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CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO CCT 8/95
In the matter of:
DU PLESSIS, D First Appellant (Defendant)
THE PRETORIA NEWS (PTY) LTD Second Appellant (Defendant)
LAUTENBACH, D Third Appellant (Defendant)
ALLIED PUBLISHING (PTY) LTD Fourth Appellant (Defendant)
and
DE KLERK, G F J First Respondent (Plaintiff)
WONDER AIR (PTY) LTD Second Respondent (Plaintiff)
Heard on: 7 November 1995
Delivered on: 15 May 1996
JUDGMENT
[1] KENTRIDGE AJ: The Pretoria News is a daily newspaper published in Pretoria. The first appellant is the editor of the Pretoria News, the second appellant is the owner and publisher of the newspaper, the third appellant is a journalist employed on the newspaper and the fourth appellant is its distributor. During February and March, 1993, the newspaper published a series of six articles dealing with the supply by air of arms and other material to the Angolan rebel movement, UNITA. The tenor of the articles was that South African citizens were engaged in these operations, that the operations were covert, and that they entailed the evasion of South African air control regulations. The flights were described in the articles as “illegal” and as “pirate flights.” The articles suggested that those responsible for the flights were “fuelling the war in Angola”, and were doing so for motives of personal gain, notwithstanding the disastrous effect of the Angolan civil war on the inhabitants of that country. The articles were published under the by-line of Dale Lautenbach, the third appellant.
[2] The last two in the series of articles, published on 9th and 11th March, 1993, mentioned by name Mr Gert de Klerk, the first respondent herein and his company Wonder Air (Pty) Ltd, the second respondent. The article published on 9th March, stated that the Department of Foreign Affairs had been calling in a number of private air operators “following suspicions that individual companies might be fuelling the war in Angola with supplies.” The first respondent was named as one of those summoned. The article published on 11th March, again in the context of illegal flights to supply the UNITA rebels, referred to “the mystery airstrip” owned and operated by the respondents. In consequence of these publications the respondents issued a combined summons out of the Transvaal Provincial Division of the Supreme Court claiming damages for defamation against the appellants jointly and severally. The first respondent claimed damages of R750 000.00 for injury to his reputation and his feelings; the second respondent claimed R5 million for loss of business and damage to its commercial reputation. I shall hereafter refer to the respondents as “the Plaintiffs” and to the appellants as “the Defendants.”
[3] On 25th May, 1993, the Defendants filed a joint plea. The Defendants admitted publishing the articles, but denied that they meant that the Plaintiffs were involved in illegal activities, or that the articles were defamatory of the Plaintiffs. In the alternative the Defendants alleged that the general subject matter of the articles was a matter of public interest. On this basis they pleaded a “rolled-up” defence of fair comment[1] - namely that in so far as the references to the Plaintiffs were expressions of opinion, those opinions constituted fair comment made in good faith on matters of public interest, and were based on facts truly stated in the articles themselves; and that in so far as the articles contained allegations of fact those allegations were true and were matters of public interest. There was a further allegation by way of defence that the Defendants had published the articles in good faith in pursuance of a duty to its readers and to the public in general to keep them informed of “facts, opinions and allegations” concerning the civil war in Angola, that its readers had a corresponding right to be so informed and that in the premises the publication of the articles “was not unlawful.”[2] All allegations of damage were denied.
[4] I have given only a brief and simplified summary of the Defendants’ plea because it is not in issue in the proceedings in this Court. What has brought the Defendants, as appellants, to this Court is the fate of an application to amend their plea by adding a further defence. Notice of intention to amend the plea was given by the Defendants on 7th October, 1994. The significance of this date is that it was subsequent to the coming into force of the interim Constitution on 27th April, 1994, in terms of section 251(1) of the Constitution of the Republic of South Africa Act 200 of 1993. The Plaintiffs objected to the proposed amendment, and it is necessary to set out in full both the proposed amendment and the grounds on which the Plaintiffs objected to it.
[5] The notice of intention to amend read as follows -
“KINDLY TAKE NOTICE that the defendants intend 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 paragraphs 12.15, the publication of the said articles were not unlawful and such publication is protected by section 15 of the Constitution.”
The grounds of objection were the following -
“The Plaintiffs object to the proposed amendment on the following grounds:
1. That the proposed amendment would render the Defendants’ plea excipiable;
2. The Constitution of the Republic of South Africa, Act 200 of 1993, was at no relevant stage in force when the Defendants published the defamatory material of and concerning the Plaintiffs;
3. The damage caused to the Plaintiffs consequent upon and as a result of the publication of the defamatory material was caused prior to the promulgation introduction of Act 200 of 1993;
4. The South African Constitution is not retroactive;
5. In the alternative, the Constitution has no application horizontally, alternatively does not apply to disputes of the present nature;
6. Further alternatively, Section 15 of the Constitution does not grant any of the Defendants leave and licence to publish defamatory material, either as alleged or at all;
7. In particular, Chapter 3 of the Constitution protects the Plaintiffs’ right to their physical and emotional integrity, reputation, unrestricted participation in public and commercial affairs and their right to an untarnished reputation;
8. These rights, inasmuch as they may come into conflict with the Defendants’ right to publish defamatory material (the existence of which right is denied), takes precedence over any right claimed by the Defendants; alternatively
9. The Defendants’ right to publish defamatory material (which is denied) is limited in terms of Section 33 of the Constitution and the common law by the Plaintiffs rights as aforesaid;
10. Consequently, the proposed amendment of the Defendants’ plea does not disclose a defence and should not be granted.”
(I have not corrected the grammatical errors in the two documents.)
