In the Constitutional Court of South Africa Case No

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO: CCT 8/95

In the matter between :

DU PLESSIS, DEON First Appellant

THE PRETORIA NEWS (PTY) LIMITED Second Appellant

LAUTENBACH, DALE Third Appellant

ALLIED PUBLISHING (PTY) LIMITED Fourth Appellant

and

DE KLERK, C F J First Respondent

WONDER AIR (PTY) LIMITED Second Respondent

THE APPELLANTS' HEADS OF ARGUMENT

^ G J Marcus

Chaskalson WEBBER WENTZEL BOWENS Appellants' Attorneys 60 Main Street JOHANNESBURG REF: PEB REYNOLDS TEL: 832-2636 TABLE OF CONTENTS

INTRODUCTION 1 - 7

OVERVIEW OF APPELLANTS' ARGUMENT 7 - 9

INTERPRETING THE CHAPTER ON

FUNDAMENTAL RIGHTS 10 - 12

FREEDOM OF EXPRESSION AND THE PRESS 13

The Value of Free Expression 13-19

THE IMPACT OF THE AMENDMENT 19 - 26

THE RETROSPECTIVITY ISSUE 26

Absurdity and Injustice 26-31

The meaning of section 241(8) 31 - 32

Retrospectivity and vested rights 32 - 39

THE HORIZONTALITY ISSUE 39

Introduction 39 - 41

Absurdity and Injustice 41 - 51

The wording of the Constitution 51-56

The effect of section 7(2) of the Constitution 56 - 62

The horizontal application of section 15 of the Constitution 62 - 66

THE EFFECT OF SECTION 35(3) OF THE CONSTITUTION 66 - 70 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO: CCT 8/95

In the matter between :

DU PLESSIS, DEON First Appellant

THE PRETORIA NEWS (PTY) LIMITED Second Appellant

LAUTENBACH, DALE Third Appellant

ALLIED PUBLISHING (PTY) LIMITED Fourth Appellant and

DE KLERK, C F J First Respondent

WONDER AIR (PTY) LIMITED Second Respondent

APPELLANTS' HEADS OF ARGUMENT

INTRODUCTION

1 The respondents (plaintiffs in the court below) instituted action for defamation

against the appellants (defendants in the court below) arising out of the

publication of a series of articles and a cartoon in the Pretoria News between 2 26 February 1993 and 11 March 1993. The articles and cartoon are annexed

to the particulars of claim as annexures A - F. It is alleged that the articles

and the cartoon were defamatory of the respondents.

Particulars of Claim, 7-13 paras 8-17

2 The first respondent claimed damages in the amount of R750 000,00 and the

second respondent claimed damages in an amount of R5m.

Particulars of Claim, 13 para 18

3 The subject matter of the articles and cartoon giving rise to the claim, broadly

concern the civil war in Angola. In this regard, it is common cause that;

3.1 The civil war in Angola has been a matter of national and international

interest for the past 18 years and has received widespread and on-going

publicity in the South African media as well as the international media.

3.2 The publicity given to the civil war in Angola in the media generally

and the South African media in particular, has included the following:

3.2.1 Allegations that the South African government was 3 providing direct or indirect support to the Unita

movement and the responses to such allegations;

3.2.2 Attempts to achieve peace in Angola and particularly the

events leading up to and following elections held in

Angola in September 1992 in which the MPLA under the

leadership of President Dos Santos achieved victory;

3.2.3 The resumption of hostilities in Angola following Unita's

rejection of the outcome of the aforesaid election;

3.2.4 Allegations, speculation and opinion concerning the

manner in which Unita was able to resume and maintain

hostilities against the MPLA and in particular,

allegations that the government of South Africa and

South African concerns were supporting Unita.

3.3 During or about the first week of March 1993, the South African

Department of Foreign Affairs summoned a number of private air

operators, including the respondents, to a meeting at which they were

informed, inter alia, of suspicions that individual companies might be

fueling the war in Angola and that the Department was keeping an eye

on such activities. 4

Plea, 26-27 paras 12.1-12.3

Replication, 35 para 5.1

4 It is common cause that:

4.1 The articles and cartoon in question were published before the coming

into operation of the Constitution of the Republic of South Africa (Act

200 of 1993) ("the Constitution11);

4.2 The facts giving rise to the respondents' claim occurred before the

coming into operation of the Constitution;

4.3 The summons and original unamended plea were served before the

coming into operation of the Constitution;

4.4 The trial of the merits of the respondents' case has not yet been heard.

5 After the coming into operation of the Constitution, the appellants gave notice

of their intention to amend their plea in the following way:

"By the insertion after paragraph 12.14 of the following:

'12.15 In addition to the aforegoing, the publication of the article was not unlawful by reason of the protection afforded to the defendants by section 15 of the Constitution of the Republic of South Africa (Act 200 of 1993) which provides:

'(15) (1) Every person shall have the right to freedom of speech and expression, which shall include freedom of the press and other media, and the freedom of artistic creativity and scientific research.'

More particularly:

12.15.1 The articles in question were published against the background and in the circumstances described in paragraphs 12.1 -12.9 hereof in good faith and without the intention of defaming the plaintiffs.

12.15.2 The articles concern matters of public interest and were published pursuant to a duty to keep members of the public informed of facts, opinions and allegations concerning the on- going civil war in Angola and a corresponding right or legitimate interest on the part of readers of the Pretoria News to be informed of such facts, opinions and allegations.

12.16 By virtue of the facts and contentions set out in paragraph 12.15, the publication of the said articles were not unlawful and such publication is protected by section 15 of the Constitution."

Notice of Intention to Amend 39-40 6 6 The respondents opposed the amendment. In a judgment delivered on 10

November 1994, Van Dijkhorst J dismissed the application for amendment.

Two grounds for dismissal were advanced:

6.1 The court held that section 241(8) of the Constitution "precludes

retrospective operation of the Constitution" and it therefore followed

that "the proposed amendment will be excipiable on this ground".

Judgment 53

6.2 The court also held that "the fundamental rights set out in Chapter

3 of the Constitution are intended to be of vertical operation only".

Consequently, "the reliance of the defendants on section 15 of the

Constitution in this dispute between private litigants is unfounded.

The proposed amendment would be excipiabie and should on that

ground also be dismissed."

Judgment 69-70

(The judgment of the court below is reported in 1995 (2) SA 40 (T)

and 1995 (6) BCLR 124 (T)

7 On 9 June 1995, leave to appeal to the Constitutional Court was granted against 7 the whole of the judgment and order handed down by Van Dijkhorst J. In

addition, the Court referred the issues in dispute to the Constitutional Court in

terms of section 102(8) of the Constitution.

8 In terms of directions given by the President of this court, argument is required

on the following issues:

8.1 Whether the defendants are entitled to invoke the provisions of the

Constitution notwithstanding that publication of the offending material

had already occurred and/or action was instituted and/or all relevant

facts had occurred before the Constitution came into operation. ("The

retrospectivity issue").

8.2 Whether the provisions of Chapter 3 of the Constitution and more

particularly section 15, are capable of application to any relationship

other than that between persons and legislative or executive organs of

state at all levels of government. ("The horizontality issue").

OVERVIEW OF APPELLANTS' ARGUMENT

The appellants' argument addresses the following propositions: 9.1 With regard to the retrospectivity issue it will be contended that on a

proper interpretation of the Constitution -

9.1.1 Section 241(8) of the Constitution does not preclude the

invocation of the Constitution in circumstances such as

the present;

9.1.2 The presumption against retrospectivity and interference

with vested rights does not apply to circumstances such

as the present;

9.1.3 Alternatively, the provisions of section 35(3) permit the

invocation of the Constitution.

9.2 With regard to the horizontality issue, it will be contended that on a

proper interpretation of the Constitution:

9.2.1 The Constitution is capable of application to a dispute

between private parties concerning the common law since

section 7(2) makes the Constitution applicable to "all law

in force";

9.2.2 Alternatively, section 15 of the Constitution applies to a 9 dispute between private parties concerning the law of

defamation;

9.2.3 Further alternatively, section 35(3) of the Constitution

requires the development of the common law of

defamation to be in accordance with the spirit, purport

and objects of Chapter 3 of the Constitution.

9.3 Whether or not the Constitution applies directly or indirectly by virtue

of section 35(3), the appellants require their plea to be amended. The

amendment sought impacts directly upon various rules of the common

law relating to defamation and the capacity of the appellants to defend

the claim instituted against them.

