through the conception of boni mores and Corbett's conception that acknowledged only a very limited lawmaking role for the judge and confined this role to the boundary of the common law's flexible standards. (114)

It seems likely that Corbett's conception is reflected in early constitutional cases, which determined that it was through flexible standards that the Constitution would primarily permeate the common law. (115) It is arguable ar·gu·a·ble  
1. Open to argument: an arguable question, still unresolved.

2. That can be argued plausibly; defensible in argument: three arguable points of law.
 that the reason for this distinction between rules and standards, is that standards inherently require a degree of discretion and lawmaking, and consequently are the natural preserve of the judiciary, whereas rules are considered entirely different and will be reluctantly changed only by the highest common law authority. This distinction is similar to distinctions between rules and values drawn in recent Supreme Court of Appeal cases, which declare that while values can animate rules, they are not self-standing, and a High Court judge has no discretion in applying the governing rule. (116) This distinction also reminds us that historically, the amelioration a·me·lio·ra·tion  
1. The act or an instance of ameliorating.

2. The state of being ameliorated; improvement.

Noun 1.
 of the blunt force of rules was considered to be reserved for the legislature alone. (117)


The question then is how post-Apartheid common law courts came to negotiate the interaction between rules, boni mores, and constitutional values. In doctrinal areas, such as contract law, the Supreme Court of Appeal--the highest court of appeal in non-constitutional matters-interpreted constitutional values to be fully consonant consonant

Any speech sound characterized by an articulation in which a closure or narrowing of the vocal tract completely or partially blocks the flow of air; also, any letter or symbol representing such a sound.
 with the hegemony of common law liberty and freedom of contract. (118) Institutionally, the Supreme Court of Appeal was concerned with circumscribing the ability of lower courts to overrule precedent under the guise of giving effect to the "spirit, purports and objects" of the Constitution. (119)

However, in the area of family law, (120) specifically marital recognition, there is a proliferation proliferation /pro·lif·er·a·tion/ (pro-lif?er-a´shun) the reproduction or multiplication of similar forms, especially of cells.prolif´erativeprolif´erous

 of ways in which the Bill of Rights has influenced common law doctrine and discourse. This raises a different institutional question regarding the relationship between judicial and legislative lawmaking. Perhaps it was inevitable that the fractured terrain of South African family law would be the site of such proliferation given its glaring hierarchical nature. (121) Many common law provisions regulating family law were explicitly coercive and often innocuous, likely to be considered by most as an uncontroversial example of a doctrinal area that was illegitimately invaded by Apartheid policies. (122)

This Part will analyze the common law jurisprudence on Muslim marriage and same-sex marriage Noun 1. same-sex marriage - two people of the same sex who live together as a family; "the legal status of same-sex marriages has been hotly debated"
couple, twosome, duet, duo - a pair who associate with one another; "the engaged couple"; "an inseparable
 in order to understand how the application debate impacts traditional common law analysis. Underlying these judgments is an evolving conception of the relationship among judicial and legislative lawmakers. First I will look at those cases where traditional indirect application has been the norm and courts have used the common law vehicle of public policy to import the values of the Constitution into the common law. Here, I will argue that the impact of constitutional values on common law discourse is two-fold: first, it relaxes the institutional and cultural bias against explicit judicial lawmaking; second, it allows the judiciary to see, and therefore be able to respond to, an empirically changed and continually changing society. A variation of this theme is that constitutional values themselves are seen to be a reflection of changed social norms, and therefore--within the unaltered ambit of traditional common law--judicial function, which sees the common law judge as reflecting society back to itself. This approach views the post-Apartheid common law judicial role as continuous with the pre-constitutional task of responding incrementally to social change. In this role, the judge clearly does not see himself or herself as involved in political work requiring hard choices, but rather as confined to elucidating the evolving common law. (123)

In a second approach that emerges, constitutional values dominate the conflict between social norms and constitutional values. Constitutional values appear in this version as not deriving from the empirical community's boni mores, but as altering the boni mores. (124) This approach is increasingly politicized in that it acknowledges a clash of values, which involves choice. (125) However, the judge refuses this potential politicization of the judicial role by asserting a non-discretionary allegiance to uncontested constitutional values. (126)

In a third approach, found in the Supreme Court of Appeal decision in Fourie, (127) Judge Cameron, working outside the paradigm of flexible standards and in the terrain of legal rules, acknowledged that constitutional values conflict, and the judicial role involves choice. (128) On this approach, common law constitutional analysis is a form of politics necessitating choice, thus rendering the distinction between legislative and judicial lawmaking increasingly fragile. (129)

In each of these approaches, there is a progressive move away from the purist pur·ist  
One who practices or urges strict correctness, especially in the use of words.

pu·ristic adj.
 paradigm of indirect application, and legal analysis increasingly takes on characteristics of direct application. Given Fourie's end result, it is difficult to tell precisely whether it was a case of direct application or indirect application. This leads to the conclusion that the distinction between direct and indirect application, about which people had once felt extremely passionate, has come to be less significant. (130)

A. Evolutionary Common Law Adjudication

The cases of Amod v. Multilateral Motor Vehicle Accident motor vehicle accident Public health A morbid condition that kills 45,000/yr–US; 60% are < age 35; MVAs account for 500,000 hospitalizations and most 20,000 spinal cord injuries, at a cost of $75 billion/yr  Fund (131) and Du Plessis v. Road Accident Fund (132) dealt with the recognition of Muslim marriages and same-sex unions, respectively. In Amod, the appellant was a widow who had been married to the deceased according to Islamic rites. (133) She instituted an action against the Multilateral Motor Vehicle Accident Fund claiming damages suffered as a result of the death of her husband in a motor vehicle accident prior to the enactment of either the interim or final Constitution. (134)

After some preliminary skirmishes, the case arrived before the late Chief Justice Ismail Mahomed. He considered the historical origins of dependants' action in common law and emphasized that equity requires that a dependant be able to recover from a party who has unlawfully and wrongfully caused the death of a breadwinner bread·win·ner  
One whose earnings are the primary source of support for one's dependents.

bread·winning n.
. (135) In order to succeed in her claim, the appellant would have to prove that her right to such support was worthy of protection by law, which would be assessed according to the prevailing boni mores of society. (136) Although the case concerned a statutory claim, the respondents argued that the appellant's claim should fail because while the relevant system of customary law by which she was married permitted polygamy, her marriage was invalid at common law, and her claim unenforceable. (137)

Chief Justice Mahomed approached the inquiry by focusing not on the question of whether the marriage was lawful at common law, but whether the deceased had the legal duty to support the appellant during the marriage. (138) If this was the case, then the deciding question was whether the widow deserved protection in these circumstances. (139)

In answering the question, an important consideration was the fact that the new ethos of religious freedom was well established at the time the cause of action arose, which was prior to the enactment of the interim Constitution. (140) The Court emphasized that as the present marriage was always a monogamous one, there was no meaningful distinction between this marriage and a Christian one. (141) Chief Justice Mahomed explained that this new ethos was substantially different from one that informed the boni mores of the community, which held that "potentially polygamous" marriages did not deserve the protection of the law for the purposes of the dependant's action. (142) He wrote:
   I have no doubt that the boni mores of the community at the time
   when the cause of action arose in the present proceedings would not
   support a conclusion which denies to a duty of support arising from
   a de facto monogamous marriage solemnly entered into in accord with
   the Muslim faith any recognition in the common law for the purposes
   of the dependant's action; but which affords to the same duty of
   support arising from a similarly solemnized marriage in accord with
   the Christian faith full recognition in the same common law for the
   same purpose; and which even affords to polygamous marriages
   solemnized in accordance with the Christian faith full recognition
   in the same common law for the same purpose; and which even affords
   to polygamous marriages solemnized in accordance with African
   customary law exactly the same protection for the same purpose....

Chief Justice Mahomed's analysis made use of internal common law reasoning, which he characterized as essentially equitable and continually evolving to reflect the changing social norms. (144) He viewed the dependant's action as a particularly adaptable creature, and claimed that on proper analysis of existing relevant common law rules, "a claim of loss of support made on behalf of a Muslim widow in the position of the appellant is sound in law." (145) He based this departure from precedent on the evolving nature of the community's values and norms in existence prior to the enactment of the Constitution. (146)

In keeping with the jurisprudence of functional incrementalism, Chief Justice Mahomed stated that he only recognizes de facto [Latin, In fact.] In fact, in deed, actually.

This phrase is used to characterize an officer, a government, a past action, or a state of affairs that must be accepted for all practical purposes, but is illegal or illegitimate.
 monogamous Muslim marriages, and only for the purposes of the dependant's action. (147) However, given that the cause of action and change to the empirical boni mores that Chief Justice Mahomed based his decision upon took place prior to the enactment of the Constitution, Amod can be seen as a case of non-application of the Bill of Rights. (148)

Du Plessis v. Road Accident Fund mirrors the facts in Amod, except that the relationship in question was a same-sex partnership. (149) As the cause of action took place after the enactment of the Constitution, the court used section 39(2) of the Constitution to extend the action for loss of support to partners in same-sex permanent life relationships similar to marriage in other respects, and who had a contractual duty to support each other. (150) Doing this, it was said, took "an incremental step to ensuring that the common law accorded with the dynamic and evolving fabric of society as reflected in the Constitution." (151)

In this judgment, constitutional values did the work, but did so through the common law doctrine of boni mores, which facilitated the expansion of common law to recognize a greater variety of dependent relationships. The judge expressly stated that "the incidence and extent of duties are liable to adjustment in the light of the constant shifts and changes in community attitudes," (152) and that the constitutional values themselves represent boni mores, community norms and attitudes. (153) Hence, this judicial development was in keeping with the time honored role of the judiciary in responding to changes in society since the source of constitutional values is in society. It was essential to this judgment that the evolution be seen as incremental; the judge stressed that he had not been asked to grant a more generalized recognition to same-sex relationships. (154) The implication is that a more generalized recognition of same-sex relationships would overstep the institutional limits of incremental development and legitimate judicial role.

B. Transformative Common Law Adjudication

A second approach to the relationship between boni mores and constitutional values can be seen in Ryland v. Edros, (155) where the judge characterized the relationship between boni mores and constitutional values as one of conflict. (156) Ryland was an earlier case that emerged from the post-Apartheid High Court and concerned the question of whether the Ismail precedent precluded enforcement of the proprietary terms of an Islamic marriage contract An Islamic marriage contract is a formal, binding contract drawn up by parties involved in marriage proceedings. Witnessing
In Sunni Islam, a marriage contract must have two male witnesses, or, in the Hanafi school of jurisprudence, one man and two women.
 because the marriage was potentially polygamous and contrary to public policy. (157)

Justice Ian Farlam wrote that, while it was true that public policy is essentially a question of fact, it would be difficult to find that there was such a change in the community's general sense of justice as to justify a refusal to follow the Ismail precedent had it not been for the new Constitution. (158) Accordingly, he preferred to base the decision on the fundamental alteration in the basic values of the legal order brought about by the new Constitution. (159) If the spirit, purport, and objects of chapter three of the Constitution and the basic values underlying it were in conflict with the public policy expressed and applied in precedent, then the values underlying the Constitution must dominate. (160) He framed the question as whether constitutional values are in conflict with public policy expressed in Ismail and stated,
   [I]t is inimical to all the values of the new South Africa for one
   group to impose its values on another and that the Courts should
   only brand a contract as offensive to public policy if it is
   offensive to those values which are shared by the community at
   large, ... not only by one section of it. (161)

However, the Ismail precedent accounted for the views of only one group in a plural society A plural society is defined by Fredrik Barth as a society combining ethnic contrasts: the economic interdependence of those groups, and the ecological specialization (i.e., use of different environmental resources by each ethnic group). . (162)

Justice Farlam went on to find that principles of equality underlie the Constitution and "irradiate irradiate /ir·ra·di·ate/ (i-rad´e-at) to treat with radiant energy.

1. To expose to radiation, as for diagnostic or therapeutic purposes.

" concepts of public policy and boni mores. (163) The effect of these values is that both the contra bonos mores and the grounds for refusing to enforce the consequences of an Islamic marriage could no longer stand. Farlam stressed that this was a case of potential, not actual, polygamy, and that the court was not being asked to recognize a polygamous marriage, but to enforce certain terms of a contract made between parties that are collateral to the marriage. (164)

In Farlam's opinion, he contrasted public policy and the community's sense of justice with constitutional values and found that a conflict existed between the constitutional values and the boni mores present in society as previously articulated in judicial precedent. (165) Where there is such conflict, constitutional values trump. (166)

Technically, whilst employing the traditional entry point of a flexible standard, Justice Farlam's approach differs from that stipulated in The Bill of Rights Handbook (167) to indirect application. Instead of interpreting the boni mores to be congruous con·gru·ous  
1. Corresponding in character or kind; appropriate or harmonious.

2. Mathematics Congruent.

[From Latin congruus, from congruere,
 with constitutional values, as prescribed by The Handbook, Farlam treated the boni mores as empirical facts that can conflict with constitutional requirements and put forward the notion that judges are required to enforce constitutional values. (168) At the same time, he stated that the conception of the empirical norms of the community upheld in Ismail were unconstitutional because the boni mores were those of a small group rather then society as a whole. (169) However, he did not go on to find that the more representative boni mores would favor enforcement, but "prefer[red] to base [his] decision on the fundamental alteration in regard to the basic values on which our civil polity is based." (170) In effect, he was "striking down" or invalidating the conception of community norms announced in Ismail, and positing constitutional values in its stead. (171) In this respect, his analysis, although indirect, resembles direct application. Accordingly, the distinction between direct and indirect application loses some of its all-or-nothing quality. (172)

In both approaches described above, judges operate incrementally within the flexible standards of the common law. Whilst the first set of cases is in keeping with the traditional judicial mandate of keeping the boni mores contemporaneous con·tem·po·ra·ne·ous  
Originating, existing, or happening during the same period of time: the contemporaneous reigns of two monarchs. See Synonyms at contemporary.
, Ryland views the Constitution as representing values that legally outrank out·rank  
tr.v. out·ranked, out·rank·ing, out·ranks
To rank higher than.


to be of higher rank than (someone)

Verb 1.
 the community's norms or sense of justice. (173) This is a distinct shift in judicial function, since the role of the common law judge is to give voice to constitutional values as opposed to community norms. Institutionally, this shift allowed Farlam, a High Court judge, to overrule precedent from the Supreme Court of Appeal in Ismail. (174) But he was cautious not to push the boundary between legislative and judicial lawmaking, and did not grant outright recognition to Muslim marriages. He expressly stipulated that he was not dealing with a situation involving actual polygamous spouses. (175)

C. Constitutionalized Common Law and Fourie

Fourie (176) broke ground as it dealt with the constitutionality of the common law rule defining marriage as exclusively between a man and a woman. From the outset, this case was concerned with a rule or omission, rather than the open-ended policy thought to be the preferred channel for indirect analysis. (177)

In the Supreme Court of Appeal judgment, Justice Cameron found that the common law definition of marriage denied a host of benefits, protections, and duties to gays and lesbians wishing to solemnize sol·em·nize  
tr.v. sol·em·nized, sol·em·niz·ing, sol·em·niz·es
1. To celebrate or observe with dignity and gravity. See Synonyms at observe.

