The Role of the Constitution in Private Law: U.S. & South Africa

It has been over 25 years since Nelson Mandela’s release from prison, marking the beginning of the end of Apartheid in South Africa. Apartheid included a pervasive set of policies segregating “whites” from “non-whites” and further segregating the “non-white” population. These policies determined where one could live, what education one received, who one could marry, what property could be owned, what jobs or occupations one could have and what civil and political rights one had.

Under Apartheid, South Africa strongly separated public law (i.e., criminal law, administrative law and constitutional law) from private law (i.e., contracts, property law and delict (torts)). To this day, some law schools teach them in separate departments. This is consistent with classical liberal ideals that see an expanded role of government in public law areas with minimal government intrusion into private law matters. South African private law was not too far out of step with English and U.S. private law (at least prior to the developments in the United States during the ,60s and ,70s). Some have even argued that private law was relatively unscathed by Apartheid and thus, while there is a clear need for public law transformation, there is no such pressing need for private law change. If this were true, the U.S. model may be attractive.


The U.S. Constitution largely follows the classic liberal model with a somewhat limited set of political rights set out in the Bill of Rights and a limited set of enumerated powers set out for the branches of the federal government in Articles I, II and III. Prior to the 13th Amendment, persons acting in their private capacity were not bound by any provision in the Constitution and with a few notable exceptions constitutional rights have had no bearing on private common law rules. The few notable exceptions include defamation law, intentional infliction of emotional distress and punitive damages. See, e.g. New York Times Co. v. Sullivan (1964), Hustler Magazine v. Falwell (1988) and BMW of North America, Inc. v. Gore (1996) and their lines of cases.

Six years aft er Mandela’s release, South Africa adopted its final, democratic Constitution in 1996. Rather than choose the U.S. path, the draft er’s of South Africa’s constitution sought to constitute a state where human rights would permeate both public and private spheres. Rather than settling for a limited number of political and civil rights, they included an extensive set of cultural and socio-economic rights, for instance, the right to a healthy environment, to housing, health care, to food, water and social security, education, as well as rights for cultural, religious and linguistic communities and special rights for children. See sections 24-31 of the constitution).

Rather than adopt the liberal notion that private law is separate from the constitution and that individuals have no constitutional duties, the constitution explicitly allows for its provisions to bind private parties and it adopts mechanisms to bridge the public law/private law divide so that all of South African law is harmonized with the values of the constitution. Section 8(2) of the constitution allows for the rights in the Bill of Rights to directly bind the conduct of private persons and corporations. Further, section 8(3) requires that: “When applying a provision of the Bill of Rights to a natural or juristic person . . . a court in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law. . .” Section 39(2) goes further, requiring 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.”

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While more can be done to harmonize the private law with the constitution’s values, to promote freedom, dignity, equality and access to justice, there have been significant changes over the past 20 years. Common law developments have included expanding the doctrines of vicarious liability, expanding the notion of duty or wrongfulness in delict actions (the analogue to tort law), expanding invasion of privacy actions, allowing for class action suits, providing more protection for publishers in defamation cases, expanding the role of res ipsa loquitor in products liability cases and more strictly construing waiver of liability clauses in contracts. There have also been several legislative changes that have brought the common law into harmony with the constitution in the areas of employment law, equality legislation, contingency fees, class actions and consumer protection law.  Christopher Roederer

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