9.4 In developing the arguments outlined above, we address the principles

of constitutional interpretation applicable to a case such as the present

and then analyse the nature and ambit of the guarantee of freedom of

expression enshrined in section 15 of the Constitution. The

retrospectivity issue and the horizontality issue are then considered in

the light of the applicable principles. Since the impact of section 35(3)

arises in respect of both issues, this will be considered separately. 10

INTERPRETING THE CHAPTER ON FUNDAMENTAL RIGHTS

10 The Constitutional Court has adopted certain principles of constitutional

interpretation for its guidance.

10.1 It has endorsed the approach of Lord Wilberforce in the Privy Council

judgment of Minister of Home Affairs (Bermuda) and Ano. v.

Collins McDonald Fisher & Ano. 1980 AC 319 at 328 E - 328 H:

"Here, however, we are concerned with a Constitution, brought into force certainly by Act of Parliament, the Bermudan Constitution Act 1967 of the United Kingdom, but established by a self-contained document. ... It can be seen that this instrument has certain special characteristics. 1. It is, particularly in chapter 1, drafted in broad and ample style which lays down principles of width and generality. 2. Chapter 1 is headed 'Protection of Fundamental Rights and Freedoms of the Individual'. It is known that this chapter, as similar portions of other constitutional instruments drafted in the post-colonial period, ... was greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) It was in turn influenced by the United Nation's Universal Declaration of Human Rights of 1948. These antecedents, and the form of chapter 1 itself, call for a generous interpretation, avoiding what has been called 'the austerity of tabulated legalism,' suitable to give to individuals the full measure of the fundamental rights and freedoms referred to." (Our emphasis).

10.2 It has also followed the approach of the Canadian Supreme Court in R

v. Big M Drug Mart Ltd 13 CRR 64 where Dickson CJ stated at 103:

L 11 "The meaning of a right or freedom guaranteed by the Charter is to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. ... This analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the context of the Charter. The interpretation should be ... a generous rather than a legalistic one, aimed at fulfilling the purpose of a guarantee and securing for individuals the full benefit of the Charter's protection." (Our emphasis).

S v Zuma & Others 1995 (2) SA 642 (CC) at 650 H - 6511

S v Makwanyane & Mchunu 1995 (6) BCLR 665 (CC) at 676-677, paras 9-10

S v Williams & Others (Constitutional Court, Case NO. CCT/20/94, 9 June 1995, unreported) at 25-27 paras. 51-54

11 For purposes of the present appeal, the appellants rely also upon the principles

articulated by Mahomed J in S v Mhlungu (Constitutional Court, Case No.

CCT/25/94, 8 June 1995, unreported) at para 8 where the learned Judge

stated that the Constitution should be so interpreted so as not to "negate the

very spirit and tenor of the Constitution and its widely acclaimed and

celebrated objectives." The learned judge stated further:

"Fundamental to that spirit and tenor was the promise of the equal protection of the laws to all the peoples of this country and a ringing and decisive break with a past which perpetuated inequality and irrational discrimination and arbitrary governmental and executive 12

action. The literal interpretation would invade all these objectives in its arbitrary selection of one category of persons who would become entitled to enjoy the human rights guarantees of the Constitution and the arbitrary exclusion of another group of persons from such entitlement. The courts must strive to avoid such a result if the language and context of the relevant provision, interpreted with regard to the objectives of the Constitution, permits such a course. What must be avoided, if this is a constitutionally permissible course, is a result which permits human rights guaranteed by the Constitution to be enjoyed by some people and denied arbitrarily to others. Such a consequence would effectively allow substantive parts of a disgraced and unacceptable culture from the past to continue into a future, protected by the Constitution."

See also:

Jersild v Denmark (1995) 19 EHRR 1 para. 31

14.8 Freedom of expression is guaranteed in the major international human

rights instruments:

14.8.1 Article 19 of the Universal Declaration of Human

Rights;

14.8.2 Article 19 of the International Covenant on Civil and

Political Rights;

14.8.3 Article 10 of the European Convention on Human

Rights.

14.9 Similarly, the guarantee of freedom of expression is found in the

Constitutions of most democracies.

14.9.1 First Amendment to the United States Constitution;

14.9.2 Article 2 of the Canadian Charter of Rights; 19 14.9.3 Article 5 of the German Constitution;

14.9.4 Article 21 of the Namibian Constitution;

14.9.5 Article 19 of the Indian Constitution.

THE IMPACT OF THE AMENDMENT

15 The amendment to the plea sought to be introduced by the appellants impacts

directly upon various rules of the common law relating to defamation. The

development of the South African law of defamation has hitherto proceeded in

the absence of a constitutional guarantee of freedom of expression and the

press.

16 The present state of the common law has resulted in the following rules:

16.1 The press (including the editor, publisher and printer) is strictly liable

for the publication of defamatory matter.

Pakendorf v De Flamingh 1982 (3) SA 146 (A) 20 16.2 The press enjoys no special privilege.

Neethling v Du Preez 1994 (1) SA 708 (A)

16.3 The public interest has been narrowly defined.

Financial Mail (Pty) Ltd v Sage Holdings Ltd & Ano. 1993 (2) SA 451 (A)

16.4 A defendant who raises a defence going to the lawfulness of the

publication, including justification, fair comment and privilege bears a

full onus.

Neethling v Du Preez 1994 (1) SA 708 (A)

17 These rules of the common law are strikingly at odds with the way in which

the common law of libel has developed in the United States in terms of the

guarantees enshrined in the first amendment to the Constitution.

18 The philosophical and political underpinnings of a system which respects and

protects freedom of expression were articulated in New York Times Co. v.

Sullivan (376 US 254), a landmark decision concerning the law of defamation.

Justice Brennan delivered the opinion of the Court. His words justify 21 substantial quotation:

"The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, 'was fashioned to ensure unfettered interchange of ideas for the bringing about of political and social changes desired by the people'. Roth v. United States, 354 US 476, 484. 'The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.' Stromberg v. California, 283 US 359, 369. '[T|t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions,' Bridges v. California, 314 US 252, 270, and this opportunity is to be afforded for 'vigorous advocacy* no less than 'abstract discussion'. NAACP v. Button 371 US 415, 429.

The First Amendment, said Judge Learned Hand, 'presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.' United States v. Associated Press, 52 F.Supp.362,372. ... Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 US 357, 375 - 376, gave the principle its classic formulation:

'Those who won our independence believed ... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognised the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -the argument of force in its worst form. Recognising the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and 22 assembly should be guaranteed'.

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... Authoritative interpretations of the First Amendment guarantees have consistently refused to recognise an exception for any test of truth, whether administered by judges, juries, or administrative officials - and especially not one that puts the burden of proving truth on the speaker. ... The constitutional protection does not turn upon 'the truth, popularity, or social utility of the ideas and beliefs which are offered'. NAACP v. Button, 371 US 415, 445. As Madison said, 'some degree of abuse is inseparable from the proper use of everything; and in no instance is this more true than in that of the press."' (at 269-271).

19 In Gertz v Robert Welch 418 US 323, the Court took the opportunity of

reiterating certain basic principles. Justice Powell, delivering the opinion of

the Court, stated at 339 - 341:

"Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in 'uninhibited, robust and wide-open' debate on public issues. ...

Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable hi free debate. ... And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press- Our decisions recognise that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self- censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in 23 New York Times Co. v Sullivan, supra, at 279:

'Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.'

The First Amendment requires that we protect some falsehood in order to protect speech that matters.

The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. ... Yet absolute protection for the communications media requires a total sacrifice of the competing values served by the law of defamation.

The legitimate State interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose. ..."

20 In Philadelphia Newspapers Inc v. Hepps 475 US 767; 89 L Ed 2d 783 the

Court observed at 792 - 3:

"Here, as in Gertz, the plaintiff is a private figure and the newspaper articles are of public concern. In Gertz, as in New York Times, the common law rule was superseded by a constitutional rule. We believe that the common law's rule on falsity - that the defendant must bear the burden of proving truth - must similarly fall here to a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.

There will always be instances when the factfinding process will be unable to resolve conclusively whether the speech is true or false; it is in those cases that the burden of proof is dispositive. Under a rule forcing the plaintiff to bear the burden of showing falsity, there will be some cases in which plaintiffs cannot meet their burden despite the fact that the speech is in fact false. The plaintiffs' suit will fail despite the fact that, in some abstract sense, the suit is 24 meritorius. Similarly, under an alternative rule placing the burden of showing truth on defendants, there would be some cases in which defendants could not bear their burden despite the fact that the speech is in fact true. Those suits would succeed despite the fact that, in some abstract sense, those suits are unmeritorius. Under either rule, then, the outcome of the suit will sometimes be at variance with the outcome that we would desire if all speech were either demonstrably true or demonstrably false.