2. To perform with formal ceremony.

 their union. (178) He also emphasized the "deeper" harm of exclusion, which signified to gay and lesbian people that their relationships were inferior and they could never "be fully part of the community of moral equals that the Constitution promises to create for all." (179) In his view, this exclusion "undermines the values which underlie an open and democratic society," and in the absence of justification, it constitutes unfair discrimination in terms of section 9(3) of the Constitution. (180)

In his analysis, Justice Cameron looked at possible justifications for the exclusion, including that the majority of South Africans This is a list of notable South Africans with Wikipedia articles. Academics, Medical and Scientists
  • Wouter Basson, Scientist
  • Mariam Seedat, sociologist and gender advocate (1970 - )
  • Estian Calitz, academic (1949 - )
 still think of marriage as a heterosexual institution and view an extension to gays and lesbians unfavorably. (181) He wrote:
   Our task is to develop the common law in accordance with the
   spirit, purport and objects of the Bill of Rights. In this our sole
   duty lies to the Constitution: but those we engage with most deeply
   in explaining what that duty entails is the nation, whose
   understanding of and commitment to constitutional values is
   essential if the larger project of securing justice and equality
   under law for all is to succeed.

      In interpreting and applying the Constitution we therefore move
   with care and respect, and with appreciation that a diverse and
   plural society is diverse and plural precisely because not everyone
   agrees on what the Constitution entails. Respect for difference
   requires respect also for divergent views about constitutional
   values and outcomes. (182)

Justice Cameron concluded that the appellants were "entitled ... to a declaration that their intended marriage is capable of recognition as lawfully valid subject to compliance with statutory formalities." (183) He stressed that once the court decides that the Bill of Rights requires the common law to be developed, it does not intrude intrude,
v to move a tooth apically.
 upon the legislative process because "[i]t is precisely this role that the Bill of Rights envisages must be fulfilled, and which it entrusts to the judiciary." (184)

Justice Farlam authored the dissenting judgment, where he approached the question institutionally and asked whether such a development constituted an incremental change mandated by indirect application, or whether it involved a fundamental change, which would preferably be undertaken by Parliament. (185) Farlam was concerned that such an extension would not be an incremental step, but "a quantum leap quantum leap
An abrupt change or step, especially in method, information, or knowledge: "War was going to take a quantum leap; it would never be the same" Garry Wills.
 across a chasm," the consequences of which would be a "crisis of the reality of law" where what the population practiced was the opposite of that contained in the law books. (186) After traversing the long secular history of marriage, Farlam found that the common law definition of marriage violated equality and dignity and could not be justified. (187) In other words Adv. 1. in other words - otherwise stated; "in other words, we are broke"
put differently
, he utilized indirect application. He concluded that the extension of the common law definition of marriage to same-sex couples could not involve a fundamental change in the traditional concept of marriage and decided to develop the common law, but then suspend development so that Parliament had the opportunity to intervene.

From the start, the case is distinguishable from the previous cases discussed in that it is not a policy or flexible rule that is being adjudicated, but rather a categorical That which is unqualified or unconditional.

A categorical imperative is a rule, command, or moral obligation that is absolutely and universally binding.

Categorical is also used to describe programs limited to or designed for certain classes of people.
 omission created by the exclusive definition of marriage. (188) Cameron's judgment appears to take the Ryland version of incrementalism a step further and arguably represents an instance of the Constitutional Court injunction to "one law." (189) From the start, the discourse follows a more constitutional than common law analysis in its refusal to embark on tedious review of case law to "prove" incrementalism. (190)

Justice Farlam's approach is more traditionally common law-like as it focuses on the internal development of doctrine Development of doctrine is a term used by John Henry Newman and other theologians influenced by him to describe the way Catholic teaching has become more detailed and explicit over the centuries, while later statements of doctrine remain consistent with earlier statements. , such that incrementalism appears to require recognition. He clearly stated at the outset that his analysis is a section 39(2) indirect application analysis, while Cameron's approach is difficult to pin down and appears to combine a section 8(3) mandate for direct application with a section 39(2) indirect application injunction. (191) Farlam wrote of the sections "taken together" as constituting an "imperative normative setting that obliges courts develop the common law." (192) In terms of substance and remedy, both clearly operate in the new arena of constitutionalized common law. While Farlam goes to great lengths to demonstrate that his judgment is a natural and therefore reasonable extension of previous common law judgments that is comfortably positioned within the legitimate jurisdiction of the judiciary, (193) Cameron seems to address the broader questions of constitutional values, social norms, and political choice. He argues that the nature or extent of the changes to be brought about is not less significant than common law development within the competency of the judiciary. (194) While Farlam's rhetoric pulled towards indirect application and affirmation of the common law, Cameron's judgment spoke in the language of direct horizontal application and constitutional hegemony.

Justice Cameron addressed the question of community norms when dealing with possible justifications for the rule. In contrast to previous approaches, he refused to sidestep side·step  
v. side·stepped, side·step·ping, side·steps

1. To step aside: sidestepped to make way for the runner.

 this question and found that constitutional values represent the new boni mores--arguably he could not find otherwise, given the assertions that a majority of South Africans viewed the extension of marriage to gays and lesbians unfavorably--(195) but acknowledged that the values embodied in the Constitution are there by the dint of the founders' choices. (196) While asserting the supremacy of the Constitution, he refused to end the debate by simply determining that constitutional values are absolutely conclusive. Rather, he determined that if the constitutional project is to succeed, it is imperative that the nation understand and be committed to constitutional values. (197) This view is a world away from Corbett's conception that the judge reflects and "discovers" the community's sense of justice. (198) In Cameron's view, the judge must exercise choice and must then explain or justify that choice to the community or the nation. (199) Even when the nation is committed to the constitutional project, there is an acknowledgement that values may conflict and contradict each other, and not everyone agrees on outcomes. (200)

According to Justice Cameron's analysis, it is the Constitution, rather than the boni mores, that requires incremental development to take place. (201) Ultimately when the boni mores conflict with constitutional values, the values trump--but this does not negate ne·gate  
tr.v. ne·gat·ed, ne·gat·ing, ne·gates
1. To make ineffective or invalid; nullify.

2. To rule out; deny. See Synonyms at deny.

 the need to engage with those boni mores. (202) It is easy to see how indirect application has come of age in the majority judgment. It seems clear that had it been a case of direct application, it would have looked no different. (203)

D. Constitutional Court: Fourie

When Fourie finally came before the Constitutional Court, both common law and legislative issues were on the table: the exclusion of same-sex marriages from the common law definition of marriage and the provisions of the Marriage Act, which explicitly exclude same-sex couples from marrying. (204) The Court easily found that the absence of a provision for same-sex couples to marry amounted to a denial of equal protection of the law equal protection of the law n. the right of all persons to have the same access to the law and courts, and to be treated equally by the law and courts, both in procedures and in the substance of the law.  and unfair discrimination by the state, and turned to the question of remedy. (205)

Counsel for the state contended that the Court could not indirectly apply the Constitution to the common law and develop the common law definition because only the legislature had the power to cure any substantial and non-incremental defect in the common law. (206) Similarly, they maintained that the Court was not competent to restructure the institution of marriage in such a radical way because the issue was exclusively within parliament's competence and required the public's input due to its great importance. (207)

Justice Albie Sachs Albie Sachs (1935-) is a justice on the Constitutional Court of South Africa. He was appointed to the court by Nelson Mandela in 1994.

Justice Sachs recently gained international attention in 2005 as the author of the Court's holding in the case of
, writing for the majority of the Constitutional Court, found it unnecessary to decide whether the Court had power to develop the common law only in an incremental fashion, but in the same paragraph cited to an early instance of direct application to support the invalidation and striking down of appropriately challenged, inconsistent common law provisions. (208) He also found that the public had already been extensively consulted by the Law Commission, which had drafted legislation that could be placed in front of parliament within a relatively short period. (209) Hence, on both points the Constitutional Court is competent to act--the question is whether it should grant immediate relief to the applicants, or whether it should suspend the order of invalidity to give Parliament a chance to remedy the defect.

Deciding in favor of the suspension order, Justice Sachs stressed that the issue involved a matter of status that required a secure remedy, which would be found in legislation. (210) Also, in his view, the equality claims in question were best served by respecting the separation of powers separation of powers: see Constitution of the United States.
separation of powers

Division of the legislative, executive, and judicial functions of government among separate and independent bodies.
 and giving Parliament an opportunity to deal with the matter because not only are the courts responsible for vindicating constitutional rights, but the "legislature is in the frontline in this respect." (211) The remedy he ultimately provided declared the common law definition of marriage invalid to the extent that it did not permit same-sex couples the status and benefits accorded to heterosexual couples, but he suspended the declaration of invalidity for twelve months from the date of judgment to allow Parliament to correct the defect. (212)

In a dissenting opinion dissenting opinion n. (See: dissent)  on the question of remedy, Justice Kate O'Regan disagreed with the suspension order, adding that the absence of suspension "would not preclude Parliament from addressing the law of marriage in the future, and would simultaneously and immediately protect the rights of [same-sex] couples pending [such legislation]." (213) Her reasoning was that the question before the Court involved a rule of common law developed by the courts, so the responsibility for its remedy lay "in the first place, with the courts." (214) She stressed that in terms of Carmichele, the authority for accelerated, indirect application, it was the duty of the courts to ensure that the common law conformed to the Constitution. (215) In her view, while the doctrine of separation The doctrine of separation, also known as the doctrine of non-fellowship, is a belief among some religious groups that the members of a church should be separate from the world and not have association with those who are of the world.  of powers was important, it could not be used to avoid the obligation of a court to provide appropriate relief to successful litigants. (216) Although it would have been desirable if the unconstitutional situation identified had been resolved by Parliament without litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.

When a person begins a civil lawsuit, the person enters into a process called litigation.
, this does not mean that the Court should not come to the relief of successful litigants simply because an act of parliament might be thought to carry greater democratic legitimacy. Justice O'Regan wrote, "The legitimacy of an order made by the Court does not flow from the status of the institution itself, but from the fact that it gives effect to the provisions of our Constitution." (217)

Technically, the O'Regan dissent engaged in indirect application, while the Sachs opinion suggested that direct application is competent, although he declined to employ it. (218) While by virtue of a basic agreement between both judgments in the formulation of the court order, both direct and indirect applications reach the same remedy, the reasons for the difference of opinion on the question of suspension are vital and go to the heart of institutional choice.

The Sachs majority favored suspension of the order since it viewed the legislature as the frontline of law reform in a constitutional democracy. (219) The majority judgment gave particular weight to the fact that the case concerned an issue of status that required a stable remedy, which in Justice Sachs's opinion was a legislative remedy. (220) In contrast, according to Justice O'Regan's judgment, indirect application carried with it the positive injunction to transform common law found constitutionally wanting, making it imperative that courts grant a remedy. (221) She asserted that the legislative process was not more legitimate than the judicial process, particularly in matters involving the common law and stressed, like Justice Cameron, that the common law and its reform are fully within the domain of the judiciary. (222)

The case squarely presented the issue of separation of power and institutional choice. Whilst previous constitutional cases stressed that the positive obligation on the judiciary to transform the common law found constitutionally wanting must be counterbalanced against legislative primacy, O'Regan's judgment took this a step further; it represents the first attempt to chisel chisel

Cutting tool with a sharpened edge at the end of a metal blade, used (often by driving with a mallet or hammer) in dressing, shaping, or working a solid material such as wood, stone, or metal.
 out a clear jurisdictional boundary between the legislature and the judiciary. (223) Using indirect application, she found a duty of the judiciary to vindicate the Constitution and grant a constitutional remedy. (224) Hence, she refused the separation of powers argument, and with this, refused to delay relief for a year. (225) She also confronted the institutional legitimacy argument, maintaining that legitimacy comes from the vindication of the constitution, not from the mere institution of the judiciary. (226) However, she stressed in answer to the Osborne-Sprigman democratic critique, that this did not prevent Parliament from passing legislation that complies with the Constitution. (227) Here, there is a distinct change in the rhetoric associated with indirect application; indirect application, because of Carmichele, has urgency and bite and furthers the goals of direct and fundamental, not merely incremental, law reform.

The disconnect between social norms and constitutional values is referred to in the earlier Cameron opinion and then again in the O'Regan opinion. Justice O'Regan wrote that the judicial duty to vindicate constitutional rights operates despite opposition. (228) According to this analysis, judicial function is not to reflect boni mores or to change them, for even if social norms run contrary to the decision, the judiciary must not shirk shirk

In Islam, idolatry and polytheism, both of which are regarded as heretical. The Qu'ran stresses that God does not share his powers with any partner (sharik) and warns that those who believe in idols will be harshly dealt with on the Day of Judgment.
 responsibility or allegiance to the Constitution. (229) The underlying notion is that even if this is an unpopular, controversial, and possibly combustive social issue, the judiciary cannot abstain.

Philosophically, neither judgment seeks to insulate the private sphere as feared by first generation academics, (230) nor does either use the language of common law incremental good. The case is a clear example of how far the distinction between direct and indirect application has come. Indirect application bears none of its original imprints on O'Regan's version, but in fact carries a far more urgent obligation on the judiciary to transform the common law. (231) It is easy to see how indirect application fulfills many of the functions of direct application such that the distinction, which had initially been so controversial and divisive, appears to have lost many of its original meanings and associations.


In this Part, I will look at jurisprudence regarding judicial recognition of African customary law marriages and the function of the application debate. When applying the Constitution to African customary law, one is immediately confronted with historically subordinate relationship of African customary law to the common law which can be traced to the 1927 Black Administration Act. (232) The purpose of the Act was to re establish traditional authority. (233) It allowed customary law to be applied nationwide, but only in a separate system of courts constituted by traditional leaders and native commissioners. (234)

By the 1980s, when it was clear that Apartheid was failing, the Law of Evidence Amendment Act of 1988 (235) was passed and allowed both customary law and foreign law to apply in any court in the country without reference to race. (236) Yet the Law of Evidence Amendment Act also excluded the application of customary law where it conflicted with public policy and natural justice. (237) Chuma Himonga and Craig Bosch contend that the fact that customary law was grouped together with foreign law is indicative of it being something outside the dominant common law system. (238) They comment, "The 'public policy' to which the courts would refer was an embodiment of the sentiments of the small, dominant, white population in South Africa." (239)

Yet the new constitutional era demanded that the relationship between African customary law, common law, and the Constitution be radically restructured. (240) At the very least, African customary law now seems to occupy equal status to common law and is not subservient sub·ser·vi·ent  
1. Subordinate in capacity or function.

2. Obsequious; servile.

3. Useful as a means or an instrument; serving to promote an end.
 to common law values. (241) But section 211(3) of the Constitution arguably elevates customary law above common law because courts are constitutionally obliged to apply "customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law." (242) It is further perplexing per·plex  
tr.v. per·plexed, per·plex·ing, per·plex·es
1. To confuse or trouble with uncertainty or doubt. See Synonyms at puzzle.

2. To make confusedly intricate; complicate.
 to note that section 8(3) of the Constitution, which expressly provides for horizontal application, does not make explicit reference See explicit link.  to the development of customary law, whilst the section 39(3) injunction to indirect application does refer to the development of both common and customary law. (243) From this, some commentators conclude that indirect application, or development of customary law, is not an option envisaged by the Constitution. (244) They further assert that it would undermine the status of customary law to hold that only it should be directly tested against the Bill of Rights in all cases. (245)

This part traces two distinct stages in the approach of common law courts to the question of the interaction between customary law, common law, and constitutional law. The first is characterized by the refusal of judges to grant recognition to African customary marriages. (246) Only now, in post-Apartheid courts, the justification for non-recognition is no longer that African customary marriages are contrary to public policy, but that this type of complex law reform lies within the exclusive competence of the legislature. (247) This first stage can be characterized as deploying "non-application" of the Constitution to customary law in the sense that it is neither directly applying nor indirectly developing the common law. Yet the justification proffered is similar to that advocated by the original indirect application proponents.

