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[2002] ZACC 12
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Khumalo and Others v Holomisa (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 53/01
FRED KHUMALO First Applicant
SKHUMBUZO MIYA Second Applicant
FIDEL MBHELE Third Applicant
TIMES MEDIA LIMITED Fourth
Applicant
NEW AFRICA PUBLICATIONS
LIMITED Fifth Applicant
versus
BANTUBONKE HARRINGTON
HOLOMISA Respondent
Heard on : 7 May 2002
Decided on : 14 June 2002
JUDGMENT
O’REGAN J:
[1]This is an application for leave to appeal against the dismissal
of an exception by the Transvaal High Court. The respondent,
a
well-known South African politician and the leader of a political
party, is suing the applicants whom we may assume are responsible
for the publication of a newspaper, the Sunday World, for defamation
arising out of the publication of an article with their newspaper.

In the article it was stated, amongst other things, that the
respondent was involved in a gang of bank robbers and that he was
under police investigation for this involvement.
[2]The applicants excepted to the respondent’s particulars of
claim. Put simply, they averred that given that the contents of
the
statement were matters in the public interest, the failure by the
respondent to allege in his particulars of claim that the
statement
was false rendered the claim excipiable in that it failed to
disclose a cause of action. They based their exception
on two
separate grounds: the direct application of section 16 of the
Constitution which protects the right to freedom of expression
and
alternatively on the common law, asserting that it should be
developed to promote the spirit, purport and objects of the Bill
of
Rights as contemplated by section 39(2) of the Constitution.
1
[3]The exception also stipulated that the obligation imposed upon a
plaintiff to establish the falsity of a defamatory statement
did not
apply to all plaintiffs in all defamation actions but only in
certain actions. The exception in this regard was based
on two
alternative formulations as the following excerpt indicates:
“
7. It is inconsistent with s
16 of the Constitution to permit a plaintiff to recover damages for
the publication of a statement
relating to matters of public
interest, alternatively to matters of political importance,
alternatively to the fitness of a public
official for public office,
alternatively to the fitness of a politician for public office, in
circumstances where that plaintiff
does not allege and prove the
falsity of the statement in question.
Alternatively to paragrapgh7
above
8. It is inconsistent with s 16
of the Constitution to permit a politician, alternatively a public
official, to recover damages
for the publication of a statement
relating to matters of public interest, alternatively to matters of
political importance, alternatively
to his fitness for public
office, in circumstances where he does not allege and prove the
falsity of the statement in question.”
The exception averred therefore
that the particulars were excipiable either because the defamatory
statement in question relates
to matters of public interest or
importance or concerns the fitness of a politician for public
office; or because the plaintiff
is a politician or public official
and the defamatory statement relates to matters of public importance
or interest.
[4]The exception crisply raised the question whether the common law
of defamation as developed by our courts is inconsistent with
the
Constitution. In particular, it raised the question whether, to the
extent that the law of defamation does not require a plaintiff
in a
defamation action to plead that the defamatory statement is false in
any circumstances, the law limits unjustifiably the right
to freedom
of expression as enshrined in section 16 of the Constitution. The
applicants are therefore asserting that the elements
of the law of
defamation in South Africa should, in certain circumstances, include
a requirement that the defamatory statement
be false. The
applicants are therefore asserting that the right of freedom of
expression in section 16 is directly applicable
in this case despite
the fact that the litigation does not involve the state nor any
organ of state. This is a matter which will
be considered later in
this judgment.
[5]Van der Westhuizen J in the High Court, having considered the
matter fully, dismissed the exception,
2
holding himself bound by the decision of the Supreme Court of Appeal
in
National Media Ltd v Bogoshi
[1998] ZASCA 94
;
1998 (4) SA 1196
(SCA);
1999
(1) BCLR 1
(SCA). Prior to instituting an application for leave to
appeal directly to this Court against the dismissal of the
exception,
the applicants then sought and were granted a certificate
from the High Court. The respondent opposed their application for
leave
to appeal.
Application for leave to appeal to this Court: Is the dismissal
of an exception appealable?
[6]It was common cause between the parties that the decision by the
High Court was not one which could be appealed to the Supreme
Court
of Appeal. Appeals to that Court are governed, amongst other
provisions, by section 168(3) of the Constitution and sections
20(1)
and 21(1) of the Supreme Court Act 59 of 1959. The Supreme Court of
Appeal has held that these provisions mean that appeals
will lie
against decisions which have the following three attributes: they
must be final in effect and not susceptible of alteration
by the
court of first instance; they must be definitive in some respect of
the rights of the parties; and they must have the effect
of
disposing of a substantial portion of the relief claimed.
3
Applying these criteria, the High Court held that where an
exception which avers that a pleading does not disclose a cause of
action or defence is upheld, an appeal will lie because the success
of such an exception will result in the failure of the relevant
cause of action or defence. However, where an exception is not
upheld, an appeal will not lie because it does not meet the criteria
enumerated above.
4
In a recent case, the Supreme Court of Appeal has pertinently
declined to reconsider the question of the appealability of
decisions
dismissing exceptions.
5
[7]The question as to what decisions may be appealed to this Court
is governed by section 167(6) of the Constitution and the rules
of
this Court. Section 167(6) provides that:
“
National legislation or the
rules of the Constitutional Court must allow a person, when it is in
the interests of justice and with
leave of the Constitutional Court
–
(a) to bring a matter directly
to the Constitutional Court; or
(b) to appeal directly to the
Constitutional Court from any other court.”
6
Appeals are governed by rules
18, 19 and 20 of the rules of this Court. The relevant rule for the
purposes of this case is rule
18 which provides that:
“
(1) The procedure set out in
this rule shall be followed in an application for leave to appeal
directly to the Constitutional Court
where
a decision on a
constitutional matter
, other than an order of constitutional
invalidity under section 172(2)(a) of the Constitution, has been
given by any court other
than the Supreme Court of Appeal . . .”
(my emphasis).
