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du plessis and others v de klerk and another 1996

du plessis and others v de klerk and another 1996

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Published by André Le Roux
Constitutional La and criminal Law

Criminal and Constitutional Law required reading
Constitutional La and criminal Law

Criminal and Constitutional Law required reading

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Published by: André Le Roux on Jun 16, 2009
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DU PLESSIS A\ue000D OTHERS v DE KLERK A\ue000D A\ue000OTHER 1996 (3) SA 850 (CC)
1996 (3) SA p850

Citation 1996 (3) SA 850 (CC)
Case No CCT 8/95
Court

Constitutional Court
Judge

Chaskalson P, MAHOMED DP, ACKERMANN J, DIDCOTT J,
KENTRIDGE AJ, KRIEGLER J, LANGA J, MADALA J, MOKGORO J,
O'REGAN Jand SACHS J

Heard

November 7, 1995
Judgment May 15, 1996
Counsel G J Marcus (with him M Chaskalson) for the appellants.

T J Kruger SC (with him J van der Westhuizen and N Davis) for the
respondents.
G[zFNz]Flynote : Sleutelwoorde

Constitutional law - Human rights - Fundamental rights in terms of chap 3 of Constitution
of the Republic of South Africa Act 200 of 1993 - Application of chap 3 to defamation
dispute concerning alleged defamation published before Constitution H coming into
operation - Constitution not operating retroactively in sense of providing that, as at a past
date, the law shall be taken to have been that which it was not, thereby validating
previously unlawful conduct - Consequences of such general principle may possibly be
departed from in cases where enforcement of I rights acquired before commencement of
Constitution would, in light of present constitutional values, be so grossly unjust and
abhorrent that it could not be countenanced, whether as being contrary to public policy or
on some other basis.
Constitutional practice - Courts - Constitutional Court - Referral to Constitutional Court
in terms of s 102(8) of Constitution of the Republic of South Africa Act 200 J of 1993 -
In determining whether
1996 (3) SA p851
A Court has disposed of a matter for purposes of s 102(8), test applied by Supreme Court
on appealability of judgments dismis-sing or upholding exceptions, as to whether order
made having final and definitive effect, is instructive - No reasons of policy and
convenience why issue may not be referred in terms of s 102(8) where B there has been
claim for specific relief and such claim finally disposed of, but where whole of
proceedings relevant to matter not yet completed.
Constitutional law - Human rights - Fundamental rights in terms of chap 3 of Constitution
of the Republic of South Africa Act 200 of 1993 - Application of chap 3 to common law -

