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[1996] ZACC 11
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Gardener v Whitaker (CCT26/94) [1996] ZACC 11; 1996 (6) BCLR 775; 1996 (4) SA 337 (15 May 1996)

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CONSTITUTIONAL COURT OF
SOUTH AFRICA
CASE NO CCT 26/94
In the
matter of:
NIGEL
MAURICE RHETT GARDENER
Applicant (Plaintiff)
and
ERIC
WHITAKER

Respondent (Defendant)
Heard
on:         15 November 1995
Delivered
on:    15 May 1996
JUDGMENT
[
1
]
KENTRIDGE AJ
:
This is an application for leave to appeal against a judgment of
Froneman J in the Eastern Cape Division of the Supreme Court,
given
on 11
th
November, 1994, and  reported at
1995 (2) SA 672
(E);
1994 (5)
BCLR 19
(E).  The applicant who was at the material time the
town clerk of East London, had sued the respondent, an East London
city
councillor, for damages in respect of an allegedly defamatory
statement made during a meeting of the action committee of the City
Council on 21
st
June 1993.  Action was instituted in the same year, and came on
for hearing during September, 1994.  I shall refer to the
parties as the plaintiff and the defendant.
[
2
]
The facts giving rise to the action are fully set out in the judgment
of Froneman J.
For present purposes it is sufficient to record
that the meeting had before it a report from officials of the
Council, including
the plaintiff and that, during the discussion of
this report, the defendant quoted a passage from it and said
“
I
want to tell you emphatically that that is a lie
”
.
The plaintiff alleged that that statement was defamatory of him.
The defendant denied that the statement referred to
the plaintiff, or
that it was defamatory of him.  In the alternative he pleaded
truth and public benefit, and qualified privilege.
The judge
made a number of  findings of fact on these issues.  He
found that the words complained of did refer to the plaintiff,
and
that they were defamatory of him.  He held, however, that the
defamatory statement related to a matter of public interest
and was
made on an occasion where open and frank discussion of such matters
was called for.  In the circumstances, he found,
a duty rested
on the defendant to speak and those present had a corresponding duty
to receive his statement.
[1]
He referred in this regard to the well-known case of
De
Waal
v
Ziervogel
1938 AD 112
at
121-3, a leading authority on what constitutes an occasion of
qualified privilege.
[2]
The judge further rejected a submission that the defendant was
actuated by malice.  In the result he granted absolution
from
the instance with costs.
[
3
]
As appears from the brief summary which I have given,  the
pleadings, the evidence
and the judge
’
s
findings were all in accordance with the well-understood principles
of the law of defamation.  Moreover, it appears from the
judgment that the trial was conducted by both parties without any
reference to constitutional issues.
[3]
It seems that after the stage of oral argument the parties
’
advocates were  invited to
submit written argument in respect of any constitutional issues
“
but
chose not to do so
”
.
[4]
How is it in those circumstances, that the unsuccessful plaintiff
applied to the judge for leave to appeal to this Court, that
such
leave was granted and that the present application is before us?
For reasons explained in an affidavit by the applicant
’
s
attorney, the application to this Court for leave to appeal was filed
only in June, 1995.  It was supported by a written argument,
in
terms of Rule 18(g) of the Rules of this Court, in which a number of
findings which the judge had made on
constitutional
issues were attacked.  Thereafter, the President of this Court
invited both parties to submit argument on whether, in relation
to
certain of the grounds of appeal, the court which had jurisdiction to
hear the appeal was the Constitutional Court or the Appellate
Division.  The case was set down for oral argument on that
issue, to be heard on 14
th
November, 1995.
In the event, the applicant
’
s
legal representatives filed written argument, but informed the
Registrar that there was nothing that they wished to add by way of
oral argument.  The respondent chose to submit no argument,
written or oral.
[
4
]
Before dealing with the question of jurisdiction it is necessary to
explain how it came
about that the judge made any findings on
constitutional issues, and to ascertain what those findings were.