The question whether an appeal
may lie to this Court against the dismissal of an exception by a
High Court then depends on whether
such dismissal constitutes a
“decision on a constitutional matter” as contemplated by rule 18
and, if it does, whether it is
“in the interests of justice” —
the standard set by section 167(6) of the Constitution — for this
Court to hear the appeal.
[8]Although it could be argued that the word “decision” in rule
18 should be given a meaning equivalent to the meaning given
to the
words “judgment or order” in section 20(1) of the Supreme Court
Act by the Supreme Court of Appeal, this would not be
appropriate.
The Constitution intends that the interests of justice (coupled with
leave of this Court) be the determinative criterion
for deciding
when appeals should be entertained by this Court. This Court has
already developed guiding principles to interpret
the phrase.
7
Were the Court to adopt a restricted meaning of “decision” in
rule 18 in the light of a range of policy considerations relevant
to
determining when a matter should be the subject of an appeal, it
would be adopting a test different to that proclaimed by the
Constitution. All the considerations which have led the Supreme
Court of Appeal to adopt a limited interpretation of the words
“judgment or order” as contemplated by section 20 of the Supreme
Court Act can be accommodated in the “interests of justice”
criterion. Thus, it will often not be in the interests of justice
for this Court to entertain appeals against interlocutory rulings
which have no final effect on the dispute between the parties.
[9]The question to be considered then is whether the order made by
Van der Westhuizen J on 8 December 2000 dismissing the exception
raised by the applicants constitutes a “decision on a
constitutional matter”. The exception was squarely based on the
applicants’
constitutional right to freedom of expression, and it
raised the question of whether the common law of defamation is an
unjustifiable
limitation of those rights. In considering and then
dismissing the applicants’ contentions, the judge was clearly
concerned
with a constitutional matter and his order constitutes a
decision on such a matter as contemplated by rule 18.
[10]The next question is whether it is in the interests of justice
for leave to be granted to the applicants to appeal against
the
order dismissing the exception before the trial had started. In
answering this question, it is necessary to take into account,
amongst other things, the following considerations: the nature of
the exception and, in particular, the effect that upholding the
exception may have upon the trial proceedings in the High Court; the
extent to which the exception raises the question of the development
of the common law in which case a decision by the Supreme Court of
Appeal on the matter may be desirable before the case is heard
by
this Court;
8
whether the matter is appealable to the Supreme Court of Appeal; the
stage of the proceedings in the High Court; the importance
of a
determination of the constitutional issues raised by the exception;
and the applicants’ prospects of success upon appeal.
9
[11]Were the exception to be upheld by this Court on appeal, the
effect would be to require the respondent to amend his particulars
of claim to include an allegation that the defamatory statement in
question was false. The respondent would then bear the onus
of
establishing that the defamatory statement was false and would have
to prove it in the trial. Were the appeal to be dismissed,
however,
the respondent would not have to aver or prove that the defamatory
statement was false and it would be for the applicants
to prove its
truth or the reasonableness of their having published it. The
outcome of the appeal on the exception, therefore,
will be
determinative of the manner in which the trial is conducted in the
High Court.
[12]In support of their application for leave to appeal, the
applicants have lodged an affidavit by their attorney asserting that
if the appeal on the exception were not to be heard now, it may well
result in their deciding to settle the respondent’s claim
rather
than defending the defamation action. In particular, they state
that the defence of reasonableness now available to the
media under
the common law of defamation is still undeveloped and as such poses
an inhibition upon defendants in defamation actions
from pursuing a
defence. This consideration carries no weight in determining what
constitutes the interests of justice in any
case. Defendants can
hardly be heard to say that they would like to see further
developments in the common law to protect their
rights because they
are unwilling to rely on existing rules which may provide
protection, but which they are unwilling to pursue.
[13]Although it is clear that the exception in issue does raise the
question of the development of the common law, upon which it
would
ordinarily be desirable to have a decision of the Supreme Court of
Appeal prior to it being heard by this Court, this is
a matter which
cannot go to the Supreme Court of Appeal at this stage of the
proceedings, as is clear from para 6 above. Be that
as it may, the
fact that the Supreme Court of Appeal would not entertain an appeal
in this matter cannot operate as a bar to this
Court hearing the
appeal: it is merely a factor relevant to determining the overall
interests of justice. Moreover, the Supreme
Court of Appeal has
recently reviewed the law of defamation in
Bogoshi
’s case.
10
In that case, the Court developed the common law in a manner which
it held to be consistent with the provisions of the interim
Constitution. Although there are textual differences between the
interim Constitution and the 1996 Constitution, they are not
material to this case. It is therefore doubtful that the Supreme
Court of Appeal would have reconsidered its judgment in
Bogoshi
in this case. In these circumstances, therefore, the fact that this
matter has not been considered by the Supreme Court of Appeal
is not
an impediment to our hearing the matter.
[14]A further consideration relevant to the interests of justice is
the question of the public interest in a determination of the
constitutional issue. The applicants have argued that there is a
significant public interest in the determination of the issue
on the
grounds that the daily business of the media, both print and
electronic, are affected by the current law of defamation.
They are
faced regularly with difficult decisions as to what material to
publish and what not. Those decisions are materially
affected by
the law of defamation. Accordingly, they argued, there was a great
public interest in obtaining a judgment on the
issue raised in the
exception.
[15]Lastly, an often determinative consideration for the purposes of
determining the interests of justice, is the question whether
the
applicants for leave to appeal have reasonable prospects of success
in the appeal. In this regard, rule 18 requires the judge
in the
court below to provide a certificate stating, amongst other things,
whether he or she thinks “that there is a reasonable
prospect that
the [Constitutional] Court will reverse or materially alter the
judgment if permission to bring the appeal is given”.
Van der
Westhuizen J issued a certificate signifying that there was a
reasonable prospect that this Court might reverse or alter
his
order.
[16]The extent to which the Constitution requires a development of
the law of defamation is a question which has been frequently
asked.
The issue was raised but not answered in an early decision of this
Court
Du Plessis and Others v De Klerk and Another
[1996] ZACC 10
;
1996 (3)
SA 850
(CC);
1996 (5) BCLR 658
(CC) and has been considered in a
considerable number of High Court judgments since.
