28 Section s 121 d of the Constitution 29 The latter standard is drawn from

28 section s 121 d of the constitution 29 the latter

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28 Section s 12(1) (d) of the Constitution. 29 The latter standard is drawn from Strickland v Washington 466 US 668 (1984) at 694, where it is the standard for granting relief based on the 'ineffective assistance of counsel'. 30 B v S 2003 (9) BCLR 955 (E) at 961H—I. 31 Perhaps, however, the opposite of 'substantial' is not 'a little' but 'insubstantial' in the sense of 'without substance' or 'imaginary'. The strongest argument for my reading in text is not lexical but practical. 32 The Bill of Rights unambiguously binds the three branches of the government 'and all organs of state' (s 8(1) of the Constitution and s 239 (defining 'organ of state')). Private actors are bound by the Bill of Rights only 'if, and to the extent that, it is applicable' (s 8(2)). If private actors were indistinguishable from state actors, these different provisions would reduce to the same thing. Cf Stephen Ellmann 'A constitutional confluence: American "state action" law and the application of South Africa's socio­economic rights guarantees to private actors' in Penelope Andrews & Stephen Ellmann (eds) The Post­Apartheid Constitutions: Perspectives on South Africa's Basic Law (2001) 444. 33 Nkuzi supra note 5 presumably rests in part on s 34, although the judgment does not explicitly say so. 34 See, for example, Gideon v Wainwright 372 US 335 (1963) (applying the right to appointed counsel to the states, with no explicit consideration of costs, although issues of cost were briefed, see Brief of the American Civil Liberties Union and the Florida Civil Liberties Union, Amici Curiae at 33­7, Gideon v Cochran decided sub nomine Gideon v Wainwright 372 US 335 (1963) (No 155)); Ross v Moffitt 417 US 600 (1974) (refusing to extend the right to appointed counsel beyond the first appeal (as of right) from conviction, and basing this on an assessment of fairness to the accused, with only glancing reference to 'other claims for public funds'). But see Scott v Illinois 440 US 367 (1979) at 374 (refusing to extend right to appointed counsel to misdemeanour trials not resulting in imprisonment, in part because 'any extension would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States'). 35 Argersinger v Hamlin 407 US 25 (1972). In Scott v Illinois supra note 34 at 373 the Supreme Court characterized Argersinger as reaching its conclusion 'regardless of the cost to the States implicit in such a rule'. Justice Powell's opinion in Argersinger (at 55­62), concurring in the result but not the opinion of the Court, is much more concerned with the potential impact on the States. 36 This is not more than a 'modicum' of textual basis, however, for two reasons. First, the Sixth Amendment does not explicitly refer to any right to counsel paid for by the state. Secondly, this amendment as originally understood applied only to criminal prosecutions by the federal government; its application to prosecutions by state governments — the vast bulk of all prosecutions that take place — came about through the 'incorporation' of this amendment's requirements under the rubric of the post­Civil War Fourteenth Amendment's imposition of the requirement of due process on the states. Due process, however,
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