Du Plessis and Others v De Klerk and Another is a 1996 decision of the Constitutional Court of South Africa. Though arising from a defamation case in the law of delict, it had broad significance for the application of the Interim Constitution both to pre-constitutional conduct and to private disputes. The majority judgment was written by Acting Justice Sydney Kentridge and the leading dissent by Justice Johann Kriegler.
The case emanated from a defamation lawsuit brought against the Pretoria News in the Transvaal Provincial Division, and the Constitutional Court was called to decide whether the constitutional right to freedom of expression could found a defence against defamation when the defamatory statement was published before the Interim Constitution came into effect. On this question, the court was unanimous in holding that the Interim Constitution did not have retroactive force: it did not render lawful pre-constitutional conduct that had been unlawful under the prevailing pre-constitutional law.
However, the court was also called to decide whether and how, in the post-constitutional period, constitutional rights could have horizontal application to legal relationships between non-state actors. For the majority, Acting Justice Kentridge held that, in general, constitutional rights could not be enforced directly against non-state actors, but that the Bill of Rights would nonetheless have indirect application to private law insofar as the Constitution required courts to develop the common law in line with the values of the Bill of Rights. Justice Kriegler dissented vociferously on this point, finding that all constitutional rights were capable of direct application to private disputes.
Background In early 1993, the Pretoria News published a series of articles about the alleged involvement of South African citizens in covert operations to supply arms to UNITA, the Angolan rebel movement. Two of those articles, published in March, mentioned Gert de Klerk and his company, Wonder Air, as implicated in such operations. De Klerk and Wonder Air sued in the Supreme Court of South Africa, claiming damages for defamation against Pretoria News; its editor, Deon du Plessis; its publisher, Allied Publishing; and the journalist, Dale Lautenbach.
Court action During the course of the defamation proceedings, the Interim Constitution of 1993 came into force. Thereafter the defendants amended their plea to add a defence based on section 15(1) of the Interim Constitution, a provision of the Bill of Rights, which provided that: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.The defendants contended that the publication of the articles was not unlawful because it was protected by this right to freedom of expression. However, the defendants opposed the amendment to the plea on three separate grounds. First, the publication of the articles, and the consequent damage to the plaintiffs, had taken place before the Interim Constitution came into effect, and the Interim Constitution did not have retroactive force. Second, and alternatively, the Constitution did not have horizontal application and therefore did not apply to the dispute. And, third, alternatively, section 15 of the Interim Constitution in any case did not protect the publication of defamatory material, either because the common law of defamation constituted a justifiable limitation on the right to freedom of expression or because the plaintiffs' constitutional right to reputation and "emotional integrity" took precedence over the defendants' right to defamatory expression.
On 10 November 1994, Judge Kees van Dijkhorst of the Transvaal Provincial Division ruled in favour of the plaintiffs, finding that the Interim Constitution was not applicable to the dispute on two separate grounds: first, the Interim Constitution was non-retroactive, and, second, it had no horizontal application. The amended plea was therefore refused, and the defendants were granted leave to appeal that ruling in the Constitutional Court of South Africa.
The Constitutional Court heard argument on 7 November 1995 and delivered judgment on 15 May 1996. It was called to decide whether the Constitution could be invoked in defamation proceedings in which all relevant facts had occurred before the Constitution came into force. In addition to this, it dealt with two further constitutional questions on referral: whether the Bill of Rights (Chapter 3 of the Interim Constitution) had horizontal application, to relationships between non-state parties; and whether the Constitutional Court – as opposed to, or in addition to, the Appellate Division of the Supreme Court – had jurisdiction to develop the common law (in this case, the common law of defamation), if such development was called for to make the common law consistent with the Constitution.
Judgments and order Dividing along several lines on various legal points, the Constitutional Court filed seven opinions in the matter. The majority judgment was written by Acting Justice Sydney Kentridge and joined by Justice President Arthur Chaskalson and Justices Pius Langa and Kate O'Regan. Langa and O'Regan, but not Kentridge and Chaskalson, additionally joined in a separate concurring judgment written by Justice Deputy President Ismail Mahomed, who was in broad agreement with Kentridge but raised several differences of emphasis or reasoning. Likewise, Justices Laurie Ackermann, Yvonne Mokgoro, and Albie Sachs separately wrote their own concurring judgments, in each case seeking to expand on their personal views on the horizontality debate; Mokgoro additionally expressed her concurrence with Mahomed's minority opinion. Finally, there were two dissenting judgments, one prepared by Justice Tholie Madala and the other prepared by Justice Johann Kriegler and joined by Justice John Didcott.