11
It is also a matter which has received the attention of the Supreme
Court of Appeal in
National Media Ltd v Bogoshi
12
and has also troubled courts in many other jurisdictions. In all
these circumstances, therefore, it seems that it would be in
the
interests of justice for this Court to consider the appeal. The
application for leave to appeal is therefore granted (though
to
avoid confusion I shall continue to refer to the appellants as
applicants).
The common law of defamation in South Africa
[17]The law of defamation in South Africa is based on the actio
injuriarum, a flexible remedy arising from Roman Law, which afforded
the right to claim damages to a person whose personality rights had
been impaired intentionally by the unlawful act of another.
13
One of those personality rights, is the right to reputation or
fama, and it is this aspect of personality rights that was protected
by the law of defamation.
[18]At common law, the elements of the delict of defamation are –
(a) the wrongful and
(b) intentional
(c) publication of
(d) a defamatory statement
(e) concerning the plaintiff.
It is not an element of the delict in common law that the statement
be false.
14
Once a plaintiff establishes that a defendant has published a
defamatory statement concerning the plaintiff, it is presumed that
the publication was both unlawful and intentional. A defendant
wishing to avoid liability for defamation must then raise a defence
which rebuts unlawfulness or intention.
15
Although not a closed list,
16
the most commonly raised defences to rebut unlawfulness are that the
publication was true and in the public benefit;
17
that the publication constituted fair comment
18
and that the publication was made on a privileged occasion.
19
Most recently, a fourth defence rebutting unlawfulness was adopted
by the Supreme Court of Appeal in
National Media Ltd and Others v
Bogoshi
.
20
In that case, Hefer JA, after a careful analysis of the development
of a similar defence in Australia, England and the Netherlands,
held
that:
“
. . . the publication in the
press of false defamatory allegations of fact will not be regarded
as unlawful if, upon a consideration
of all the circumstances of the
case, it is found to have been reasonable to publish the particular
facts in the particular way
and at the particular time.
In considering the
reasonableness of the publication account must obviously be taken of
the nature, extent and tone of the allegations.
We know, for
instance, that greater latitude is usually allowed in respect of
political discussion (
Pienaar and Another v Argus Printing and
Publishing Co Ltd
1956 (4) SA 310
(W) at 318 C-E), and that the
tone in which a newspaper article is written, or the way in which it
is presented, sometimes provides
additional, and perhaps
unnecessary, sting. What will also figure prominently is the nature
of the information on which the allegations
were based and the
reliability of their source, as well as the steps taken to verify
the information. Ultimately there can be
no justification for the
publication of untruths, and members of the press should not be left
with the impression that they have
a licence to lower the standards
of care which must be observed before defamatory matter is published
in a newspaper.” (at 1212G
- 1213A).
[19]This fourth defence for rebutting unlawfulness, therefore,
allows media defendants to establish that the publication of a

defamatory statement, albeit false, was nevertheless reasonable in
all the circumstances.
[20]In
Bogoshi
, too, the question of the rebuttal of
intention was considered. One of the aspects of animus injuriandi
(the intention to cause
injury) is subjective intent which, amongst
other things, requires the person who made the defamatory statement
to have been “conscious
of the wrongful character of his act”.
21
In 1982, the Appellate Division held that the mass media could not
avoid liability for the publication of a defamatory statement
by
relying on a defence that the publication was not intentionally
injurious.
22
The effect of this decision was to impose strict liability upon the
media for the unlawful publication of defamatory material.
In
Bogoshi
, the Supreme Court of Appeal overruled this
decision.
23
Hefer JA held that the Court in
Pakendorf
’s case had
failed to recognise the importance of freedom of expression and, in
particular, the important role the mass media
perform in a
democratic society. He concluded that:
“
If we recognise, as we must,
the democratic imperative that the common good is best served by the
free flow of information and the
task of the media in the process,
it must be clear that strict liability cannot be defended and should
have been rejected in
Pakendorf
.” (at 1210).
Hefer JA then considered
whether media defendants should be permitted to rebut the
presumption of intentional harm by establishing
a lack of knowledge
of wrongfulness, even where that lack of knowledge was as a result
of the negligence of the defendant. He
concluded that they should
not, reasoning as follows:
“
If media defendants were to
be permitted to do so, it would obviously make nonsense of the
approach which I have indicated to the
lawfulness of the publication
of defamatory untruths. In practical terms (because intoxication,
insanity, provocation and jest
could hardly arise in the present
context) the defence of the lack of
animus injuriandi
is
concerned with ignorance or mistake on the part of the defendant
regarding one or other element of the delict. . . . The indicated
approach is intended to cater for ignorance and mistake at the level
of lawfulness; and in a given case negligence on the defendant’s
part may well be determinative of the legality of the publication.
In such a case a defence of absence of
animus injuriandi
can
plainly not be available to the defendant.
Defendants’ counsel, rightly
in my view, accepted that there are compelling reasons for holding
that the media should not be treated
on the same footing as ordinary
members of the public by permitting them to rely on the absence of
animus injuriandi,
and that it would be appropriate to hold
media defendants liable unless they were not negligent in the
circumstances of the case.”
(at 1214C-F).
Hefer JA therefore concluded
that media defendants could not escape liability merely by
establishing an absence of knowledge of
unlawfulness. They would in
addition have to establish that they were not negligent.
Freedom of expression
[21]Having sketched the principles of the common law of defamation,
it is now necessary to consider section 16 of the Constitution.
It
is this provision upon which the applicants rely to assert that the
existing common law rules are inconsistent with the Constitution.

Section 16 provides that:
“
(1) Everyone has the right
to freedom of expression, which includes –
(a) freedom of the press and
other media;
(b) freedom to receive or
impart information or ideas;
(c) freedom of artistic
creativity; and
(d) academic freedom and
freedom of scientific research.
(2) The right in subsection (1)
does not extend to –
(a) propaganda for war;
(b) incitement of imminent
violence; or
(c) advocacy of hatred that is
based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.”
The importance of the right of
freedom of expression in a democracy has been acknowledged on many
occasions by this Court,
24
and other South African courts.
