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

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

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

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

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