Khumalo and Others v Holomisa

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O'Regan J, Sachs J, Du Plessis AJ and Skweyiya AJ
• Judgment Date: 14 June 2002
• Docket Number: CCT 53/01
• Hearing Date: 07 May 2002
• Counsel: G J Marcus SC (with him M Chaskalson) for the applicants. F Bezuidenhout for the respondents.
• Court: Constitutional Court

O'Regan J: A

[1] This is an application for leave to appeal against the dismissal of an exception by the Transvaal High Court. The respondent, a well-known South African politician and the leader of a political party, is suing the applicants whom we may assume are responsible for the publication of a newspaper, the Sunday World, for defamation arising out of the publication of an article B with their newspaper. In the article it was stated, amongst other things, that the respondent was involved in a gang of bank robbers and that he was under police investigation for this involvement.

[2] The applicants excepted to the respondent's particulars of claim. Put simply, they averred that, given that the contents of the C statement were matters in the public interest, the failure by the respondent to allege in his particulars of claim that the statement was false rendered the claim excipiable in that it failed to disclose a cause of action. They based their exception on two separate grounds: the direct application of s 16 of the Constitution, which protects the D right to freedom of expression, and alternatively on the common law, asserting that it should be developed to promote the spirit, purport and objects of the Bill of Rights as contemplated by s 39(2) of the Constitution. [1]

[3] The exception also stipulated that the obligation imposed upon a plaintiff to establish the falsity of a defamatory statement did E not apply to all plaintiffs in all defamation actions but only in certain actions. The exception in this regard was based on two alternative formulations as the following excerpt indicates:

'7. It is inconsistent with s 16 of the Constitution to permit a plaintiff to recover damages for the publication of a statement F relating to matters of public interest, alternatively to matters of political importance, alternatively to the fitness of a public official for public office, alternatively to the fitness of a politician for public office, in circumstances where that plaintiff does not allege and prove the falsity of the statement in question. G

Alternatively to para 7 above

8. It is inconsistent with s 16 of the Constitution to permit a politician, alternatively a public official, to recover damages for the publication of a statement relating to matters of public interest, alternatively to matters of political importance, alternatively to his H fitness for public office, in circumstances where he does not allege and prove the falsity of the statement in question.'

The exception averred therefore that the particulars were excipiable either because the defamatory statement in question relates to matters of public interest or importance or concerns the fitness of a politician for I

O'Regan J

public office; or because the plaintiff is a politician or public official and the defamatory statement relates to matters of A public importance or interest.

[4] The exception crisply raised the question whether the common law of defamation as developed by our courts is inconsistent with the Constitution. In particular, it raised the question whether, to the extent that the law of defamation does not require a plaintiff in a B defamation action to plead that the defamatory statement is false in any circumstances, the law limits unjustifiably the right to freedom of expression as enshrined in s 16 of the Constitution. The applicants are therefore asserting that the elements of the law of defamation in South Africa should, in certain circumstances, include a requirement C that the defamatory statement be false. The applicants are therefore asserting that the right of freedom of expression in s 16 is directly applicable in this case despite the fact that the litigation does not involve the State nor any organ of State. This is a matter which will be considered later in this judgment. D

[5] Van der Westhuizen J in the High Court, having considered the matter fully, dismissed the exception, [2] holding himself bound by the decision of the Supreme Court of Appeal in National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA) (1999 (1) BCLR 1). Prior to instituting an application for leave to appeal directly to this Court against the dismissal of the E exception, the applicants then sought and were granted a certificate from the High Court. The respondent opposed their application for leave to appeal.