25
Freedom of expression is integral to a democratic society for many
reasons. It is constitutive of the dignity and autonomy of
human
beings. Moreover, without it, the ability of citizens to make
responsible political decisions and to participate effectively
in
public life would be stifled.
[22]The print, broadcast and electronic media have a particular role
in the protection of freedom of expression in our society.
Every
citizen has the right to freedom of the press and the media and the
right to receive information and ideas. The media are
key agents in
ensuring that these aspects of the right to freedom of information
are respected. The ability of each citizen to
be a responsible and
effective member of our society depends upon the manner in which the
media carry out their constitutional
mandate. As Deane J stated in
the High Court of Australia:
“
. . . the freedom of the
citizen to engage in significant political communication and
discussion is largely dependent upon the freedom
of the media.”
26
The media thus rely on freedom
of expression and must foster it. In this sense they are both
bearers of rights and bearers of constitutional
obligations in
relation to freedom of expression.
[23]Furthermore, the media are important agents in ensuring that
government is open, responsive and accountable to the people as
the
founding values of our Constitution require.
27
As Joffe J said in
Government of the Republic of South Africa v
“Sunday Times” Newspaper and Another
1995 (2) SA 221
(T) at
227H - 228A:
“
It is the function of the
press to ferret out corruption, dishonesty and graft wherever it may
occur and to expose the perpetrators.
The press must reveal
dishonest mal- and inept administration. . . . It must advance the
communication between the governed and
those who govern.”
[24]In a democratic society, then, the mass media play a role of
undeniable importance. They bear an obligation to provide citizens
both with information and with a platform for the exchange of ideas
which is crucial to the development of a democratic culture.
As
primary agents of the dissemination of information and ideas, they
are, inevitably, extremely powerful institutions in a democracy
and
they have a constitutional duty to act with vigour, courage,
integrity and responsibility. The manner in which the media carry
out their constitutional mandate will have a significant impact on
the development of our democratic society. If the media are
scrupulous and reliable in the performance of their constitutional
obligations, they will invigorate and strengthen our fledgling
democracy. If they vacillate in the performance of their duties,
the constitutional goals will be imperilled. The Constitution
thus
asserts and protects the media in the performance of their
obligations to the broader society, principally through the
provisions
of section 16.
[25]However, although freedom of expression is fundamental to our
democratic society, it is not a paramount value. It must be
construed in the context of the other values enshrined in our
Constitution. In particular, the values of human dignity, freedom
and equality.
28
The constitutional value of human dignity
[26]It has long been recognised in democratic societies that the law
of defamation lies at the intersection of the freedom of speech
and
the protection of reputation or good name. As Corbett CJ said:
“
I agree, and I firmly
believe, that freedom of expression and of the press are potent and
indispensable instruments for the creation
and maintenance of a
democratic society, but it is trite that such freedom is not, and
cannot be permitted to be, totally unrestrained.
The law does not
allow the unjustified savaging of an individual’s reputation. The
right of free expression enjoyed by all
persons, including the
press, must yield to the individual’s right, which is just as
important, not to be unlawfully defamed.
I emphasise the word
‘unlawfully’ for, in striving to achieve an equitable balance
between the right to speak your mind and
the right not to be harmed
by what another says about you, the law has devised a number of
defences, such as fair comment, justification
(ie truth and public
benefit) and privilege, which if successfully invoked render lawful
the publication of matter which is
prima facie
defamatory.”
29
Under our new constitutional
order, the recognition and protection of human dignity is a
foundational constitutional value.
30
As this Court held in
Dawood and Another v Minister of Home
Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC)
at para 35:
“
The value of dignity in our
Constitutional framework cannot . . . be doubted. The Constitution
asserts dignity to contradict our
past in which human dignity for
black South Africans was routinely and cruelly denied. It asserts
it too to inform the future,
to invest in our democracy respect for
the intrinsic worth of all human beings. Human dignity therefore
informs constitutional
adjudication and interpretation at a range of
levels.”
31
[27]
In the
context of the actio injuriarum, our common law has separated the
causes of action for claims for injuries to reputation
(fama) and
dignitas. Dignitas concerns the individual’s own sense of self
worth, but included in the concept are a variety of
personal rights
including, for example, privacy. In our new constitutional order,
no sharp line can be drawn between these injuries
to personality
rights. The value of human dignity in our Constitution is not only
concerned with an individual’s sense of self-worth,
but
constitutes an affirmation of the worth of human beings in our
society. It includes the intrinsic worth of human beings shared
by
all people as well as the individual reputation of each person built
upon his or her own individual achievements. The value
of human
dignity in our Constitution therefore values both the personal sense
of self-worth as well as the public’s estimation
of the worth or
value of an individual. It should also be noted that there is a
close link between human dignity and privacy in
our constitutional
order.
32
The right to privacy, entrenched in section 14 of the Constitution,
recognises that human beings have a right to a sphere of intimacy
and autonomy that should be protected from invasion.
33
This right serves to foster human dignity. No sharp lines then can
be drawn between reputation, dignitas and privacy in giving
effect
to the value of human dignity in our Constitution. No argument was
addressed to this Court on the relevance of the right
to privacy to
this case and I shall not consider it further.
[28]The law of defamation seeks to protect the legitimate interest
individuals have in their reputation. To this end, therefore,
it is
one of the aspects of our law which supports the protection of the
value of human dignity. When considering the constitutionality
of
the law of defamation, therefore, we need to ask whether an
appropriate balance is struck between the protection of freedom
of
expression on the one hand, and the value of human dignity on the
other.
“
Horizontal application” of section 16
[29]The applicants’ exception relies directly on section 16 of the
Constitution, despite the fact that none of the parties to
the
defamation action is the state, or any organ of state. Section 8 of
the Constitution provides that:
“
(1) The Bill of Rights
applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state.
(2) A provision of the Bill of
Rights binds a natural or a juristic person if, and to the extent
that, it is applicable, taking
into account the nature of the right
and the nature of any duty imposed by the right.