[6] The opposed application to amend the plea was heard by Van Dijkhorst J in the Transvaal Provincial Division. On 10th November, 1994, he gave judgment refusing the application for amendment.[3] The learned judge’s approach to the application was that an amendment which would render a pleading excipiable should not be allowed, and he held that the proposed amendment would be excipiable on two separate grounds. The first ground was that the proceedings before the court were “proceedings which immediately before the commencement of the Constitution were pending before any court of law ... exercising jurisdiction in accordance with the law then in force ...”, in terms of section 241(8) of the Constitution, and therefore had to “be dealt with as if this Constitution had not been passed.” This meant, according to the learned judge, that the provisions of the Constitution could not be invoked by any party to the pending proceedings. He followed his own judgment in Kalla v The Master and Others,[4] in which he had given extensive reasons for the conclusion “that section 241(8) precludes retrospective operation of the Constitution.”[5]
[7] The second ground on which Van Dijkhorst J held the proposed amendment to be excipiable was that set out in paragraph 5 of the Plaintiffs’ notice of objection, viz.-
“In the alternative the Constitution has no application horizontally, alternatively does not apply to disputes of the present nature.”
[8] The question whether Chapter 3 of the Constitution (Fundamental Rights) has only a “vertical” application or has in addition a “horizontal” application has been the subject of considerable debate by commentators on the Constitution. There have been similar debates, both academic and judicial, in other countries with constitutional Bills of Rights. The term “vertical application” is used to indicate that the rights conferred on persons by a Bill of Rights are intended only as a protection against the legislative and executive power of the state in its various manifestations. The term “horizontal application” on the other hand indicates that those rights also govern the relationships between individuals, and may be invoked by them in their private law disputes. Although the terms “vertical” and “horizontal” are convenient they do not do full justice to the nuances of the jurisprudential debate on the scope of Chapter 3. Does Chapter 3 entitle a party to private litigation to contend that a statute relied on by his opponent is invalid as being inconsistent with the Constitution? To what extent does Chapter 3 have an impact on the common law in either the criminal or the civil field? Does the vertical application of the Constitution cover private law disputes between a citizen and the state? These and no doubt other related questions are open questions in this Court at least. At this point in the present judgment it is sufficient to record that Van Dijkhorst J, upon an analysis of the relevant constitutional provisions, held that Chapter 3 had only vertical and not horizontal application, and that in consequence a defendant could not invoke section 15 as a defence to a civil action for damages for defamation.
[9] In due course the Defendants applied to Van Dijkhorst J for leave to appeal to this Court. The learned judge held that in view of conflicting decisions at first instance it was imperative that the constitutional issues which had been decided against the Defendants be resolved by the Constitutional Court. On 1st March, 1995, he accordingly referred those issues to this Court under section 102(2) of the Constitution, alternatively under section 102(8). Further in terms of Rule 18(e) of the Rules of the Constitutional Court he certified -
(1) These two Constitutional issues are of substance and a ruling thereon by the Constitutional Court is desirable.
(2) They can be disposed of on the pleadings and no evidence is necessary.
(3) In view of conflicting decisions in the Supreme Court on both issues there is a reasonable prospect that another court may reach a different conclusion should permission be granted to bring the appeal.
[10] On 9th June this Court granted leave to appeal against the whole of the judgment and order of Van Dijkhorst J of 10th November, 1994. As the issue of the correct interpretation of section 241(8) of the Constitution had in the interim been resolved by this Court in its judgment in S v Mhlungu and Others,[6] this Court formulated the first issue on which it required argument in the appeal as follows -
“(a) Are the Defendants entitled to invoke the provisions of the Constitution notwithstanding that -
(i) publication of the offending material had already occurred; and/or
(ii) action was instituted; and/or
(iii) all relevant facts had occurred
before the Constitution came into operation?”
It also reformulated the judge’s question, “whether the Constitution has horizontal application.” The parties were asked to address this question -
“(b) Are the provisions of Chapter 3 of the Constitution - and more particularly section 15 - capable of application to any relationship other than that between persons and legislative or executive organs of state at all levels of government?”
[11] Thereafter, on 20th October, 1995, the parties were requested by the President of the Court to address the Court on the following additional matters:
“i. In view of the finding by the judge in the Court a quo that the proposed amendment does not raise the issue whether the common law of defamation should be developed to make it consistent with the Constitution, is it competent to raise this as an issue in the appeal?; and if so
ii. Is the development of the common law within the jurisdiction of the Appellate Division or the Constitutional Court or both Courts?; and if the latter
iii. Should the appeal on this issue have been noted to the Appellate Division and dealt with by it in terms of Section 102 (4), (5) and (6) of the Constitution?”