Word 'law' in s 7(2) of the Constitution including common law - C Chapter 3 accordingly
affecting or may affect the common law.
Constitutional law - Human rights - Fundamental rights in terms of chap 3 of Constitution
of the Republic of South Africa Act 200 of 1993 - Application of chap 3 to defamation
dispute between private individuals - Constitutional rights under D chap 3 may be
invoked against organ of government but not by one private litigant against another - In
private litigation any litigant may nonetheless contend that statute (or executive act)
relied on by other party is invalid as being inconsistent with limitations placed on
Legislature and Executive under chap 3 - E Governmental acts or omissions in reliance
on common law may be attacked by private litigant as being inconsistent with chap 3 in
any dispute with organ of government.
Constitutional law - Human rights - Fundamental rights in terms of chap 3 of Constitution
of the Republic of South Africa Act 200 of 1993 - Application of chap 3 F to defamation
dispute between private individuals - Section 35(3) of Constitution, by allowing for
development of common law and customary law by Supreme Court in accordance with
objects of chap 3, introducing indirect application of fundamental rights provisions to
private law - Words 'have due regard to' in s 35(3) G not empowering Courts to invalidate
rules of common law inconsistent with chap 3 or to declare them unconstitutional - Fact
that Courts to do no more than have regard to spirit, purport and objects of chap 3
indicating that requisite development of common law and customary law not to be
pursued through exercise of powers of H Constitutional Court under s 98 of Constitution.
Constitutional law - Human rights - Right to freedom of speech and expression in terms
of s 15 in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 - While
chap 3 not having general direct horizontal application, it may and I should have
influence on development of common law as it governs relations between individuals -
May be open to litigant to argue that some particular provision of chap 3 must by
necessary implication have direct horizontal application - Section 15(1) not such a
provision since no such implication necessary - Nonetheless, values embodied by s 15(1)
can and must be taken into account in J development of common law of defamation.
1996 (3) SA p852
A Constitutional practice - Courts - Jurisdiction - Constitutional Court - Jurisdiction of in
terms of s 35(3) of Constitution of the Republic of South Africa Act 200 of 1993 -
Appeal on issue relating to development of common law, once properly raised and dealt
with in Provincial Division, to be directed to Appellate B Division - Application and
development of common law not matter falling within jurisdiction of Constitutional
Court under s 98 of Constitution - This not to say that Constitutional Court having no
control over how common private law develops - Constitutional Court to ensure that
provisions of s 35(3) properly interpreted and applied in relation to development of
common law - Failure to do so amounting to C failure to discharge its duty properly in
relation to enforcement of provisions of Constitution - Constitutional Court having
jurisdiction to determine what 'spirit, purport and objects' of chap 3 are and to ensure that,
in developing common law, other courts have had 'due regard' thereto.
[zHNz]Headnote : Kopnota

D During 1993 a newspaper, the Pretoria \ue000ews , published a series of six articles dealing
with the supply by air of arms and other material to the Angolan rebel movement,

UNITA. The tenor of the articles was that the operations were covert and entailed the
evasion of South African air control regulations. The flights were described as 'illegal'
and E as 'pirate flights'. The articles suggested that those responsible for the flights were
'fueling the war in Angola' and were doing so for motives of personal gain,
notwithstanding the disastrous effect of the Angolan civil war on the inhabitants of that
country. One of the articles stated that the Department of Foreign Affairs had called in a
number of private air operators 'following suspicions that individual companies might be
fueling the war in Angola with supplies'. The first respondent was named as one of those
summoned. A second article referred, in the context of illegal flights to supply UNITA, to
'the mystery F airstrip' owned and operated by the first and second respondents.

In consequence of these publications the respondents (the plaintiffs in the Court a quo )
instituted a defamation action in a Provincial Division against the appellants jointly and
severally (the defendants in the Court a quo ). On 25 May 1993 the appellants filed a
joint plea in which they admitted publishing the articles, but denied that the articles
meant that G the respondents were involved in illegal activities, or that the articles were
defamatory of the respondents. In the alternative, the appellants alleged that the general
subject-matter of the articles was a matter of public interest. The appellants further
alleged that they had published the articles in good faith in pursuance of a duty to their
readers and to the public in general to keep them informed about the civil war in Angola,
that their readers had a corresponding right to be so informed and that therefore the
publication of the articles was not unlawful.

On 7 October 1994, after the Constitution of the Republic of South Africa Act 200 of H
1993 had come into operation, the appellants applied to amend their plea. The application
proposed the addition to the plea of an allegation that publication of the articles had not
been unlawful by reason of the protection afforded to the defendants by s 15 of the
Constitution, which provides for a right to freedom of speech and expression, including
freedom of the press and other media. The respondents opposed the application for
amendment.

The Court a quo dismissed the application for amendment, holding that the proposed I
amendment would render the plea excipiable on two grounds. The first ground was that
the proceedings before the Court had to be dealt with as if the Constitution had not been
passed, in that s 241(8) of the Constitution precluded retrospective operation of the
Constitution. The second ground was that the Constitution did not apply horizontally and
that, in consequence, s 15 could not be invoked as a defence to a civil action for damages
for defamation.

