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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.
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