This discourse of non-recognition, in conjunction with non-application, changes in Mabuza v. Mbatha, (248) after which non-application is no longer a viable judicial option, and subsequent judgments must negotiate the terrain between direct and indirect application. (249) In contrast to the common law debate on application, where indirect application emerges as the dominant form, in African customary law jurisprudence, direct application dominates the discourse. In yet another twist, the implications of the Ngcobo dissent in the Bhe opinion are that indirect application, thought to be the more democratically deferent deferent /def·er·ent/ (-ent) conveying anything away, as from a center.

Carrying down or away, as a duct or vessel.
 approach, signifies greater judicial willingness to intervene in the domain of culture (250) (in the first generation, a case of no cause of action), whilst the consequences of direct application represent the more institutionally deferential argument that the Court lacks democratic legitimacy, empirical understanding, or institutional capacity and must leave the legislature to decide. (251) However, in contrast to Fourie, the Constitutional Court did not grant a suspension order, but rather was determined to provide an immediate remedy. (252)

A. Stage One: Non-application of the Constitution

In Mthembu v. Letsela, (253) the decedent An individual who has died. The term literally means "one who is dying," but it is commonly used in the law to denote one who has died, particularly someone who has recently passed away.  died intestate The description of a person who dies without making a valid will or the reference made to this condition.

intestate adj. referring to a situation where a person dies without leaving a valid will.
 leaving behind the appellant--with whom he had cohabited--and a daughter born of that relationship. (254) The appellant brought an application for an order declaring the customary law of primogeniture, which generally excluded African women from intestate succession intestate succession

In the law of inheritance, transmission of property or property interests of a decedent as provided by statute, as distinguished from transfer according to the decedent's will.
, to be declared invalid on grounds of inconsistency with the Constitution. (255) She argued that the rule of customary law of succession discriminates against all black women and girls, along with all black children who are not the eldest, by excluding them from participation in intestate succession. (256) She further argued that the rule of primogeniture be developed indirectly in terms of section 35(3) of the interim Constitution with due regard to the fundamental value of equality in order to avoid discrimination between legitimate and "illegitimate" children of the deceased. (257)

On the facts, the Supreme Court of Appeal held that although there had been an agreement between the appellant and the deceased to marry, and bridewealth had been paid in part, the complete requirements for a union had not been completed. (258) Consequently, the court found customary that the daughter was illegitimate. (259) The court rejected arguments in favor of either direct or indirect application on three grounds: (1) the interim Constitution did not apply to the matter since it came into operation after the death of the deceased and the Constitution does not operate retroactively ret·ro·ac·tive  
Influencing or applying to a period prior to enactment: a retroactive pay increase.

[French rétroactif, from Latin
; (260) (2) the interests of justice require the Constitution be applied retrospectively because an illegitimate child in customary law forms part of the family of the maternal grandfather who is obliged to provide for her and there can be no question of the child being thrown out of her home on the basis of her "illegitimacy illegitimacy: see bastard.
bend sinister

supposed stigma of illegitimate birth. [Heraldry: Misc.]

Clinker, Humphry

servant of Bramble family turns out to be illegitimate son of Mr. Bramble. [Br. Lit.
"; (261) and (3) this is not an appropriate case to develop the rule, given that it does not have the relevant information before it. (262) The judge preferred that the development of the rule be left to the legislature after a process of full investigation and consultation. (263) He concluded that "to strike down the rule would be summarily to dismiss an African institution without examining its essential purpose and content" (264) and cited a quote from the trial court:
   If one accepts the duty to provide sustenance, maintenance and
   shelter as a necessary corollary of the system of primogeniture.
   ... I find it difficult to equate this form of differentiation
   between men and women with the concept of 'unfair discrimination'
   as used in s 8 of the Constitution.... It follows that even if this
   rule is prima facie discriminatory on grounds of sex or gender and
   the presumption contained in s 8(4) comes into operation, this
   presumption has been refuted by the concomitant duty of support.

Consequently, the judge rejected all forms of application of the Constitution to both the common law and customary law, which he argued was within legislative domain. (266) At the same time he put forward his construction of African customary law in a post-Apartheid age of constitutional pluralism. (267) The judge's refusal to look at the actual consequences of his decision on the appellant is particularly striking. Instead, he was satisfied with the theoretical checks and balances contained in customary law.

Mthembu can be seen as ideologically conservative--in the sense feared by the original proponents of direct application--because of its reluctance to intervene in a culture that is perceived by the court to have its own internal safety nets. For corroboration, the court uses the institutional competence argument to find that the judiciary does not have the requisite qualification to develop customary law and therefore should defer to the legislature. (268) The result is that the applicant is left without a remedy. (269)

B. Stage Two: Common Law and African Customary Law: Separate and Equal under the Constitution

In Mabuza, (270) an action for divorce, the plaintiff sought custody of the minor child and an order directing the defendant to pay maintenance. (271) The respondent argued that there had been no valid customary marriage between the parties. (272) On the facts, the plaintiff argued that lobolo Lobolo or Lobola (Mahadi in Sesotho; sometimes translated as Bride-price) is a traditional southern African dowry custom whereby the man pays the family of his fiance for her hand in marriage.  had been paid, and she regarded herself as married to the defendant. (273) The only requirement that was not complied with was the formal integration of the bride into the groom's family. (274) The plaintiff and defendant disagreed as to whether this was necessary for the marriage to be valid. (275) The judge found that siSwati customary law has evolved over the centuries such that formal integration can be waived by agreement between parties. (276) The case is important for how it defines the relationships between African customary law, common law, and the Constitution.

Judge Hlophe set out his approach to the new legal hierarchy:
   The approach whereby African Law is recognised only when it does
   not conflict with the principles of public policy or natural
   justice leads to an absurd situation whereby it is continuously
   being undermined and not properly developed by courts which rely
   largely on "experts". (277)

He found this situation to be untenable given that the courts have a constitutional obligation to develop African customary law, both with reference to section 39(2) provisions and given the historical background. (278) In his view, the starting point Noun 1. starting point - earliest limiting point
terminus a quo

commencement, get-go, offset, outset, showtime, starting time, beginning, start, kickoff, first - the time at which something is supposed to begin; "they got an early start"; "she knew from the
 was to accept the supremacy of the Constitution and reason a priori a priori

In epistemology, knowledge that is independent of all particular experiences, as opposed to a posteriori (or empirical) knowledge, which derives from experience.
 that all law, including customary law, which is inconsistent with the Constitution is invalid. (279) As a result, he concluded that the "approach which only recognises African law to the extent that it is not repugnant REPUGNANT. That which is contrary to something else; a repugnant condition is one contrary to the contract itself; as, if I grant you a house and lot in fee, upon condition that you shall not aliens, the condition is repugnant and void. Bac. Ab. Conditions, L.  to the principles of public policy or natural justice is flawed" and unconstitutional. (280)

Mabuza ushers in a new discourse, which refuses to subordinate African customary law to common law and public policy repugnance re·pug·nance  
1. Extreme dislike or aversion.

2. Logic The relationship of contradictory terms; inconsistency.

Noun 1.
 or, in fact, to common law at all. His reasoning seems to be influenced by two separate and related issues: first, the symbolic matter of the inferior status of African customary law to common law, and second, the contention that common law attitudes towards African customary law have resulted in the ossification of that law's development. Judge Hlophe declared that the approach, which only recognizes African customary law if it is not repugnant to public policy or natural justice, is flawed. (281) He rejected the subjection of African customary law to the common law because African customary law does not work through old common law doctrines, but is answerable an·swer·a·ble  
1. Subject to being called to answer; accountable. See Synonyms at responsible.

2. That can be answered or refuted: an answerable charge.

 only to the Constitution, and the current structure of discourse had changed. (282) Judge Hlophe defined a new starting point--the Constitution; any law inconsistent with it is invalid. (283) He would intervene in the arena of custom if it "cannot withstand constitutional scrutiny" since he views it to be parallel to common law and thus clearly within the judicial domain. (284)

It is helpful to look more closely at the way in which the application discourse functions here. Judge Hlophe associates the flexible standards of public policy and natural justice with the subservience sub·ser·vi·ent  
1. Subordinate in capacity or function.

2. Obsequious; servile.

3. Useful as a means or an instrument; serving to promote an end.
 to the common law apparatus, and ideologically refuses to subject African customary law to common law--a hierarchy associated with Apartheid. (285) Consequently, he uses the application doctrine as a way to claim equal authority and space for African customary law. He asserts the equality of customary law to the common law by his willingness to invalidate it if necessary. (286) On the particular facts of the case, he develops a customary rule based See rules based.  on empirical evidence of a changed practice. (287)

C. Stage Three: Constitutional Court Response and Bhe

In the Bhe (288) case, the question before the Court was whether an African woman, whose parents were married according to African custom, was entitled to inherit intestate property upon the death of her father. (289) The Constitutional Court examined two related issues: first, the constitutionality of the Intestate Succession Act and certain provisions in the Black Administration Act, which deal exclusively with intestate deceased estates of Africans, (290) and second, and more significant to this part of the Article, "the constitutional validity of the [unregulated customary law] principle of primogeniture in the context of the customary law of succession." (291) The majority opinion written by Chief Justice Pius Langa endorsed the direct application of the Constitution to the customary law, while Justice Sandile Ngcobo's dissent favored indirect application. (292)

Justice Langa, writing for the majority, distinguished between the concept of customary law contained in the acts and that which was intrinsic to the customary law system. (293) He focused on the new place of African customary law in the constitutional system. (294) That is, African customary law should be accommodated and interpreted in its own setting, not through the "prism of the common law," but with the proviso A condition, stipulation, or limitation inserted in a document.

A condition or a provision in a deed, lease, mortgage, or contract, the performance or non-performance of which affects the validity of the instrument. It generally begins with the word provided.
 that customary law rules do not conflict with the Constitution. (295) It follows that customary law must be interpreted by the courts as to whether they first and foremost answer to the contents of the Constitution since "[i]t is protected by and subject to the Constitution in its own right." (296) He explained that the approach taken by Apartheid legislators and judiciaries led to the "fossilisation Noun 1. fossilisation - the process of fossilizing a plant or animal that existed in some earlier age; the process of being turned to stone
 and codification The collection and systematic arrangement, usually by subject, of the laws of a state or country, or the statutory provisions, rules, and regulations that govern a specific area or subject of law or practice.  of [African] customary law which in turn led to its marginalisation Noun 1. marginalisation - the social process of becoming or being made marginal (especially as a group within the larger society); "the marginalization of the underclass"; "the marginalization of literature"
.... den[ying] it of its opportunity to grow in its own right and to adapt itself to changing circumstances." (297) Yet Justice Langa stressed that customary law can change, and "[a]djustments and development to bring its provisions in line with the Constitution ... are mandated." (298) Ultimately, the judge found that the legislative provisions were unconstitutional and "cannot escape the context in which [they were] conceived." (299)

Regarding the constitutionality of the customary law rule of primogeniture, Justice Langa focused on the society in which it operated as part of a "system [that] had its own safeguards to ensure fairness in the context of entitlements, duties and responsibilities." (300) However, the effect of changing circumstances--such as the fact that "[m]odern urban communities and families are [no longer] structured ... purely along traditional lines"--means that customary law rules of succession are now void of the social implications which they historically had. (301) Since "[n]uclear families have largely replaced traditional extended families[,] [t]he heir does not necessarily live together with the whole extended family," but the rules of succession in customary law have not been given the space to adapt. (302) Justice Langa found that the rule of primogeniture violated dignity and that the theoretical justification that the heir has a principled prin·ci·pled  
Based on, marked by, or manifesting principle: a principled decision; a highly principled person.
 duty of support was not adequate justification. (303)

In considering an appropriate remedy, Langa touched on the issue of the relationship between judicial and legislative roles in his consideration of three methods to deal with this unconstitutionality: (a) strike it down and leave it to the legislature (direct), (b) strike it down and suspend the declaration of invalidity (direct), or (c) develop the rules of succession (indirect). (304) In rejecting the third method, he wrote that in order to develop customary law, the current content of the law must be determined prior to giving effect to the order. (305) He emphasized, "The difficulty lies not so much in the acceptance of the notion of 'living' customary law, as distinct from official customary law, but in determining its content ... against the provisions of the Bill of Rights." (306) Yet another factor to be considered in granting a remedy was the perceived unreasonable lengthy period of time the legislature took to pass legislation. (307)

Because of the material's complex nature, Justice Langa preferred to strike it out rather than develop it so that people in the position of the applicant were able to inherit pending the passage of legislation. (308) However, in order to avoid a lacuna lacuna /la·cu·na/ (lah-ku´nah) pl. lacu´nae   [L.]
1. a small pit or hollow cavity.

2. a defect or gap, as in the field of vision (scotoma).
 in the law as a result of the invalidation, his order provided that estates that had previously devolved according to the rules in the Black Administration Act and the customary rule of primogeniture will now devolve devolve v. when property is automatically transferred from one party to another by operation of law, without any act required of either past or present owner. The most common example is passing of title to the natural heir of a person upon his death.  according to the rules provided in the Intestate Succession Act. (309)

The Ngcobo dissent is largely concerned with the nature of the remedy to be employed. Justice Ngcobo supported the development of the rule of primogeniture to bring it in line with constitutional rights. (310) In many respects, his opinion begins where the majority ended--dealing with the problem of ascertaining the real customary rules, bearing in mind its evolving nature. To avoid looking at customary law through the lens of common law, he advocated looking at the social context in which African customary law originated. (311) He stressed how different this context is compared to that of the Succession Act. (312) In the traditional subsistence-agricultural society, the conception of the successor as holder of property was distinct from that of individual ownership. (313) Instead, the successor was understood to hold property in trust on behalf of the clan. (314) On the question before the Court, he found that indigenous law discriminated on the basis of gender, and given the changed social and economic context, could not be justified. (315)

In determining whether the rule should be developed, he stated that section 39(2) of the Constitution imposed an obligation on courts to develop indigenous law to bring it in line with the Constitution. (316) To understand this injunction in the context of customary law, he insisted that Carmichele applies equally to the development of indigenous law, and further, the Carmichele obligation to develop is even more important in the indigenous law context because the Constitutional clauses together represent a commitment to the survival and development of customary law. (317) This is because using the remedy of striking down ends a rule that many people still observe. (318)

Justice Ngcobo's choice of indirect application was motivated by a concern both for the survival of indigenous law as well as the legitimacy of the Constitution. (319) He argued that, where possible, a court should choose to develop, rather than strike out. (320) He elaborated by providing two specific instances where the need to develop arises: (1) where there are changed circumstances, and (2) to bring the rule in line with the Constitution. (321) It is this latter concept that is articulated in Carmichele. (322) Because it is not primarily concerned with changing social context, the latter notion therefore, by ascertaining what living law is, should not be an impediment A disability or obstruction that prevents an individual from entering into a contract.

