Du Plessis and Others v De Klerk and Another

The Pretoria News published a series of articles in February and March 1993 alleging that South African citizens were involved in covert and illegal air operations supplying arms to UNITA rebels in Angola. Two articles named Mr Gert de Klerk and his company, Wonder Air (Pty) Ltd, suggesting their involvement in illegal flights and fuelling the Angolan civil war. De Klerk and Wonder Air sued the editor, publisher, journalist and distributor of the newspaper for defamation, claiming substantial damages. After the interim Constitution came into force on 27 April 1994, the defendants sought to amend their plea to rely on section 15 (freedom of expression and of the press) of the Constitution as a defence. The plaintiffs objected, and the amendment was refused by the Transvaal Provincial Division. The constitutional issues were referred to the Constitutional Court.

The appeal was dismissed and the order of the Transvaal Provincial Division refusing the amendment to the plea was upheld.

This case is a leading authority on the non-retroactivity of the interim Constitution and the protection of vested civil law rights. It clarifies that constitutional rights cannot be used to extinguish delictual claims arising from conduct completed before the Constitution’s commencement, and it draws an important distinction between criminal punishment and civil liability. The judgment shaped early constitutional jurisprudence on the temporal reach of the Bill of Rights and foreshadowed later debates on horizontal application.