At the hearing before us on 7th November counsel addressed us on all the above issues.
[12] In their written argument the Defendants contended that the amendment which they had sought ought to have been granted. At an early stage of the oral argument, however, Mr Gilbert Marcus, who appeared for the appellant Defendants, was faced with a difficulty which proved to be insuperable. The Constitution, in terms of section 251(1), came into operation on 27th April 1994, and on that day a new legal order came into existence in the country. In S v Mhlungu and Others, supra n6, a case much relied on in the Defendants’ written argument, this Court held that from that day onward any person in South Africa was entitled to, and could invoke, the rights conferred by Chapter 3 of the Constitution. Cases such as Kalla v The Master and Others, supra n4, which had held, in reliance on section 241(8), that those rights were not available in proceedings which were pending immediately before the commencement of the Constitution, were overruled. The purpose of section 241(8), was held to be essentially to preserve the authority of pre-Constitution courts to continue to adjudicate in pending cases.[7] On and after 27th April the Constitutional guarantees were available to accused persons in pending cases as they were to all other persons.[8] Accordingly, Mhlungu and other persons accused in cases pending on 27th April, 1994, were entitled to invoke their constitutional rights so as to preclude the use against them of the presumption contained in section 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977, a presumption which this Court had held in S v Zuma and Others[9] to be unconstitutional and hence invalid.
[13] It was in that limited sense, if at all, that S v Mhlungu and Others, supra n6, held that Chapter 3 had “retrospective” operation. It most certainly did not decide that the Constitution operated retroactively in the meaning which I endeavoured to explain in my dissenting judgment in that case.[10] A statute is said to be retroactive if it enacts that “as at a past date the law shall be taken to have been that which it was not,” so as to invalidate what was previously valid, or vice versa.[11] The Constitution does not operate retroactively in that sense. I do not believe that this proposition is in any way inconsistent with the majority judgments in Mhlungu’s case. Thus Kriegler J said, in paragraph 99 -
“In the true sense of the words it [i.e. the Constitution] is not retroactive nor retrospective. What it does mean, though, is that the moment when the judicial officer has to deal with a claim under Chapter 3 he or she has to ask whether such right exists.”
Mahomed J, in paragraphs 39 and 41 also made it clear that the Constitution did not affect acts performed before its commencement. See also per Sachs J paragraphs 132 and 144.[12]
[14] Consequently, the difficulty facing the Defendants in this Court was their inability to point to anything 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 Chapter 3. Indeed, all indications in the text are to the contrary. First, there is section 251(1) itself, which fixes the date of commencement. Then there is section 7(2), which provides that Chapter 3 should apply “to all law in force and all administrative decisions taken and acts performed during the period of operation of this Constitution.” (My emphasis). In this sub-section “acts” may mean only administrative acts. Nonetheless if the provisions of Chapter 3 do not apply to administrative acts performed before the Constitution came into operation there is no reason to suppose that it was intended to apply to any other act performed before that date. Again section 98(6) provides -
“(6) Unless the Constitutional Court in the interests of justice and good government orders otherwise, and save to the extent that it so orders, the declaration of invalidity of a law or a provision thereof -
(a) existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such declaration of invalidity; or
(b) passed after such commencement, shall invalidate everything done or permitted in terms thereof.”
That sub-section enables this Court, where the interests of justice and good government require it, to ante-date the operation of a declaration of invalidity. Although there is no express limit on the power to ante-date a declaration of invalidity, it could hardly be suggested that any such declaration could refer to a date earlier than the date of the commencement of the Constitution.[13] See the orders made by this Court in S v Zuma and Others, supra n9, and S v Mhlungu and Others, supra n6.
[15] It follows, as Mr Marcus was constrained to accept, that a pleading alleging that articles published in 1993 were, by reason of section 15 of the Constitution, “not unlawful” and were protected by that section, must be bad in law. The appeal against the order of Van Dijkhorst J must therefore be dismissed. That, however, does not conclude the proceedings before this Court. There is the judge’s reference of the issue of horizontality’ to this Court under section 102 of the Constitution to be considered. Further Mr Marcus on behalf of the Defendants has it in mind to apply in due course for an amendment to the plea so as to invoke section 15 of the Constitution on a different basis possibly by reference to section 35(3) of the Constitution. Whether he can invoke section 15 on any basis depends on the answer to the first issue on which this Court required argument.[14]
[16] The Defendants argued that even if the Constitution does not make lawful what was previously unlawful, the protections of Chapter 3, including section 15, are available to relieve them from the consequences of a previously unlawful act. They rely by way of analogy on the right of persons convicted and sentenced before the commencement of the Constitution to invoke their constitutional right not to undergo cruel and inhuman punishment.[15] The previous lawfulness of the sentence did not preclude their relying on their Chapter 3 rights to avoid its consequences. Similarly, they say, they are now entitled to rely on section 15 to relieve them from the obligation of paying damages for their earlier unlawful act.