Infancy, for example, is an impediment in making certain contracts. Impediments to marriage include such factors as consanguinity between the parties or an earlier marriage that is still valid.
 to development. (323) On the facts, he postulated that a judge does not need to know what the actual, lived rules governing primogeniture are to know that the rule, as applied in Bhe, needs to be developed. (324) He thought the majority's substitution of the laws of the Intestate Succession Act would lead to the disintegration of indigenous law. (325) He put forward his own remedy, which holds that, pending the passing of legislation by parliament, both the indigenous law of succession and the Succession Act should be applied subject to the requirements of fairness, justice, and equitableness. (326) In the interim, the question of which system of law should apply must be determined by agreement among family members. (327) However, he added a proviso: where there is a dispute, it should be resolved by the Magistrate's Court. (328)

What is striking about both the majority and dissenting judgments is the lack of deference with which they appear to approach the institution of customary law. They argue that customary law has been constructed, tainted, and ossified os·si·fy  
v. os·si·fied, os·si·fy·ing, os·si·fies

1. To change into bone; become bony.

, instead of adapting to a changing social context. (329) The majority judgment declares that it cannot develop customary law because it cannot ascertain what actual, lived customary law truly is. (330) Underlying this difficulty is the concern that this task is too complex for judicial deliberation, and by implication it is the wrong institution to do so. However, the majority's response to institutional inadequacy is not to defer judgment to the legislature, which it perceives as being unacceptably slow in passing legislation. (331) Rather, the majority refuses to engage in the developmental task associated with indirect application, preferring to simply strike out the innocuous rule. (332) The construction of legislative and judicial roles are somewhat altered in this scheme. Returning to the first generation of the debate, advocates of indirect application argued that common law rules should be developed, not stricken, given that large scale law reform was not in the domain of the judiciary. (333) In that same debate, proponents of direct obligation argued that only direct application could ensure there were no law-free spaces. (334) Yet here the majority judgment strikes down the customary rule as unconstitutional, refusing to develop it on grounds that it is "the development" of the rule that is not within judicial competence. (335)

Justice Ngcobo insisted that it is not necessary to know customary law in order to declare the customary rule, as framed in case law, unconstitutional. (336) His understanding of the ideological-institutional axes is different because even if the Court lacks the requisite ability to ascertain actual, lived customary law, the Court can still develop the customary law rule as contained in case law. He was unconcerned with the counter-majoritarian nature of judicial choice, or even the lack of institutional competence of the judiciary. (337) Rather, his allegiance was to the survival of African customary law, which in his view meant that it must not be struck down. (338)

In another twist, the case illustrates or opens up the distinction between direct and indirect application to different usages: while "private" power is not immunized from scrutiny by either the majority or dissent, and hence the concerns of the first generation advocates of direct horizontal application are not met, the labels or methodologies of "direct" and "indirect" now come to signify "how" the Constitution or constitutional values will permeate customary law. (339) Certainly, in Justice Ngcobo's opinion, indirect application displays a commitment to the evolution and survival of customary law; in this multicultural sense indirect goes even further than direct application. Direct application, on the other hand, can be said to reveal the limitation of liberal tolerance or judicial institutional competence. If engaging with the private is a question of degree, indirect application engages it in a way that direct will not. Correspondingly, indirect application signifies an increased judicial role, while direct application, with its remedial tool of striking out, often becomes the more institutionally deferent remedy. (340)


The question that asserts itself in this analysis is: why is indirect application the dominant form in common law adjudication, whilst direct application prevails under African customary law? Ultimately both common law jurisprudence under the rubric RUBRIC, civil law. The title or inscription of any law or statute, because the copyists formerly drew and painted the title of laws and statutes rubro colore, in red letters. Ayl. Pand. B. 1, t. 8; Diet. do Juris. h.t.  of indirect application and African customary law under the authority of direct application substantively take on social norms and refuse the privatization privatization: see nationalization.

Transfer of government services or assets to the private sector. State-owned assets may be sold to private owners, or statutory restrictions on competition between privately and publicly owned
 of Apartheid's cloistered attitudes in the widest sense. Similarly, both judgments largely resist the institutional competence argument and refuse to wait for the legislature to perform, arguing that justice must be achieved in the cases before them. (341) Perhaps, sixteen years into democracy, there is awareness that the legislative response to the project of actualizing rights is at best slow and convoluted convoluted /con·vo·lut·ed/ (kon?vo-lldbomact´ed) rolled together or coiled. . (342)

When looking at Fourie and Bhe together, it appears that there is little difference between the two, other than the former's contention that it is engaging in indirect application, and the latter direct. It is arguable that the distinction makes no difference, and
   a distinction without a difference is a failure even if it's
   possible for everyone to agree every time on how to make it. Making
   a difference means that it seems plain that situations should be
   treated differently depending on which category of the distinction
   they fall into. (343)

Nonetheless, the question of direct versus indirect application is necessarily tied into conceptions of the equitability of the common law. As argued earlier, one of the original conceptions of direct horizontal application was sourced from a distrust of the common law's equitable unfolding. Proponents of indirect application were more concerned with common law stability and counter-majoritarianism in a post-Apartheid society. (344) Both in form and substance, direct application was intended to disrupt common law incrementalism, whilst indirect application was thought to graft constitutional values onto an already largely equitable system. With this in mind, it is easy to see how the common law cases discussed in this Article are concerned with the continuity and legitimacy of that discourse, hence the move to indirect application and its concern with constraining legitimate avenues for constitutional values to alter the common law form. (345) The starting point of the judgment in Bhe is the construal con·strue  
v. con·strued, con·stru·ing, con·strues
1. To adduce or explain the meaning of; interpret: construed my smile as assent. See Synonyms at explain.
 of the nature of African customary law as constructed and ossified by and under colonial law. (346) From there it is an easy step to directly apply and declare the rule of primogeniture unconstitutional. Ultimately, even as the results in the cases of direct and indirect application might be the same, the discourse is different: common law and its processes are legitimated, whilst African customary law is deconstructed. One way to concretize con·cre·tize  
tr.v. con·cre·tized, con·cre·tiz·ing, con·cre·tiz·es
To make real or specific: "The need to simplify and concretize . . . was hardly acceptable to a mind fascinated by the . . .
 this is to consider the two majority judgments in the Constitutional Court in both Bhe and Fourie: in Bhe, Justice Langa goes out of his way to state that the Constitutional Court does not have at its disposal sufficient knowledge and information regarding living customary law. (347) In other words, the judiciary is institutionally incompetent. But according to the Fourie majority, it is not the competence of the Court that is at issue, but rather its legitimacy, given the status of the legislature as the forerunner in law reform. (348)

Nevertheless, it would be remiss re·miss  
1. Lax in attending to duty; negligent.

2. Exhibiting carelessness or slackness. See Synonyms at negligent.
 to overlook the wider significance of these groundbreaking cases--that a new common law and a new customary law are being created to meet the needs of a democratic post-Apartheid state. Whilst Bhe and Fourie are concerned with creating the apparatus for this new project, both judgments are acutely aware of the dangers of backlash where constitutional values are so out of sync Out of Sync: A Memoir is the upcoming autobiography of American pop singer Lance Bass, set to be published on October 23, 2007. It features an introduction by Marc Eliot, a New York Times  with those of the populace (or "the nation," as Justice Cameron puts it) that it is not the boni mores that are reconstituted by the constitutional values, but rather the constitutional project's loss of some of its legitimacy--or relevance. (349)

(1.) The literature critiquing the divide between the public sphere and private law is extensive. The earliest critics, the American legal realists, paved the way for subsequent schools of criticism. For a sampling of their literature, see Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. SCI (Scalable Coherent Interface) An IEEE standard for a high-speed bus that uses wire or fiber-optic cable. It can transfer data up to 1GBytes/sec.

(hardware) SCI - 1. Scalable Coherent Interface.

2. UART.
. Q. 470, 488-89 (1923); Morris R. Cohen cohen
 or kohen

(Hebrew: “priest”) Jewish priest descended from Zadok (a descendant of Aaron), priest at the First Temple of Jerusalem. The biblical priesthood was hereditary and male.
, Property and Sovereignty 13 CORNELL LQ. 8, 12-14 (1927); Louis Jaffe, Lawmaking by Private Groups, 51 HARV HARV High Alpha Research Vehicle (NASA test plane)
HARV High Altitude Research Vehicle
HARV High Altitude Reconnaissance Vehicle
. L. REV. 201 (1937). See also MORTON HORWITZ Morton J. Horwitz (born 1938) is a legal historian and law professor at Harvard Law School. The current dean of Harvard Law School, Elena Kagan, relates that during her time at law school, students often nicknamed him as "Mort the Tort" since he taught the first-year subject Torts. , THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY (2d ed. 1992).

(2.) See Frank I. Michelman, On the Uses of Interpretive 'Charity ': Some Notes on Application, Avoidance, Equality and Objective Unconstitutionality from the 2007 Term of the Constitutional Court of South Africa The South African Constitutional Court was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. , 1 CONST CONST Construction
CONST Constant
CONST Construct(ed)
CONST Constitution
CONST Under Construction
CONST Commission for Constitutional Affairs and European Governance (COR) 
. CT. REV. 1, 6 n.17 (2008).

(3.) See generally Michelle Parlevliet, Berghof Research Ctr. for Constructive Conflict Mgmt., Rethinking Conflict Transformation from a Human Rights Perspective 3 (2009), publications/parlevliet_handbook.pdf.

(4.) See Frank I. Michelman, The Bill of Rights, the Common Law, and the Freedom-Friendly State, 58 U. MIAMI Miami, cities, United States
Miami (mīăm`ē, –ə).

1 City (1990 pop. 358,548), seat of Dade co., SE Fla., on Biscayne Bay at the mouth of the Miami River; inc. 1896.
 L. REV. 401, 419 (2003) (discussing conceptions of common law as facilitative rather than regulatory).

(5.) United States v. Stanley In United States v. Stanley 483 U.S. 669 (1987), the US Supreme Court found that a serviceman could not file a tort action against the federal government, even though the government secretly administered doses of LSD to the serviceman as  (The Civil Rights Cases), 109 U.S. 3 (1883); Flagg Bros BROS Brothers
BROS Benefits and Retirement Operations Section (King County, Washington)
BROS Barnes and Richmond Operatic Society (London, UK) 
. v. Brooks, 436 U.S. 149 (1978); Moose Moose, river, Canada
Moose, river, c.50 mi (80 km) long, formed in central Ont., Canada, by the Mattagami and Missinaibi rivers. It flows NE to its confluence with the Abitibi River and into SW James Bay near Moosonee.
 Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). See also Frank I. Michelman, W(h)ither the Constitution?, 21 CARDOZO L. REV. 1063 (2000); Mark Tushnet This article or section may contain original research or unverified claims.

Please help Wikipedia by adding references. See the for details.
This article has been tagged since September 2007.

Mark V.
, The Issue of State Action/Horizontal Effect in Comparative Constitutional Law, 1 INT'L J. CONST. L. 79 (2003); Michelman supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH ( that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process.  note 4; Stephen Gardbaum, Where the (State) Action Is, 4 INT'L J. CONST. L. 760 (2006).

(6.) See Michelman, supra note 2, at 5-6.

(7.) See infra [Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appear beneath or in the pages following the reference.

infra prep.
 notes 10-12. See also Gardbaum, supra note 5, for a comprehensive discussion of comparative application jurisprudence.

(8.) 334 U.S. 1 (1948). The Court held that "state action in violation of the Amendment's provisions is equally repugnant to the constitutional commands whether directed by state statute or taken by a judicial official in the absence of statute." Id. at 16.

(9.) 376 U.S 254 (1964). The Court decided that the law of defamation in Alabama unconstitutionally impaired the right of freedom of speech. Id. at 264-65.

(10.) See the Irish case, C. M. v. T. M., [1991] I.L.R.M. 268 (Ir.), in which Judge Barr held that the common law doctrine determining that a wife's domicile domicile (dŏm`əsīl'), one's legal residence. This may or may not be the place where one actually resides at any one time. The domicile is the permanent home to which one is presumed to have the intention of returning whenever the purpose  is dependent on that of her husband was inconsistent with the principles of equality before the law Noun 1. equality before the law - the right to equal protection of the laws
human right - (law) any basic right or freedom to which all human beings are entitled and in whose exercise a government may not interfere (including rights to life and liberty as well as
 and equality between husband and wife that are embodied in articles 40 and 41 of the Irish Constitution. Id. See also JAMES CASEY, CONSTITUTIONAL LAW IN IRELAND (2d ed. 1992).

(11.) Retail, Wholesale & Dep't Store Union, Local 580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 (Can.).

(12.) Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Jan. 15, 1958, 7 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 198 (F.R.G.). See also DAVID David, in the Bible
David, d. c.970 B.C., king of ancient Israel (c.1010–970 B.C.), successor of Saul. The Book of First Samuel introduces him as the youngest of eight sons who is anointed king by Samuel to replace Saul, who had been deemed a failure.

(13.) Nevertheless in the pages that follow, 1 attempt to classify various judgments as being instances or purported instances of direct and indirect application. My classifications of the judgments are based on the original or "'classic" conception of the difference between direct and indirect applications and what the two distinct methodologies were originally designed to achieve. My characterization of the judgments, like the distinction itself, is tenuous, since ultimately both direct and indirect applications lead to the same remedy--development of the common law. Hence, the classification exercise is a fraught one. In a remarkable article, Professor Frank Michelman Frank Michelman is a Robert Walmsley University Professor at Harvard Law School. He wrote the famous law review article, Property, Utility and Fairness, (80 Harv. L. Rev.  argues that the South African Constitutional Court operates on an altered application paradigm that departs from the original conception of the distinction, but that arguably, nothing of substance rests on the distinction. See Michelman, supra note 2, at 8, for a synopsis of the altered Constitutional Court paradigm.

(14.) See Michelman, supra note 4, at 417.

(15.) See infra note 123.

(16.) See Michelman, supra note 2, at 8.

(17.) See infra note 182.

(18.) See Tushnet, supra note 5, 85-86.

(19.) See infra note 88.

(20.) See infra note 195.

(21.) See infra note 119.

(22.) See infra note 151.

(23.) See infra note 160.

(24.) See infra note 249.

(25.) See infra note 234.

(26.) See infra note 62.

(27.) See infra note 297.

(28.) See generally infra note 311.

(29.) See infra note 320.

(30.) Cf. infra note 63 with infra note 59.

(31.) See infra note 114.

(32.) See infra note 123.

(33.) See infra note 126.

(34.) Fourie v. Minister of Home Affairs 2005 (3) SA 429 (SCA (Single Connector Attachment) An 80-pin plug and socket used to connect peripherals. With a SCSI drive, it rolls three cables (power, data channel and ID configuration) into one connector for fast installation and removal. ) (S. Afr.).

(35.) See Pharma. Mfrs. Assoc. of S. Aft. In re The Ex Parte Application one made without notice or opportunity to oppose.

See also: Ex parte
 President of the Republic or S. Afr. 2000 (3) BCLR BCLR Buffalo Criminal Law Review (Buffalo Criminal Law Center)  241, [paragraph] 44 (CC) (S. Afr.), where Justice Arthur Chaskalson Arthur Chaskalson, (b. November 24, 1931), former President of the Constitutional Court of South Africa (1994-2001) and Chief Justice of South Africa (2001-2005).

Born in Johannesburg, Chaskalson graduated from the University of the Witwatersrand with a BCom (1952) and LLB
   I cannot accept this contention which treats the common law as a
   body of law separate and distinct from the Constitution. These are
   not two systems of law, each dealing with the same subject matter,
   each having similar requirements, each operating in its own field
   with its own highest court. There is only one system of law. It is
   shaped by the Constitution which is the supreme law, and all law,
   including common law derives its force from the Constitution and is
   subject to constitutional control.