This dilemma stems from the fact that the allocation of the burden of proof will determine liability for some speech that is true and some that is false, but all of such speech is unknowably true or false. Because the burden of proof is the deciding factor only when the evidence is ambiguous, we cannot know how much of the speech affected by the allocation of the burden of proof is true and how much is false. In a case presenting a configuration of speech and plaintiff like the one we face here, and where the scales are in such an uncertain balance, we believe that the Constitution requires us to tip them in favour of protecting true speech. To ensure that true speech on matters of public concern is not deterred, we hold that the common law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern."

21 It has been recognised that the law of defamation does not simply serve to deter

the publication of falsehood. On the contrary, it has been recognised as

having a "chilling effect" on publication of matter that is true. This has been

affirmed by the highest courts in the United States, the United Kingdom and

Australia:

21.1 In New York Times v Sullivan (1964) 376 US 254 Brennan J stated at

254:

"Under such a rule, would be critics of official conduct may be deterred from voicing their criticism, even though it is 25 believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so."

21.2 In Derbyshire County Council v Times Newspapers [1993] 1 ALL

ER 1011 (HL) Lord Keith stated at 1018:

"What has been described as 'the chilling effect' induced by the threat of civil actions for libel is very important. Quite often the facts that would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public/'

21.3 In Theophanous v Herald & Weekly Times (1994) 124 ALR 1 Mason

CJ stated at 25-26:

"It is often difficult to prove the truth of the alleged libel in its particulars. And the necessity of proving truth as a defence may well deter a critic from voicing criticism, even if it be true, because of doubt whether it can be proved or fear of the expense of having to do so."

Deane J stated at 54:

"... there will inevitably be cases where problems of proof by admissible evidence result in a defendant being held liable in damages for publishing a statement which was in fact true. To that disincentive of the publication of even well-founded damaging statements must be added the disincentive of the legal costs which a successful defendant will commonly and 26 an unsuccessful defendant will almost inevitably be required to bear."

THE RETROSPECTIVITY ISSUE

Absurdity and Injustice

0 22 The circumstances giving rise to the retrospectivity issue in S v Mhlungu and

the present case are not materially different, save that the former was a

criminal case involving a statutory enactment.

22.1 In both cases, the facts giving rise to the prosecution and the institution

of action occurred before the coming into operation of the Constitution.

22.2 In both cases, the issues were "pending" when the Constitution came

into operation.

22.3 In both cases, the trial of the merits did not occur prior to the coming

into operation of the Constitution.

23 In S v Mhlungu, the majority of the Court was moved by considerations of the

injustice which would flow from an interpretation of section 241(8) which

arbitrarily selected "one category of persons who would become entitled to 27 enjoy the human rights guarantees of the Constitution and the arbitrary exclusion of another group of persons from such entitlement." That case concerned the validity of a statutory enactment. The examples of absurdity and injustice apply equally to a case such as the present.

23.1 The very articles which are the subject matter of the present civil action

could, theoretically, have formed the basis of a prosecution for the

common law offence of criminal defamation.

Cf. S v MacDonald 1953 (1) SA 107 (T)

This common law offence is arguably at odds with the requirements of

the Constitution.

Cf. Gleaves v Deakin [1979] 2 ALL ER 497 (HL) at 498 f

23.2 A prosecution for contempt of court may have arisen prior to the

coming into operation of the Constitution but heard only after its

inception. Here again, it is strongly arguable that the common law

offence is at odds with the guarantee of freedom of expression in the

Constitution.

Cf. S v Harber & Ano. 1988 (3) SA 396 (A) at 419 D - 422 H 28

The Sunday Times v The United Kingdom 2 EHRR 245

Bridges v California 314 US 252

23.3 Prosecution might have been instituted for the common law offence of

blasphemy prior to the coming into operation of the Constitution. Such

an offence is also arguably in conflict with the Constitution.

Cf. R v Webb 1934 AD 493

24 Following S v Mhlungu, it is clear that in all three of the above examples, the

criminal accused would have been able to invoke section 15 of the Constitution

in his or her defence notwithstanding the fact that the prosecution (and indeed

the trial itself) had commenced prior to the coming into operation of the

Constitution. In S v Mhlungu, it is clear that the majority considered that the

Constitution could be invoked even in circumstances where the trial had

commenced before 27 April 1994.

S v Mhlungu: Mahomed J at paras 23, 25, 30, 33, 39 and 46 Kriegler J at para 95 Sachs J at paras 131 and 132

25 That the present case is civil in character and not criminal does not detract

from the arguments concerning absurdity and injustice. In S v Mhlungu

Kentridge J contemplated the example of a by-law which conferred rights on 29 a racially discriminatory basis. If the constitution is deemed not to have retrospective operation in civil matters, a defendant who was sued on the basis of such a racially discriminating by-law one day before 27 April 1994 would not be entitled to claim the protection of section 8 of the Constitution, while a defendant in exactly the same situation who was sued two days later would have an absolute defence in section 8. The full panoply of racially discriminatory primary and subordinate legislation which still survives is impossible to determine without a mechanical sifting of all such legislation.

The existence of such laws is not, however, far-fetched. There remains in force a number of racially discriminatory statutes, of which the following are but examples:

25.1 Section 1 of the Education Affairs Act (House of Assembly) 70 of 1988

defines "education" as "instruction, teaching or training provided to

White pupils in terms of this Act".

25.2 Section 16(l)(a) of the General Pensions Act 29 of 1979 provides:

"For the purposes of any law relating to social pensions in the case of a White person or a Coloured person who is a South African citizen or an Indian who immediately before 26 October 1976 complied with all the requirements of such law relating to citizenship or residence in the Republic, and who is resident in any country or area which, immediately before such date, was a part of the Republic and which has been designated by the Minister by notice in the Gazette for the purposes of this section such person shall be deemed to be resident in the Republic." 30 25.3 The presumption created by section 16 of the General Pensions Act 29

of 1979 must be read with a variety of other statutes which make

residence in the Republic a requirement for the right to claim a pension:

See section 7(1) of the Aged Persons Act 81 of 1967

section 3 of the Social Pensions Act 37 of 1973

section 3 of the War Veterans Pensions Act 25 of 1968

section 5 of the Blind Persons Act 26 of 1968

25.4 In terms of section 1A(3) of the Education Policy Act 39 of 1967, "the

training of white persons as teachers for primary and pre-primary

schools shall be provided at a college of education or a university."

In terms of section 1A(1), "the training of white persons as teachers

for secondary schools may be provided at a university only."

26 It is submitted that there are countless other examples of absurdity and injustice

which would flow from an interpretation that the Constitution has no

retrospective operation, whether in civil or criminal matters. We address later

certain instances of common law rules which are at odds wih the Constitution.

It is entirely conceivable that civil litigation between private parties concerning

such common law rules could have arisen before the Constitution came into

effect. The injustice which would flow from insulating those cases from

constitutional scrutiny are no less stark than the examples referred to by 31

Mahomed J in S v Mhlungu.

The meaning of section 241 (8)

27 In S v Mhlungu, Mahomed J (in whose judgment Langa J, Madala J, Mokgoro

J and O'Regan J concurred) held that the sole purpose of s 241(8) was to

prevent an attack on the validity of the continuation of pending proceedings

after 27 April 1994 on the grounds that the courts hearing such proceedings

lacked the constitutional authority to do so.

S v Mhlungu at paras 21 - 24 and 30.

28 Kriegler J, held that the sole purpose of s 241(8) was to designate which courts

should deal with cases which were pending on 27 April 1994.

S v Mhlungu at paras 95 and 100.

29 Both Mahomed J and Kriegler J expressly held that s 241(8) does not relate to

the substantive law to be applied by courts in proceedings which were pending

on 27 April 1994.

S v Mhlungu: Mahomed J at para 24; Kriegler J at para 95 32 30 As indicated above, Mahomed J, Kriegler J and Sachs J all expressly

recognised that the fact that proceedings had actually commenced before the

coming into operation of the Constitution, did not detract from the application

of the Constitution after 27 April 1994.

31 Thus a majority of this court decided in Mhlungu that s 241(8) of the

Constitution has no bearing on the substantive law to be applied in cases which

were pending on 27 April 1994. Moreover, Mahomed J (at para 33) expressly

rejected the suggestion of Kentridge AJ (at para 83) that "the tension between

Chapter 3 and section 241(8) is likely to arise only in the respect of the fair

trial requirements of section 25(3)." Mahomed J was of the view that, "the

Constitutional attacks on capital punishment, corporal punishment, civil

imprisonment for debt and statutes founded on unfair racial

discrimination, for example, are legally vulnerable without any reliance on

section 25(3)."

