Corporate law and the constitution: towards binding human rights responsibilities for corporations

Company law and constitutional law have continued largely as separate disciplines with a very limited area of overlap. This is so despite the express application of the Bill of Rights to natural and juristic persons. This article seeks to consider the implications of the horizontal application of the Bill of Rights for the responsibilities of corporations for the realization of fundamental rights. It does so in light of analysing, first, a range of recent international initiatives in this arena, ranging from voluntary frameworks to proposals for the imposition of binding human rights responsibilities on corporations. It is argued that the key question in this area that arises both at the international level and in the South African context remains a method of effectively delineating the content and extent of the responsibilities that corporations have for the realization of fundamental rights. The impact of corporate activity upon fundamental rights as well as the capabilities of a corporation in a particular context, it is argued, are two critical factors that can provide guidance in this regard. Furthermore, it is argued that the horizontal application of the Bill of Rights fundamentally changes the nature of the corporation. This change in nature requires concomitant law reform that includes the following measures: the imposition of an explicit fiduciary duty on directors to consider the impact on fundamental rights of a company's operations; the development of non-financial reporting obligations; the recognition that fundamental rights are binding on companies operating in South Africa beyond its borders; and the development of principles for the imposition of civil liability upon a principal corporation for the actions of its subsidiaries or sub-contractors