AB v Pridwin Preparatory School: progress and problems in horizontal human rights law

Abstract

The Constitutional Court’s decision in AB v Pridwin Preparatory School is a welcome recognition of the obligations which independent schools owe to their learners under the Constitution of the Republic of South Africa, 1996. However, the decision creates (or at least fails to resolve) a number of uncertainties in the application of s 8(2) of the Constitution. In particular, it leaves vague what the test for duty-bearing under that provision is; it recentres but (further) obscures the distinction between positive and negative obligations; it raises questions about the role of s 8(3) and how private interferences with constitutional rights are to be justified; and it leaves the practical status of the decision in Barkhuizen v Napier unclear.