Retrospectivity and Vested rights

32 Since section 241(8) of the Constitution does not prevent the invocation of the

Constitution in cases which were pending on 27 April 1994, it remains to 33

consider whether anything else stands in the way of reliance on the Constitution

by the appellants. The directions from the court in this regard require

argument on whether or not the Constitution may be invoked notwithstanding

the fact that publication of the offending material had already occurred and/or

action was instituted and/or all relevant facts had occurred before the

Constitution came into operation. It will be submitted that:

32.1 The constitutional text points strongly to the right of the appellants to

invoke the protection of the constitutional guarantees; and

32.2 The presumption against retrospectivity and interference with vested

rights applicable to the interpretation of ordinary statutes, has no

application to a case such as the present.

33 Section 4(1) of the Constitution states the following:

"This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency."

34 It is submitted that there is no warrant for excluding the common law from the

category of "any law." Therefore, the implication of s 4(1) is that as soon as

the Constitution is in effect, any challenged provision of the common law

which is inconsistent with the Constitution shall be invalid to the extent of the 34

inconsistency.

35 In respect of rules of the common law which are inconsistent with provisions

of Chapter 3 of the Constitution, this conclusion is made explicit by s 7 of the

Constitution which governs the application of Chapter 3 of the Constitution.

Section 7(2) provides as follows:

"This Chapter shall apply to all law in force and all administrative decisions taken and acts performed during the period of operation of this Constitution." (emphasis added).

36 Section 7(2) distinguishes between constitutional challenges to administrative

decisions or acts on the one hand and constitutional challenges to law on the

other. The former are allowed only if the decisions or acts in question took

place after 27 April 1994. The latter are allowed if the challenged law is "in

force". The fact that such law might also have existed prior to 27 April 1994

is irrelevant. Rights which vested prior to 27 April 1994 may be impaired if

the law in terms of which they vested is challenged after 27 April 1994.

37 Thus in S v Mhlungu Kentridge J stated of s 7(2):

"These provisions mean that Chapter 3 prima facie has effect as from the commencement of the Constitution even if the result is to impair a vested right. In that sense it is retrospective.

S v Mhlungu (supra) judgment of Kentridge J at para 68. See also the judgment of Kriegler J at paras 90 and 99. 35 38 In the present case the Constitutional claim of the applicants is directed not

against any administrative act or decision but against the rule of the common

law that holds newspapers strictly liable for defamatory publications. If this

rule is an unjustifiable limitation of the applicants' freedom of expression the

effect of s 7(2) is that it must be invalidated, even if such invalidation would

impair a right which had vested prior to 27 April 1994.

39 The majority in S v Mhlungu expressly dealt with the common law

presumption against retrospectivity.

39.1 Mahomed J put the matter thus at paragraphs 37-38:

"37 I have considered whether there is perhaps another rule of interpretation which might in the circumstances of this case justify a result different from the one which I have favoured. The rule I have in mind is the presumption that, unless the contrary intention appears, a statute does not operate retrospectively to impact upon pending proceedings (Bell v Voorsitter van die Rasklassifikasieraad en Andere 1968 (2) SA 678 (A) at 683; Thorn v Moulder 1974 (4) SA 894 (A); Bellairs v Hodnett & Ano 1978 (1) SA 1109 (A) at 1148).

38 On this approach it could be contended that since the Constitution was not in operation when the proceedings became pending within the meaning of section 241(8), an interpretation which compels a Court to apply the Chapter on Fundamental Rights to such proceedings constitutes a breach of this 36 presumption. In my view, this is not a sound argument. In the first place the presumption is not inflexible. It operates only if there is no contrary intention. In a very important sense a document as fundamental as a Constitution can itself be the basis for the inference of such a contrary intention. This is particularly true of the Chapter on Fundamental Rights. The presumption to which I have referred is intended as a protection against an invasion of rights which might have occurred in litigation; it is not intended to exclude the benefits of rights sanctioned by new legislation. Chapter 3 of the Constitution seeks not to invade but to expand rights. The relevant presumption can have scant application in such circumstances (R v Sillas 1959 (4) SA 305 (A) at 311; S v Williams 1979 (3) SA 1270 (C); Van Lear v Van Lear 1979 (3) SA 1162 (W) at 1167 G - H; Dys v Dys 1979 (3) SA 1170 (O)).11

See also Gardener v Whitaker (supra) at 26 C - D

39.2 Following the approach of Kriegler J, it would be particularly

inappropriate to invoke common law presumptions relating to

retrospectivity when interpreting Constitutional provisions relating to the

application of a Bill of Rights:

"I have not dealt with the debate concerning interpretive presumptions regarding retroactivity and retrospectivity in the case of statutory amendments. To my mind the adoption of a Constitution which operates as a supreme law does not fall to be interpreted along such lines. It is not a case of one statute repealing, amending or replacing one or more others. What we are concerned with here is a supreme statute being superimposed on the whole of the existing legal landscape, bathing the whole of it in its beneficent light."

per Kriegler J in S v Mhlungu (supra) at para 99. 37

39.3 Sachs J put the matter thus:

"In any event, a question mark has to be placed over the usefulness of common law presumptions in interpreting the Constitution. As Wilson J pointed out in a notable dissent, such presumptions can be inconsistent with the purposive approach to Charter interpretation which focuses on the broad purposes for which the rights were designed and not on mechanical rules which have traditionally been employed in interpreting detailed provisions of ordinary statutes in order to discern legislative intent. Sir Rupert Cross suggests that even in relation to ordinary statutes, the increasing use of a purposive approach makes the role of presumptions 'necessarily less important than in the days of more literal interpretation.'"

per Sachs J in S v Mhlungu (supra) at para 115

40 The present case provides one example of a vested right which may be

incompatible with the new legal order. There are a wide range of other

examples. As pointed out above in S v Mhlungu, Kentridge AJ suggested the

example of rights conferred under a racially discriminatory by-law.

S v Mhlungu (supra) judgment of Kentridge J at para 68, fn 2.

41 It would be most anomalous if the need to protect such rights should, in the

face of the clear wording of s 7(2) be privileged over the fundamental rights

of defendants protected by Chapter 3 of the Constitution: 38

"Such a consequence would effectively allow substantive parts of a disgraced and unacceptable culture from the past to continue into a future protected by the Constitution."

per Mahomed J in S v Mhlungu (supra) at para 8

42 To focus on the vested right of the plaintiff, is to ignore the fact that there is

a correlative liability imposed on the defendant. If the liability is inconsistent

with the new constitutional order, the defendant should not be burdened with

it:

"What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel."

New York Times Co v Sullivan 376 US 254 at 277

43 The Constitution signals a fundamental change in legal policy in South Africa.

It is to be expected that the effects of this change in legal policy should apply

with retrospective effect. When the common law itself develops by recognising

new legal principles on the grounds of changes in public policy the principles

concerned always have a retrospective effect. Thus the collecting banker in

Indac Electronics (Pty) Ltd v Volkskas 1992 (1) SA 783 (A) could hardly

complain that at the time of its negligent dealing with a cheque the law of delict

did not recognise that it owed any legal duty to the true owner of that cheque.

Nor could the newspaper editor in Pakendorf v De Flamingh 1982 (3) SA 451

(A) complain that at the time that he published the defamatory statements 39

the law did not hold newspapers liable for defamation in the absence of animus

iniuriandi.

44 It is accordingly submitted that the mere fact that the application of the

offending material had already occurred and/or action was instituted and/or all

relevant facts had occurred before 27 April 1994, does not preclude the

application of the Constitution in the present case.

THE HORIZONTALITY ISSUE

Introduction

45 The following propositions concerning the application of the Constitution are

uncontroversial:

45.1 any statute which is relied upon by an organ of State in litigation with

a private party falls to be tested against the provisions of Chapter 3;

45.2 any rule of the common law which is relied upon by an organ of State

in litigation with private parties falls to be tested against the provisions

of Chapter 3;

45.3 any statute which is relied upon by a private party in litigation with 40 another private party falls to be tested against the provisions of Chapter

46 The issue which arises in the present appeal is whether the provisions of

Chapter 3 are of application to the common law in a dispute between private

parties.

47 The balance of authority holds that the provisions of Chapter 3 apply to the

common law when it is relied upon in litigation between private parties.