See also Frank 1. Michelman, The Rule of Law, Legality and the Supremacy of the Constitution, Constitutional Law of South Africa South Africa has a number of sources of legislation and law. The primary sources of South Africa legislation were Roman-Dutch and English Common law, imports of Dutch settlements and British colonialism. Various lawmaking bodies have existed within South Africa over time.  (Juta) 11-1 (2005) (teasing out the implications of the doctrine of legality and conception of constitutional supremacy).

(36.) See infra note 206.

(37.) 2003 (1) All SA 706 (CC) (S. Afr.).

(38.) Bhe v. Magistrate Khavelitsha 2005 (1) SA 580 (CC) (S. Afr.).

(39.) See infra note 250.

(40.) S. AFR. CONST. 1996.

(41.) Id. s. 8(2).

(42.) Id. s. 8(3).

(43.) Id. s. 39(2).

(44.) Karl E. Klare, Legal Culture and Tranformative Constitutionalism, 14 S. AFR. J. ON HUM. RTS (Request To Send) An RS-232 signal sent from the transmitting station to the receiving station requesting permission to transmit. Contrast with CTS.

1. (operating system) RTS - run-time system.
. 146 (1998).

(45.) Id. at 153-56.

(46.) Id. at 150, 151.

(47.) Those writers who advocated in favor of a more extensive scope of application for the Constitution also argued in favor of a more transformative text. They maintained that limiting the scope of the Constitution to state action would not account for the realities of modern distribution of power, where it is often the exercise of private power that poses the greatest threat to fundamental rights. This is particularly true in the South African context where economic power remains largely in the hands of whites. Many feared that the Constitution would be unable to transform the social and economic hierarchy, and would effectively privatize pri·va·tize  
tr.v. pri·va·tized, pri·va·tiz·ing, pri·va·tiz·es
To change (an industry or business, for example) from governmental or public ownership or control to private enterprise: "The strike ...
 Apartheid. Accordingly, they called for the Bill of Rights to have horizontal effect and operate between citizens. See Stuart Woolman Wool´man

n. 1. One who deals in wool.
, Application, Constitutional Law of South Africa (Ctr. Human Rts.) 10-1, 10-43 (1st ed. 1999). See also THE BILL OF RIGHTS HANDBOOK 45-80 (Johan De Waal
For the ethologist see Frans de Waal
For the British writer, see Alex de Waal.
For the British journalist, see Thomas de Waal.
 et al. eds., 4th ed. 2001); DENNIS DAVIS
For the American football player, see Dennis Davis, Jr..
Dennis Davis is an American drummer and session musician best known for his work with David Bowie.

(48.) Michelman, supra note 2.

(49.) See Woolman, supra note 47, at 10-2.

(50.) Id.

(51.) Id. at 10-3.

(52.) J.W.G. Van der Walt frames the question as "whether someone can invoke the Constitution to terminate extra legal social practices between private individuals that are clearly irreconcilable with the values embodied in the Constitution." J. W. G. Van der Walt, Perspectives on Horizontal Application: Du Plessis v. De Klerk Revisited, 12 SA PUBLIEKREG/SA PUBLIC LAW 1,2 (1997).

(53.) THE BILL OF RIGHTS HANDBOOK, supra note 47, at 64.

(54.) Id.

(55.) Id.

(56.) Id. at 35.

(57.) See id. A corollary of this is that the common law courts would have final jurisdiction over a matter involving indirect application, whereas the Constitutional Court would have final jurisdiction over a matter involving direct application. But, in terms of both the interim and final Constitutions, the Constitutional Court makes the final decision as to whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter. See S. AFR. CONST. 1996 s. 167(3)(c); S. AFR. (Interim) CONST. 1993 s. 98(2)(f).

(58.) THE BILL OF RIGHTS HANDBOOK, supra note 47, at 64.

(59.) See id at 64-67.

(60.) Id.

(61.) Dennis Davis & Stuart Woolman, The Last Laugh: Du Plessis v. De Klerk, Classical Liberalism

Classical liberalism (also known as traditional liberalism[1] and laissez-faire liberalism[2]) is a doctrine stressing the importance of human rationality, individual property rights, natural rights, the protection of civil
, Creole Liberalism and the Application of the Fundamental Rights under the Interim and the Final Constitutions, 12 S. AFR. J. ON HUMAN RTS. 361, 383 (1996). See also Stuart Woolman, Defamation, Application, and the Interim Constitution: An Unqualified and Direct Analysis of Holomisa v. Argus Newspapers Ltd, 113 S. Arm L.J. 428 (1996); J. W. G. Van der Walt, Justice Kriegler's Disconcerting dis·con·cert  
tr.v. dis·con·cert·ed, dis·con·cert·ing, dis·con·certs
1. To upset the self-possession of; ruffle. See Synonyms at embarrass.

 Judgment in Du Plessis v. De Klerk: Much Ado about Direct Horizontal Application (Read Nothing), 1996 J. S. AFR. L. 732, 734 (1996); Van der Walt, supra note 52.

(62.) Davis Davis, city (1990 pop. 46,209), Yolo co., central Calif.; settled in the 1850s, inc. 1917. It is an education center with light industry; machinery, processed foods, and computer equipment are produced. The extensive Univ.  & Woolman, supra note 61, at 383.

(63.) See id. at 403.

(64.) 1996 (3) SA 850 (CC) (S. Afr.).

(65.) Du Plessis v. De Klerk 1996 (3) SA 850 (CC) (S. Afr.).

(66.) Id. [paragraph]161.

(67.) Id. (citing the Canadian case, R v. Salituro, [1992] 8 C.R.R. (2d) 173 (Can.)).

(68.) Id. "The radical amelioration of the common law has hitherto been a function of Parliament; there is no reason to believe that Parliament will not continue to exercise that function." Id. [paragraph] 153. Yet, this judgment, heard under the interim Constitution was very much a product of the institutional architecture set up under that Constitution, where there were essentially two legal systems, common law and constitutional, operating in tandem--each with separate jurisdictions and serving different functions. See Du Plessis, 1996 (3) SA 850, [paragraph] 157 (Kentridge, J.) (stating that if direct application were permitted, the Appellate Division would be deprived of a substantial part of its civil jurisdiction).

(69.) Id. [paragraph] 158.

(70.) Id. [paragraph] 162.

(71.) This debate was fleshed out in the positions of Justices Mahomed and Kriegler in Du Plessis. See id. [paragraph][paragraph] 79, 120-135. While Mahomed favored indirect application, the implications of his reasoning are that there is no strict distinction between legal and social disputes, and the role of law is constitutive constitutive /con·sti·tu·tive/ (kon-stich´u-tiv) produced constantly or in fixed amounts, regardless of environmental conditions or demand.  or at least legitimative of society. This view of indirect application captures within each reach the question of private power thought--in the first generation--only to be achieved through the use of direct application. Whilst Kriegler, who favored direct application, maintained a rigid distinction between the social and the legal while direct application can ensure that all law complies with the Constitution, social and economic interactions that occur in the realm of the social are outside the reach of the law and direct application. In many ways, the two judgments read together illustrate how the meanings and consequences of direct and indirect application were cloaked in ambiguity from the start. This is not to say that common rules have not been examined and struck down by the Constitutional Court for falling short of the constitutional standard, but that it has been the rarer occurrence in the earliest judgments of the Court. See, e.g., Nat'l Coal. for Gay & Lesbian Equal. v. Minister of Justice 1998 (12) BCLR 1517 (CC) (S. Afr.); Shabalala v. Attorney-General 1995 (12) BCLR 1593 (CC) (S. Afr.).

(72.) Carmichele v. Minister of Safety & Sec. 2001 (10) BCLR 995 (CC) (S. Afr.).

(73.) Id. [paragraph] 36.

(74.) Id. [paragraph] 33.

(75.) The Carmichele injunction was expanded upon and extended in later cases. See, e.g., S v. Thebus 2003 (10) BCLR 1100 (CC) (S. Afr.) (Indirect application takes place when a rule is inconsistent with a constitutional provision, but also when a rule of common law falls short of its spirit, purport and objects.); K v. Minister of Safety & Sec. 2005 (9) BCLR 835, [paragraph] 16 (CC) (S. Afr.) (The obligation imposed upon courts by s. 39(2) is extensive, requiring courts to be alert to the normative framework of the Constitution not only when some startling star·tle  
v. star·tled, star·tling, star·tles
1. To cause to make a quick involuntary movement or start.

2. To alarm, frighten, or surprise suddenly. See Synonyms at frighten.
 new development of the common law is at issue, but also in cases where the incremental development of the rule is in issue.); Phumelela Gaming & Leisure Ltd v. Grundling 2006 (8) BCLR 883, [paragraph] 26 (CC) (S. Afr.) (High Courts and the Supreme Court of Appeal should at all times view the interpretation of legislation as well as the development of common law and customary law in light of the spirit, purport and objects of the Bill of Rights.).

(76.) Carmichele can be seen to usher in Verb 1. usher in - be a precursor of; "The fall of the Berlin Wall ushered in the post-Cold War period"
inaugurate, introduce

commence, lead off, start, begin - set in motion, cause to start; "The U.S.
 a second generation of thought on application. In this second generation, theorists largely agree that both direct and indirect application can yield a new cause of action based on the constitution; all also similarly agree that remedy operates via the common law, and there are no separate constitutional remedies. See, e.g., Johan van der Walt Johan van der Walt is a forensic auditor for international accounting firm KPMG. He gave one of the most important testimonies in the Schabir Shaik Trial after he was asked by the State to review Schabir Shaik's financial records for any signs of corruption and wrong doing. , Progressive Indirect Horizontal Application of the Bill Of Rights: Towards a Co-Operative Relation between Common-Law and Constitutional Jurisprudence, 17 S. AFR. J. ON HUMAN RTS. 343 (2001) (arguing that indirect application can found a new cause of action without reverting to using constitutional rights as direct causes of action, but instead by developing the common law to reflect the principles of the Constitution and concluding that such a bold approach renders the distinction between direct and indirect application is devoid of substantive significance); see also Christopher J. Roederer, Postmatrix Legal Reasoning: Horizontality and the Rule of Values in South Africa, 19 S. AFR. J. ON HUMAN RTS. 1, 57 (2003) (arguing there is no difference between direct and indirect application because pre-constitutional common law only exists by virtue of its congruence con·gru·ence  
a. Agreement, harmony, conformity, or correspondence.

b. An instance of this: "What an extraordinary congruence of genius and era" 
 with constitutional values, since constitutional values are the engulfing standard and everything that is outside this matrix of values ceases to exist). However, see also Stuart Woolman, Application, Constitutional Law of South Africa (Juta) 31-1, 31-95 (2d ed. 2002) (arguing that the distinction between direct and indirect application is still critical, particularly given the stare decisis scheme put in place in the Afrox judgment).

(77.) Chris Sprigman & Michael Osborne
    Michael Osborne (born 29 July 1982) is an Australian rules footballer in the Australian Football League.

    Originally from Labrador, Queensland, Osborne stands at 178cm and 81kg.
    , Du Plessis Is Not Dead: South Africa's 1996 Constitution and the Application of the Bill of Rights to Private Disputes, 15 S. AFR. J. ON HUMAN RTS. 25, 31 (1999).

    (78.) Id. Sprigman and Osborne argue that the Court should "decline to apply the Bill of Rights in the 1996 Constitution to wholly private disputes." Id. at 26. In the earlier first generation debate, this view is expressed by Marlin Brassey, Labour Relations labour relations (US), labor relations nplrelations fpl dans l'entreprise

    labour relations labour nplBeziehungen pl
     under the New Constitution, 10 S. AFR. J. ON HUMAN RTS. 179 (1994). This view is also reflected in Justice Sachs's judgment in Du Plessis. Du Plessis v. De Klerk 1996 (3) SA 850, [paragraph][paragraph] 180-189 (CC) (S. Afr.) (arguing courts should refrain from deciding polycentric polycentric /poly·cen·tric/ (-sen´trik) having many centers.  legal questions that encompass many parties or may require policy decisions that have complex ramifications ramifications nplAuswirkungen pl , including the question of horizontal direct application of constitutional rights between private individuals). See also Michael Osborne & Chris Sprigman, Behold: Angry Native Becomes Postmodernist Prophet o f Judicial Messiah, 118 S. AFR. L.J. 693 (2001).

    (79.) Sprigman & Osborne, supra note 77.

    (80.) Id.

    (81.) Id.

    (82.) Id.

    (83.) Id. at 41.

    (84.) Id. at 42.

    (85.) Id. at 43.

       [T]here is a pungent irony in the fact that those who claim to be
       personally committed to a progressive social and economic agenda,
       at the very moment when the legislature is for the first time
       firmly in the hands of the majority of South Africans, would so
       energetically advocate a massive enlargement of judicial power.

    Id. at 51.

    (87.) Given that post-Apartheid South Africa was the product of a negotiated settlement, these contradictory themes permeate institutional set-up and jurisprudence. See RICHARD SPITZ spitz

    Any of several northern dogs, including the chow chow, Pomeranian, and Samoyed, characterized by a dense, long coat, erect pointed ears, and a tail that curves over the back. In the U.S.

    (88.) Du Plessis v. De Klerk 1996 (3) SA 850, [paragraph] 53 (CC) (S. Afr.); THE BILL OF RIGHTS HANDBOOK, supra note 47, at 64.

    (89.) See id.

    (90.) Id. at 352.

    (91.) Alfred Cockrell writes that the application of the Bill of Rights to the common law will not necessarily require the complete rewriting of the common law, since he views the common law as a resourceful body of doctrine Body of Doctrine (Latin: Corpus doctrinae) in Protestant theology of the 16th and 17th centuries is the anthology of the confessional or credal writings of a group of Christians with a common confession of faith.  that already recognized many of the rights that are now provided. Alfred Cockrell, The Law of Persons and the Bill of Rights, Bill of Rights Compendium com·pen·di·um  
    n. pl. com·pen·di·ums or com·pen·di·a
    1. A short, complete summary; an abstract.

    2. A list or collection of various items.
     (Butterworths), [paragraph] 3E3.5 (1996). Compare this to Justice Cameron in Fourie v. Minister of Home Affairs, 2005 (3) SA 429, [paragraph] 7 (SCA) (S. Afr.):
       More than anywhere else, apartheid enacted racism through minute
       elaboration in systematised legal regulation. As a consequence, the
       dogma of race infected not only our national life but the practice
       of law and our courts' jurisprudence at every level.

    (92.) Sprigman & Osborne, supra note 77.

    (93.) Supra note 47.

    (94.) See H. R. HAHLO ET AL., THE SOUTH AFRICAN LAW OF HUSBAND AND WIFE 12 (1975). This definition was taken from the 1905 case, Ebrahim v. Essop, 1905 T.S. 59, 61 (S. Afr.). W. J. HOSTEN ET AL., INTRODUCTION TO SOUTH AFRICAN LAW AND LEGAL THEORY 612 (W. J. Hosten et al. eds., 1983).

    (95.) HAFILO ET AL., supra note 94, at 12.

    (96.) Id.

    (97.) Id.

    (98.) Id. at 29.

    (99.) Seedat's Executors v. The Master (Natal Natal, city, Brazil
    Natal (nətäl`), city (1991 pop. 606,887), capital of Rio Grande do Norte state, NE Brazil, just above the mouth of the Potengi River.
    ) 1917 A.D. 302.

    (100.) 1983 (1) SA 1006 (A) (S. Afr.).

    (101.) Id.

    (102.) Id.