At the outset of
his judgment, indeed before setting out the factual
background of the case, the judge stated the legal issues which, he
said, arose
for decision in the case.  These were -
(1)
whether the provisions of the Constitution are to be applied
in
litigation that was pending at the time of the commencement of the
Constitution;
(2)
whether the provisions of Chapter 3 of the Constitution dealing with
fundamental rights apply to litigation between private individuals or
entities;
(3)           if
so, whether and to what extent those provisions affect the present
common law of defamation;  and
(4)
the effect of the conclusions reached in respect of the first three
issues on the present matter.
[5]
[
5
]
The judge regarded the first issue as turning on whether or not, in
the light of section
241(8) of the Constitution, pending proceedings
were excluded from the operation of the Constitution.  He
referred to numerous
conflicting decisions in provincial divisions of
the Supreme Court, including some in his own division which had held
that the provisions
of Chapter 3 were applicable to proceedings
pending at the date when the Constitution came into force.  He
was not prepared
to hold that the decisions in his own division were
incorrect, and therefore accepted that Chapter 3 did apply to pending
proceedings
[6]
,
including the case before him.
[
6
]
In relation to the second issue, which for convenience he identified
as being whether
Chapter 3 had
“
horizontal
”
as well as
“
vertical
”
application, he identified the
relevant sections of the Constitution as sections 7, 33(2),  (3)
and (4), and 35(3).  Having
analysed these sections, and having
considered the solutions offered to analogous questions in Canada,
Sri Lanka, Germany and the
United States, he said this -
“
From this brief comparative survey it is
apparent that fundamental rights charters are primarily aimed at
safeguarding the rights
of individuals against the unjustified
intrusion upon those rights by public organs of the State.  This
is apparent not only
from the central position of importance of
the respective charters within each system
’
s
broader constitutional structure, but also from the content of most
of the protected rights and the explicit provisions in some
charters
restricting their application to instances involving State action.
Despite this primary aim, there is an apparent
need to ensure that
the values inherent in the charters should permeate throughout the
entire legal system, albeit indirectly in
most cases
”
.
[7]
Later, with specific reference to the South African
Constitution he said -
“
Our constitution is also, obviously,
primarily concerned with the protection of individual rights against
State action. The content
of most of the fundamental rights makes
this apparent, as well as the thread of accountability of public
institutions that runs throughout
the Constitution ... .  But
the Constitution is also concerned that the entire legal system,
including the common law and customary
law, should accord with the
broader values of the Constitution.  Hence the general
provisions of section 7, 33(2),  (3),
(4) and 35(3), already
referred to earlier.  Insofar as the common law and customary
law corresponds to and extends the provisions
of Chapter 3, it is not
challenged (section 33(3)).  Where it restricts or diminishes
the rights protected in Chapter 3, it
cannot survive.  The
courts are obliged to prevent the restriction of those rights if they
are directly threatened (section
7(4)) and to adapt the common law to
the broader objects of the Constitution even where they are not
directly affected (sections
35 (1) and 35 (3)).
What all this shows, in my view, is that the
“
deepest norms
”
of
the Constitution should determine whether the alleged breach of a
fundamental right in private litigation involves explicit
constitutional
adjudication, or whether it could safely be left to
the rules of the common law to evolve, implicitly, in harmony with
the values
of the Constitution.  Approached in this manner the
distinction between
“
vertical
”
and
“
horizontal
”
application loses its significance, for the extent
of State involvement will not necessarily provide an answer to the
issue in question.
There is no uniform and single answer to the
question whether an alleged breach of a fundamental right contained
in Chapter 3 of
the Constitution can found an action between private
individuals and entitles [sic], or whether it only applies between
individuals
and State organs.  It all depends on the nature and
extent of the particular right, the values that underlie it, and the
context
in which the alleged breach of the right occurs
”
.
[8]
Finally, on the second issue, he concluded -
“
It follows that, in my view, all aspects of
the common law, including the present state of the law of defamation,
should, in cases
that now come before the courts, be scrutinised to
decide whether they accord with the demands of the Constitution.