[17] With all respect to the arguments of counsel, the analogy is false. This Court has held that the death penalty and the whipping of juveniles were in themselves unconstitutional and therefore unlawful by reason inter alia of section 11(2), which provides that no person shall be subject to cruel, inhuman or degrading punishment.[16] Although the sentences were lawful when imposed, their execution became unconstitutional once the Constitution came into operation. The obligation to pay damages is obviously not in such a category. Another fundamental difference is that the commission of the delict and the liability to pay damages cannot be separated. The right to damages accrues at the moment the defamation is published. No-one could sensibly assert that the state has an accrued right to inflict a punishment. It cannot be disputed that since 27th April, 1994, the Defendants have been entitled to exercise their right of freedom of expression and freedom of the press under section 15. If their case on the interpretation of section 15 and on its horizontal application is correct, it may allow them to repeat their allegedly defamatory publications with impunity. But it is not in that sense that the Defendants wish to invoke their right of free speech.
[18] The Defendants also argue that it would be absurd and unjust to allow the
“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.”[17]
The arbitrariness to which Mahomed J was referring related to the suggested exclusion of litigants in cases pending on 27th April, 1994, from the right to invoke constitutional guarantees after that date. As appears from section 7(2) of the Constitution, referred to above, there can be nothing arbitrary, absurd or unjust in the distinction between acts done (including delicts committed) before the Constitution commenced and those done thereafter.
[19] The Defendants also submit that the articles which are the subject-matter of the civil action could have led to a prosecution for the common law offence of criminal defamation. On the hypothesis that the existence of that common law offence is inconsistent with the right of freedom of speech under section 15, that section could be properly invoked, they say, as a defence to a prosecution notwithstanding the fact that the offence was committed before the Constitution came into force. The same principle might apply, it is suggested, to a prosecution for the common law crime of blasphemy. I shall assume for the purpose only of the present argument that that submission is correct. The attempt to extend it to civil law delictual claims is, however, unsound. At common law the statutory abolition of a criminal offence did not ordinarily affect a prosecution for an offence committed before the abolition.[18] Under the Constitution different policy considerations may apply. The state may possibly be precluded from prosecuting for an offence which has by reason of the Constitution ceased to exist.[19] The state cannot be said to have vested rights which will be affected, nor is any other person adversely affected and it may be said that to punish a person for an offence which has ceased to exist is an infringement of one or other of his protected fundamental rights.[20] It is unnecessary and would be undesirable to express any view on these arguments. What is obvious is that very different considerations must apply to a civil claim for damages for defamation. There is another party whose rights would indeed be affected by depriving him of a claim for damages which had vested in him before the commencement of the Constitution. A right of action is a form of incorporeal property.[21] Whether it is property entitled to protection under section 28 of the Constitution need not be decided.[22] What is clear is that there is no warrant in the Constitution for depriving a person of property which he lawfully held before the Constitution came into force by invoking against him a right which did not exist at the time when the right of property vested in him. The Defendants’ citation of the well-known authorities on the need for a generous rather than a legalistic interpretation of a Constitution hardly supports an argument directed to depriving an individual of an existing right.
[20] I have dealt with the question of the retrospective or retroactive operation of Chapter 3 of the Constitution in general terms. As stated in paragraphs 13 and 14 above, the Constitution does not turn conduct which was unlawful before it came into force into lawful conduct. It does not enact that as at a date prior to its coming into force “the law shall be taken to have been that which it was not”. 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.
[21] I would therefore hold that the Defendants are not entitled to invoke section 15 as a defence to an action for damages for a defamation published before the Constitution came into operation.[23] I have reached this conclusion without reference to foreign authority, but at this stage it may be appropriate to refer to some decisions on another constitutional instrument which has given rise to problems of retrospectivity in one sense or another, namely the Canadian Charter of Rights and Freedoms.
[22] The Canadian approach is summarised as follows by Professor PW Hogg -
“Section 58 of the Constitution Act, 1982 provides that the Act is to come into force on a day to be fixed by proclamation. That proclamation was issued by the Queen, who came to Canada for the purpose, at a ceremony in Ottawa on April 17, 1982; and the proclamation fixed April 17, 1982 as the day upon which the Constitution Act, 1982 was to come into force. The Charter of Rights accordingly came into force on that day, and operates only prospectively from that day.