Mandela v Falati 1995 (1) SA 251 (W); 1994 (4) BCLR 1 (W)

Gardener v Whitaker 1994 (5) BCLR 19 (E)

Motala and Another v University of Natal 1995 (3) BCLR 374 (D)

Baloro & Others v University of Bophuthatswana & Others BPD, Case No. CA319/95, 29 June 1995, unreported

48 In the court below van Dijkhorst J held that the provisions of Chapter 3 apply

directly only to the relationship between private parties and the executive or

legislative branches of government.

49 Van Dijkhorst J voiced two concerns about the application of Chapter 3 to the

common law: that there was no historical need for such application and that 41

it would subject the common law to unprecedented legal uncertainty:

"There was a pressing need for a bill of rights, given the suppressive State action of the past. The call for a conventional bill of rights was sharp and clear. But there were no such calls for a bill of rights on a horizontal plane. The fundamental rights and freedoms now set out in Chapter 3 had not been curtailed by our common law. In fact they can be found enshrined therein. The removal of all authoritarian encroachment leads to their resuscitation. There was no need for the horizontal application of a bill of rights...

The alternative, that it was intended that the bill of rights have horizontal effect, is extremely unattractive. It entails that ail private rights, contracts and relationships are henceforth to be tested in the Constitutional Court against broad and vaguely defined principles. Legal uncertainty on an unprecedented scale would be the result."

Judgment 62-3

50 These two concerns are inconsistent. If the fundamental rights are enshrined

in Chapter 3, such legal uncertainty that might follow from subjecting the

common law to constitutional scrutiny would be minimal. In most cases the

common law will be compatible with the Constitution. Where there is

incompatibility there is no reason for abstaining from intervention.

See: Gardener v Whitaker (supra) at 31H-32D

Absurdity and injustice

51 It is submitted that absurd and unjust consequences would flow from

immunising the common law from constitutional scrutiny in a dispute between 42 private litigants. There are some (albeit few) aspects of the common law which are seemingly in conflict with the promises of the Constitution and the ideal of restructuring society based upon freedom and equality. The following examples merely illustrate the proposition. We emphasise that in certain instances the injustice of the common law has been remedied by legislative intervention.

51.1 Roman Dutch law did apparently not recognise an action for loss of

support by a widow who was married to the deceased in accordance

with customary law.

Santam v Fondo 1960 (2) SA 467 (A)

Cf. Zininat Insurance Co. Ltd v Chawanda 1991 (2) SA 825 (ZSC)

51.2 At common law, a woman, by entering into marriage, is held to have

given an irrevocable consent to sexual intercourse with her husband.

Consequently, a husband cannot, in law, rape his own wife.

S v Ncanywa 1993 (2) SA 567 (CkAD)

51.3 At common law, there exists a cautionary rule in cases of sexual asaults

in terms of which the evidence of the complainant must be treated with 43 caution.

Rv W 1949 (3) SA 772 (A)

SvF 1989 (3) SA 847 (A)

Cf. S v D & Ano. 1992 (1) SA 513 (NmHC)

52 In all the above examples, on the approach adopted by the Court below, the

applicable rule of common law would be beyond constitutional scrutiny in civil

cases between private parties.

53 Once it is accepted that Chapter 3 applies to all statutory law, the contention

that it does not apply to common law rules governing private relationships is

untenable. If legislation governing the relationships between private individuals

is subject to constitutional scrutiny there is no rational basis for the insulation

of common law rules from the same scrutiny.

53.1 It cannot be argued that Chapter 3 does not concern itself with private

relationships when it clearly does in so far as those relationships are

governed by statute.

53.2 Nor can it be argued that the absence of legislation signifies the absence

of "state action" (to use the American terminology) in the dispute 44 which is being adjudicated. Common law rules derive their authority

from the fact that they can be enforced by the state. Thus the US

Supreme Court in finding the common law of defamation in Alabama

to be an unconstitutional violation of freedom of speech stated:

"Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that the law has been applied in a civil action and that it is common law only, though supplemented by statute... The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised."

New York Times v Sullivan (1964) 376 US 254 at 265

See also: NAACP v Claiborne Hardware (1982) 458 US 886 at 916 fn 51

54 A distinction between statutory law and common law for the purposes of

Chapter 3 would make fundamental legal consequences turn on an arbitrary

distinction of legal form. Hitherto, there has been little significance to the

fact that a particular area of the law is covered by statute whereas another is

left to the regulation of the common law. Thus similar branches of the law

are often dealt with in different forms. Company law is statutory,

partnership law is common law. There is no principled reason why

company law should now be subject to constitutional scrutiny, while the law

of partnership should not be. 45

55 Moreover, the distinction between statute and common law is sometimes

impossible to make. Many statutes import the common law:

55.1 The Criminal Procedure Act states: "The law as to the admissibility of evidence which was in force in respect of criminal proceedings on the thirtieth day of May, 1961, shall apply in any case not expressly provided for by this Act or any other law."

Section 252 of the Criminal Procedure Act, 51 of 1977

55.2 Section 23(1) of the Black Administration Act 38 of 1927 provides

that :

"All movable property belonging to a Black and allotted by him or accruing under Black law or custom to any woman with whom he lived in a customary union, or to any house, shall upon his death devolve and be administered under Black law and custom."

Section 23(1) of the Black Administration Act 38 of 1927

55.3 Regulations promulgated under that Act provide that the customary

law of intestate succession will apply to certain persons who die

intestate.

Regulation 2(e) of the Regulations for the Administration and Distribution of the Estates of Deceased Blacks, GN R200 of 1987 46 55.4 The Maritime Zones Act and the South African Citizens in Antarctica

Act state that the common law of South Africa will apply to South

African citizens in certain maritime areas and in Antarctica.

Sections 1 and 2 of the Maritime Zones Act, 15 of 1994

Sections 3, 4 and 9 of the South African Citizens in Antarctica Act, 55 of 1962

56 Acts incorporating the common law illustrate the difficulty of applying a

distinction between common law and statutory law. They also show that

the existence of the common law represents a choice on the part of the

legislature. The common law exists only in so far as it is not repealed by

legislation. Thus the presence of a rule of the common law signifies a

continuing decision by the legislature to approve of the state of affairs

created by that rule and not to repeal it. It would be anomalous if the

legislature's approval of a certain state of affairs were to be subject to

constitutional review when expressed in the form of an Act of Parliament

but not when expressed in the form of a deliberate decision not to disturb a

rule of the common law which achieved exactly the same effect.

57 In the course of the last fifteen years, the legislature has enacted various

laws which have attempted to rectify aspects of the common law which

discriminated unfairly against women. 47

57.1 In 1984, the Matrimonial Property Act 88 of 1984 abolished the

marital power in respect of marriages between White, Coloured and

Indian persons, entered into after the commencement of that Act.

Section 11 of Act 88 of 1984

57.2 In 1988, the Matrimonial Property Amendment Act 3 of 1988

abolished the marital power in respect of marriages between Black

persons entered into after the commencement of that Act.

Section 11 of Act 88 of 1984 as amended by section 4(a) of Act 3 of 1988

57.3 In 1993, the Matrimonial Property Amendment Act 132 of 1993

abolished the marital power retrospectively in respect of all marriages

in South Africa.

Section 11 of Act 88 of 1984 as amended by section 29 of Act 132 of 1993

57.4 In 1992 the Domicile Act 3 of 1992 freed women from the common

law principle of the domicile of dependency.

Section 1 of Act 3 of 1992 48

57.5 No legislation similar to the Matrimonial Property Act or the

Domicile Act was passed in Transkei, Bophuthatswana or Venda.

(In Ciskei, sll of the Matrimonial Property Decree 7 of 1992

abolished the marital power in respect of marriages entered into after

1 August 1992). Thus, the common law principles retaining the

marital power and the domicile of dependency of married women

remained in force in those areas.

57.6 In terms of section 229 of the Constitution, these common law

principles continue to apply in those parts of the national territory

which formerly comprised Transkei, Bophuthatswana, Venda and

Ciskei "subject to any repeal or amendment... by a competent

authority".

Section 229 of the Constitution

57.7 If the common law in a civil dispute between private parties is beyond the reach of Chapter 3 of the Constitution, married women in the former TBVC states (except Ciskei) will be unable to ask a court to place them in the same situation as their counterparts in the rest of the country by striking down the marital power and the domicile of dependency as inconsistent with the right to equality. They will have to wait for this to be done by a competent legislative authority. It was precisely these inadequacies alluded to by Mahomed J in S v Mhlungu: 49 "It is suggested by Kentridge AJ that the legislature and the executive can avoid such a consequence by taking steps to repeal the law or to cause the prosecution to be withdrawn. This is of scant comfort to the accused person concerned, who might have no means to compel such a decision or who might be exposed to the risk of a conviction before the bureaucratic machinery of the State reacts to afford relief. He is entitled to say:

'The Constitution affords every person equal protection against unfair racial discrimination. I claim that right for myself and my family. You, the Court must protect me.'"