To leave
those areas of the common law which are in conflict with the
Constitution unaffected would in effect, if not by intent, perpetuate
aspects of an undemocratic, discriminatory and unjust past
”
.
[9]
[
7
]
Froneman J then addressed at length the third issue, namely what
impact, if any, the Constitution
had on the present state of the law
of defamation. His conclusion, as applied to the case before him, was
that there was a clash
between the fundamental right of free speech
on the one hand, and the right to reputation, as part of the
fundamental right to human
dignity on the other.  Those rights,
he said, were inherently of equal value, and it was for the court to
balance the competing
interests.
[10]
How that was to be done is explained in two passages in the
judgment.  The first which I regard as the key passage in
this
section of the judgment,  (at  691C-E; 37B-C) reads -
“
It seems eminently reasonable in practical
terms (and because, conceptually, justification in terms of section
33 does not arise in
a matter concerning competing fundamental
rights), to require that a plaintiff who seeks to rely on the
precedence of one fundamental
right over another should bear the onus
of establishing the basis for such precedence.  Having done so
it may then still be
possible for a defendant to defeat the claim by
relying on a defence justified by a rule of law of general
application, but the onus
of showing that it complies with section 33
(the limitation clause) would then, in that regard, rest on the
defendant.
”
The second passage applies the above general statement
to the particular case, as follows -
“
In keeping with the approach suggested
above the onus would be on the plaintiff to show, in this particular
case, that the right to
his good name and reputation should take
precedence over the defendant
’
s right
to free speech and expression.  This would involve proving the
following: (1) that the statement made by the defendant
referred to
him, the plaintiff;   (2) that the statement would have
been understood as infringing his right to his reputation;
and (3)
that the statement is not worthy of protection as an expression of
free speech.  The first two requirements differ little,
if at
all, from the present law.  It is the third requirement that may
present some difference in approach.  In the common
law it was
up to the defendant to prove the defences which relied upon freedom
of expression as their basis.  The Constitution
has, in my view,
changed that.  The plaintiff now bears the onus of showing that
the defendant
’
s speech or statement
is, for example, false; not in the public interest; not protected by
privilege; unfair comment, and the like.
Of course a plaintiff will
not be restricted to these traditional considerations in attempting
to prove that his or her right to
a good name or reputation deserves
greater protection than the particular expression of speech by the
defendant.  And if this
initial hurdle is cleared by the
plaintiff, the defendant may still defeat the claim by relying on a
defence not based on any fundamental
right, provided that such a
defence complies with the provisions of section 33 of the
Constitution
”
.
[11]
[
8
]
Finally (the judge
’
s
fourth issue) he held that the plaintiff had failed to prove-
“
that the defendant
’
s
statement is not worthy of protection as an instance of freedom of
speech or expression
”
.
[12]
He supported this finding by reference to the
considerations of public interest to which I have referred in
paragraph 2 of  this
judgment, and which, as I have pointed out,
would support the finding that the occasion was one of qualified
privilege under the
common law.
[
9
]
It is not altogether easy to discern whether, in reaching his
conclusion on the constitutional
issues which he himself had raised,
the judge was applying section 15 of the Constitution (freedom of
speech and expression) directly
horizontally as between private
parties, or whether he was merely having
“
due
regard to the spirit, purport and objects
”
of
Chapter 3, in terms of section 35(3).  My impression is that he
was doing the latter.  He was balancing one fundamental
right
(dignity, including reputation) against another, (freedom of speech)
and developing (or altering) a common law rule in a manner
which in
his opinion struck the correct balance.  He did not find that
there had been an infringement of one or other of the
two fundamental
rights, and then go on to consider whether the infringement was
justifiable in terms of section 33(1).  Indeed,
in one passage
in his judgment
[13]
he points out that whereas the limitation provision in Chapter 3,
i.e. section 33 (1) seeks to diminish a right regarded as fundamental
by the Constitution,
“
the
same cannot be said of competing fundamental rights. They are
inherently of equal value in terms of the Constitution
”
.