A statute (or regulation or by-law or other legislative instrument) which was enacted before April 17, 1982, and which is inconsistent with the Charter, will be rendered “of no force or effect” by the supremacy clause of the Constitution, but only as from April 17, 1982. Action of an executive or administrative kind, such as search, seizure, arrest or detention, which was taken before April 17, 1982, cannot be a violation of the Charter, because the Charter was not in force at the time of the action.”[24]
[23] In R. v. Longtin[25] Blair JA, in the Ontario Court of Appeal, held that the Charter did not operate retrospectively. In the same Court, some years later, in R. v. James; R. v. Dzagic,[26] Tarnopolsky JA remarked[27] that that assertion of Blair JA had not been questioned, but added that the issue had rather been whether, in any particular case, giving effect to a Charter provision did or did not amount to a retrospective application. In that case the Ontario Court of Appeal held that section 8 of the Charter, which protects against unreasonable search and seizure had no application where the seizure took place before the Charter came into force, and that the material seized could accordingly be used in post-Charter proceedings. The Court held that the law to be applied was that in force at the time when the act complained of occurred.[28] Our own Constitutional provisions and our own weighing of the competing public interests in South Africa may or may not produce a different approach to the admissibility in evidence of material wrongfully seized. That is not the issue here. What I would take from the case and respectfully endorse are some general remarks by Tarnopolsky JA at the end of his judgment -
“It is not an effective way to promote respect for Charter rights to apply new effects to actions taken before the Charter came into effect... it is important that actions be determined by the law, including the Constitution, in effect at the time of the action.”[29]
An appeal from this judgment was dismissed, without written reasons by the Supreme Court of Canada.[30] In another case in the Ontario Court of Appeal, R. v. Lucas; R. v. Neely[31], there were two prosecutions for the statutory offence of having sexual intercourse with a female under the age of fourteen. Although the offences occurred before the Charter came into force, a lower court had acquitted the accused on the ground that the statute was invalid, being inconsistent with the equal rights provision of the Charter. On appeal by the Crown to the Court of Appeal the submission that new substantive law should not be applied to past events was upheld.[32]
[24] The generous approach of the Canadian courts to the interpretation of the Charter is well known. Perhaps, therefore, the Canadian cases put into perspective the Defendants’ contention that failure to uphold their submissions would result in absurdity and injustice.
[25] What remains to be considered, as far as the Defendants are concerned, is whether they can nonetheless derive any assistance from section 35(3) of the Constitution, a point related to the questions put to the parties by the President on 20th October, 1995.[33] Before attempting to deal with those issues it is, however, necessary to revert to the second question referred to this court by Van Dijkhorst J, namely “whether the Constitution has horizontal application.”
[26] That reference was made under section 102(8) of the Constitution which provides-
“(8) If any division of the Supreme Court disposes of a matter in which a constitutional issue has been raised and such court is of the opinion that the constitutional issue is of such public importance that a ruling should be given thereon, it may, notwithstanding the fact that the matter has been disposed of, refer such issue to the Constitutional Court for a decision.”
In previous cases this Court has left open the precise connotation of the expression “disposes of a matter.”[34] Whatever the precise scope of the expression, I have no doubt that in this case the learned judge had disposed of the matter before him. That matter was the application to amend the plea so as to introduce a new defence. His judgment refusing the amendment on the ground that the new plea would be bad in law, effectively eliminated that defence from the case.
[27] I find a useful analogy in the decisions of the Supreme Court on the appealability of judgments dismissing or upholding exceptions. The test applied is whether the order made has a final and definitive effect.[35] Generally, the dismissal of an exception is not regarded as final, whereas the upholding of an exception to a pleading on the ground that it is bad in law is regarded as final and appealable. The reasons given for this distinction are instructive. In Trakman NO v Livshitz and Others[36] a procedural application had been made in the court below and had been dismissed. The Appellate Division held that the order dismissing the application was appealable because it -
“ ... was final and not susceptible of alteration by the court a quo; it was definitive of the parties’ rights in respect of the application for review; and it disposed of all the relief claimed in such application”. (My emphasis)
In Liquidators, Myburgh, Krone & Co. Ltd v Standard Bank of South Africa Ltd and Another[37], in explaining why an order upholding an exception was final and therefore appealable, Innes CJ said -
“Where an order, though made during the progress of a litigation is not reparable at the final stage; or to put it another way, where the final word has been spoken on the point dealt with, then that order is final and not interlocutory”.
The order of Van Dijkhorst J did dispose finally of all the relief claimed in the application for amendment. He spoke the final word on that application. The conclusion that the judge had disposed of the case before him is reinforced by the consideration that the trial of the action need not be heard by the same judge.
[28] This conclusion is not affected by the possibility that an appeal may lie against the decision of Van Dijkhorst J. Section 102(8) refers to “any division of the Supreme Court”, which indicates that the power conferred is not limited to a court of final appeal.
[29] As to policy and convenience, I cannot see why the framers of the Constitution should have wished to exclude from the operation of sub-section (8) a case such as this one, where there has been a claim for specific relief and that claim has been finally disposed of. I see no reason of policy why, before a referral, the whole of any relevant proceedings must be completed, proceedings which may be protracted and which have no bearing on the constitutional issue. The whole basis for a referral under sub-section (8) is that a constitutional issue of great public importance has been raised. As far as the proceedings before the Supreme Court are concerned the issue may be moot. The losing party may not wish to appeal, or the parties may have reached a settlement. Nonetheless, provided there is a compelling public interest, the constitutional issue may properly be referred.[38] I would add that a referral such as this does not disturb the “logic” of the appeal routes provided in the Constitution. Theoretically, no doubt, the learned judge might have granted leave to appeal to a full bench of the Transvaal Provincial Division but, given that the constitutional issue is of such public importance as to call for a referral to this Court, that possibility can be disregarded. In practical terms this is the only Court competent to review the judgment of the learned judge on the constitutional issues. Before sending the case to this Court he had dealt fully with those issues. I can discern no ground on which his referral can be faulted.
