Abstract

Ramakatsa v Magashule signifies the first time the Constitutional Court permitted an individual to base a cause of action against another non-state actor, in this case a political party, solely on the contents of a right entrenched in the Bill of Rights. In doing so, the court moved away from the development of the common law in terms of s 8 or s 39 (2) of the Constitution as the means to incorporate constitutional rights or values into the law that regulates the legal relationship between non-state actors, and, in effect, recognised a third methodological pathway through which fundamental rights applies horizontally between non-state actors. Following this seminal decision, it is necessary to modify South African constitutional theory on horizontal application to reflect the three means through which the Bill of Rights applies to private relations. It is also necessary to consider whether the new methodological pathway the court recognised in terms of s 172(1) of the Constitution may apply to other non-state actors.