In another passage he puts this even more explicitly.  He says -
“
It seems to me that where the alleged
infringement of one fundamental right has to be determined in the
context of another, competing,
fundamental right, the Constitution
creates no hierarchy of fundamental rights.  The limitation
clause (section 33) is of little
help here, because by its very
inclusion as a fundamental right in Chapter 3 of the Constitution,
such a right already by definition
complies with the requirements of
section 33, namely that of being reasonable, necessary and
justifiable in an open and democratic
society based on freedom and
equality.  It can also hardly be said that one fundamental right
can negate fully the content of
another fundamental right
”
.
[14]
This
would seem to exclude the direct horizontal application of either of
the competing rights.  I do not overlook the fact that
in other
passages, including one quoted above
[15]
,
Froneman J re-introduces section 33(1) as applicable in some
situations.  I must confess that I do not find it easy to
envisage
the situations which the judge has in mind but, be that as
it may, I remain of the view that the judge was exercising his
function
of developing the common law rather than attempting to give
direct horizontal application to section 15 of the Constitution.
He has in fact purported to fashion or perhaps to select a new
principle of the law of defamation.
[16]
[
10
]
Whether or not the altered principle of law constitutes a justifiable
or desirable development of
the common law is, for reasons which I
shall develop, not a question to be addressed in this judgment.
I must nonetheless advert
to what in paragraph 7, above, I have
called the key passage in Froneman J
’
s
judgment on the effect of Chapter 3 on the law of defamation.
In that passage, notwithstanding his findings that the fundamental
rights under Chapter 3 were
“
inherently
of equal value
”
,
he held it to be
“
reasonable
in practical terms
”
that
a plaintiff who sought to rely on the precedence of one fundamental
right over another should
“
bear
the onus of establishing the basis for such precedence
”
.
With all respect to the judge, whatever the practical merits of such
a rule in the law of defamation (as to which I say nothing)
I am
bound to say that I can find nothing in Chapter 3 which remotely
suggests that in the balancing of competing rights it can be
of any
moment whether the person asserting one of those rights is a
plaintiff or a defendant.  Such an arbitrary and mechanical
test
seems to me, on any interpretation of Chapter 3 to be alien to the
objects of the Chapter.
[
11
]
The way is now clear to consider the issue of jurisdiction in an
appeal against the judgment of Froneman
J.  The application for
leave to appeal to this Court was supported by an argument filed in
terms of Rule 18(g)(iv) of the Rules
of the Constitutional Court, in
which the applicant set out the grounds on which he wished to
appeal.  His first ground is the
following -
1.
Chapter 3 of the Constitution was not intended to apply
to litigation
upon civil wrongs between private persons,
alternatively,
if the Constitution was intended to apply to such litigation, it was
not intended to operate in respect of matters such as the instant
case which was pending at the date upon which the Constitution came
into force.
[
12
]
In the further alternative, the applicant asserts that even if he is
wrong on the first ground, the
judge in any event erred in his
findings on the effect of the Constitution on the action.  He
submits that
“
the
effect of the provisions of the Constitution is none of the
following:
”
1.1
to create an onus upon a litigant in the position of Applicant
seeking
to recover damages for defamation, to show that his interest
in his good name enjoys precedence over Respondent
’
s
right to free speech and expression;
1.2
to create an onus upon Applicant, the discharge of which would
involve
Applicant proving that the statement made by the Respondent
referred to him; that the statement would have been understood as
infringing
Applicant
’
s right to his
reputation; that Respondent
’
s speech
or statement complained  of as defamatory by the Applicant was
false; or not in the public interests, or not protected
by privilege,
or unfair comment or some like consideration;
1.3           the
existence of other, as yet unspecified, considerations to which
Applicant in the instant action might have recourse in attempting to
prove that his right to a good name or reputation deserves greater
protection than the protection of freedom of speech or expression by
Respondent;
1.4
to provide that even in the event of Applicant discharging the onus
described in paragraph 2 (above), Respondent may still defeat
Applicant
’
s claim by reliance upon a
defence not based on any fundamental right provided that such defence
complies with the provisions of Section
33 of the Constitution;
1.5
Applicant requiring to prove that Respondent
’
s
statement concerning him was not worthy of protection as an instance
of freedom of speech or expression.