(3) When applying a provision
of the Bill of Rights to a natural or juristic person in terms of
subsection (2), a court –
(a) in order to give effect to
a right in the Bill, must apply, or if necessary develop, the common
law to the extent that legislation
does not give effect to that
right; and
(b) may develop rules of the
common law to limit the right, provided that the limitation is in
accordance with section 36(1).”
[30]The applicants argued that because, in terms of section 8(1),
the Bill of Rights applies to all law and binds the judiciary,
section 16 must be interpreted to have direct application to the
common law of defamation. The applicants observed that in this
regard the provisions of the 1996 Constitution were distinguishable
from the provisions of the interim Constitution in which the
provisions of the Bill of Rights were not directly binding on the
judiciary.
34
Accordingly, they argued that the conclusion of the majority of
this Court in
Du Plessis and Others v De Klerk and Another
,
35
that the right to freedom of expression in that Constitution could
have no direct application in a defamation action to which the
state
was not a party, was no longer applicable. In that case, the Court
held that although the interim Constitution did not directly
apply
to the common law, the principles of common law would nevertheless
have to be applied and developed by courts “with due
regard to the
spirit, purport and objects” of the Bill of Rights in that
Constitution.
[31]The applicants’ argument cannot succeed. It is clear from
sections 8(1) and (2) of the Constitution that the Constitution
distinguishes between two categories of persons and institutions
bound by the Bill of Rights. Section 8(1) binds the legislature,
executive, judiciary and all organs of state without qualification
to the terms of the Bill of Rights. Section 8(2) however provides
that natural and juristic persons shall be bound by provisions of
the Bill of Rights “to the extent that, it is applicable, taking
into account the nature of the right and the nature of any duty
imposed by the right”.
36
Once it has been determined that a natural person is bound by a
particular provision of the Bill of Rights, section 8(3) then
provides that a court must apply and if necessary develop the common
law to the extent that legislation does not give effect to
the
right. Moreover, it provides that the rules of the common law may
be developed so as to limit a right, as long as that limitation
would be consistent with the provisions of section 8(3)(b).
[32]Were the applicants’ argument to be correct, it would be hard
to give a purpose to section 8(3) of the Constitution. For
if the
effect of sections 8(1) and (2) read together were to be that the
common law in all circumstances would fall within the
direct
application of the Constitution, section 8(3) would have no apparent
purpose. We cannot adopt an interpretation which would
render a
provision of the Constitution to be without any apparent purpose.
[33]In this case, the applicants are members of the media who are
expressly identified as bearers of constitutional rights to freedom
of expression. There can be no doubt that the law of defamation
does affect the right to freedom of expression. Given the intensity
of the constitutional right in question, coupled with the potential
invasion of that right which could be occasioned by persons
other
than the state or organs of state, it is clear that the right to
freedom of expression is of direct horizontal application
in this
case as contemplated by section 8(2) of the Constitution. The first
question we need then to determine is whether the
common law of
defamation unjustifiably limits that right. If it does, it will be
necessary to develop the common law in the manner
contemplated by
section 8(3) of the Constitution.
[34]The next question is whether, to the extent that the common law
does not require as an element of the delict of defamation
in any
circumstances that a defamatory statement be false, and leaves the
question of truth to be raised only as an aspect of a
defence, it is
inconsistent with the Bill of Rights as directly applicable.
Is the common law inconsistent with the Constitution?
[35]The applicants argued that to the extent that the common law of
defamation does not require a plaintiff to allege and prove
the
falsity of a defamatory statement, it is inconsistent with the
Constitution. There can be no doubt that the constitutional
protection of freedom of expression has at best an attenuated
interest in the publication of false statements. As Cory J observed
in the Canadian case,
Hill v Church of Scientology of Toronto
:
“
False and injurious
statements cannot enhance self-development. Nor can it ever be said
that they lead to healthy participation
in the affairs of the
community. Indeed, they are detrimental to the advancement of these
values and harmful to the interests
of a free and democratic
society.”
37
Similarly, no person can argue
a legitimate constitutional interest in maintaining a reputation
based on a false foundation.
[36]To the extent, therefore, that the common law of defamation
permits a plaintiff to recover damages for a defamatory statement
without establishing the falsity of the defamatory statement, it
does not directly protect a powerful constitutional freedom of
expression interest, for there is no powerful interest in falsehood.
Nor does it provide necessary protection for the constitutional
value of human dignity. For, in the main, a person’s interest in
their reputation can only further constitutional values if
that
reputation is a true reflection of their character.
38
[37]However, the common law delict of defamation does not disregard
truth entirely. It remains relevant to the establishment of
one of
the defences going to unlawfulness, that is, truth in the public
benefit. The common law requires a defendant to establish,
once a
plaintiff has proved the publication of a defamatory statement
affecting the plaintiff, that the publication was lawful
because the
contents of the statement were true and in the public benefit. The
burden of proving truth thus falls on the defendant.
[38]In considering the constitutionality of this rule, it must be
realised that it is often difficult, and sometimes impossible,
to
determine the truth or falsity of a particular statement. As
Stevens J noted in a dissenting judgment in the United States
Supreme Court in
Philadelphia Newspapers, Inc v Hepps
[1986] USSC 73
;
(1985)
475 US 767
at 785-6:
“
The danger of deliberate
defamation by reference to unprovable facts is not merely a
speculative or hypothetical concern. Lack
of knowledge about third
parties, the loss of critical records, an uncertain recollection
about events that occurred long ago,
perhaps during a period of
special stress, the absence of eyewitnesses – a host of factors –
may make it impossible for an
honorable person to disprove malicious
gossip about his past conduct, his relatives, his friends or his
business associates.”
In not requiring a plaintiff to
establish falsity, but in leaving the allegation and proof of
falsity to a defendant to a defamation
charge, the common law
chooses to let the risk lie on defendants. After all, it is by
definition the defendant who published the
statement and thereby
caused the harm to the plaintiff.