S v Mhlungu (supra) at para 7

58 The Matrimonial Property Act 88 of 1984 illustrates another absurdity that

flows from the approach of the Court below. Section 11 of that Act,

when it was passed, abolished the marital power in respect of marriages to

be entered into after the commencement of the Act. The Act did not apply

to marriages entered into between Black persons. By virtue of its

discriminatory effect, it would clearly have been unconstitutional.

Nevertheless, it was, in many respects, as offensive to the values of Chapter

3 than the common law rule which it repealed. On the approach of the k Court below, a court faced with this sort of statutory provision would have j, to choose between leaving it intact or reviving a rule of common law which

was as repugnant to the values enshrined in the Constitution.

59 The absurdity of restricting the application of Chapter 3 in the manner

contemplated by the Court below is that the uneven process of codification 50 of customary and common law means that a limited application of the

Constitution would have discriminatory consequences. The KwaZulu Natal

Code is a statute which covers most of indigenous Zulu private law. In

other parts of the country, most customary law is not to be found in

statutory form. Thus a "vertical" approach to application would have the

effect of subjecting almost the entire body of customary law in KwaZulu

Natal to constitutional scrutiny but, to a large degree, insulating customary

law in other parts of the country from constitutional review.

60 A further anomaly flows from the fact that it would have been theoretically

possible for the appellants in the present case to have been prosecuted for

criminal defamation arising out of the publication of the very articles which

form the basis of the civil claim. The appellants would then have been

entitled to raise constitutional defences. If, however, the Attorney-General

had declined to prosecute, it would have been open to the respondents to

initiate a private prosecution for criminal defamation. For all practical

purposes, such would have amounted to a private dispute between the parties

concerning a rule of common law and on the approach of the court below

would be beyond direct constitutional challenge.

61 At issue in the present appeal is whether or not these unjust and anomalous

consequences are dictated by the wording of the Constitution. It will be

submitted that nothing in the constitutional text dictates such extraordinary 51

results.

The wording of the Constitution

62 At the outset two points should be emphasised;

62.1 There cannot be any principled objection to the application of the

Constitution to a dispute between private parties. Indeed, such is

clearly contemplated by section 102(10) which provides:

"If the validity of a law is in dispute in any matter, and a relevant government is not a party to the proceedings, it shall be entitled to intervene as a party before the court in question, or shall be entitled to submit written argument to the said court."

62.2 Had there been an intention to insulate the common law from

constitutional review in a dispute between private parties, it would

have been a simple matter to make this explicit in the Constitutional

text. The absence of an explicit exclusion is striking, particularly in

relation to an issue of such importance.

63 Scores of statues govern matters of everyday commerce and enterprise

ranging from the sale of property to the breach of copyright. In any

dispute between private litigants in which the issue is governed by statute, a 52 constitutional attack or defence would be competent. There is no logical

reason nor any definitive textual indication which would exclude

constitutional review of the common law in a dispute between private

parties.

64 Section 4(1) of the Constitution states the following:

65 As indicated above, there is no warrant for excluding the common law from

the category of "any law". Therefore, s 4(1) suggests that any provision of

the common law which is inconsistent with the Constitution shall be invalid.

66 The application of Chapter 3 of the Constitution, is governed specifically by

s 7 of the Constitution which provides as follows:

"7 (1) This Chapter shall bind all legislative and executive organs of state at all levels of government.

(2) This Chapter shall apply to all law in force and all administrative decisions taken and acts performed during the period of operation of this Constitution..." (emphasis added)

67 Section 7 must be read with s 33 which states: 53 "33 (1) The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation-

(a) shall be permissible only to the extent that it is -

(i) reasonable; and

(ii) justifiable in an open and democratic society based on freedom and equality; and

(b) shall not negate the essential content of the right hi question, and provided further that any limitation to -

(aa) a right entrenched in section 10, 11, 12, 14 (1), 21, 25 or 30 (1) (d) or (e) or (2); or

(bb) a right entrenched in section 15, 16, 17, 18, 23 or 24, in so far as such right relates to free and fair political activity, shall, in addition to being reasonable as required in paragraph (a) (i), also be necessary.

(2) Save as provided for in subsection (1) or any other provision of this Constitution, no law, whether a rule of the common law, customary law or legislation, shall limit any right entrenched in this Chapter", (emphasis added)

68 Section 7(4)(a) of the Constitution provides:

"When an infringement of or threat to any right entrenched in this Chapter is alleged, any person referred to in paragraph (b) shall be entitled to apply to a competent court of law for appropriate relief, which may include a declaration of rights." (emphasis added) 54 The terms of section 7(4)(a) are not qualified. There is no suggestion that

relief is permissible only when a Chapter 3 right is infringed or threatened

by a legislative or executive organ of State and not in a dispute between

private parties. Moreover, there is no suggestion that relief is competent

only when the infringement or threat flows from a statutory enactment.

69 Sections 7(2), 7(4)(a) and 33(2) therefore reinforce s 4(1) and indicate that

no provision of the common law shall be valid if it limits a right contained

in Chapter 3 in circumstances other than those covered by s 33(1). There

is no exclusion in the case of a dispute between private parties concerning a

rule of the common law.

70 There is accordingly nothing in the relevant provisions of the Constitution

which expressly excludes the constitutional review of the common law in a

dispute between private parties. The resolution of this issue must self-

evidently be determined by the proper interpretation of the constitutional

text. In Canada, for example, the issue has been differently resolved by

reason of the wording of the Canadian Charter of Rights which differs

fundamentally to the South African Constitution.

See: Retail, Wholesale and Department Store Union v Dolphin Delivery 25 CRR 321 55

70.1 Dolphin Delivery cannot provide any assistance as to the proper

meaning of s 7 because it was based on an interpretation of s 32 of

the Canadian Charter. A crucial difference between s 32 of the

Canadian Charter and s 7 is that there is no provision in s 32 of the

Charter corresponding to s 7(2).

See Gardener v Whitaker 1994 (5) BCLR 19 (E) at 28 F-G

70.2 Section 32 of the Canadian Charter states the following:

"32 (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

In contrast, the wording of s 7(2) states that Chapter 3 of the

Constitution applies to all law in force, the ordinary meaning of

which would cover application to the common law when it is invoked

in disputes between private parties. 56

70.3 The Dolphin Delivery decision has been justifiably criticised.

See: Baloro & Others v University of Bophuthatswana & Others (Bophuthatswana Provincial Division, Case No. CA319/95, 29 June 1995, unreported) at 40 - 41

The effect of section 7(2) of the Constitution

71 The appellants submit that insofar as section 7(2) refers to "all law in

force", the Constitution applies, in the present case, to the common law of

defamation. It does not follow from this interpretation that the entire realm

of private activity and relationships will be subjected to constitutional

scrutiny. This is because the law serves a different function in relation to

private individuals from the function it serves in relation to the State.

72 Law creates all state powers. An organ of state has no powers other than

those which are conferred upon it by statute or the common law. This has

been a fundamental principle of South African public law for almost 150

years.

See for example: De Villiers v The Pretoria Municipality 1912 TPD 626 at 643-6

Mustapha v Receiver of Revenue, Lichtenburg 1958 (3) SA 343 (A) at 347D-G 57

Drakensberg Administration Board v Town Planning Appeals Board 1983 (4) SA 42 (N) at 45 A.

73 Law serves a different function with respect to private parties. Private

parties have an autonomy which exists independently of law and is

recognised by law. Law serves to order exercises of this private autonomy

in the interest of the social well being. Law therefore places certain limits

on private parties' autonomy to act and sets out particular consequences

which will be enforced by the state in the event of their acting in certain

specified ways.

74 In the absence of law, organs of state have no powers and private parties

have no limits placed on their private autonomy other than those which are

imposed by extra-legal forms of coercion.

75 This distinction between statutory bodies and private parties for the purposes

of Chapter 3 can be illustrated by contrasting the effect of Chapter 3 on the

power of a statutory body to contract with the effect on the freedom of

contract of a private individual.