[
13
]
The grounds of appeal in paragraph 11 above obviously raise matters
relating to the interpretation
and enforcement of the provisions of
the Constitution.  They are therefore within the jurisdiction of
this Court, and are excluded
from the jurisdiction of the Appellate
Division.  Both the issue of retrospectivity and the issue of
horizontality have, however,
now been dealt with by this Court in the
case of
Du Plessis
and Others
v
De
Klerk and Another.
[17]
It follows from the judgment in that case that although Froneman J
was correct in his interpretation of section 241(8)
[18]
,
the right of freedom of speech under section 15 cannot be invoked as
providing a defence to an action for damages founded upon a
defamation uttered before the Constitution came into force.
[19]
The judgment and order of Froneman J nonetheless stand.  As I
have indicated, the judge in my view reached his decision
not on a
direct horizontal application of section 15, but by purporting to
develop the common law, having regard
inter
alia
to the values
embodied in section 15 and, I emphasise, by
applying
it as so developed to the case before him.  Consequently, and
notwithstanding that they are couched only as alternatives to
the
first ground, the grounds of  appeal numbered 1.1 to 1.5, above,
still require to be considered.  The issue of jurisdiction
remains alive.
[
14
]
The solution to the issue of jurisdiction requires consideration of
the scheme of appeals laid out
in Chapter 7 of the Constitution.
This is a scheme distinct from the provisions for referrals, although
it is also to be found
in section 102.  The relevant
sub-sections are the following -
(3)           If,
in any matter before a provincial or local division, there are
both
constitutional and other issues, the provincial or local division
concerned shall, if it does not refer an issue to the Constitutional
Court, hear the matter, make findings of fact which may be relevant
to a constitutional issue within the exclusive jurisdiction of
the
Constitutional Court, and give a decision on such issues as are
within its jurisdiction.
(4)           An
appeal shall lie to the Appellate Division against a decision
of a
provincial or local division in terms of subsection (3).
(5)           If
the Appellate Division is able to dispose of an appeal brought
in
terms of subsection (4), without dealing with any constitutional
issue that has been raised, it shall do so.
(6)           If it
is necessary for the purposes of disposing of the said appeal
for the
constitutional issue to be decided, the Appellate Division shall
refer such issue to the Constitutional Court for its decision.
(7)           The
Chief Justice and the President of the Constitutional Court shall
jointly make rules to facilitate the procedure for dealing with
appeals in which there are both constitutional and other issues,
which may provide for the constitutional issues to be referred to the
Constitutional Court before or after any such appeal has been
heard
by the Appellate Division.
(12)         Appeals arising
from matters referred to in section 101(3) and which relate
to issues
of constitutionality shall lie to the Constitutional Court.
These
provisions recognise that in many cases before the Supreme Court
there will be both constitutional and other issues.  In
such
cases any appeal will lie in the first place to the Appellate
Division, subject to any rules which may be made under sub-section
(7), above.  The logic underlying this order of appeals appears
from sub-section (5), which requires the Appellate Division,
if able
to do so, to dispose of an appeal before it without reference to any
constitutional issue.  Constitutional issues may
come from the
Appellate Division to this Court in terms of sub-section (6) only
when
necessary
for
the disposition of the appeal.  This accords with the general
principle which this Court has stated on more than one occasion,
that
where it is possible to decide any case, civil or criminal, without
reaching a constitutional issue, that is the course which
should be
followed.
