Horizontal Application of Fundamental Rights and the Threshold of the Law in View of the Carmichele Saga

Is there a fundamental gap between the common law of delict and the fundamental rights embodied inthe Constitution? This is the assertionof Chetty J in Carmichele v Minister of Safety and Security, anassertion that this article disputes. The hiatus between common law and constitutional law to which Chetty J refers does not lie between the substantive common law principles of delict and constitutional law. It lies between the common law principles of the law of procedure and constitutional law. In fact, strictly speaking, the hiatus should be seen to lie between the common law principles of procedural law and the common law principles of delict. A thorough application of the substantive principles of the common law of delict could have achieved everything the Constitution could have required it to achieve in the case of Carmichele. But it was prevented from doing so by the outdated principles of the South African law of civil procedure (or at least the outdated understanding of these principles in the first High Court judgment and the judgment of the Supreme Court of Appeal). This argument confronts us with the question whether most of the work of developing the common law, at least as far as private law is concerned, must be done in the law of civil procedure.