[39]The difficulty of proving the truth or otherwise of defamatory
statements, and the common-law rule which lets the risk of the
failure to establish truth lie on defendants, in the absence of a
defence of reasonable publication, does cause “a chilling effect”
on the publication of information. A publisher will think twice
before publishing a defamatory statement where it may be difficult
or impossible to prove the truth of that statement and where no
other defence to defamation would be available. As Lord Keith
said
in
Derbyshire County Council v Times Newspapers
39
–
“
What has been described as
‘the chilling effect’ induced by the threat of civil actions for
libel is very important. Quite
often the facts that would justify a
defamatory publication are known to be true, but admissible evidence
capable of proving those
facts is not available. This may prevent
the publication of matters which it is very desirable to make
public.”
But this chilling effect is
reduced considerably by the defence of reasonable publication
established in
Bogoshi
’s case. For it permits a publisher
who is uncertain of proving the truth of a defamatory statement,
nevertheless to publish
where he or she can establish that it is
reasonable.
[40]In seeking to assert that the common law rule was inconsistent
with the Constitution, the applicants relied upon the United
States
Supreme Court decision
New York Times Co. v Sullivan
[1964] USSC 41
;
(1964)
376 US 254
at 279-80 in which Brennan J held:
“
A rule compelling the critic
of official conduct to guarantee the truth of all his factual
assertions – and to do so on pain of
libel judgments virtually
unlimited in amount – leads to a comparable ‘self-censorship.’
Allowance of the defense of truth,
with the burden of proving it on
the defendant, does not mean that only false speech will be
deterred. Even courts accepting this
defense as an adequate
safeguard have recognized the difficulties of adducing legal proofs
that the alleged libel was true in all
its factual particulars. . .
. Under such a rule, would-be critics of official conduct may be
deterred from voicing their criticism,
even though it is believed to
be true and even though it is in fact true, because of doubt whether
it can be proved in court or
fear of the expense of having to do so.
. . . The constitutional guarantees require, we think, a federal
rule that prohibits a
public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he
proves that the statement
was made with ‘actual malice’ – that
is, with knowledge that it was false or with reckless disregard of
whether it was false
or not.” (footnote omitted).
In that case, the United States
Supreme Court thus established a principle that for public figures
to succeed in defamation actions
they need to establish not only
that a false defamatory statement has been published concerning
them, but that it was published
with “actual malice”. This
decision represents the high-water mark of foreign jurisprudence
protecting the freedom of speech
and many jurisdictions have
declined to follow it.
40
It should be noted that the applicants do not assert the “actual
malice” standard in this case. They only rely on the case
to the
extent that it imposes an obligation on the plaintiff to establish
that the defamatory article was false.
[41]In deciding whether the common law rule complained of by the
applicants does indeed constitute an unjustifiable limitation
of
section 16 of the Constitution, sight must not be lost of other
constitutional values and in particular, the value of human
dignity.
To succeed, the applicants need to show that the balance struck by
the common law, in excluding from the elements of
the delict a
requirement that the defamatory statement published be false, an
appropriate balance has been struck between the freedom
of
expression, on the one hand, and the value of human dignity on the
other.
[42]Although the applicants are right when they contend that
individuals can assert no strong constitutional interest in
protecting
their reputations against the publication of truthful but
damaging statements, the applicants can also not show that
publishers
have a strong constitutional speech interest in the
publication of false material. At the heart of the constitutional
dispute
lies the difficulty of establishing the truth or falsehood
of defamatory statements. Burdening either plaintiffs or defendants
with the onus of proving a statement to be true or false, in
circumstances where proof one way or the other is impossible,
therefore
results in a zero-sum game. Either plaintiffs will
benefit from the difficulties of proof, as happened previously under
common
law rules; or defendants will win, as the applicants
propose.
41
Such a zero-sum result, in whomsoever’s favour, fits uneasily
with the need to establish an appropriate constitutional balance
between freedom of expression and human dignity.
[43]Were the Supreme Court of Appeal not to have developed the
defence of reasonable publication in
Bogoshi
’s case, a
proper application of constitutional principle would have indeed
required the development of our common law to avoid
this result.
However, the defence of reasonableness developed in that case does
avoid a zero-sum result and strikes a balance
between the
constitutional interests of plaintiffs and defendants. It permits a
publisher who can establish truth in the public
benefit to do so and
avoid liability. But if a publisher cannot establish the truth, or
finds it disproportionately expensive
or difficult to do so, the
publisher may show that in all the circumstances the publication was
reasonable. In determining whether
publication was reasonable, a
court will have regard to the individual’s interest in protecting
his or her reputation in the
context of the constitutional
commitment to human dignity. It will also have regard to the
individual’s interest in privacy.
In that regard, there can be no
doubt that persons in public office have a diminished right to
privacy, though of course their
right to dignity persists. It will
also have regard to the crucial role played by the press in
fostering a transparent and open
democracy. The defence of
reasonable publication avoids therefore a winner-takes-all result
and establishes a proper balance between
freedom of expression and
the value of human dignity. Moreover, the defence of reasonable
publication will encourage editors and
journalists to act with due
care and respect for the individual interest in human dignity prior
to publishing defamatory material,
without precluding them from
publishing such material when it is reasonable to do so.
[44]It is true, as the applicants assert, that the effect of
excluding the falsity of a defamatory statement as an element of the
delict of defamation will mean that from time to time a plaintiff
may succeed in a defamation claim even when a defamatory statement
was in fact not false. In this regard, however, we cannot disregard
the fact that it is the defendant who publishes the defamatory
statement and who therefore causes any damage. So it will only be
where defendants establish neither that the statement was true
and
its publication in the public interest, nor that the publication was
reasonable in all the circumstances, that they will be
held
delictually liable. This outcome does not unduly burden defendants.
Contrarily, to hold as the applicants argued, that plaintiffs
may
never succeed unless they can establish that a defamatory statement
was false would clearly put plaintiffs at risk. It would
destabilise the careful balance struck between plaintiffs’ and
defendants’ interests achieved by the Supreme Court of Appeal’s
development of a defence of reasonable publication.
[45]In the circumstances, the applicants have not shown that the
common law as currently developed is inconsistent with the
provisions
of the Constitution and their appeal must fail.
[46]This case did not involve the state or an organ of state. It
was a dispute between private parties. The applicants have failed
in the appeal and, in the circumstances, it is fair that the
respondent should be awarded costs.