[20]
A Rule has been made under sub-section (7), which provides that in
some cases the normal order in which issues on appeal
are to be dealt
with is to be reversed.  Rule 23(3) of the Rules of the
Constitutional Court provides-
(3)           If
the Chief Justice, in consultation with the President, is of the
opinion that it is in the interest of justice that a constitutional
issue raised in an appeal be determined before the appeal is
dealt
with by the Appellate Division, he or she shall make an order
directing the appellant to proceed first with the appeal on the
constitutional issue and to prosecute the appeal to the said Division
only if it is necessary to do so after the constitutional issue
has
been decided and, if such an order is made, the appellant shall
proceed in accordance with the provisions of rule 19.
This Rule underscores the fact that where there are both
constitutional issues and other issues in a case any appeal must
ordinarily
first go to the Appellate Division.  What must
therefore be decided is whether, even if there are constitutional
issues in this
case, there are also other issues.
[
15
]
I have no doubt that the action in the provincial division did raise
issues other than constitutional
issues.  In the first place it
raised issues of fact, or mixed law and fact, which could hardly be
categorised as constitutional.
Thus the judge had to decide and did
decide whether the defendant
’
s
statement was capable of referring to the plaintiff, whether
reasonable persons would so understand it, and whether persons
present
did so understand it
[21]
;
whether the words were defamatory
[22]
;
and whether the defendant was actuated by malice.
[23]
I note that in the application to Froneman J for leave to appeal to
this Court one of the grounds on which leave was requested
was that
the judge had erred in rejecting the plaintiff
’
s
submission that the defendant had been actuated by malice.
Froneman J himself, in his judgment on the application, held that
that ground did not raise a constitutional issue
“
but
merely a ground for an appeal of fact
”
.
A moment
’
s
consideration shows that the Appellate Division might be able to
dispose of an appeal by the plaintiff without dealing with any
constitutional issue, as envisaged by sub-section (5).  For
example the Appellate Division might find that the words complained
of did not refer to the plaintiff, or were not defamatory of him; or
that in any event the defendant was protected by qualified privilege
without need to invoke any constitutional protection or any new
principle of law.  Or it might find, on the other hand, that
even if the principles enunciated by the judge were assumed to be
correct, the defendant was on the evidence actuated by malice and
therefore that his statement was
“
not
worthy of protection
”
.
Those are all matters proper to be dealt with by the Appellate
Division, and not by this Court.
[
16
]
There is another, more fundamental, reason why the appeal, if any, in
this case must go to the Appellate
Division.  The constitutional
considerations which were canvassed by the judge led him to formulate
new principles of common
law, and to apply them to the case before
him.   In my judgment in
Du
Plessis and Others v De Klerk and Another, supra
n17, I stated that the development and application of the common law
and customary law is the task of the Supreme Court, including
the
Appellate Division.  As pointed out in para 63 of that judgment
“
the application
and development of the common law and customary law
”
[24]
is not a matter which falls within
the jurisdiction of the Constitutional Court under section 98(2) of
the Constitution, and is therefore
not excluded from the jurisdiction
of the Appellate Division under section 101(5).  The present
case demonstrates why that must
be so.  A court which has regard
to the dictates of section 35(3) does not merely develop the common
law
in abstracto
:
it must apply the law as found to the case before it.  That is
what Froneman J did.   In a recent case
[25]
in the Witwatersrand Local Division the judge also considered that
the
“
spirit,
purport and objects
”
of
Chapter 3 required a reconsideration of the law of defamation.
I have already remarked that his reformulation of the common
law is
not the same as that of Froneman J.  I repeat what was said in
paragraph 59 of my judgment in the
Du
Plessis
case - that
it is not within the powers of this Court to choose between competing
versions of the common law, all of which may be
consistent with the
Constitution.  That choice on appeal is for the Appellate
Division, at least in the first place.
[26]
Whether this choice can be exercised on the facts of this case - a
matter left open in the
Du
Plessis
judgment
[27]
,
is a question which need not be decided now.
[
17
]
In paragraph 63 of the
Du
Plessis
judgment
this Court
’
s
ultimate power to interpret section 35(3) and to review its
application was reserved.  It is unnecessary for present
purposes
to consider the extent of that power.
