6 - South Africa

Summary

A core purpose of South Africa’s Constitution was to modify private orderings growing out of Apartheid’s legacy of racism. Hence, the South African framers, and specifically those representing the African National Congress (ANC), had strong reason to adopt some version of horizontal application. While republican elements occur in some of the ANC’s early thought on private actors’ duties, such discourses featured less when the party had to find consensus with representatives of the Nationalist Party while negotiating the Interim Constitution. A strong formalist streak in the legal culture, concerns about preserving property rights, and the incentives of institutions such as the Supreme Court of Appeal all cut against the practice of horizontal application. Ultimately, the constitutional framers provided for both direct and indirect horizontal application in the Final Constitution. The ANC’s vision was thus fixed in this feature, and subsequent cases further cemented a break from prior orderings. Republican discourses ensued in cases involving horizontal application and perhaps most clearly in issues striking at the heart of the old Apartheid regime, such as housing and education.