The order of the court, as set out in Kentridge's majority judgment, dismissed the defendants' appeal against the decision of the Supreme Court. The appeal was dismissed on the grounds that the defendants were, as the Supreme Court had held, not entitled to invoke the provisions of the Constitution as a defence against pre-constitutional defamation. This finding and conclusion was unanimous, though Mahomed and Kriegler's minority opinions raised certain qualms with Kentridge's opinion. The appeal having been dismissed, the two further legal questions – about horizontal application and jurisdiction to develop the common law – were not of relevance to the defamation dispute, but the court, finding them to be of public importance, answered them anyway.
Thus, on the second major question, Kentridge set out the majority's view that the Constitution generally was not capable of application to private relationships. The court divided on this finding: Madala and Kriegler dissented, while Mahomed, Ackermann, Mokgoro, and Sachs all wrote in support of Kentridge, though such support differed in nature and degree.
Reasoning
Retroactive effect
Kentridge The court was unanimous in joining Acting Justice Kentridge's conclusion that the defendants could not invoke their section 15 rights as a defence against defamation committed before the Interim Constitution came into effect, and that the appeal therefore stood to be dismissed. In sum, per Kentridge, there was nothing "in the Constitution which suggests that conduct unlawful before the Constitution came into force is now to be deemed to be lawful" by reason of the Bill of Rights. In seeking to forestall this conclusion, the defendants had relied heavily on S v Mhlungu, in which Justice Ismail Mahomed had found for a majority of the court that defendants were protected by the Bill of Rights in criminal proceedings that were pending before the commencement of the Constitution. However, as Kentridge explained, such protections were not properly retroactive in the sense of invalidating conduct that had been valid at the time it was committed, or vice versa.
Similarly, in S v Makwanyane and S v Williams, the court had found that persons convicted before the commencement of the Constitution were nonetheless protected by the Bill of Rights against undergoing cruel and inhuman punishment, but this did not entail that the cruel and inhuman sentences had been unlawful at the pre-constitutional time that they were imposed; the Constitution merely established that it would be unlawful to execute such sentences in the post-constitutional period. Thus Kentridge also rejected the defendants' argument that the Constitution could relieve them of the post-constitutional consequences of their pre-constitutional conduct. In the case of unlawful defamation, the plaintiffs had accrued a right to damages at the moment that the defamation was published, and "there is no warrant in the Constitution for depriving a person of property [the right to damages] which he lawfully held before the Constitution came into force by invoking against him a right [to free expression] which did not exist at the time when the right of property vested in him".
Finally, Kentridge turned to the retroactivity not of the Constitution itself but of post-constitutional court orders. This question arose from section 98(6) of the Constitution, which dealt with the application of judicial orders declaring a pre-constitutional law to be constitutionally invalid. The relevant provision held that such a declaration "shall not invalidate anything done or permitted in terms [of that law] before the coming into effect of such declaration of invalidity", "unless the Constitutional Court in the interests of justice and good government orders otherwise". This provision therefore awarded the Constitutional Court the discretion to ante-date the operation of a declaration of invalidity, but Kentridge held that, "it could hardly be suggested that any such declaration could refer to a date earlier than the date of the commencement of the Constitution." Nonetheless, he added a broad qualification on the "general principle" that the Constitution did not have retrospective effect: The consequences of that general principle are, however, not necessarily invariable. In the present case we are dealing with the right to damages for a defamation committed before the Constitution came into operation, and we hold that nothing in the Constitution impairs that right. But we leave open the possibility that there may be cases where the enforcement of previously acquired rights would in the light of our present constitutional values be so grossly unjust and abhorrent that it could not be countenanced, whether as being contrary to public policy or on some other basis. It is not necessary to spell out examples. It is sufficient to say that cases such as the one before us obviously do not fall into that category.
Mahomed