[30] Accordingly, although the appeal has been dismissed without the necessity of dealing with the “horizontality” issue the referral on that issue remains to be dealt with by this Court. Whether in any circumstances this Court has a discretion to refrain from deciding an issue validly referred to it I need not now decide. Even if such a discretion exists I would not exercise it, notwithstanding the dismissal of the appeal. The issue is plainly of public importance, especially in the light of the conflicting decisions in the Supreme Court referred to by the learned judge, and has been the subject of written and oral argument before us. (I add, in parenthesis, that the alternative referral under section 102(2) was not appropriate. See our decisions in S v Mhlungu and Others[39] and S v Vermaas; S v Du Plessis.[40])
[31] The “horizontality” issue has arisen in other countries with entrenched Bills of Rights and the parties have supplied us with a wealth of comparative material both judicial and extra-judicial, for which we are grateful.
[32] In the court below the learned judge, having endorsed the purposive approach to constitutional interpretation, analysed the purpose of the Chapter on Fundamental Rights as follows -
“When interpreting the Constitution and more particularly the Bill of Rights it has to be done against the backdrop of our chequered and repressive history in the human rights field. The State by legislative and administrative means curtailed the common law human rights of most of its citizens in many fields while the Courts looked on powerless. Parliament and the executive reigned supreme.
It is this malpractice which the Bill of Rights seeks to combat. It does so by laying down the ground rules for State action which may interfere with the lives of its citizens. There is now a threshold which the State may not cross. The Courts guard the door.”[41]
Having considered the interpretation of entrenched Bills of Rights in the Constitutions of other countries, he concluded that in general, fundamental rights are protected against state action only. “Horizontal protection,” he said,
“sometimes occurs to a limited extent but when it is intended over the broad field of human rights, it is expressly so stated”[42]
Horizontal application of Chapter 3 would in his view create an undesirable uncertainty in private legal relationships which could not have been intended by the framers of our Constitution. After an analysis of certain provisions of the Constitution he held that the fundamental rights set out in Chapter 3 were of vertical application only, and that the contrary conclusion of Van Schalkwyk J in Mandela v Falati[43] was clearly wrong. It should be noted that in Motala and Another v University of Natal[44] Hurt J refused to follow the opinion of Van Dijkhorst J and held that at least sections 8 (equality) and 32 (education) had horizontal application. In Potgieter en n Ander v Kilian[45] the Natal Provincial Division disagreed with these two judgments and endorsed the opinion of Van Dijkhorst J.
[33] There can be no doubt that the resolution of the issue must ultimately depend on an analysis of the specific provisions of the Constitution. It is nonetheless illuminating to examine the solutions arrived at by the courts of other countries. The Court was referred to judgments of the courts of the United States, Canada, Germany and Ireland. I would not presume to attempt a detailed description, or even a summary, of the relevant law of those countries, but in each case some broad features are apparent to the outside observer. A comparative examination shows at once that there is no universal answer to the problem of vertical or horizontal application of a Bill of Rights. Further, it shows that the simple vertical/horizontal dichotomy can be misleading. Thus under the Constitution of the United States the First to Tenth Amendments (the “Bill of Rights”) and the Fourteenth Amendment, insofar as they confer rights on individuals, would at first sight appear to be vertical, in the sense of being directed only against state power.[46] Yet the courts of that country have in some cases at least reached what is effectively a horizontal application of constitutional rights by holding that the judicial power is a state power against which constitutional protections may invoked.
[34] So, in Shelley v. Kraemer[47] an African-American couple had bought property which was subject to a restrictive covenant under which the seller had undertaken to sell only to whites. Owners of restricted property in the same neighbourhood sued to prevent the couple from taking possession of the property. The United States Supreme Court reiterated earlier holdings that the Fourteenth Amendment did not reach private conduct, however discriminatory, but held that official actions by state courts and judicial officials were subject to the Fourteenth Amendment, with the result that the discriminatory covenant could not be enforced by the courts. Vinson CJ said -
“... state action in violation of the Amendment’s provisions is equally repugnant to the constitutional commands whether directed by state statute or taken by a judicial official in the absence of statute.”[48]
It was on this principle that the United States Supreme Court was able to hold in New York Times Co. v. Sullivan[49], an action between private litigants, that the law of defamation of the State of Alabama was an unconstitutional impairment of the right of freedom of speech. A complex case law suggests that the rule in Shelley v. Kraemer, supra n47, is not invariably available in private law disputes.[50] The reasoning behind the decision has also been cogently criticised.[51] It may nonetheless be accepted that by identifying some state involvement in private transactions (sometimes with great ingenuity[52]) United States’ courts have found a way of enforcing fundamental constitutional rights in disputes between private litigants.
[35] Irish cases indicate that in some instances at least, constitutional rights have been directly applied in private disputes so as to override a rule of common law. An example is C.M. v T.M.[53] in which Barr J held that the common law doctrine that a wife’s domicile was dependent on that of her husband was inconsistent with the principles of equality before the law and equality between husband and wife embodied in Articles 40 and 41 of the Irish Constitution.
