This judgement dealt with two issues: retrospectivity and application of the South African Constitution. With regard to the former, it was held that the operation of the Constitution is not retrospective and as such it cannot make lawful what was unlawful at the time of its coming into force. With regard to the latter, it was held that the Constitution does not have a direct horizontal application in that Chapter 3 could not be applied directly to the common law in actions between private parties. It was however stated that in terms of section 35(3) of the Constitution, the Courts when applying and developing the common law were obliged to have due regard to the "spirit, purport and objects" of Chapter 3. (see also Gardener v Whitaker CCT 26/94) Facts
The case arose out of a defamation action that was instituted before the Constitution came into force. During February and March 1993, the Pretoria News, a daily newspaper, published a series of articles dealing with the supply by air of arms and other material to the Angolan rebel movement, UNITA. The article described these "pirate flights" as "illegal" and "covert" in nature and as a contravention of South African air control regulations. The article stated that South African citizens were involved in these operations and suggested that those responsible for the flights were "fuelling the war in Angola" for motives of personal gain, notwithstanding the disastrous effect of the civil war on the inhabitants of Angola. Gert De Klerk and Wonder Air (Pty) Ltd, a company controlled by him, had been implicated by the reports in the unlawful supply of arms. As a result of these articles, De Klerk sued the editor of the Pretoria News for defamation in the Supreme Court.
In the pleadings filed in May 1993, the defendants admitted publishing the articles, but denied that they meant that the plaintiffs were involved in any illegal activities, or that the articles were defamatory of the plaintiffs. In the alternative, the defendants stated that the matter was one of public interest and that the articles had been published in good faith in pursuance of a duty to the general public to keep it informed of matters concerning the civil war in Angola. In October 1994, after the interim Constitution had come into force, the defendants amended their plea. They sought to raise the defence that the alleged defamation was not unlawful because it was protected by section 15, the right to freedom of speech and expression. The plaintiffs objected to this amendment and Van Dijkhorst J refused the application. (See paras 6-10 and Kalla v The Master and Others 1994 (4) BCLR 79 (T)) Leave to appeal was granted and proceedings were suspended pending a decision from the Constitutional Court on two issues:
(1) whether the Constitution could be invoked where the relevant events had occurred prior to its coming into force and
(2) whether the Bill of Rights was applicable to legal relationships between private parties.
Decision
Kentridge J, delivering the majority judgement, held the following. On the question of retroactivity, the Court held that the coming into force of the Constitution does not make lawful conduct which was unlawful before it came into force. The majority of the Court, however, left open the possibility that there might be circumstances of gross injustice in which the rights contained in the Bill of Rights could be applied to action which occurred before the commencement of the Constitution. It was therefore held that the defendants were not entitled to invoke section 15 as a defence to an action for damages for a defamation published before the Constitution came into operation. (See R v Longtin (1984) 8 C.R.R. 136; R v James (1988) 33 C.R.R. 107; R v Lucas (1986) 20 C.R.R. 278)
On the question of horizontal application, the Court held that the fundamental rights contained in the Bill of Rights could not be applied directly to the common law in actions between private parties, but left open the question whether there were particular provisions of the Chapter that could be so applied. (See Mandela v Falati 1994 (4) BCLR 1 (W); Motala and Another v University of Natal 1995 (3) BCLR 374 (D) Potgieter en 'n Ander v Kilian 1995 (11) BCLR 1498 (N); Shelley v Kraemer 334 US 1 (1948); New York Times v Sullivan 376 US 254 (1964) Retail, Wholesale & Department Store Union, Local 580 v Dolphin Delivery (1987) 33 DLR (4th) 174) Nonetheless, section 15, the right relied upon by the applicant in this case, was held not to be such a provision. Kriegler J, with whom Didcott J concurred, dissented from the majority view.
However, it was stated that although Chapter 3 does not have a general direct horizontal application, it may and should have an influence on the development of the common law. In other words, in terms of section 35(3) all courts are obliged, in the application and development of the common law, to have due regard to the spirit, purport and objects of Chapter 3. This echoes to an extent the sentiment expressed by Cameron J in Holomisa v Argus Newspapers Ltd. Thus, the majority held that it was the task of the Supreme Court, including the Appellate Division, to apply and develop the common law in the manner required by section 35(3). However, the Constitutional Court had jurisdiction in the final instance over the interpretation of section 35(3).
Dissent
Kriegler J articulated a dissenting judgement wherein he stated that Chapter 3 applied to all law and that all courts were responsible for the application and development of the common law _ the Constitutional Court where constitutional issues were involved and the Appellate Division where non-constitutional issues were involved. Where there is no claim based on the Constitution, then all courts, including the appellate Division, must apply the "spirit, purport and objects of Chapter 3" as enjoined by the Constitution to do. Tracy Cohen, Media Project Centre for Applied Legal Studies