Du Plessis and Others v De Klerk and Another

The Pretoria News published a series of articles in February and March 1993 regarding covert supply of arms to UNITA rebels in Angola, implicating first respondent Gert de Klerk and his company Wonder Air. The respondents sued for defamation, claiming substantial damages. After the interim Constitution came into force on 27 April 1994, the defendants (appellants) sought to amend their plea to raise a defence based on section 15 (freedom of expression) of the Constitution. The amendment was refused by the trial court, which held that the Constitution did not apply retrospectively to unlawful conduct before its commencement and that Chapter 3 had only vertical, not horizontal application. The Constitutional Court was asked to determine: (a) whether the Constitution could be invoked regarding events before its commencement; and (b) whether Chapter 3 rights applied between private parties (horizontality).

• Whether the interim Constitution applies retrospectively to validate conduct that was unlawful when committed before 27 April 1994
• Whether Chapter 3 of the interim Constitution has horizontal application between private parties
• The interpretation of sections 4, 7, 33 and 35(3) of the interim Constitution
• Whether section 15 (freedom of expression) can be invoked as a defence to defamation for pre-constitutional publications
• The respective roles of the Constitutional Court and Supreme Court in developing the common law in light of Chapter 3
• The proper interpretation methodology for the interim Constitution

Appeal dismissed with costs. The proposed amendment to plead a constitutional defence was refused. The court answered the referred questions: (a) No - defendants not entitled to invoke the Constitution to validate pre-constitutional conduct; (b) No - Chapter 3 provisions not generally capable of direct application between private parties, though section 15 specifically does not have such application. The court emphasized the role of section 35(3) in ensuring indirect horizontal application through development of common law.

The binding principles are: (1) The Constitution does not operate retroactively to convert conduct unlawful when committed into lawful conduct. Constitutional rights accrue from the date of commencement but do not validate prior unlawful acts. (2) Under the interim Constitution, Chapter 3 rights are not generally directly enforceable horizontally between private parties. Section 7(1) binds legislative and executive organs of state, not private persons. (3) Chapter 3 applies to all law (including common law) through section 7(2), and private litigants may challenge the constitutionality of statutes in private litigation. (4) Courts must apply section 35(3) to interpret all law and develop common law with due regard to the spirit, purport and objects of Chapter 3, providing indirect horizontal application. (5) The development of common law under section 35(3) is primarily the function of the Supreme Court, subject to Constitutional Court oversight on whether courts have properly had regard to Chapter 3 values. (6) Section 15 (freedom of expression) does not have direct horizontal application and cannot be invoked to defend pre-constitutional defamation.

Several judges made significant obiter observations: Kentridge AJ noted that while the Constitution generally does not operate retroactively, there may be exceptional cases where enforcement of pre-constitutional rights would be so grossly unjust as to be contrary to public policy (para 20). He also suggested it may be open to argue in future cases that particular provisions of Chapter 3 have direct horizontal application by necessary implication (para 62). Kentridge AJ discussed extensively how a law of defamation might be reformulated considering section 15, examining US, Canadian and Australian approaches, but emphasized this is for the Supreme Court, not the Constitutional Court (paras 58-59). Mahomed DP left open whether section 98(6) might permit retrospective invalidation in the interests of justice in extreme cases (para 69). Several judges (Kriegler, Madala, Didcott JJ dissenting) argued for direct horizontal application of Chapter 3, with Kriegler J providing detailed reasoning that Chapter 3 applies to all law and legal relationships, not just state action. Ackermann J engaged extensively with German constitutional doctrine on Drittwirkung (indirect third-party effect) and critiqued the US approach in Shelley v Kraemer. Mokgoro and Sachs JJ emphasized the importance of developing customary law in accordance with constitutional values under section 35(3). There was discussion of whether courts could apply their decisions prospectively only when overruling precedents, with reference to US practice (Kentridge AJ, paras 65-66).

This is a foundational judgment in South African constitutional law on the application of the Bill of Rights. It established: (1) The Constitution is not retroactive - it does not validate previously unlawful conduct. (2) The predominant view that Chapter 3 does not have general direct horizontal application but operates primarily vertically against the state. (3) The crucial doctrine of indirect horizontality through section 35(3), obliging courts to develop common law in accordance with constitutional values. (4) The jurisdictional boundary between the Constitutional Court (constitutional matters) and Appellate Division (common law development). (5) The interpretive approach to the Constitution, including comparative law methodology. The case has been influential in subsequent jurisprudence on the application of the Bill of Rights, though its specific holding on horizontality applies to the interim Constitution. The final Constitution (1996) contains different provisions (section 8) that explicitly address horizontal application, partially superseding this judgment. The case demonstrates the court grappling with fundamental questions about constitutional structure, separation of powers, and the transformation of South African law.