    (103.) See Aquilius (Mr. Justice F. P. van den Heever), Immorality IMMORALITY. that which is contra bonos mores. In England, it is not punishable in some cases, at the common law, on, account of the ecclesiastical jurisdictions: e. g. adultery. But except in cases belonging to the ecclesiastical courts, the court of king's bench is the custom morum, and  and Illegality in Contract, 58 S. AFR. L.J. 337, 346 (1941) ("What is immoral is a factual not a legal problem."). "A contract against public policy is one stipulating a performance which is not per se illegal or immoral but which the Courts, on grounds of expedience ex·pe·di·ence  

    Noun 1. expedience - the quality of being suited to the end in view
    , will not enforce, because performance will detrimentally affect the interests of the community." Id. In common law adjudication, the concept of public policy had a stylized styl·ize  
    tr.v. styl·ized, styl·iz·ing, styl·iz·es
    1. To restrict or make conform to a particular style.

    2. To represent conventionally; conventionalize.
     meaning of contracts that might contribute to public injury. See also J. D. SINCLAIR ET AL., THE LAW OF MARRIAGE 177 (1996) (detailing the numerous dire consequences of non-recognition).

    (104.) M.M. Corbett, Aspects of the Role of Policy in the Evolution of Our Common Law, 104 S. AVR (Automatic Voltage Regulation) See voltage regulator. . L.J. 52 (1987). For example, see Carmichele, 2001 (10) BCLR 995, [paragraph] 43 (stating that the proportionality exercise described by Corbett now takes place within the context of the "spirit, purport and objects" of the Bill of Rights).

    (105.) Corbett, supra note 104, Corbett discussed Minister van Polisie v. Ewels, 1975 (3) SA 590 (A) (S. Afr.):
       Even in 1975 there were probably still two choices open to the
       court in the Ewels case. The one was to confine liability for an
       omission to certain stereotypes, possibly adding to them from time
       to time; the other was to adopt a wider, more open-ended general
       principle, which, while comprehending existing grounds of
       liability, would lay the foundation for a more flexible and
       all-embracing approach to the question whether a person's omission
       to act should be held unlawful or not. The court made the latter
       choice; and, of course, in so doing cast the courts for a general
       policymaking role in this area of the law.

    (106.) Id. at 56. 106. Id.

    (107.) Id. at 64. As an example of this policymaking function, Corbett cites a case from 1907 where Chief Justice De Villiers held in the case of King v. Gray, 1907 24 S.C. 554 (S. Afr.), a marriage brokerage Noun 1. marriage brokerage - a business that arranges marriage contracts
    marriage mart

    brokerage, brokerage firm, securities firm - a stock broker's business; charges a fee to act as intermediary between buyer and seller
     contract was contrary to public policy and unenforceable. Id. at 64. "Nearly 80 years later a two-judge court of the Transvaal Provincial Division, observing that 'the norms of conduct required by society do not remain static ..., [but] may change from one generation to the next', upheld the validity of a marriage brokerage contract." Id. at 64-65 (citation omitted). It is quite telling that it took eighty years for the court to register a change in boni mores, and reflects a less malleable malleable /mal·le·a·ble/ (mal´e-ah-b'l) susceptible of being beaten out into a thin plate.

    1. Capable of being shaped or formed, as by hammering or pressure.
     judicial stance than that represented by Corbett.

    (108.) Id. at 67.

    (109.) Id.

    (110.) See HORWITZ, supra note 1, at 120.

    (111.) See JOHN DUGARD John Dugard (born in 1936 in Fort Beaufort) is a South African professor of international law. He has served as Judge ad hoc on the International Court of Justice and as a Special Rapporteur for both the former United Nations Commission on Human Rights and the International Law , HUMAN RIGHTS AND THE SOUTH AFRICAN LEGAL ORDER 366 (1978). The role of the South African common law judge was to declare, rather than make, law and was considered to be in marked contrast to the political or policy-driven role of judges of the United States Supreme Court United States Supreme Court: see Supreme Court, United States. . "[C]ourts appear to have adopted the distinction between the legislative function inherent in the common theory of law and regard it as their duty to analyze and interpret the will of parliament, but not to reason why." Id. at 373.

    (112.) Id.

    (113.) Id. at 68.

    (114.) HOSTEN ET AL., supra note 94, at 512 (citing Universal City Studios Inc. v. Network Video (Pty) Ltd. 1986 (2) SA 734 (A), [paragraph] 41 ("It is probably true that ... the court does not have an inherent power to create substantive law The part of the law that creates, defines, and regulates rights, including, for example, the law of contracts, torts, wills, and real property; the essential substance of rights under law. ....") (Corbett, J.)).

    (115.) This conception can be seen in many early proponents of indirect application, such as Justice Ackermann's view in Du Plessis v. De Klerk, 1996 (3) SA 850, [paragraph] 110 (CC) (S. Afr.):
       [T]he indirect radiating effect of the Chapter 3 rights on the
       post-constitutional development in the common law and statute law
       of concepts such as public policy, the boni mores, unlawfulness,
       reasonableness, fairness and the like, without any of the
       unsatisfactory consequences that direct application must inevitably

    See id. [paragraph] 53 (Kentridge, AJ.) ("The radical amelioration of the common law has hitherto been a function of Parliament; there is no reason to believe that Parliament will not continue to exercise that function."). This is not to say that common rules have not been interrogated and struck down by the Constitutional Court for falling short of the constitutional standard, but that it has been the rarer occurrence. See, e.g., Nat'l Coal. for Gay & Lesbian Equal. v. Minister of Justice 1998 (12) BCLR 1517 (CC) (S. Afr.); Shabalala v. Attorney-General 1995 (12) BCLR 1593 (CC) (S. Afr.).

    (116.) See Brisley v. Drotsky 2002 (4) SA 1 (SCA) (S. Afr.); Afrox Healthcare v. Strydom 2002 (6) SA 21 (SCA) (S. Afr.). During Apartheid, the Appellate Division was the highest court of appeal and heard appeals from provincial divisions of the Supreme Court. Under the interim Constitution, the court hierarchical structure See hierarchical.  was preserved, save the creation of an additional Constitutional Court as the court of final instance over constitutional matters. In terms of the interim Constitution, the Appellate Division had no constitutional jurisdiction and was the highest common law court of appeal, whilst the Constitutional Court was confined to constitutional matters and had no jurisdiction to develop the common law. Under the 1996 Constitution, the Appellate Division has been renamed the Supreme Court of Appeal and still is the highest court of appeal with respect to the common law, although now it has constitutional jurisdiction. Similarly, the Constitutional Court has jurisdiction to develop the common law. The Constitutional Court can function as a court of first instance as well as a court of appeal, and must confirm certain orders of invalidity made by other courts. S. AFR. (Interim) CONST. 1993 SS. 86-98; S. AFR. CONST. 1996 SS. 165 174. See THE NEW CONSTITUTIONAL & ADMINISTRATIVE LAW administrative law, law governing the powers and processes of administrative agencies. The term is sometimes used also of law (i.e., rules, regulations) developed by agencies in the course of their operation.  267-314 (Iain Currie & Johan de Waal eds., 2001). There have been recent, highly contentious legislative proposals to merge the Supreme Court of Appeal and the Constitutional Court into one apex court. See Carole Lewis, Reaching the Pinnacle: Principle, Policies and People for a Single Apex Court in South Africa, 21 S. AFR. J. ON HUMAN RTS. 509 (2005). For a related analysis of the doctrine of constitutional legality as both an enforceable rule and an interpretive value, see Michelman, supra note 2.

    (117.) See H. R. HAHLO & ELLISON KAHN, THE SOUTH AFRICAN LEGAL SYSTEM AND ITS BACKGROUND 583 (1968) ("[T]he common law gives the judge no discretion ... amelioration of the rule if considered desirable, must be produced by the legislature."). See also Bank of Lisbon & S. Afr. Ltd v. Ornelas 1988 (2) All SA 393 (SCA) (S. Afr.) (finding that there is no general equitable jurisdiction that could override a clear rule of law). See also Carole Lewis, The Demise of the Exceptio Doll: Is There Another Route to Contractual Equity?, 107 S. AFR. L.J. 26 (1990); Jonathan Lewis For the England international cricketer who plays for Gloucestershire, please see Jon Lewis and for the American football player, see Jonathan Lewis (football player).
    Jonathan James Benjamin Lewis (born 21 May 1970, Isleworth, Middlesex, England) is a former English cricketer.
    , Fairness in South African Contract Law, 120 S. AFR. L.J. 330 (2003); Crown City Restaurant CC v. Gold Reef City Gold Reef City is a large amusement park in Johannesburg, South Africa. Located on an old gold mine, the park is themed around the gold rush on the Witwatersrand. Park staff wear period costumes of the 1880s, and the buildings on the park are designed to mimic the same period.  Theme Park (Pty) Ltd. 2007 (5) BCLR 453 (CC) (S. Afr.).

    (118.) See Brisley v. Drotskey, 2002 (4) SA 1; Afrox Healthcare v. Strydom 2002 (6) SA 21. But see Barkhuizen v. Napier 2007 (7) BCLR 691 (CC) (S. Afr.) (reworking that paradigm).

    (119.) See Afrox Healthcare, 2002 (6) SA 21. See also Stuart Woolman & Danie Brand, Is There a Constitution in This Courtroom? Constitutional Jurisdiction after Afrox and Walters, 18 SA PUBLIEKREG/SA PUBLIC LAW 37, 43-44 (2003) (discussing the doctrine of stare decisis and the relationship between the High Courts and Supreme Court of Appeal).

    (120.) See, e.g., Jooste v. Botha 2000 (2) BCLR 187 (T) (S. Afr.) (cause of action compelling a famous father to provide loving care to an out of wedlock wed·lock  
    The state of being married; matrimony.

    out of wedlock
    Of parents not legally married to each other: born out of wedlock.
     son on the basis of s. 28 in the 1996 Constitution); Robinson v. Volks NO 2004 (6) SA 288 (HC, Cape Provincial Div.) (S. Aft.) (application of Maintenance of Surviving Spouses Act to a heterosexual life-partnership); Petersen v. Maintenance Officer 2004 (1) All SA 117 (HC, Western Cape The Western Cape is a province in the south west of South Africa. The capital is Cape Town. Prior to 1994, the region that now forms the Western Cape was part of the huge (and now defunct) Cape Province. ) (S. Afr.) (duty of grandparents to support child born out of marriage); Bezuidenhout v. Bezuidenhout 2003 (6) SA 691 (HC, Cape Provincial Div.) (S. Afr.) (asset redistribution upon divorce); Van Rooyen v. Van Rooyen 2001 (2) All SA 37 (T) (S. Afr.) (lesbian mother's right of access); S v. Ferreira 2004 (4) All SA 373 (SCA) (concerning abused married women who kill their spouses).

    (121.) During Apartheid, only civil marriages were given full legal recognition, while African marriages were governed under a separate regulatory regime and granted mere limited recognition as "unions" rather than marriages. See T. W. BENNETT, CUSTOMARY LAW IN SOUTH AFRICA 190 (2004).

    (122.) During Apartheid, there was a longstanding debate about the extent to which Apartheid policy and principle invaded and therefore tainted the common law. See John Dugard, Should Judges Resign?--Reply to Professor Wacks, 101 S. AFR. L.J. 286 (1984); Cora Hoexter, Judicial Policy in South Africa, 103 S. AFR. L.J. 436 (1986); Edwin Cameron Edwin Cameron is a Rhodes scholar and Supreme Court of Appeal [1] judge who was the first senior South African official to state publicly that he was living with HIV/AIDS. , Legal Chauvinism chauvinism (shō`vənĭzəm), word derived from the name of Nicolas Chauvin, a soldier of the First French Empire. Used first for a passionate admiration of Napoleon, it now expresses exaggerated and aggressive nationalism. , Executive-Mindedness and Justice--L C Steyn's Impact on South African Law, 99 S. AFR. L.J. 38 (1982); Raymond Wacks, Judges and Injustice, 101 S. AFR. L.J. 266 (1984); Raymond Wacks, Judging Judges: A Brief Rejoinder The answer made by a defendant in the second stage of Common-Law Pleading that rebuts or denies the assertions made in the plaintiff's replication.

    The rejoinder allows a defendant to present a more responsive and specific statement challenging the allegations made
     to Professor Dugard, 101 S. AFR. L.J. 295 (1984). It is arguable that while contract law is the harder case, and theorists disagree about the extent to which Apartheid principles had permeated the common law of contract, the area of family law is an "easier case" for being more obviously invaded by Apartheid principles and in need of reconstruction.

    (123.) Amod v. Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 (SCA) (S. Afr.).

    (124.) Ryland v. Edros 1997 (2) SA 690 (C) (S. Afr.).

    (125.) Id. at 705, [paragraph] C ("[I]f the spirit, purport and objects of chap 3 of the Constitution and the basic values underlying it are in conflict with the view as to public policy ... then the values underlying chap 3 of the Constitution must prevail.").

    (126.) Id.

    (127.) Fourie v. Minister of Home Affairs 2005 (3) SA 429 (SCA) (S. Afr.).

    (128.) Id. [paragraph] 5.

    (129.) Id. [paragraph] 22.

    (130.) Duncan Kennedy Duncan Kennedy (b. 1942 in Washington D.C.) is the Carter Professor of General Jurisprudence at Harvard Law School. Kennedy received an A.B. from Harvard College in 1964 and then worked for two years in the CIA operation that controlled the National Student Association. , The Stages" of the Decline of the Public/Private Distinction, 130 U. PA. L. REV. 1349 (1982).

    (131.) 1999 (4) SA 1319 (SEA) (S. Afr.).

    (132.) 2004 (1) SA 359 (SCA) (S. Afr.).

    (133.) Id. [paragraph] 1.

    (134.) The Multilateral Motor Vehicle Accident fund was set tip to pay compensation to people injured or killed in road accidents through the negligent driving of motor vehicles. It was succeeded by the Road Accident Fund ("RAF"). Road Accident Fund (formerly Multilateral Motor Vehicle Accidents Fund). (last visited June 21, 2010).

    (135.) Amod, 1999(4) SA 1319.

    (136.) Id. The significant elements discussed are: (a) the deceased had a duty to support her, and (b) the duty was legally enforceable. Id. [paragraph] 12.

    (137.) Id. The respondents argued that the dependant's action for loss of support was an anomalous remedy that should not accommodate claims for loss of support undertaken contractually, which do not flow from the common law consequences of a valid marriage. Id. [paragraph] 116.

    (138.) Id. [paragraph] 119.

    (139.) Id.

    (140.) Id. [paragraph] 120.

    (141.) Id. [paragraph]123.

    (142.) Id. [paragraph] 121.

    (143.) Id. [paragraph] 23.
       This important shift in the identifiable boni mores of the
       community must also manifest itself in a corresponding evolution in
       the relevant parameters of application in this area. "The common
       law is not to be trapped within the limitations of its past." If it
       does not do this it would risk losing the virility, relevance and
       creativity which it needs to retain its legitimacy and
       effectiveness in the resolution of conflict between and in the
       pursuit of justice among the citizens of a democratic society. For
       this reason the common law constantly evolves to accommodate
       changing values and new needs.


    (144.) Id.

    (145.) See id. [paragraph][paragraph] 5, 23 24.

    (146.) See id. [paragraph]][paragraph]] 23-24. 24.

    (147.) See id. [paragraph] 24.