[36] Very different models of constitutional adjudication are to be found elsewhere. There is a valuable comparative overview of the application of constitutional rights in the private law of a number of countries in Constitutional Human Rights and Private Law, a work by Justice A. Barak, of the Supreme Court of Israel,[54] from which it appears that there are several jurisdictions which reject the horizontal application, or at least the direct horizontal application of constitutional rights. I propose to confine my further consideration of the comparative material to the Canadian and German position, particularly as argument on these two systems was specifically addressed to us.
[37] The leading Canadian case is Retail, Wholesale & Department Store Union, Local 580 et al. v. Dolphin Delivery Ltd.[55] a judgment of the Supreme Court (to which I shall refer hereafter as Dolphin Delivery). That case arose from a labour dispute, in which the defendant trade union threatened to picket the plaintiff’s premises unless it ceased to do business with another company with which the union was in dispute. A trial judge found that the defendant’s conduct constituted the tort of inducing a breach of contract and granted an injunction restraining the threatened picketing. The union appealed on the ground that the injunction infringed its Charter right of freedom of expression. In dismissing the appeal the court held (among other grounds) that while the Charter applied to common law as well as statute law, it did not apply in litigation between private parties in the absence of any reliance on legislation or governmental action. McIntyre J, who gave the leading judgment, based his judgment on the terms of section 32 of the Charter which expressly provide that the Charter applies to “the Parliament and government of Canada” and to “the legislature and government of each province.” By “government,” he held, was meant the executive and administrative branch of government. An order of court was not to be equated with governmental action.[56]
[38] The essence of the court’s conclusion is to be found in the following passage from the judgment of McIntyre J[57] -
“It is my view that s. 32 of the Charter specifies the actors to whom the Charter will apply. They are the legislative, executive and administrative branches of government. It will apply to those branches of government whether or not their action is invoked in public or private litigation. It would seem that legislation is the only way in which a legislature may infringe a guaranteed right or freedom. Action by the executive or administrative branches of government will generally depend upon legislation, that is, statutory authority. Such action may also depend, however, on the common law, as in the case of the prerogative. To the extent that it relies on statutory authority which constitutes or results in an infringement of a guaranteed right or freedom, the Charter will apply and it will be unconstitutional. The action will also be unconstitutional to the extent that it relies for authority or justification on a rule of the common law which constitutes or creates an infringement of a Charter right or freedom. In this way the Charter will apply to the common law, whether in public or private litigation. It will apply to the common law, however, only in so far as the common law is the basis of some governmental action which, it is alleged, infringes a guaranteed right or freedom.”
What follows from this is - (a) if a party to private litigation founds a claim or defence on some piece of legislation (whether an act of Parliament, a by-law or regulation) or on some executive act, (such as the issue of a licence) its constitutionality under the Charter is an issue which may properly be raised; (b) in litigation between private parties no inconsistency between the common law and the Charter may be relied on; but (c) the Charter applies to the common law in a dispute between government and a private litigant - for example where the government relies on a common law prerogative. (In a subsequent case[58] the Canadian Supreme Court has held that the Charter applies to the state even in respect of activities which are contractual or commercial in nature). The Defendants in the present case point to differences in wording between the Charter and our own Constitution, and deny that Dolphin Delivery provides any assistance in interpreting the latter. They have also referred us to the academic criticisms of Dolphin Delivery noted by Friedman JP in Baloro and Others v University of Bophuthatswana and Others.[59] I shall return to Dolphin Delivery later in this judgment.
[39] The German jurisprudence on this subject is not by any means easy to summarise, especially for one who does not read German. There are, however useful, accounts of the German approach in some of the South African literature, as also in the work of Justice Barak,[60] which I have mentioned above. I have also had the benefit of reading an extensive article entitled “Free Speech and Private Law in German Constitutional Theory” by Professor Peter E. Quint,[61] to which I am much indebted.