75.1 A statutory body has no power to contract unless such a power is

conferred upon it by law. A law which purported expressly to

authorise a statutory body to contract on an unfair racially 58 discriminatory basis would violate the provisions of s 8 of the

Constitution and would accordingly be invalid. A law which

conferred on a statutory body a general power to contract would be

constitutional but that general contracting power could not be used by

the statutory body as authority to contract on an unfair racially

discriminatory basis. Quite apart from the application of Chapter 3

to administrative acts, the law in question could not tacitly authorise

that which it was unable expressly to authorise.

75.2 Private individuals have an autonomous power to enter contracts.

The common law of contract provides that when this power is

exercised in any given case, the state will hold the individual to the

contract that he or she has entered. The common law of contract

does not however, concern itself with a private individuals choice of

contracting partners. That choice is left to their autonomous

decision. If private individuals choose to contract on a racially

discriminatory basis they exercise no power that is conferred by the

common law, they merely exercise their private autonomy in

circumstances which are not regulated by the common law. As there

is no rule of the common law on which they depend for their power

to contract on a racially discriminatory basis, the exercise of that

power is not affected by the direct application of s 8 of the

Constitution. 59 16 The analysis thus advanced is consistent with principle. In Die Spoorbond

& Ano v South African Railways 1946 AD 999, the issue was whether or

not the Crown, in the guise of the South African Railways and Harbours

could sue for damages in respect of defamatory statements alleged to have

injured its reputation as the authority controlling and managing the railways.

In holding that it could not sue for defamation, Schreiner JA observed at

1011 - 1012:

"... it does not follow, of logical necessity, from the fact, if it be a fact, that trading corporations can under our law sue for defamation, that the Crown can also bring such an action against one of its subjects. No doubt in considering whether a particular plaintiff has a cause of action it is legitimate to start with a provisional generalisation that ordinarily all persons, whether natural or artificial, have the same rights and that there ought to be some good and sufficient reason why in any particular case this should not be so. But such generalisation should not be pushed very far. Even in the case of natural persons disabilities arising, for instance, from age or sex, exist, while corporations can only hold rights which from their nature are not confined to persons equipped with a human brain and body and even among corporations themselves it is well known that distinctions have been made in relation to this very question of actions for defamation, with which we are concerned

For the above reasons it seems to me to be clear that great care should be exercised in arguing by analogy from the rights of one person to the rights of another whose qualities are not identical with those of the first. It is no doubt convenient for certain purposes to treat the Crown as a corporation or artificial person. But it is obviously a very different kind of person from the rest of the persons, natural and artificial, that make up the community. In many respects its relationship to those other persons is unique and there is no reason in common sense or logic for concluding that wherever a subject would have a right of action there the Crown must have one too. That the law employs analogy to extend the scope of remedies is, of course, true, and when judiciously used the method produces beneficent results. But it 60 would be dangerous to proceed upon the assumption that wherever a substantial measure of similarity between persons is discoverable the rights of those persons must be the same. While the law does at times generalise it does so with caution; as frequently, it prefers to act selectively according to the requirements of the particular situation."

77 The significant section for purposes of the appellants' argument, is section

7(2) of the Constitution which renders the Constitution applicable to all law

in force. On this approach, no significance attaches to the omission of the

judiciary from section 7(1) of the Constitution and its inclusion in section

4(2). It is a non-sequitur to suggest that the absence of reference to the

judiciary in section 7(1) has the consequence that the Constitution does not

apply to disputes between private parties concerning a rule of common law.

There may be several explanations for the omission:

77.1 The omission might have been intended to emphasize to judges that

they have no obligation to invoke the Constitution against a private

party except when that party relies on a statute or a rule of the

common law. Hence, a white landlord who refuses to let premises to

black tenants would not be subject to direct constitutional attack

because there is "no law in force" on which he depends. He

merely exercises his autonomy in a way which is not governed by

law. (It may be that section 35(3) permits the development of the

common law to regulate such a situation but that is not an instance of

the direct application of Chapter 3). 61

77.2 The omission might have been unnecessary because the Constitution

as a whole is expressly made binding upon the judiciary by section

4(2).

77.3 The Constitution is, in any event binding upon the judiciary by

reason of the obligation, in terms of section 104(3) to make and

subscribe an oath or solemn affirmation in the terms set out in

Schedule 3 which require judges to "uphold and protect the

Constitution of the Republic and the fundamental rights

entrenched therein."

77.4 Within the terms of section 7 itself the judiciary is obviously bound

by the Constitution by virtue of the fact that the judiciary is required

to give effect to "all law in force". This was pointed out by

Mclntyre J in RWDSU v Dolphin Delivery (supra):

"This is not to say that the courts are not bound by the Charter. The courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in the dispute."

RWDSU v Dolphin Delivery (supra) at 341

77.5 It was arguably necessary to include the judiciary in section 4(2) to

cater for those provisions of the Constitution which bind the 62 judiciary as actors in contrast to their capacity as adjudicators. Thus

many of the provisions of Chapter 7 are binding on the judiciary.

The horizontal application of section 15 of the Constitution

78 If it is found that Chapter 3 of the Constitution does not generally apply to

private disputes governed by the common law, it is submitted that there are

cogent reasons for the constitutional guarantee of freedom of speech and

expression to be given effect to in a dispute between private parties

involving the common law of defamation.

79 In Gardener v Whitaker Froneman J concluded that:

"There is no uniform and single answer to the question whether an alleged breach of a fundamental right contained in Chapter 3 of the Constitution can found an action between private individuals and entities, or whether it only applies between individuals and State organs. It all depends on the nature and extent of the particular right, the values that underlie it, and the context in which the alleged breach of the right occurs."

Gardener v Whitaker 1994 (5) BCLR 19 (E) at 31A-C

80 It is submitted that certain of the rights enshrined in Chapter 3 have an

obvious "horizontal" application. This would seem to be the case in 63

relation to the following rights:

80.1 The prohibition on subjection to servitude or forced labour

guaranteed by section 12;

80.2 The guarantees concerning labour relations protected by section 27;

80.3 The right to an environment which is not detrimental to one's health

or well being guaranteed by section 29;

80.4 The rights of children, inter alia, to parental care guaranteed by

section 30.

81 The guarantees enshrined in section 15 are not confined to a generalised

guarantee of freedom of speech and expression. Indeed, the specific

inclusion of "freedom of the press and other media" is an important

indication of the need for special protection required by the press. The law

of defamation, particularly its development in the last few years, involves a

substantial limitation on the freedom of the press. The press (including

radio and television) cannot properly fulfil their functions if they are

constantly at risk of actions for defamation. That risk is in itself a factor

which is conducive to a timid and fearful press and one which has resort to

self-censorship. Although damages awards have remained relatively low, 64

the costs incurred in defending defamation actions are dramatically high. (In

this regard, it is significant that while awards in the United States have been

high, the losing party does not bear the costs of the winner).

82 The values underlying section 15 have been dealt with above. In the

context of the horizontality issue, certain further points require emphasis.

Freedom of speech and freedom of the press serve a crucial role in the

democratic process that is one of the focal points of Chapter 3:

"Speech concerning public affairs is more than self-expression; it is the essence of self-government"

Garrison v Louisiana 379 US 64 at 74-752

83 It is for this reason that "debate on public issues should be uninhibited,

robust and wide-open".

New York Times v Sullivan (supra) at 270

84 The role of the press in a modern society requires significant protection:

"If freedom of speech is to have any significance in a democratic country, its concomitant, freedom of the press, must be recognised because it is only by reaching a large number of people and rallying their support that these freedoms can be utilised for the benefit of society." 65

Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of South West Africa 1987 (1) SA 614 (SWA)

85 In all of the purposes it serves, freedom of speech and of the press can be

threatened not only by acts of the legislature or the executive, but also by

private parties calling upon the state to enforce the common law of

defamation. This point was emphasised in New York Times v Sullivan

(supra):

"The fear of damages awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute. See City of Chicago v Tribune Co. 307 111. 595, 607, 139 NE 86, 90 (1923). Alabama, for example, has a criminal libel law which sujects to prosecution "any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude," and which aUows as punishment upon conviction a fine not exceeding $500 and a prison sentence of six months... Presumably a person charged with violation of this statute enjoys ordinary criminal-law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The judgment awarded in this case - without the need for any proof of actual pecuniary loss - was one thosand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times greater than that provided by the Sedition Act. And since there is no double-jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded for the same publication. Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly, the Alabama law of civil libel is "a form of regulation that creates hazards to protected freedoms markedly 66

greater than those that attend reliance upon the criminal law/1"

New York Times v Sullivan (supra) at 277-278

86 The centrality of freedom of speech and freedom of the press to the

protection of free political activity was emphasised in Mandela v Falati.