Order
[47]The following order is made:
1. The application for leave to appeal is granted.
2. The appeal is dismissed and the applicants are ordered to pay the
costs including the costs of the application for leave to
appeal.
Chaskalson CJ, Langa DCJ, Ackermann J, Du Plessis AJ, Goldstone J,
Kriegler J, Madala J, Ngcobo J, Sachs J and Skweyiya AJ concur
in
the judgment of O’Regan J.
For the applicants: GJ Marcus SC and M Chaskalson instructed by
Webber Wentzel Bowens, Johannesburg.
For the respondent: F Bezuidenhout instructed by Dyason
Incorporated, Pretoria.
1
Section
39(2) of the Constitution provides: “When interpreting any
legislation, and when developing the common law or customary
law,
every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.”
2
His
decision is reported as
Holomisa v Khumalo and Others
2002
(3) SA 38
(T).
3
See
Zweni v Minister of Law and Order
1993 (1) SA 523
(A) at 532J
- 533A;
Trakman NO v Livshitz and Others
1995 (1) SA 282
(A)
at 289B - 290C;
Moch v Nedtravel (Pty) Ltd t/a American Express
Travel Service
1996 (3) SA 1
(A) at 7J - 8D; and
Guardian
National Insurance Co Ltd v Searle NO
1999 (3) SA 296
(SCA) at
301B-D.
4
See
Steytler NO v Fitzgerald
1911 AD 295
;
Blaauwbosch Diamonds,
Ltd. v Union Government (Minister of Finance)
1915 AD 599
at
602;
Wellington Court Shareblock v Johannesburg City Council;
Agar Properties (Pty) Ltd v Johannesburg City Council
1995 (3)
SA 827
(A) at 832J - 833D;
Kett v Afro Adventures (Pty) Ltd and
Another
1997 (1) SA 62
(A) at 65G-H; and
Minister of Safety
and Security and Another v Hamilton
2001 (3) SA 50
(SCA) at 52B
- 53E.
5
Hamilton
ibid at 53E.
6
Section
16
of the
Constitutional Court Complementary Act 13 of 1995
provides
that the rules shall regulate access to the Court.
7
See,
for example,
Member of the Executive Council for Development
Planning and Local Government, Gauteng v Democratic Party and Others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) at para 32;
S v
Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para 12;
Fraser v Naude and Others
1999 (1) SA 1
(CC);
1998 (11) BCLR
1357
(CC) at para 10; and
Islamic Unity Convention v Independent
Broadcasting Authority and Others
[2002] ZACC 3
;
2002 (5) BCLR 433
(CC) at
paras 15-19.
8
See
De Freitas and Another v Society of Advocates of Natal (Natal Law
Society intervening)
1998 (11) BCLR 1345
(CC) at para 23; and
Amod v Multilateral Motor Vehicle Accidents Fund
[1998] ZACC 11
;
1998 (4) SA
753
(CC);
1998 (10) BCLR 1207
(CC) at para 35.
9
See
S v Pennington and Another
1997 (4) SA 1076
(CC);
1997 (10)
BCLR 1413
(CC) at para 44;
MEC for Development Planning and Local
Government
above n 7 at para 32.
10
National
Media Ltd and Others v Bogoshi
[1998] ZASCA 94
;
1998 (4) SA 1196
(SCA);
1999 (1)
BCLR 1
(SCA). Page references in this judgment are to the South
African Law Reports.
11
See,
for example,
Mandela v Falati
1995 (1) SA 251
(W);
1994 (4)
BCLR 1
(W);
Government of the Republic of South Africa v “Sunday
Times” Newspapers
1995 (2) SA 221
(T);
1995 (2) BCLR 182
(T);
Gardener v Whitaker
1995 (2) SA 672
(E);
1994 (5) BCLR 19
(E);
Bogoshi v National Media Ltd
1996 (3) SA 78
(W);
McNally
v M & G Media (Pty) Ltd and Others
1997 (4) SA 267
(W);
1997
(6) BCLR 818
(W);
Holomisa v Argus Newspapers
1996 (2) SA 588
(W);
1996 (6) BCLR 836
(W); and
Hall v Welz and Others
1996
(4) SA 1070
(C).
12
Above
n 10.
13
See
the full and illuminating discussion in
Holomisa v Argus
Newspapers Ltd
above n 11 at 599-601. See also J Burchell
The
Law of Defamation in South Africa
(Juta, Kenwyn 1985); J
Neethling, JM Potgieter and PJ Visser
Law of Delict
2 ed
(Butterworths, Durban 1994); and J Burchell
Personality Rights
and Freedom of Expression: The Modern Actio Injuriarum
(Juta,
Kenwyn 1998) at 133ff.
14
See
the recent restatement of this in
Bogoshi
above n 10 at 1218
E-F where Hefer JA held: “I should add that the falsity of a
defamatory statement is not an element of the
delict, but that its
truth may be an important factor in deciding the legality of its
publication. I find it difficult to see
why (as was held in
Holomisa
) a plaintiff should, as part of his claim, allege
and prove something that the defendant may rely upon in
justification.”
15
See
Borgin v De Villiers
1980 (3) SA 556
(A).
16
In
Bogoshi
above n 10, Hefer JA observed as follows: “. . . it
is hardly necessary to add that the defences available to a
defendant in
a defamation action do not constitute a
numerus
clausus.
In our law the lawfulness of a harmful act or omission
is determined by the application of a general criterion of
reasonableness
based on considerations of fairness, morality, policy
and the Court’s perception of the legal convictions of the
community.
In accordance with this criterion Rumpff CJ indicated in
O’Malley
’s case [
Suid-Afrikaanse Uitsaaikorporasie v
O’Malley
1977 (3) SA 394
(A)] at 402
fin
–403A that it
is the task of the Court to determine in each case whether public
and legal policy requires the particular publication
to be regarded
as lawful.” (at 1204 D-E). It should be emphasised that the
court’s perception of the legal convictions of
the community as a
test for determining wrongfulness in delict might well have to be
reconsidered in the context of our new constitutional
order. See
Carmichele v Minister of Safety and Security and Another
[2001] ZACC 22
;
2001
(4) SA 938
(CC);
2001 (10) BCLR 995
(CC) para 56.