[
18
]
It follows that the application for leave to appeal to this Court
must be dismissed.  The applicant
may, if so advised, apply to
the judge for leave to appeal to the Appellate Division, subject of
course to obtaining condonation
of the lateness of such application.
Order
[19]      The application for
leave to appeal is dismissed.
S
KENTRIDGE
Acting
Justice of the Constitutional Court
Chaskalson
P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J,
Mokgoro
J,
O
’
Regan J and
Sachs J concur in the judgment of Kentridge AJ.
Case
No
:           CCT
26/94
Counsel for the Applicant (Plaintiff)
:           AJG
Lang S.C.
Instructed
by
:           Bate
Chubb & Dickson Inc.
Counsel for the Respondent (Defendant)
:
No
appearance
Date of
Hearing
:           15
November 1995
Date of
Judgment
:           14 May
1996
[1]
Judgment
at 693F-G; 39D-E.
[2]
He
might also have referred to cases in which meetings of local
authorities were held to be occasions of qualified privilege, such
as
McLean
v
Murray
1923
AD 406
and
Young
v
Kemsley and Others
1940 AD 258.
[3]
The
judge described it as

a matter
conducted on traditional common-law lines

-
judgment at 694B-C; 39I-J.
[4]
Judgment at 692B-C; 37I-J.  See also the
judgment of Froneman J on the plaintiff

s
application for leave to appeal, 12
th
December 1994.
[5]
Judgment
at 675G-H; 22B-C.
[6]
Judgment
at 680E; 26I.
[7]
Judgment
at 683F-H; 29J-30B.
[8]
Judgment
at 684D-I; 30G-31C.
[9]
Judgment
at 686A-B; 32C.
[10]
Judgment
at 691B-C; 37A-B.
[11]
Judgment
at 691F-692A; 37D-H.
[12]
Judgment
at 693F; 39D.
[13]
Judgment
at 691B; 36J - 37A.
[14]
Judgment
at 689J-690B; 35J-36B.
[15]
At
para 7, n11.  See also the judgment at 691J-692A; 37H.
[16]
Not
the same, I would point out, as the one fashioned by Cameron J in
Holomisa
v
Argus Newspapers Ltd
,
unreported judgment of the Witwatersrand Local Division, 14 February
1996, case number 19883/95.
[17]
Unreported
judgment of the Constitutional Court, 15 May 1996, CCT 8/95.
[18]
See
S v Mhlungu and Others
1995
(3) SA 867 (CC); 1995 (7) BCLR 793 (CC).
[19]
The
reservation or
caveat
contained in para 20 of that judgment has no bearing on the present
case.
[20]
See
S
v
Mhlungu and Others,
supra
n18 at para 59;
Zantsi
v
Council of State, Ciskei and Others
[1995] ZACC 4
;
1995 (3) SA 614
(CC);
1995 (7)
BCLR 793
(CC) at para 3.
[21]
Dealt
with in the judgment at 692E-693B; 38C-I.
[22]
Dealt
with at 693B-E; 38J-39C.
[23]
Dealt
with at 693H-694B; 39F-I.
[24]
The
words used in section 35(3).
[25]
See
n16 above.
[26]
In
addition to the formulations of Froneman J and Cameron J referred to
above, the Appellate Division would doubtless have before
it the
decision in
Potgieter en

n
Ander v Kilian
1995 (11) BCLR 1498
(N)
in which, dissenting from the judgment of Froneman J, Squires and
McLaren JJ found nothing in the Constitution to require a
change in
the onus of proof in defamation; and also the opinion of G. Marcus
in Chaskalson et al (eds),
Constitutional
Law of South Africa
(1996), para
20.8.(b), that the rule in
New York
Times Co. v. Sullivan,
[1964] USSC 41
;
376 U.S. 254
(1964) (that a public official should have no right to sue for
defamation save on proof that the statement complained of was false
and that the defendant knew of, or was reckless as to, falsity) is
constitutionally required to be incorporated
holus-bolus
into our law.
[27]
See
Du Plessis
judgment at para 66.