Du Plessis and Others v De Klerk and Another

• Jurisdiction: South Africa
• Citation: 1996 (3) SA 850 (CC)

Du Plessis and Others v De Klerk and Another
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 J and 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.

Flynote : Sleutelwoorde G

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.

Headnote : Kopnota

D During 1993 a newspaper, the Pretoria News, 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 Court a quo refusing the application for leave to amend their plea. The Constitutional Court directed that it required argument on the following issues:

'(a)

B 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...