Van Schlalkwyk J drew attention to the implications of this for the need to

protect speech against restraint by private individuals invoking common law

principles:

"Political activity occurs not only between the State and its organs and the citizenry, that is, vertically, but also, and more especially, between citizen and citizen, which is the level at which all political contests are fought. The drafters of the Constitution must therefore have envisaged that the rights necessary to conduct such activity could be enforced as between individuals."

Mandela v Falati (supra) at 6H-I

87 Given the fundamental nature of free expression and the threat posed to it by

the common law powers at the disposal of private parties, there is a strong

argument for extending the guarantee contained in section 15 to a case such

as the present.

THE EFFECT OF SECTION 35(3) OF THE CONSTITUTION

88 Section 35(3) of the Constitution states: 67

"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."

89 On any approach to the direct application question, section 35(3) indicates

that the development of the common law in its application to disputes

between private parties will be influenced by the provisions of Chapter 3.

90 In Dolphin Delivery the Supreme Court of Canada, having held that the

Charter does not apply directly to the common law in disputes between

private parties, stressed that "the judiciary ought to apply and develop the

principles of the common law in a manner consistent with the

fundamental values enshrined in the Constitution."

Dolphin Delivery at 343

Subsequently, the Supreme Court, in abrogating the common law rule

prohibiting spouses from testifying against each other held the following :

"Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely. If it is possible to change the common law rule so as to make it consistent with Charter values, without upsetting the proper balance between judicial and legislative action ... then the rule ought to be changed."

R v Salituro 8 CRR (2d) 173 at 189 68 91 The influence of Chapter 3 will be pronounced in areas of the common law

dealing with public policy. This was recognised by Van Dijkhorst J in the

court below:

"Section 35(3) is intended to permeate our judicial approach to interpretation of statutes and the development of the common law with the fragrance of the values n which the Constitution is anchored. This means that whenever there is room for interpretation or development of our virile system of law that is to be the point of departure. When in future the unruly horse of public policy is saddled, its rein and crop will be that value system."

Judgment 68

See also Davis, Chaskalson and De Waal: "Democracy and Constitutionalism: The Role of Constitutional Interpretation" in Van Wyk et al (eds) Rights and Constitutionalism (1994) at 90-92

92 Questions of wrongfulness are determined with reference to issues of public

policy.

Minister van Polisie v Ewels 1975 (3) SA 590 (A)

Administrates Natal v Trust Bank 1979 (3) SA 824 (A)

Schultz v Butt 1986 (3) SA 466 (A)

Bayer SA (Pty) Ltd v Frost 1991 (4) SA 559 (A)

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) 69 93 The importance of considerations of public policy to questions of

wrongfulness is sometimes expressed in the principle that wrongfulness is

determined by the "legal convictions of the community."

Minister van Polisie v Ewels 1975 (3) SA 590 (A)

Administrateur Natal v Trust Bank 1979 (3) SA 824 (A)

Schultz v Butt 1986 (3) SA 466 (A)

The Constitution must be the supreme expression of the legal convictions of

the South African community. Questions of wrongfulness will therefore be

influenced by the provisions of Chapter 3.

94 In Argus Printing & Publishing Co. Ltd v Inkatha Freedom Party 1992

(3) SA 579 (A) the court observed at 590 D that "where public policy

demands, it (the court) would be entitled to recognise new situations in

which a defendant's conduct in publishing defamatory matter is lawful."

95 It is submitted that freedom of expression is a fundamentally important facet

of public policy.

MM Corbett "Aspects of the Role of Policy in the Evolution of our Common Law" (1987) 105 SAU 52 at 67-68 70

96 The proposed amendment to the pleadings introduces averments which are

necessary to sustain a legal argument that by virtue of the provisions of s 15

of the Constitution and s 35(3) of the Constitution, publication of matters of

public interest, by a newspaper, in good faith and without the intention of

defaming cannot be considered wrongful for the purposes of our law of

defamation. Van Dijkhorst J clearly recognised the potential application of

section 35(3) to the Constitution. Yet, inexplicably, he refused to allow the

amendment to the plea.

G J MARCUS '/I MXHASKALSON

Chambers Johannesburg 14 August 1995 LIST OF AUTHORITIES

Minister of Home Affairs (Bermuda) & Ano v Collins mcDonald Fisher & Ano. 1980 AC 319

Big M Drug Mart Ltd 13CRR64

S v Zuma & Others 1995 (2) SA 642 (CC)

S v Makwanyane & Mchunu 1995 (6) BCLR 665 (CC)

S v Williams & Others (Constitutional Court, Case No. CCT/20/94, 9th June 1995, unreported)

S v Mhlungu (Constitutional Court, Case No. CCT/25/94, 8 June 1995, unreported)

Mandela v Falati 1994 (4) BCLR 1 (W)

Government of the Republic of South Africa v The Sunday Times Newspaper & Ano (1995) 2 BCLR 182 (T)

In re Munhumeso & Others 1995 (1) SA 551 (ZSC)

Irwin Toy Ltd v Quebec (AG) 39 CRR 193

Edmonton Journal v Alberta (AG) 45 CRR 1

New York Times Co v Sullivan 376 US 254; 11 L Ed 2d 686

Palko v Connecticut 302 US 329 Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of South West Africa 1987 (1) SA 614 (SWA)

Abrams v United States (1919) 250 US 616

Herndon v Lowry 301 US 242

West Virginia State Board of Education v Barnette 319 US 624 (1943)

Sunday Times v The United Kingdom (No. 2) (1992) 14 EHRR 229

Martin v City of Struthers 319 US 141 at 143; 87 L Ed 1313

Stanley v Georgia 394 US 357; 22 L Ed 2d 542

Jersild v Denmark (1995) 19 EHRR 1

Pakendorf v De Flamingh 1982 (3) SA 146 (A)

Neethling v Du Preez 1994 (1) SA 708 (A)

Financial Mail (Pty) Ltd v Sage Holdings Ltd & Ano. 1993 (2) SA 451 (A)

Roth v United States 354 US 476, 484

Stromberg v California 283 US 359, 369

Bridges v California 314 US 252, 270 NAACP v Button 371 US 415, 429

United States v Associated Press 52 F.Supp.362,372

Whitney v California 274 US 357, 375 - 376

Gertz v Robert Welch 418 US 323

Philadelphia Newspapers Inc v Hepps 475 US 767; 89 L Ed 2d 783

Derbyshire County Council v Times Newspapers [1993] 1 ALLER 1011 (HL)

Theophanous v Herald & Weekly Times (1994) 124 ALR 1

S v MacDonald 1953 (1) SA 107 (T)

Gleaves v Deakin [1979] 2 ALL ER 497 (HL)

S v Harber & Ano. 1988 (3) SA 396 (A)

The Sunday Times v The United Kingdom 2 EHRR 245

Bridges v California 314 US 252

R v Webb 1934 AD 493

Bell v Voorsitter van die Rasklassifikasieraad en Andere 1968 (2) SA 678 (A)

Thorn v Moulder 1974 (4) SA 894 (A) Bellairs v Hodnett & Ano 1978 (1)SA 1109 (A)

R v Sillas 1959 (4) SA 305 (A)

S v Williams 1979 (3) SA 1270 (C)

Van Lear v Van Lear 1979(3) SA 1162 (W)

Dys v Dys 1979 (3) SA 1170(0)

Indac Electronics (Pty) Ltd v Volkskas 1992 (1) SA 783 (A)

Gardener v Whitaker 1994 (5) BCLR 19 (E)

Motala and Ano. v University of Natal 1995 (3) BCLR 374 (D)

Baloro & Others v University of Bophuthatswana & Others BPD, Case No. CA319/95, 29 June 1995, unreported

Santam v Fondo 1960 (2) S 467 (A)

Zimnat Insurance Co. Ltd v Chawanda 1991 (2) SA 825 (ZSC)

S v Ncanywa 1993 (2) SA 567 (CkAD)

Rv W 1949 (3) SA 772 (A)

S vF 1989 (3) SA 847 (A)

S v D & Ano. 1992 (1)SA 513 (NmHC) 6 LITERATURE

T Emerson The System of Freedom of Expression at 6 - 7

John Dugard Human Rights and the South African Legal Order (1978) at 146-151

Davis, Chaskalson and De Waal: "Democracy and Constitutionalism: The Role of Constitutional Interpretation" in Van Wyk et al (eds) Rights and Constitutionalism (1994) at 90-92

MM Corbett "Aspects of the Role of Policy in the Evolution of our Common Law" (1987) 105 SAU 52 at 67-68