[40] The German model may be described as the indirect application model. The rights of individuals entrenched in the Basic Law are directly available as protection against state (including legislative) action, but do not directly apply to private law disputes. The values embodied in the Basic Law do, however, permeate the rules of private law which regulate legal relations between individuals. A constitutional right may override a rule of public law, but it is said to “influence” rather than to override the rules of private law. Private law is therefore to be developed and interpreted in the light of any applicable constitutional norm, and continues to govern disputes between private litigants. Private law rules are not completely superseded.[62] This approach was authoritatively laid down by the German Constitutional Court in the leading case of Lhth, a case concerning the right of free expression under Article 5 of the Basic Law.[63] Later cases, such as the Mephisto case in 1971, and the Deutschland-Magazin case in 1976, established that it was for the ordinary courts to apply the constitutional norms to private law. This was likely to involve a balancing of constitutionally protected interests against one another (for example the right of free expression against the right of human dignity under Article 1) or against established private law rights such as confidentiality or privacy. The facts of the particular case are also to be taken into account in the balancing process. The German Constitutional Court will exercise, if necessary, a power of review, but it will do so with restraint - usually only when it is satisfied that the ordinary courts have proceeded on a seriously wrong interpretation of the basic constitutional rights under Basic Law.[64] Quint makes two comments of particular interest. One is that the deference of the Constitutional Court to the ordinary courts on questions of private law stems from the fact that, unlike the United States Supreme Court, its basic function is to decide constitutional questions only.[65] This consideration may prove in due course to have some relevance to the practical application of section 35(3) of our own Constitution. The second is that in some cases the impact of the German Basic Law upon private law under the “indirect”doctrine may be stronger than that of the United States Constitution on American common law under the “state action” doctrine,[66] precisely because the ordinary German courts are entitled and obliged to take the Basic Law into account without searching for an element of state action.[67]
[41] The doctrine of the application of the norms of the Basic Law in the field of private law (“Drittwirkung”) is subtle and is the subject of considerable debate in Germany itself. The analyses of Justice Barak and Professor Quint might not command universal acceptance, still less my own brief interpretation of the doctrine. It is not, however, my purpose to provide a definitive statement of German law, even if I were competent to do so. The purpose of this perhaps overlong account of constitutional adjudication elsewhere is to see what guidance it might provide in the interpretation of the South African Constitution. In my opinion there is at least one positive lesson to be learnt from the Canadian and German approaches to the problem before us. Both Canada and Germany have developed a strong culture of individual human rights, which finds expression in the decisions of their courts. Yet, after long debate, both judicial and academic, in those countries, the highest courts have rejected the doctrine of direct horizontal application of their Bills of Rights. On this issue, as on the retrospectivity issue, the example of these countries seriously undermines the Defendants’ contention that anything other that a direct horizontal application of Chapter 3 must result in absurdity and injustice.
[42] As I have already indicated the issue of horizontal or vertical application of Chapter 3 has been hotly debated in the South African legal literature. Arguments of substance have been deployed on both sides of the debate. I have read much of this literature,[68] I hope with advantage. It is not out of any disrespect to the authors that I refrain from listing all those to be found on each side of the controversy, or from analysing their respective arguments. I propose instead to turn without further delay to consider what I take to be the relevant provisions of the Constitution.
[43] In relation to the application of Chapter 3 of the Constitution there are, as Professor Cockrell has explained,[69] two inter-related but nonetheless different questions to be considered. The first is to what law the Chapter applies - does it apply to the common law, or only to statute law? The second question is what persons are bound by the Chapter - do the rights give protection only against governmental action or can they also be invoked against private individuals? There are, of course, subsidiary questions, such as what bodies can be considered to be organs of government, and whether executive action in the private law sphere is “governmental.”
[44] The plain answer to the first question emerges from section 7(2) of the Constitution, which states -
“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.”
The words “all law in force” may have some ambiguity, in that they are capable of being read as being limited to statute law. However, any ambiguity is removed by the Afrikaans version, where the equivalent words are “alle reg wat van krag is.” The word “reg” (as distinct from “wet”) unambiguously embraces common law as well as statute law.[70] Although the Afrikaans version of Act 200 of 1993 was the original signed version, by virtue of section 15 of Act 2 of 1994 the English version is deemed to be the signed version.[71] The latter version would therefore prevail in case of a conflict between the two versions. But where there is no conflict between them there is another well-established rule of interpretation: if one text is ambiguous, and if the ambiguity can be resolved by the reference to unambiguous words in the other text, the latter unambiguous meaning should be adopted.[72] There is no reason why this common-sense rule should not be applied to the interpretation of the Constitution. Both texts must be taken to represent the intention of Parliament. Moreover, Afrikaans remains an official language with undiminished status in terms of section 3 of the Constitution. The term “reg” is used in other parts of Chapter 3 as the equivalent of “law,” for example in section 8 (“equality before the law”) and section 33(1) (“law of general application”). Express references to the common law in such sections as 33(2) and 35(3) reinforce the conclusion that the law referred to in section 7(2) includes the common law, and that Chapter 3 accordingly affects or may affect the common law. Nor can I find any warrant in the language alone for distinguishing between the common law of delict, contract, or any other branch of private law, on the one hand, and public common law, such as the general principles of administrative law,[73] the law relating to acts of state or to state privilege, on the other. By contrast, many provisions of the Constitution use the word “wet” as the equivalent to “law”, in contexts which may assist in finding the answers to the second question.
[45] The second question too seems to have a plain answer. Section 7(1) states -
“This Chapter shall bind all legislative and executive organs of state at all levels of government.”
Entrenched Bills of Rights are ordinarily intended to protect the subject against legislative and executive action[74], and the emphatic statement in section 7(1) must mean that Chapter 3 is intended to be binding only on the legislative and executive organs of state. Had the intention been to give it a more extended application that could have been readily expressed. One model which would have been available is Article 5 of the Namibian Constitution, which provides -
“The fundamental rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all organs of the Government and its agencies and, where applicable to them, by all natural and legal persons in Namibia, and shall be enforceable by the Courts in the manner hereinafter prescribed.”
It would be surprising if as important a matter as direct horizontal application were to be
left to be implied.
[46] Another strong indication that a general horizontal application was not intended is section 33(4) -
“This Chapter shall not preclude measures designed to prohibit unfair discrimination by bodies and persons other than those bound in terms of section 7(1).” (My emphasis)
If Chapter 3 has a general horizontal application, who can the bodies and persons be who are not bound?[75]<