1 The Defendants (plaintiffs in the court below) brought a libel suit against the appellants (defendants in the court below) following the publication of a series of articles and a cartoon in the Pretoria News between. 3 The subject matter of the articles and cartoons underlying the claim largely concern the civil war in Angola. Consequently, "the defendants' reliance on Article 15 of the Constitution in this dispute between private litigants is unfounded.
In addition, the court referred the disputed questions to the Constitutional Court in accordance with section 102, subsection of the constitution. The amendment sought to directly affect various common law rules relating to defamation and the appellants' ability to defend the claim brought against them. The issue of retroactivity and the issue of horizontality are then assessed in the light of the applicable principles.
34;Here, however, we are dealing with a constitution which certainly came into force by an Act of Parliament, the Bermuda Constitution Act 1967 of the United Kingdom, but which was established by an independent instrument.
34; 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." This difference of opinion would later be followed by the majority of the Court in Herndon v Lowry 301 US 242 and has been followed consistently thereafter.15 The amendment of the plea introduced by the appellants has a direct impact on several rules of the common law relating to slander.
The development of South African defamation law has so far taken place without the constitutional guarantee of freedom of expression and press. 17 These common law rules are in striking contrast to the way the common law of defamation has developed in the United States in terms of the guarantees embodied in the First Amendment to the Constitution. Constitutional protection does not take into account the "truth, popularity or social utility of the ideas and beliefs offered".
Allowing the defense of truth, with the burden of proof on the defendant, does not mean that only false speech will be deterred.' Yet absolute protection for the communication media requires a total sacrifice of the competing values served by the law of libel. This dilemma arises from the fact that the allocation of the burden of proof will determine liability for some speech that is true and some that is false, but all such speech is unknowably true or false.
34; It is often difficult to prove the truth of the alleged libel in its details.
27 In S v Mhlungu, Mahomed J (in whose judgment Langa J, Madala J, Mokgoro J and O'Regan J agreed) held that the sole purpose of s 241(8) was to make an attack on the validity of the continuation of pending proceedings after April 27, 1994 on the grounds that the courts hearing such proceedings did not have the constitutional authority to do so. 30 As indicated above, Mahomed J, Kriegler J and Sachs J have all explicitly acknowledged that the fact that the procedure actually commenced before the entry into force of the Constitution does not affect the application of the Constitution after 27 April 1994. 31 Thus, a majority of this court decided in Mhlungu that Article 241(8) of the Constitution does not affect the substantive law to be applied in cases pending on April 27, 1994.
32 Since section 241(8) of the Constitution does not prevent the appeal to the Constitution in cases which were pending on 27 April 1994, it remains. 34; This Constitution is the supreme law of the Republic and any law or act which is contrary to its provisions shall, unless expressly or by necessary implication otherwise determined in this Constitution, be of no force and effect to the extent of the inconsistency." 34 It is submitted that there is no warrant to exclude the common law from the category of "any law." The implication of s 4(1) is therefore that once the Constitution is in force, any disputed provision of the common law law which is inconsistent with the Constitution is invalid to the extent of the.
35 With regard to general rules that are incompatible with the provisions of Chapter 3 of the Constitution, this conclusion is explicitly made by Section 7 of the Basic Law, which regulates the application of Chapter 3 of the Constitution. 34; These provisions mean that Chapter 3 has immediate effect from entry into force of the constitution, even if the result is to impair an earned right. 38 In the present case, the plaintiffs' constitutional claim is directed not against any administrative act or decision, but against the common law rule which imposes strict liability on newspapers for defamatory publications.
What we are concerned with here is a supreme statute that overlaps the entire existing legal landscape, bathing it all in its own good light." there is a correlative responsibility placed on the defendant 44 It is therefore submitted that the mere fact that the application of the offensive material had already occurred and/or the action had been initiated and/or all the relevant facts had occurred before April 27, 1994, do not prevent the application of the Constitution in the present case.
34;There was an urgent need for a bill of rights in light of oppressive state action in the past. There are some (if only a few) aspects of the common law that appear to be at odds with the promises of the Constitution and the ideal of restructuring society based on liberty and equality. We emphasize that in some cases the unfairness of common law has been eliminated by legislative intervention.
Until now, there has been little significance to the fact that a particular area of law is covered by statute, while another is left to the regulation of the common law. Regulation 2(e) of the Regulations for the Administration and Distribution of the Estates of Deceased Blacks, GK R200 of 1987.
In other parts of the country, most customary law is not found in statutory form. 61 The issue in this appeal is whether or not these unjust and anomalous consequences are dictated by the wording of the Constitution. Therefore, s 4(1) suggests that any provision of the common law which is inconsistent with the Constitution will be void.
There is no exclusion in the event of a dispute between private parties over a rule of common law. 70 There is therefore nothing in the relevant provisions of the Constitution that expressly excludes the constitutional review of customary law in a dispute between private parties. The solution of this question must of course be determined by the correct interpretation of the constitutional text.
By contrast, the wording of Article 7(2) states that Chapter 3 of the Constitution applies to all laws in force, the ordinary meaning of which would cover application to common law when invoked in disputes between private parties. The law serves to order the exercise of this private autonomy in the interest of social welfare. Since there is no rule of common law upon which they depend for their power to enter into contracts on a racially discriminatory basis, the exercise of that power is not affected by the direct application of Article 8 of the Constitution.
In this approach, no importance is attached to the omission of the judiciary from Article 7(1) of the Constitution and its inclusion in Article 4(2). 34; There is no uniform and single answer to the question of whether an alleged violation of a fundamental right contained in Chapter 3 of the Constitution can give rise to an action between private individuals. 80 It is submitted that some of the rights provided for in Chapter 3 have an apparent "horizontal" application.
The law of defamation, especially its development in the last few years, involves a significant restriction on the freedom of the press. 89 On either approach to the question of direct application, Article 35(3) states that the development of the common law in its application to disputes between private parties will be influenced by the provisions of Chapter 3. 91 The impact of Chapter 3 will be pronounced in areas of common law dealing with public order.
34; Section 35(3) is intended to imbue our judicial approach to the interpretation of statutes and the development of the common law with the flavor of the values that are the Constitution. The Constitution must be the highest expression of the legal beliefs of the South African community.