A Constitutional Confluence: American ‘State Action’ Law and the Application of South Africa’s Socioeconomic Rights Guarantees to Private Actors

As constitutional protection of human rights expands around the world, the question of whether constitutional rights should protect people not only against state action but also against the conduct of private actors is once again timely. Few nations have so broadly, or so ambiguously, endorsed the application of constitutional guarantees to constrain private conduct (known outside the United States as "horizontality") as South Africa. The constitution approved in 1996 applies fully and without qualification to all "organs of state," and this term is defined in section 239 in potentially very broad terms, notably embracing "any other functionary or institution ... exercising a public power or performing a public function in terms of any legislation ...." Even more far-reachingly, section 8(2) of the constitution declares that "[a] provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right." These provisions raise quite dramatic questions about the reach of judicial power in the new South Africa, particularly the relationship of the courts' power to legislative authority, and one focus of the article is on examining the extent to which the courts can mitigate these problems, notably by engaging in constitutionally-guided reinterpretation of other law rather than explicit and conclusive interpretation of the constitution itself. These same concerns, however, also underline the importance of examining carefully the circumstances in which horizontality is, and isn't, appropriate. This article argues that American state action law can inform the interpretation of these aspects of South Africa's constitution. The potential relevance to section 239 of American inquiries into the boundaries of the state, and the dimensions of public functions, is suggested by the words of section 239 itself. But the article also argues that section 8(2) can and should be interpreted to embrace inquiries akin to those of US state action law. Certainly section 8(2) embraces questions that US state action law does not overtly address, specifically questions of the nature of the rights and duties at stake. The article explores the question of whether South Africa's quite extensive catalogue of socioeconomic rights could apply horizontally by examining whether the constitutional right of access to health care is being violated by pharmaceutical companies' policies in pricing AIDS medications beyond the means of most South African AIDS victims, and argues that the sheer horror of this situation indeed generates a strong momentum for horizontality. The article suggests, however, that the constitutional treatment of pharmaceutical companies and individual pharmacists would be quite different, even though both, at different moments, hold a power approaching that of life and death. A central difference between them is that the pharmaceutical companies are more like the state. It may well be that in a sense all action is state action, but the very fact that we can identify "the state" and its organs suggests that some action is more state-like than other action. Here the pharmaceutical companies resemble governments partly because of their sheer power, and partly because that power corresponds to particularly strong links to the state itself, links embodied in the patent rights that the state grants to and protects for the companies. Ultimately, the article concludes that in this case, and others, the degree of state-connectedness does matter to the measure of the constitution's reach, and that American state action thinking - as problematic as it has been - therefore is of value to the decisions South Africans will make about horizontality.