Application for leave to appeal to this Court: Is the dismissal of an exception appealable? F

[6] It was common cause between the parties that the decision by the High Court was not one which could be appealed to the Supreme Court of Appeal. Appeals to that Court are governed, amongst other provisions, by s 168(3) of the Constitution and ss 20(1) and 21(1) of the Supreme G Court Act 59 of 1959. The Supreme Court of Appeal has held that these provisions mean that appeals will lie against decisions which have the following three attributes: they must be final in effect and not susceptible of alteration by the court of first instance; they must be definitive in some respect of the rights of the parties; and they must have the effect of disposing of a substantial portion of the relief claimed. [3] Applying these criteria, the High Court H held that, where an exception which avers that a pleading does not disclose a cause of action or defence is upheld, an appeal will lie because the success of such an exception will

O'Regan J

result in the failure of the relevant cause of action or defence. However, where an exception is A not upheld, an appeal will not lie because it does not meet the criteria enumerated above. [4] In a recent case, the Supreme Court of Appeal has pertinently declined to reconsider the question of the appealability of decisions dismissing exceptions. [5]

[7] The question as to what decisions may be appealed to this Court is governed by s 167(6) of the Constitution and the Rules of B this Court. Section 167(6) provides that:

'National legislation or the Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court -

(a)

to bring a matter directly to the Constitutional Court; or C

(b)

to appeal directly to the Constitutional Court from any other court.' [6]

Appeals are governed by Rules 18, 19 and 20 of the Rules of this Court. The relevant rule for the purposes of this case is Rule 18, which provides that:

'(1) The procedure set out in this Rule shall be followed in an application for leave to appeal directly to the Constitutional Court D where a decision on a constitutional matter, other than an order of constitutional invalidity under s 172(2)(a) of the Constitution, has been given by any court other than the Supreme Court of Appeal. . . .'

(My emphasis.) The question whether an appeal may lie to this Court E against the dismissal of an exception by a High Court then depends on whether such dismissal constitutes a 'decision on a constitutional matter' as contemplated by Rule 18 and, if it does, whether it is 'in the interests of justice' - the standard set by s 167(6) of the Constitution - for this Court to hear the appeal.

[8] Although it could be argued that the word 'decision' in Rule 18 should be given a meaning equivalent to the meaning given to F the words 'judgment or order' in s 20(1) of the Supreme Court Act by the Supreme Court of Appeal, this would not be appropriate. The Constitution intends that the interests of justice (coupled with leave of this Court) be the determinative criterion for deciding when appeals should be entertained by this Court. This Court has already developed G guiding principles to interpret the phrase. [7] Were the Court to adopt a restricted meaning of 'decision' in Rule 18 in the light of a range of policy

O'Regan J

considerations relevant to determining when a matter should be the subject of an appeal, it would be adopting A a test different to that proclaimed by the Constitution. All the considerations which have led the Supreme Court of Appeal to adopt a limited interpretation of the words 'judgment or order' as contemplated by s 20 of the Supreme Court Act can be accommodated in the 'interests of justice' criterion. Thus, it will often not be in the interests of justice for this Court to entertain appeals against B interlocutory rulings which have no final effect on the dispute between the parties.

[9] The question to be considered then is whether the order made by Van der Westhuizen J on 8 December 2000 dismissing the exception raised by the applicants constitutes a 'decision on a constitutional matter'. The exception was based squarely on the C applicants' constitutional right to freedom of expression and it raised the question of whether the common law of defamation is an unjustifiable limitation of those rights. In considering and then dismissing the applicants' contentions, the Judge was clearly concerned with a constitutional matter and his order constitutes a D decision on such a matter as contemplated by Rule 18.

[10] The next question is whether it is in the interests of justice for leave to be granted to the applicants to appeal against the order dismissing the exception before the trial had started. In answering this question it is necessary to take into account, amongst other things, the following considerations: the nature of the exception E and, in particular, the effect that upholding the exception may have upon the trial proceedings in the High Court; the extent to which the exception raises the question of the development of the common law in which case a decision by the Supreme Court of Appeal on the matter may be desirable before the case is heard by this F Court; [8] whether the matter is appealable to the Supreme Court of Appeal; the stage of the proceedings...