Khumalo and Others v Holomisa

• Jurisdiction: South Africa
• Citation: 2002 (5) SA 401 (CC)

Khumalo and Others v Holomisa
2002 (5) SA 401 (CC)

2002 (5) SA p401

Citation	2002 (5) SA 401 (CC)
Case No	CCT 53/01
Court	Constitutional Court
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
Heard	May 7, 2002
Judgment	June 14, 2002
Counsel	G J Marcus SC (with him M Chaskalson) for the applicants.; F Bezuidenhout for the respondents.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right to freedom of expression — Defamation — Whether right to freedom of expression unjustifiably limited by common-law defamation to extent that plaintiff not required to plead falsity of defamatory statement, regardless of circumstances — Freedom of expression, though fundamental, not a C paramount value in context of Constitution of the Republic of South Africa Act 108 of 1996 — Right to be construed in context of other values enshrined in Constitution — Recognition and protection of human dignity a foundational constitutional value — Constitutionality of common law of defamation requiring that appropriate balance be struck D between freedom of expression and value of human dignity — Common law of defamation one aspect of law supporting protection of human dignity to extent of its seeking to protect individuals' legitimate interest in their reputations — Difficulty of proving truth or otherwise of defamatory statements and common-law rule burdening defendant with risk of failure to establish truth causing 'chilling effect' on right to freedom of expression — Defence of 'reasonable publication' E developed in National Medial Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA) striking appropriate balance between plaintiff's right to human dignity and defendant's right to freedom of expression by avoiding zero-sum game resulting from burdening either plaintiff or defendant with proving defamatory statement false or F true respectively where proof impossible — Common law of defamation as developed in Bogoshi not inconsistent with Constitution — Constitution, ss 1 and 16.

Constitutional practice — Appeal — To Constitutional Court — Against dismissal in High Court of exception to particulars of claim — Whether appeal lying to Constitutional Court depending upon whether dismissal G

2002 (5) SA p402

constituting 'decision on a constitutional matter' as required by Rule 18 of Constitutional Court Rules and, if so, whether 'in the A interests of justice' as contemplated by s 167(6) of Constitution of the Republic of South Africa Act 108 of 1996 for Constitutional Court to hear appeal — 'Decision' in Rule 18 not bearing equivalent meaning to 'judgment or order' in s 20(1) of Supreme Court Act 59 of 1959 — Limited interpretation of 'judgment or order' adopted by B Supreme Court of Appeal accommodated in 'interests of justice' criterion — Factors to be taken into account in deciding whether in interests of justice to grant leave to appeal against dismissal of exception before trial starting enumerated — In casu, media defendants excepting to particulars of claim on grounds that common C law of defamation, to extent of not requiring plaintiff to plead falsity of defamatory statement, regardless of circumstances, unjustifiably limiting right to freedom of expression — Court concluding that High Court's dismissal of exception a decision on constitutional matter and that granting leave to appeal in interests of justice.

Constitutional law — Human rights — Application of — Direct application of D to common law, whether or not State a party to litigation — Section 8(1) and (2) of Constitution of the Republic of South Africa Act 108 of 1996, read together, not to be interpreted as meaning that common law falling under direct application of Constitution in all circumstances.

Constitutional law — Human rights — Application of — Right to freedom of expression having direct horizontal application as contemplated in s 8(2) of Constitution of the Republic of South Africa Act 108 of 1996 E to common law of defamation — Constitution, ss 8(2) and 16.