On 1 March 1995 the Court a quo referred the issues of the retrospective operation of J the Constitution and the horizontal application of chapter 3 to the Constitutional Court 1996 (3) SA p853

A in terms of s 102(2), alternatively s 102(8) of the Constitution. At the same time, the
appellants were granted leave to appeal. On 9 June 1995, the Constitutional Court granted
the appellants leave to appeal against the whole of the judgment and order of the Courta

quo refusing the application for leave to amend their plea. The Constitutional Court
directed that it required argument on the following issues:
B'(a ) Are the appellants entitled to invoke the provisions of the Constitution

notwithstanding that
(i) publication of the offending material had already occurred; and/or
(ii) action was instituted; and/or
(iii) all relevant facts had occurred
before the Constitution came into operation?

(b)Are the provisions of chapter 3 of the Constitution - and more particularly s C 15 -
capable of application to any relationship other than that between persons and legislative
or executive organs of State at all levels of government?'
On 20 October 1995, the Constitutional Court requested the parties to address it on,in te r
alia , the following additional matters:
(i)
is the development of the common law within the jurisdiction of the Appellate
Division or the Constitutional Court or both Courts?; and, if the latter,
(ii)
should the appeal on this issue have been noted to the Appellate Division and D
dealt with by it in terms of s 102(4), (5) and (6) of the Constitution?
The Court first considered question(a ) above.
Held(per Kentridge AJ, the other members of the Court concurring), that the interim

Constitution did not operate retroactively in the sense of enacting that, as at a past date,
the law should be taken to have been that which it was not, so as to invalidate what was
previously valid or vice versa . There was nothing in the Constitution which suggested
that conduct which had been unlawful before the Constitution came into force was
deemed to E be lawful by reason of chapter 3. As a result, a pleading alleging that articles
published in 1993 were protected by s 15 of the Constitution was bad in law. (Paragraphs
[13], [15].)

S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (7) BCLR 793) considered and
explained.
Held , further, that the consequences of the general principle that the Constitution did not

F operate retroactively to validate what was previously unlawful conduct were not
necessarily invariable. It was possible that there might be cases where the enforcement of
rights acquired before the commencement of the Constitution would, in the light of
present constitutional values, be so grossly unjust and abhorrent that it could not be
countenanced, whether as being contrary to public policy or on some other basis.
However, the present G case did not fall into that category. (Paragraph [20].)

Held , accordingly, that the appellants were not entitled to invoke s 15 as a defence to an
action for damages for a defamation published before the Constitution had come into
operation. (Paragraph [21].)
The Court then considered the validity of the referral in terms of s 102(8) of the
Constitution.
Held(per Kentridge AJ; Chaskalson P, Mahomed DP, Ackermann J, Langa J, Madala H

J, Mokgoro J, O'Regan J and Sachs J concurring), that the referral in terms of s 102(8)
was competent. In determining whether a Court had disposed of a matter for purposes of
s 102(8) the test applied by the Supreme Court on the appealability of judgments
dismissing or upholding exceptions was instructive, the test applied being whether the
order made had a final and definitive effect. Generally, the dismissal of an exception was
not regarded as final, whereas the upholding of an exception to a pleading on the ground I
that it was bad in law was regarded as final and appealable. The order of the Court a quo
had disposed finally of all the relief claimed in the application for amendment. There
were no reasons of policy and convenience why the framers of the Constitution should
have wished to exclude from the operation of s 102(8) a case such as the present case,
where there had been a claim for specific relief and that claim had finally been disposed
of. Moreover, there were no reasons of policy why, before a referral, the whole of any J
relevant proceedings had to have been completed. (Paragraphs [26]-[29].)
1996 (3) SA p854

AH e ld , accordingly, that although the Constitutional Court had dismissed the appeal without the necessity for dealing with the horizontality issue, the referral on that issue remained to be dealt with by the Court. (Paragraph [30].)

