Du Plessis v De Klerk
South African legal case / From Wikipedia, the free encyclopedia
Du Plessis and Others v De Klerk and Another is a 1996 decision of the Constitutional Court of South Africa. Though arising from a defamation case in the law of delict, it had broad significance for the application of the Interim Constitution both to pre-constitutional conduct and to private disputes. The majority judgment was written by Acting Justice Sydney Kentridge and the leading dissent by Justice Johann Kriegler.
Du Plessis v De Klerk | |
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Court | Constitutional Court of South Africa |
Full case name | Du Plessis and Others v De Klerk and Another |
Decided | 15 May 1996 (1996-05-15) |
Docket nos. | CCT 8/95 |
Citation(s) | [1996] ZACC 10; 1996 (3) SA 850; 1996 (5) BCLR 658 |
Case history | |
Prior action(s) | Supreme Court of South Africa, Transvaal Provincial Division – De Klerk and Another v Du Plessis and Others 1995 (2) SA 40 (T); 1994 (6) BCLR 124 (T) |
Court membership | |
Judges sitting | Chaskalson P, Mahomed DP, Ackermann, Didcott, Kriegler, Langa, Madala, Mokgoro, O'Regan and Sachs JJ |
Case opinions | |
Decision by | Kentridge AJ (Chaskalson, Langa and O'Regan concurring) |
Concurrence | Mahomed DP (Langa and O'Regan concurring) |
Concurrence | Ackermann J |
Concurrence | Mokgoro J |
Concurrence | Sachs J |
Concur/dissent | Madala J |
Dissent | Kriegler J (Didcott concurring) |
The case emanated from a defamation lawsuit brought against the Pretoria News in the Transvaal Provincial Division, and the Constitutional Court was called to decide whether the constitutional right to freedom of expression could found a defence against defamation when the defamatory statement was published before the Interim Constitution came into effect. On this question, the court was unanimous in holding that the Interim Constitution did not have retroactive force: it did not render lawful pre-constitutional conduct that had been unlawful under the prevailing pre-constitutional law.
However, the court was also called to decide whether and how, in the post-constitutional period, constitutional rights could have horizontal application to legal relationships between non-state actors. For the majority, Acting Justice Kentridge held that, in general, constitutional rights could not be enforced directly against non-state actors, but that the Bill of Rights would nonetheless have indirect application to private law insofar as the Constitution required courts to develop the common law in line with the values of the Bill of Rights. Justice Kriegler dissented vociferously on this point, finding that all constitutional rights were capable of direct application to private disputes.