    (148.) Another example of this approach, where the constitution serves as the impetus to "see" changes that have occurred "out there" in real life and the adjudicator ad·ju·di·cate  
    v. ad·ju·di·cat·ed, ad·ju·di·cat·ing, ad·ju·di·cates
    1. To hear and settle (a case) by judicial procedure.

     sees him or herself as reflecting such changes, is Langemaat v. Minister of Safety and Security, 1998 (3) SA 312 (T) (S. Afr.), where the applicant, a member of the South African Police Services and a lesbian in a relationship for twelve years, sought to have her partner listed as a dependant on Adj. 1. dependant on - determined by conditions or circumstances that follow; "arms sales contingent on the approval of congress"
    contingent on, contingent upon, dependant upon, dependent on, dependent upon, depending on, contingent
     her medical aid scheme. Deciding in her favor, Judge Pierre Roux Roux , Pierre Paul Émile 1853-1933.

    French bacteriologist. His work with the diphtheria bacillus led to the development of antitoxins to neutralize pathogenic toxins.
       I would ignore my experience and knowledge of several same-sex
       couples who have lived together for years. The stability and
       permanence of their relationships is no different from the many
       married couples I know. Both types of union are deserving of
       respect and protection. If our law does not accord protection to
       the type of union I am dealing with then I suggest it is time it
       does so. This is how I understand what section 39(2) of the
       Constitution has in mind.

    Id. at 316, [paragraph][ G.

    (149.) 2003 (1) SA 359 (SCA) (S. Afr.). In the court below, Judge De Klerk rejected the argument that the common law duty of support be extended to include same sex partners. 2002 (4) SA 596 (T) (S. Afr.) He commented that should the duty of support be recognized, it would open a can of worms since it would not only lead to many tenuous claims, but it would also establish a duty of support in all similar homosexual relationships where both parties are still alive. Id. at 498, [paragraph] E. It would, for instance, mean that on the dissolution of a homosexual relationship, a partner to such relationship would have a right to claim maintenance from the other. The court also stated that the monogamous heterosexual common-law marriage is the only form of marriage recognized in our law. Id. at 599, [paragraph] C.

    (150.) Du Plessis, 2003 (1) SA 359, [paragraph][paragraph] 36-37.

    (151.) Id. [paragraph] 37. The court stressed:
       It is important to emphasize that the submissions made on behalf of
       the plaintiff fell short of requesting this court to extend the
       common law definition of marriage, which requires that the union be
       between man and woman, to persons of the same sex.

    Id. [paragraph] 17.

    (152.) Id. [paragraph] 117.

    (153.) Id. [paragraph] 118.

    (154.) See id. [paragraph] 37. See also id. [paragraph] 43.

    (155.) 1997 (2) SA 690 (C) (S. Afr.).

    (156.) Id. at 705,[paragraph] C.

    (157.) See Ismail v. Ismail 1983 (1) SA 1006 (A) (S. Afr.).

    (158.) Ryland, 1997 (2) SA 690, at 704, [paragraph] D. ("What is immoral is a factual not a legal problem.") (citing Mr. Justice F. P. van den Heever, Immorality and Illegality in Contracts, 58 S. AFR. L.J. 337, 346 (1941)). In terms of the Ismail precedent, the marriage contracts in question were both contrary to public policy (defined as contacts which might redound re·dound  
    intr.v. re·dound·ed, re·dound·ing, re·dounds
    1. To have an effect or consequence: deeds that redound to one's discredit.

     to public injury) and contra bonos mores. Id. at 709, [paragraph] C.

    (159.) Id. at 704, [paragraph] D.

    (160.) Ryland, 1997 (2) SA 690(C) at 705, [paragraph] C.

    (161.) Id. at 707, [paragraph] G.

    (162.) Id. at 707, [paragraph] H.

    (163.) Id. at 709, [paragraph] A (using the expression of the German Federal Constitutional Court).

    (164.) Id. at 709, [paragraph] D.

    (165.) Id. at 704, [paragraph] C.

    (166.) Id. at 705, [paragraph] C.

    (167.) See THE BILL OF RIGHTS HANDBOOK, supra note 47, at 64-67.

    (168.) See id. at 64-67.

    (169.) Ryland, 1997 (2) SA 690 (C), at 707, [paragraph] H.

    (170.) Id. at 704, [paragraph] D.

    (171.) Id. at 705, [paragraph] C.

    (172.) See Kennedy, supra note 130, at 1351 ("The development of intermediate terms (Math.) the terms of a progression or series between the first and the last (which are called the extremes); the means.

    See also: Intermediate
     means formal recognition that some situations are neither one thing nor another ... but rather share some characteristics of each pole....").

    (173.) Ryland, 1997 (2) SA 690 (C), at 705, [paragraph] C.

    (174.) Id. at 711, [paragraph] C.

    (175.) Id. at 709, [paragraph] D.

    (176.) Fourie, 2005 (3) SA 429 (SCA) (S. Afr.).

    (177.) See id. [paragraph] 5.

    (178.) Id. [paragraph] 16.

    (179.) Id. [paragraph] 115.

    (180.) Id. [paragraph] 116. Section 9(3) of the Constitution provides: "The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status marital status,
    n the legal standing of a person in regard to his or her marriage state.
    , ethnic or social origin, colour, sexual orientation sexual orientation
    The direction of one's sexual interest toward members of the same, opposite, or both sexes, especially a direction seen to be dictated by physiologic rather than sociologic forces.
    , age, disability, religion, conscience, belief, culture, language and birth."

    (181.) Fourie, 2005 (3) SA 429, [paragraph] 20.

    (182.) Id. [paragraph][paragraph] 20-21.

    (183.) Id. [paragraph] 48.

    (184.) Id. [paragraph] 140.

    (185.) Id.[paragraph] 67.

    (186.) Id. [paragraph] 107.

    (187.) Id. [paragraph] 100. See also id. [paragraph] 101 (Farlam, J.) (citing Carmichele as authority for indirect application); id. [paragraph] 111 (Farlam, J.) (again expressing concern with incrementalism).

    (188.) See, e.g., id. [paragraph] 15.

    (189.) See Pharma. Mfrs. Assoc. of S., Afr., In re The Ex Parte Application President of the Republic of S. Afr. 2000 (3) BCLR 241, [paragraph]137 (CC) (S. Afr.).

    (190.) Fourie, 2005 (3) SA 429, [paragraph] 5.

    (191.) Id. [paragraph] 15. For example, Justice Farlam refers to Carmichele, the authority for indirect application, while there is no analogous reference to Khumalo, the authority for direct horizontal application judgment. Id. [paragraph][paragraph] 22-25.

    (192.) Id. [paragraph] 5 (moving the application discussion away from discrete sections composed of direct and indirect, and preferring discussion of the normative obligation flowing from all of the sections read together).

    (193.) See id. [paragraph][paragraph] 102-131.

    (194.) Id.[paragraph]39.

    (195.) Id. [paragraph] 108.

    (196.) Id. [paragraph][paragraph] 8 11.

    (197.) Id. [paragraph] 20.

    (198.) Corbett, supra note 104, at 68.

    (199.) Id. at 67.

    (200.) Fourie, 2005 (3) SA 429, [paragraph] 21.

    (201.) Id. [paragraph]] 23. See also id. [paragraph][paragraph] 40-41.

    (202.) Id. [paragraph] 108.

    (203.) Since the issue of statutory provisions stipulating the heterosexual formula for marriage had not been brought before the court, the practical result of the judgment was that same-sex couples could not marry until legislation was passed to facilitate this.

    (204.) Fourie, 2006 (3) BCLR 355, [paragraph] 15 (CC) (S. Afr.).

    (205.) Id. [paragraph][paragraph] 60 117. According to Justice Sachs, writing on behalf of the majority of the court, equality does not eliminate or suppress difference, rather it means "equal concern and respect across difference"; it does not imply a homogenization homogenization (həmŏj'ənəzā`shən), process in which a mixture is made uniform throughout. Generally this procedure involves reducing the size of the particles of one component of the mixture and dispersing them evenly  of behavior, but the acknowledgment and acceptance of difference, Id. [paragraph] 60. "The issue goes well beyond assumptions of heterosexual exclusivity," but is rather concerned with the "character of... society as one based on tolerance and mutual respect.... [where] [t]he test of tolerance is of... how one accommodates the expression of what is discomfiting." Id.

    (206.) Id. [paragraph] 143.

    (207.) Id. [paragraph] 123.

    (208.) Id. The Court emphasized that in striking down the common law offence of sodomy sodomy

    Noncoital carnal copulation. Sodomy is a crime in some jurisdictions. Some sodomy laws, particularly in Middle Eastern countries and those jurisdictions observing Shari'ah law, provide penalties as severe as life imprisonment for homosexual intercourse, even if the
     it was not developing the common law but exercising a power under s. 172(1)(a) of the Constitution, which was an example of direct application of the Bill of Rights. But this case was heard under the interim Constitution, and also prior to Carmichele, which was the decisive case "giving teeth" to indirect application, and hence, deliberately or inadvertently, charting the path of future jurisprudence. The instances where the Court had explicitly used direct application to strike out a common law rule are limited and occurred during the early years of the Court. In Khumalo v. Holomisa 2002 (5) SA 401 (CC) (S. Afr.), the Constitutional Court expounds on the section 8, direct horizontal application clause, but it is difficult to see how that analysis furthers the rubric of indirect application in Carmichele. For discussion of the Khumalo judgment, see Woolman, supra note 47.

    (209.) Fourie, 2006 (3) BCLR 355, [paragraph]I[paragraph] 1125-131.

    (210.) Id. [paragraph]1136.

    (211.) Id. [paragraph] 138. Although there are different legislative options, "this is an area where symbolism and intangible factors play a particularly important role. What might appear to be options of a purely technical character could have quite different resonances for life in public and in private." Lesbian & Gay Equal. Project v. Minister of Home Affairs 2006 (l) SA 524, [paragraph] 139 (CC) (S. Aft.). See also Fourie, 2006 (3) BCLR 355, [paragraph][paragraph] 150-153.

    (212.) Id. [paragraph] 161. Similarly, the omission of the words "or spouse" from the Marriage Act was declared invalid to the extent of the inconsistency with the Constitution, and Parliament was given twelve months to cure the defect. Sachs further provided that should Parliament fail to correct the defects within the period, section 30(1) of the Marriage Act will be read as including the words "or spouse" in the marriage formula, Id. Ultimately the Civil Union Act 17 was passed in 2006. For further analysis, see the entire issue, 23 S. AFR. J. ON HUMAN RTS. 407 (2007) (dedicated to discussion of sexuality and the law).

    (213.) Fourie, 2006 (3) BCLR 355, [paragraph] 173. The Court has stated this on previous occasions as well. See, e.g., Zondi v. MEC MEC Ministério da Educação (Ministry of Education)
    MEC Ministerio de Educación y Ciencia (Spain: Ministry for Education and Science)
    MEC Mountain Equipment Co-Op
     for Traditional & Local Gov't Affairs 2005 (4) BCLR 347, [paragraph] 123 (CC) (S. Afr.) ("Finally it must be borne in mind that whatever remedy a court chooses, it is always open to the legislature, within constitutional limits, to amend the remedy granted by the court.").

    (214.) Fourie, 2006 (3) BCLR 355, [paragraph] 167.

    (215.) In rejecting Sachs's argument for legislative choice and status, Justice O'Regan stated that her proposed order would mean that there would be gay and lesbian married couples at common law whose marriages would be regulated by any new marital regime the legislature chooses to adopt:
       I cannot see that there would be any greater uncertainty or
       instability relating to the status of gay and lesbian couples than
       in relation to heterosexual couples. The fact that Parliament faces
       choices does not, in this case, seem to me to be sufficient for
       this Court to refuse to develop the common law and, in an ancillary
       order, to remedy a statutory provision, reliant on the common law
       definition, which is also unconstitutional.

    Id. [paragraph] 169.

    (216.) Id. [paragraph]1170. O'Regan writes that as necessary as it is that unconstitutional laws be removed from the statute books, it is equally necessary that provisions of the common law that are in conflict with the Constitution are developed in conformity with it. Id.

    (217.) Id. [paragraph] 171. "Time and again, there will be those in our broader community who do not wish to see constitutional rights protected, but that can never be a reason for a court not to protect those rights." Id.

    (218.) Fourie, 2006 (3) BCLR 355, [paragraph] 121.

    (219.) Id. [paragraph] 138.

    (220.) Id.

    (221.) Id. [paragraph][paragraph] 152 153.

    (222.) Id.[paragraph][paragraph] 165 173.

    (223.) Id. [paragraph][paragraph] 170-171.

    (224.) Id.[paragraph] 171.

    (225.) Id. [paragraph] 170.

    (226.) Id.[paragraph] 171.

    (227.) Id. [paragraph] 167.

    (228.) Id. [paragraph] 171.

    (229.) Id.

    (230.) Supra note 1.

    (231.) Although Sachs explicitly stated he did not have to decide whether adjudication is limited to the incremental, rather than fundamental, development of common law because of his suspension order, I take his citing of the sodomy case, Nat'l Coal. for Gay & Lesbian Equal. v. Minister of Justice, 1998 (12) BCLR 1517 (CC) (S. Aft.), to all but say that direct application and fundamental law reform are within the province of the judiciary.

    (232.) T.W. Bennett explains that the act was introduced to re-establish traditional authority so that the chiefs would be better able to control the young. BENNETT, supra note 121, at 41. While the courts of traditional leaders could apply only customary law, the courts of native commissioners had the discretion to apply either customary or common law. Post-Apartheid legislation in the form of The Recognition of Customary Marriages Act of 1998 recognizes marriages contracted before November 15, 2000, which are valid at customary law and existing at the commencement of the Act. Recognition of Customary Marriages Act 120 of 1998 s. 2(1). Customary marriages conducted after November 15, 2000 must comply with the following prerequisites: both prospective spouses must be above the age of eighteen years old, both must consent to be married to each other under customary law, and the marriage must be negotiated and entered into or celebrated in accordance with customary law. ld ss. 2(2), (3). See also S. AFRICAN LAW COMM'N, HARMONISATION Noun 1. harmonisation - a piece of harmonized music

    musical harmony, harmony - the structure of music with respect to the composition and progression of chords

    (233.) BENNETT, supra note 121, at 42. Bennett writes that the regime was given its decidedly racist stamp by a rule that the jurisdiction of the courts of traditional rulers and native commissioners was only over blacks, and that only blacks could he subject to customary law. .Id

    (234.) Id.

    (235.) Law of Evidence Amendment Act 45 of 1988.

       Any court may take judicial notice of the law of a foreign state
       and of indigenous law in so far as such law can be ascertained
       readily and with sufficient certainty: Provided that indigenous law
       shall not be opposed to the principles of public policy or natural
       justice: Provided further that it shall not be lawful for any court
       to declare that the custom of lobola or bogadi or other similar
       custom is repugnant to such principles.

    Id. s. 1(1).

    (237.) BENNETT, supra note 121, at 43.

    (238.) Chuma Himonga & Craig Bosch, The Application of African Customary Law under the Constitution of South Africa The current and official Constitution of the Republic of South Africa was adopted on 8 May 1996. It is the supreme law of South Africa. History
    The South African Constitutional Court played an important role in the adoption of the 1996 Constitution.
    ." Problems Solved or Just Beginning?, 117 S. AFR. L.J. 306, 308 (2000).

    (239.) Id.

    (240.) S. AFR. CONST. 1996. s. 39(2) ("[W]hen developing ... customary law, every court ... must promote the spirit, purport and objects of the Bill of Rights."); id. s. 39(3) ("The Bill of Rights does not deny the existence of any other rights ... conferred by... customary law."); id. s. 211(3) ("The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.").