The Court then considered question(b ) above.
Held(per Kentridge AJ; Chaskalson P, Ackermann J, Mokgoro J, Langa J, O'Regan J B

and Sachs J concurring; Mahomed DP and Madala J concurring but for different reasons),
that the word 'law' in s 7(2) of the Constitution (which provides that chapter 3 applies to
'all law in force and all administrative decisions taken and acts performed during the
period of operation of this Constitution') included the common law. Chapter 3
accordingly affected or might affect the common law. (Paragraph [44].)

Held , further, that s 7(1) (which states that chapter 3 binds all legislative and executive C

organs of State at all levels of government) meant that chapter 3 was intended to be
binding only on the legislative and executive organs of State. Had the intention been to
give it a more extended application, that could readily have been expressed and would
not have been left to be implied. A further indication that a general horizontal application
was not intended was s 33(4) (which provides that chapter 3 'shall not preclude measures
designed to prohibit unfair discrimination by bodies and persons other than those bound
in D terms of s 7(1)') since, if chapter 3 had a general horizontal application, there could
be no bodies and persons who were not bound by its provisions. Similarly, s 35(3) (which
provides that in 'the interpretation of any law and the application and development of the
common law and customary law, a court shall have due regard to the spirit, purport and
objects of this chapter') would be unnecessary if chapter 3 could directly be applied to
common law disputes between private litigants. (Paragraphs [45]-[46].)

Held , further, that the absence of reference to the Judiciary in s 7(1) had not been an E
oversight, but operated to exclude the equation of a judgment of a Court with State
action. (Paragraph [47].)
Held , accordingly, that:
(a)constitutional rights under chapter 3 may be invoked against an organ of
government but not by one private litigant against another;
(b)in private litigation any litigant may nonetheless contend that a statute (or
executive act) relied on by the other party is invalid as being inconsistent with F the
limitations placed on the Legislature and Executive under chapter 3;
(c)as chapter 3 applies to the common law, governmental acts or omissions in reliance
on the common law may be attacked by a private litigant as being inconsistent with
chapter 3 in any dispute with an organ of government. (Paragraph [49].)
The Court then considered questions (i) and (ii) above.
Held(per Kentridge AJ; Chaskalson P, Ackermann J, Mokgoro J, Langa J, O'Regan J G

and Sachs J concurring; Mahomed DP and Madala J concurring but for different reasons),
that s 35(3) of the Constitution allowed for the development of the common law and
customary law by the Supreme Court in accordance with the objects of chapter 3. The
subsection introduced the indirect application of the fundamental rights provisions to H
private law. The choice of the words 'have due regard to' in s 35(3) was significant: the
Legislature had not said that Courts should invalidate rules of common law inconsistent
with chapter 3 or declare them unconstitutional. The fact that Courts were to do no more
than have regard to the spirit, purport and objects of the chapter indicated that the
requisite development of the common law and customary law was not to be pursued
through the exercise of the powers of the Constitutional Court under s 98 of the
Constitution. The presence of s 35(3) ensured that the values embodied in chapter 3
would permeate the common law in all its aspects, including private litigation. (Paragraph
[60].)

IHe ld , further, that, while chapter 3 did not have a general direct horizontal application,
it might and should have an influence on the development of the common law as it
governed relations between individuals. It might be open to a litigant in another case to
argue that some particular provision of chapter 3 must by necessary implication have
direct horizontal application. Section 15(1) was not such a provision since no such
implication was necessary. On the other hand, the values embodied by s 15(1) could and
had to be taken into account in the development of the common law of defamation.
(Paragraph J [62].)
1996 (3) SA p855

AH e ld , further, that the phrase 'a court' in s 35(3) meant 'all courts', and included the Appellate Division, notwithstanding the provisions of s 101(5). Any appeal on an issue relating to the development of the common law, once it had been properly raised and dealt with in a Provincial Division, had to be directed to the Appellate Division. The

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