Headnote : Kopnota

The respondent, a politician and leader of a political party, had sued the applicants for defamation arising from the publication of an article in a newspaper in which it was stated, among other things, F that the respondent had been involved with a gang of bank robbers and was under police investigation for such involvement. The applicants excepted to his particulars of claim as disclosing no cause of action on the grounds that, given that the defamatory statement in question related to matters of public interest or importance or concerned the fitness of a politician for public office, alternatively that the G respondent was a politician or public official and the defamatory statement related to matters of public importance or interest, the respondent had been obliged to allege and establish the falsity of the statement, and had failed to do so. The applicants' case was that the common law of defamation, to the extent that it did not require a plaintiff to plead that the defamatory statement was false, regardless of the circumstances, unjustifiably limited the right to freedom of H expression as enshrined in s 16 of the Constitution of the Republic of South Africa Act 108 of 1996. A High Court dismissed the exception, holding itself 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) (the Bogoshi case). In an application for leave to appeal directly to the Constitutional Court, I

Held, that whether an appeal lay to the Constitutional Court against the dismissal of an exception by a High Court depended upon whether such dismissal constituted 'a decision on a constitutional matter' as contemplated by Rule 18 of the Constitutional Court Rules and, if it did, whether it was 'in the interests of justice', as contemplated by s 167(6) of the Constitution, for the Constitutional Court to hear the appeal. (Paragraph [7] at 410E - F.) J

2002 (5) SA p403

Held, further, that it would be inappropriate to give the word 'decision' in Rule 18 an equivalent meaning to that of the words A 'judgment or order' in s 20(1) of the Supreme Court Act 59 of 1959 since the Constitution required that the interests of justice (together with the leave of the Constitutional Court) be the determinative criterion for when appeals should be entertained by the Court. All the considerations which had led the Supreme Court of Appeal to adopt a limited interpretation of the words 'judgment or order' in s 20(1) B of the Supreme Court Act could be accommodated in the 'interests of justice' criterion. It would thus often not be in the interests of justice for the Constitutional Court to entertain appeals against interlocutory rulings which would have no final effect on the dispute between the parties. (Paragraph [8] at 410F - 411B/C.)

Held, further, as to whether it was in the interests of justice that leave to appeal be granted against the dismissal of the C exception before the trial had started, that the following were among the considerations to be taken into account: the nature of the exception and, in particular, the effect which upholding it might have on the trial proceedings in the High Court; the extent to which the exception raised the question of the development of the common law, in which case a decision by the Supreme Court of Appeal on the matter might be desirable before the case was heard by the Constitutional D Court; whether or not the matter was appealable to the Supreme Court of Appeal; the stage of the proceedings in the High Court; the importance of a determination of the constitutional issues raised by the exception; and the applicants' prospects of success on appeal. (Paragraph [10] at 411D/E - G.)

Held, further, that, in the circumstances of the case, it would be in the interests of justice for the Constitutional Court to E consider the appeal. (Paragraph [16] at 413D - E.)

Held, further, as to the common law of defamation, that the most commonly raised defences to rebut unlawfulness were that the publication had been true and in the public benefit; that the publication constituted fair comment; and that the publication had been made on a privileged occasion. The Bogoshi case had added a F fourth, allowing media defendants to establish that the publication of a defamatory statement, albeit false, had nevertheless been reasonable in all the circumstances. (Paragraphs [18] and [19] at 414B - D and 415C.)

Held, further, as to the right to freedom of expression, that the mass media played a role of undeniable importance in a democratic society. As primary agents for the dissemination of G information and ideas they were, inevitably, extremely powerful institutions and had a constitutional duty to act with vigour, courage, integrity and responsibility. The Constitution protected them in the performance of their obligations to the broader society, primarily through the provisions of s 16. (Paragraph [24] at 417D/E - G.)

Held, further, however, that freedom of expression, though fundamental, was not a paramount value. It had to be construed in the H context of the other values enshrined in the Constitution, in particular the values of human dignity, freedom and equality. (Paragraph [25] at 417G - H.)

Held, further, that the recognition and protection of human dignity was a foundational constitutional value. (Paragraph [26] at 418D.) Unlike the common law, which in the context of the actio injuriarum separated the causes of action for claims for injuries I to reputation (fama) and dignitas, the constitutional protection of human dignity embraced both the personal sense of self-worth as well as the public's estimation of the worth or value of the...