    (241.) See Alexkor Ltd. v. Richtersveld Cmty. 2003 (12) BCLR 1301 (CC) (S. Afr.). See also Crossley v. Nat 'l Comm See comms.  'r of SAP Servs. 2004 (3) All SA 436 (T) (S. Afr.).

    (242.) S. AFR. CONST. 1996 s. 211(3). This obligation is subject to three important qualifications: that customary law is applicable, that it is compatible with the Constitution, and that it has not been superseded by any legislation that specifically deals with customary law. With respect to the latter, customary law was treated as distinct from common law, where statutes automatically override all precedent, custom, and juristic ju·ris·tic   also ju·ris·ti·cal
    1. Of or relating to a jurist or to jurisprudence.

    2. Of or relating to law or legality.

     writing. BENNETT, supra note 121, at 43.

    (243.) "According to the South African Law Commission, the indirect horizontal application of the Bill of Rights contained in the 1996 Constitution would give the courts grounds for applying the so-called 'living law' instead of the official version to disputes before the courts." Christa Rautenbach, Some Comments on the Status of Customary Law in Relation to the Bill of Rights, 14 STELLENBOSCH L. REV. 107, 110 (2003).

    (244.) Himonga & Bosch, supra note 238, at 317. Himonga and Bosch ask,
       [W]hat will occur where the court finds that it is required to
       strike down or refer an offending customary law rule is not clear.
       If a rule of living customary law is struck down will the court
       apply a rule from official customary law (if there is such a rule)
       in its stead? If the court suspends the invalidity of a rule that
       it has elected to strike down to refer the matter to a competent
       authority to correct the defect, who would that authority comprise?

    Id. (citations omitted).

    (245.) Id. at 316.

    (246.) See id. at 309.

    (247.) Mthembu, 2000 (3) All SA 219, at 40.

    (248.) 2003 (4) SA 218 (HC, Western Cape) (S. Afr.).

    (249.) Id. at 32.

    (250.) This is similar to O'Regan's use of indirect application in her Fourie dissent in order to assert the institutional legitimacy of the courts over common law reform. See Fourie, 2006 (3) BCLR 355, [paragraph] 169 (CC) (S. Afr.).

    (251.) Bhe v. Magistrate Khayelitsha 2005 (1) SA 580, [paragraph] 139 (CC) (S. Afr.).

    (252.) Id. [paragraph]l[paragraph]1107 108.

    (253.) 2000 (3) All SA 219 (A) (S. Afr.).

    (254.) Id. [paragraph] 2.

    (255.) Id. [paragraph] 4.

    (256.) Id. [paragraph] 10.

    (257.) Id. Appellant argued that regulation 2(e) was ultra vires [Latin, Beyond the powers.] The doctrine in the law of corporations that holds that if a corporation enters into a contract that is beyond the scope of its corporate powers, the contract is illegal.  at common law, as "it constitute[d] delegated legislation Delegated legislation (sometimes referred to as secondary legislation or subordinate legislation) is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of the acts.  which may not be partial and unequal in its operation unless specifically authorized by the enabling Act Enabling Act

    Law passed by the German Reichstag in 1933 that enabled Adolf Hitler to assume dictatorial powers. Deputies from the Nazi Party, the German National People's Party, and the Center Party voted in favor of the act, which “enabled” Hitler's government
    ." Id. [paragraph]] 13. In a statement that would later assume great importance, the court stressed that "the regulation in issue did not introduce something foreign to Black persons .... [but] merely gave legislative recognition to a principle or system which had been in existence and followed ... for decades." Id. [paragraph] 23. The judge declared that because the deceased could still have taken steps to alter the devolution devolution n. the transfer of rights, powers, or an office (public or private) from one person or government to another. (See: devolve)

    DEVOLUTION, eccl. law.
     of his estate if he so wished and that the wishes of the deceased are still paramount in South African law, "a regulation which respects that right [could not] be said to the [sic] unreasonable and ultra vires at common law." Id. [paragraph][paragraph] 23-24.

    (258.) Id. paragraph] 18.

    (259.) Id. Appellant argued that Tembi was still the victim of gender discrimination because the law recognizes the rights of an illegitimate son, but not an illegitimate daughter, Id. [paragraph] 19. The court held that this proposition was incorrect as only a son born during the subsistence of a customary union between his mother and the deceased could succeed to the head of the household if there were no other male descendants DESCENDANTS. Those who have issued from an individual, and include his children, grandchildren, and their children to the remotest degree. Ambl. 327 2 Bro. C. C. 30; Id. 230 3 Bro. C. C. 367; 1 Rop. Leg. 115; 2 Bouv. n. 1956.
    , Id. [paragraph] 20.

    (260.) Compare this to the approach taken by Judge Mahomed in Amod, where the cause of action also preceded the enactment of the Constitution. See Amod, 1999 (4) SA 1319.

    (261.) Mthembu, 2000 (3) All SA 219, [paragraph] 37.

    (262.) Id. [paragraph]40.

    (263.) Id.

    (264.) Id. [paragraph] 47.

    (265.) Mthembu, 2000 (3) All SA 219, [paragraph] 11 (citing Mthembu v. Letsela 1997 (2) SA 936 (T) (S. Aft.) (Le Roux, J.)).

    (266.) Id. [paragraph] 40.

    (267.) Id. [paragraph] 47.

    (268.) Id. [paragraph] 40.

    (269.) This argument resembles that found in Ismail v. Ismail, where the judge refused to recognize the consequences of a Muslim marriage, and Acting Judge Trengove's comments in his concurrence CONCURRENCE, French law. The equality of rights, or privilege which several persons-have over the same thing; as, for example, the right which two judgment creditors, Whose judgments were rendered at the same time, have to be paid out of the proceeds of real estate bound by them. Dict. de Jur. h.t.  that recognition would be a retrograde step for the equality rights of women, Ismail v. Ismail 1983 (1) SA 1006 (A) (S. Afr.); id. at 1024, [paragraph] G.

    (270.) Mabuza v. Mbatha 2003 (4) SA 218 (HC, Western Cape) (S. Afr.).

    (271.) Id. [paragraph] 1.

    (272.) Id. [paragraph]2.

    (273.) Id. [paragraph] 7-8.

    (274.) Id. [paragraph] 7-9.

    (275.) Id. [paragraph][paragraph] 11, 17.

    (276.) Id. [paragraph][paragraph] 25-27.

    (277.) Id. [paragraph] 31.

    (278.) Id.

    (279.) Id. [paragraph] 32.

    (280.) Id.

    (281.) Id.

    (282.) See id. [paragraph]] 29-32.

    (283.) Id. [paragraph] 32.

    (284.) Id. [paragraph][paragraph] 31-32.
       The starting point it [sic] to accept the supremacy of the
       Constitution, and that law and/or conduct inconsistent therewith is
       invalid. Should the Court in any given case come to the conclusion
       that the customary practice or conduct in question cannot withstand
       constitutional scrutiny, an appropriate order in that regard would
       be made.

    Id. [paragraph] 32.

    (285.) Id. [paragraph]l[paragraph] 28-31.

    (286.) Id. [paragraph] 32.

    (287.) Id. [paragraph][paragraph] 25-27 (finding that the custom of ukumekeza has evolved).

    (288.) Bhe v. Magistrate Khayelitsha 2005 (1) SA 580 (CC) (S. Afr.). Primogeniture is challenged on basis that precludes widows from inheriting as intestate heirs of husbands, daughters from inheriting from parents, younger sons from parents, and extra-marital children from fathers. The Court concludes that exclusion of women violates section 9(3) of the Constitution the fight to human dignity Human dignity is an expression that can be used as a moral concept or as a legal term. Sometimes it means no more than that human beings should not be treated as objects. Beyond this, it is meant to convey an idea of absolute and inherent worth that does not need to be acquired and , and other protected fights, as they are a particularly vulnerable group, Id. [paragraph][paragraph] 91-93.

    (289.) Id. [paragraph][paragraph] 10-13.

    (290.) Id. [paragraph] 3.

    (291.) Id.

    (292.) Id.[paragraph] [paragraph]218-219.

    (293.) Id. [paragraph] 41.

    (294.) Id. Sections 30 and 31 of the Constitution entrench en·trench   also in·trench
    v. en·trenched, en·trench·ing, en·trench·es
    1. To provide with a trench, especially for the purpose of fortifying or defending.

     respect for cultural diversity. S. AFR. CONST. 1996. ss. 30-31. Further, section 39(2) specifically requires a court interpreting customary law to "'promote the spirit, purport and objects of the Bill of Rights." Id. In a similar vein, section 39(3) states that "the Bill of Rights does not deny the existence of any other fights or freedoms that are recognised or conferred byz ... customary law" as long as they are consistent with the Bill of Rights. Id. Finally, section 211 protects those institutions that are unique to customary law. Id.

    (295.) Bhe, 2005 (1) SA 580, [paragraph] 43.

    (296.) Id. [paragraph] 41.

    (297.) Id. [paragraph] 43.

    (298.) Id. [paragraph] 44 (emphasis added; internal citation omitted).

    (299.) Id. [paragraph] 61.

    (300.) Id. [paragraph] 75.

    (301.) td. [paragraph] 80.

    (302.) Id. [paragraph] 92. The Court made extensive reference to the Richterveld decision, where the Court noted that indigenous law is not a settled body of formally classified and easily ascertainable rules, but rather by its very nature it evolves as the people who live by its norms change their patterns of life. Id. [paragraph] 153. "Throughout its history it has evolved and developed to meet the changing needs of the community." Alexkor Ltd. v. Richtersveld Cmty. 2003 (12) BCLR 1301, [paragraph] 53 (CC) (S. Afr.). However, the rules of succession in customary law have not been given space to adapt. Bhe, 2005 (1) SA 580, [paragraph] 157.

    (303.) Bhe, 2005 (1) SA 580.

    (304.) Id. [paragraph] 105.

    (305.) Id. [paragraph] 104.

    (306.) Id. [paragraph] 131 (citation omitted).

    (307.) Id.[paragraph] 114.
       The Court was urged not to defer to the legislature to make the
       necessary reforms because of the delays experienced so far in
       producing appropriate legislation. This was an invitation to the
       Court to make a definitive order that would solve the problem once
       and for all. That there have been delays is true and that is a
       concern this Court cannot ignore. The first proposal by the Law
       Reform Commission for legislation in this field was made more than
       six years ago. According to the Minister, the need for broad
       consultation before any Bill was finalised has been the cause of
       the delays. Moreover, he was unable to give any guarantee as to
       when the Bill would become law.

    Id. [paragraph] 114.

    (308.) Id. [paragraph][paragraph] 14-116.

    (309.) Id.[paragraph] 117.

    (310.) Id. [paragraph] 139.

    (311.) Id. [paragraph] 162.

    (312.) Id.

    (313.) Id. [paragraph] 159.

    (314.) Id.

    (315.) Id. [paragraph] 209.

    (316.) Id. [paragraph] 212.

    (317.) Id. [paragraph] 215.

    (318.) Id.

    (319.) Id.

    (320.) Id.

    (321.) Id. [paragraph] 216.

    (322.) Id. [paragraph] 218.

    (323.) Id. [paragraph] 216.

    (324.) Id. [paragraph] 220.

    (325.) Id. [paragraph] 229.

    (326.) Id. [paragraph] 233.

    (327.) Id. [paragraph] 239.

    (328.) Id. [paragraph][paragraph] 236-241.

    (329.) Id. [paragraph][paragraph] 86, 221.

    (330.) Id. [paragraph] 112.

    (331.) Id. [paragraph] 116.

    (332.) Id.[paragraph]l[paragraph]] 110-113.

    (333.) Du Plessis v. De Klerk 1996 (3) SA 850 (CC) (S. Afr.).

    (334.) It will be recalled that Justice Sachs in Du Plessis, particularly referred to customary law as an example of where indirect rather than direct application, was appropriate, Id. [paragraph] 189 (using the example of lobola lo·bo·la  
    A set amount paid by a prospective husband to the bride's family among certain peoples in southern Africa.

    [Zulu -lóbólà, dowry, give a dowry.
     to illustrate that direct horizontal application could require the Court to engage in wholesale striking down because of the violation of equality guarantees). In Du Plessis, Sachs favored the indirect approach, which "would permit courts closer to the ground to develop customary law in an incremental, sophisticated and case-by-case way so as to progressively, rapidly and coherently to bring it into line with the principles of Chapter 3." Id.

    (335.) Bhe, 2005 (1) SA 580, [paragraph][paragraph] 110-113.

    (336.) Id. [paragraph] 155.

    (337.) Id.

    (338.) Id. [paragraph] 215.

    (339.) Bhe, 2005 (1) SA 580.

    (340.) It will be recalled, that in the early debate, Sprigman and Osborne viewed direct application as an instance of gratuitous counter-majoritarianism. Sprigman & Osborne, supra note 77.

    (341.) Sachs's judgment in Fourie reveals limited deference to the legislature by allowing it twelve months to pass legislation, failing which the court order of invalidation automatically comes into effect. Fourie, 2006 (3) BCLR 355, [paragraph] 161.

    (342.) Or as Cameron suggests in Fourie, perhaps the legislature does not want to be the decision-maker of such socially contentious issues, and omits to pass legislation in order to force the judiciary into deciding the matter, such as in State v. Makwanyane, 1995 (3) SA 391 (CC) (S. Afr.), which declared the death penalty unconstitutional. Fourie, 2006 (3) BCLR 355, [paragraph] 161 (CC) (S. Aft.).

    (343.) Kennedy, supra note 130, at 1349.

    (344.) Sprigman & Osborne, supra note 77, at 50.

    (345.) O'Regan's dissenting judgment in Fourie, and Ngcobo' s dissenting judgment in Bhe disrupt this paradigm, using indirect application to claim judicial non-deference and institutional legitimacy.

    (346.) Bhe, 2005 (1) SA 580, [paragraph] 86 (CC) (S. Afr.).

    (347.) Id. [paragraph] [paragraph] 110-113.

    (348.) Fourie, 2005 (3) SA 429 (SCA) (S. Afr.).

    (349.) Id. [paragraph] 120.

    ZIONA TANZER, B.A., LL.B., LL.M LL.M Legum Magister (Master of Laws) . (University of Witwatersrand); LL.M., S.J.D. (Harvard Law School Harvard Law School (colloquially, Harvard Law or HLS) is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, Harvard Law is considered one of the most prestigious law schools in the United States. ). This Article has benefited from the exceptionally generous comments of Frank Michelman. It was completed during my stay as a Visiting Scholar A visiting scholar, in the world of academia, is a scholar from an institution who visits a receiving university that hosts him where he or she is projected to teach (visiting professor), lecture (visiting lecturer), or perform research (visiting researcher  at the Center for International and Comparative Law, University of Michigan Law School The University of Michigan Law School, located in Ann Arbor, is a unit of the University of Michigan. The Law School, founded in 1859, currently has an enrollment of approximately 1,200 students, most of whom are earning the degrees of Juris Doctor (J.D.) or Master of Laws (LLM). . I am grateful to Virginia Gordon Virginia Gordon (born October 28, 1936 in Chaplin, West Virginia) is an American model and actress. She was Playboy magazine's Playmate of the Month for the January 1959 issue. Her centerfold was photographed by Ron Vogel.  for the institution's support. All errors are mine alone.
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    Date:Sep 22, 2010
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