Developing the Common Law Progressively—Horizontality, The Human Rights Act, and the South African Experience Max du Plessis* and Jolyon Ford** Senior Lecturer, Howard College School of Law, University of KwaZulu-Natal, South Africa; Lecturer, Faculty of Law, University of Sydney The authors reflect on the relevance of recent South African constitutional law decisions and experience to ongoing debate concerning the effect of the HRA 1998 on private legal relations and so on the evolving content of UK common law. When one is dealing with development of the common law (in the light of the Act and the European Convention on Human Rights) rather than interpretation and direct application of the Act as a statute, it is both unsound and undesirable that judges feel the need to abandon the familiar methods of common law reasoning for some constitutional law-type ‘‘rights balancing’’ exercise. Progressive development of the common law can make it a vital vehicle in ensuring that private legal relations do not remain untouched by democratic initiatives to define an objective value system for society. Some process of reasoned balancing may be required in any dispute, but the legitimacy of the common law and its courts might be undermined if too facile a use of balancing technique is adopted. Introduction In 2002 the Constitutional Court of South Africa, in the defamation case of Khumalo v Holomisa, 1 explained the degree to which rights and freedoms in Ch.III of the Constitution of South Africa 1996 2 have any ‘‘horizontal’’ application in disputes between private (non-state) parties. * B-Iuris (SA), LL.B. (Natal), LL.M. (Cambridge); Advocate of the High Court of South Africa and Associate Member of the Natal Bar. Research Associate, Matrix Chambers, London. ** BA, LL.B. (Natal), LL.M. (Cambridge). We would like to thank Glenn Penfold and Jonathan Klaaren for their very helpful comments and the law faculties at the Universities of the Witwatersrand and KwaZulu-Natal for hosting Jolyon as a visiting scholar. We also thank anonymous reviewers. 1 Khumalo v Holomisa (2002) (5) S.A. 401, CC (hereinafter Holomisa). 2 The Constitution of the Republic of South Africa, Act 108 of 1996. South Africa’s previous system of parliamentary sovereignty was of course replaced, in 1994, by a system of constitu- tional supremacy (cf. International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158; [2002] 3 W.L.R. 344 at [69]–[70], per Laws L.J.). Integral to this system is a justiciable Bill of Rights, contained in Ch.III of the 1996 Constitution, s.2 of which states that ‘‘[the] Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’’ (emphasis added). The Interim [2004] E.H.R.L.R. ISSUE 3. © SWEET & MAXWELL LTD 2004