Freedom of Expression | The Mhlungu Case

Transitional provisions of the interim Constitution provided that Judges in office at the time the new Constitution came into force would remain in their posts and that all matters pending in Court should be dealt with as if the new Constitution had not come into force. Should this latter provision be interpreted literally with a consequence that the protections in the Bill of Rights would not apply to cases that had started but not been completed? Acting Justice Kentridge said yes, and was supported by a number of other Judges including Chief Justice Arthur Chaskalson (then referred to as the President of the Court.) Deputy Chief Justice Mahomed disagreed. Stating that the Constitution should be interpreted purposively rather than literally, he held that the words ‘dealt with’ implied a focus on the procedures of the trial and not the substantive rights of the accused. A majority of the Court agreed with Justice Mahomed. Justice Sachs supported the majority outcome but with different reasoning. In his view, the matter involved a clash between the clear words of the Bill of Rights and the clear words of the transitional arrangements. It was in this setting that the narrow purposes of the transitional arrangements should be aligned procedurally and not substantively with the broad purposes of the Bill of Rights. In his judgment, Justice Sachs points to the wide range of people to whom the Court’s judgments should be addressed, from the litigants and counsel, fellow Judges in the Court, and the judiciary as a whole, members of parliament and the government, the legal profession, legal academics, law students and the press.