17
See
M’Pherson v Daniels
(1829) 10 B&C 263;
Sutter v
Brown
1926 AD 155
;
Johnson v Rand Daily Mail
1928 AD 190
;
Caxton Ltd and Others v Reeva Forman and Another (Pty) Ltd
[1990] ZASCA 47
;
1990 (3) SA 547
(A); and
Kemp and Another v Republican Press
(Pty) Ltd
1994 (4) SA 261
(E).
18
See
Marais v Richard en ‘n Ander
1981 (1) SA 1157
(A); and
Johnson v Beckett and Another
[1991] ZASCA 175
;
1992 (1) SA 762
(A).
19
Privilege
can either be an absolute privilege or a qualified privilege. See
May v Udwin
1981 (1) SA 1
(A).
20
Above
n 10.
21
See
Maisel v Van Naeren
1960 (4) SA 836
(C) at 840 E-G.
22
See
Pakendorf and Others v De Flamingh
1982 (3) SA 146
(A). See
also the earlier discussion in
SAUK v O’Malley
above n 16.
23
Above
n 10 at 1211B-C.
24
See,
for example,
South African National Defence Union v Minister of
Defence and Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC)
;
1999 (6) BCLR
615
(CC) at para 7;
S v Mamabolo (E TV and Others Intervening)
[2001] ZACC 17
;
2001 (5) BCLR 449
(CC);
2001 (3) SA 409
(CC) at para 37; and
Islamic
Unity Convention
above n 7 at paras 25-30.
25
See,
for example,
Bogoshi
above n 10 at 1207I - 1208F;
Holomisa
v Argus Newspapers Ltd
above n 11 at 608G - 609B; and the
judgment in the court below,
Holomisa v Khumalo
above n 2 at
61E-G.
26
Theophanous
v Herald & Weekly Times Ltd and Another
(1994) 124 ALR 1
at
61.
27
Section
1 of the Constitution provides as follows:
“
The Republic of South Africa is one, sovereign,
democratic state found on the following values:
. . . .
(d) Universal adult suffrage, a national common voters
roll, regular elections and a multi-party system of democratic
government,
to ensure accountability, responsiveness and openness.”
See also s 36 of the Constitution.
28
See
the discussion in
Mamabolo
above n 24 at paras 40-1.
29
See
Argus Printing and Publishing Co Ltd v Esselen’s Estate
1994
(2) SA 1
(A) at 25 B-E.
30
Section
1 of the Constitution.
31
See
also
President of the RSA and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 41; and
National Coalition
for Gay and Lesbian Equality and Another v Minister of Justice and
Others
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at paras
17-32 and paras 120-9.
32
See
National Coalition
ibid at para 30: “The present case
illustrates how, in particular circumstances, the rights of equality
and dignity are closely
related, as are the rights of dignity and
privacy.”
33
See
Bernstein and Others v Bester NO and Others
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC); and
Mistry v Interim National
Medical and Dental Council and Others
[1998] ZACC 10
;
1998 (4) SA 1127
(CC);
1998 (7) BCLR 880
(CC).
34
See
section 7(1) of the interim Constitution.
35
Du
Plessis and Others v De Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at paras 43-7.
36
See
the similar line of reasoning in
Du Plessis v De Klerk
ibid
at para 42-9.
37
Hill
v Church of Scientology of Toronto
(1995) 126 DLR (4
th
)
129 (SCC) at para 106. See also the decision of the German
Bundesverfassungsgericht in 54 BVerfGE 208 (1980) (the
Böll
case).
38
However,
it has long been recognised that past mistakes should not be raked
up after a long period of time has elapsed. See
Graham v Ker
(1892) 9 SC 185.
39
Derbyshire
County Council v Times Newspapers
[1993] 1 All ER 1011
(HL) at
1018. See also Mason CJ’s observation in the Australian High
Court case of
Theophanous
above n 26 at 19-20.
40
For
Canadian cases rejecting the approach, see
Hill
above n 37;
R
v Keegstra
(1990) 3 CRR (2d) 193;
Committee for Commonwealth
of Canada v Canada
(1991) 4 CRR (2d) 60; and
New Brunswick
Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly)
(1991) 6 CRR (2d) 298. In the United Kingdom, the “actual malice”
standard has also been rejected. See
Derbyshire County Council
above n 39;
Reynolds v Times Newspapers Ltd and Others
[1999] UKHL 45
;
[1999] 4 All
ER 609
(HL); and
Berezovsky v Michaels and
Others; Glouchkov v Michaels and Others
[2000] UKHL 25
;
[2000] 2 All ER 986
(HL). The rule was also criticised in the United Kingdom Report of
the Committee on Defamation (the Faulks Committee Report) (1975)
and
the Irish Law Reform Commission’s Report on the Civil Law of
Defamation (the Keane Final Report) (1991). Similarly, in Australia
the rule was rejected in
Theophanous
above n 26 and by the
Australian Law Reform Commission’s Report No. 11 “Unfair
Publication: Defamation and Privacy” (the
Kirby Committee Report)
(1979). (See the discussion in
Hill
above n 37 at para 136.)
In Germany, too, the Bundesverfassungsgericht has adopted a test
different to that established in
Sullivan
. Their test seeks
to establish an appropriate balance between the rights of human
dignity and freedom of expression. See 7 BVerfGE
198 (1958) (the
Lüth
case); 30 BVerfGE 173 (1971) (the
Mephisto
case)
and the discussion thereof in BS Markesinis
The German Law of
Torts: A Comparative Introduction
3 ed (Clarendon, Oxford 1994)
at 352ff and DP Kommers
The Constitutional Jurisprudence of the
Federal Republic of Germany
2 ed (Duke, London 1997) at 423ff.
41
For
a discussion of the effect of burdens of proof in civil law as they
relate to the right to equality, see
Prinsloo v Van der Linde and
Another
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at paras
37-8 (per Ackermann, O’Regan and Sachs JJ) and paras 55-6 (per
Didcott J).