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.

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.

Justice Kriegler dissented vociferously on this point, finding that all constitutional rights were capable of direct application to private disputes.

In early 1993, the Pretoria News published a series of articles about the alleged involvement of South African citizens in covert operations to supply arms to UNITA, the Angolan rebel movement.

The amended plea was therefore refused, and the defendants were granted leave to appeal that ruling in the Constitutional Court of South Africa.

The appeal was dismissed on the grounds that the defendants were, as the Supreme Court had held, not entitled to invoke the provisions of the Constitution as a defence against pre-constitutional defamation.

The appeal having been dismissed, the two further legal questions – about horizontal application and jurisdiction to develop the common law – were not of relevance to the defamation dispute, but the court, finding them to be of public importance, answered them anyway.

The court was unanimous in joining Acting Justice Kentridge's conclusion that the defendants could not invoke their section 15 rights as a defence against defamation committed before the Interim Constitution came into effect, and that the appeal therefore stood to be dismissed.

However, as Kentridge explained, such protections were not properly retroactive in the sense of invalidating conduct that had been valid at the time it was committed, or vice versa.

Similarly, in S v Makwanyane and S v Williams, the court had found that persons convicted before the commencement of the Constitution were nonetheless protected by the Bill of Rights against undergoing cruel and inhuman punishment, but this did not entail that the cruel and inhuman sentences had been unlawful at the pre-constitutional time that they were imposed; the Constitution merely established that it would be unlawful to execute such sentences in the post-constitutional period.

But we leave open the possibility that there may be cases where the enforcement of previously acquired rights would in the light of our present constitutional values be so grossly unjust and abhorrent that it could not be countenanced, whether as being contrary to public policy or on some other basis.

Even if section 98(6) was to be construed as permitting a retrospective order of the kind I have alluded to in certain circumstances, the factual circumstances in the present case would not justify such an order.Justice Kriegler's dissent concurred in Kentridge's order on retroactive resort to section 15, agreeing that the Mhlungu holding was irrelevant to the defendants' case.

Moreover, Kentridge noted that the horizontal–vertical dichotomy could be misleading and did not "do full justice to the nuances of the jurisprudential debate" – thus, for example, the United States Supreme Court had "effectively", if not technically, applied the American Bill of Rights and Fourteenth Amendment horizontally to private conduct in such cases as Shelley v. Kraemer and Burton v. Wilmington Parking Authority.

This followed most directly from section 7(1), which provided that the Bill of Rights "shall bind all legislative and executive organs of state at all levels of government."

The exercise of section 35(3) by courts would ensure that the values of the Bill of Rights "will permeate the common law in all its aspects, including private litigation" (and including the common law of defamation), and, as Supreme Court Judge Edwin Cameron had argued in Holomisa v Argus Newspapers, section 35(3) therefore made "much of the vertical/horizontal debate irrelevant."

In his concurring judgment, Justice Ackermann agreed that, for reasons outlined by Kentridge, the text of the Constitution "strongly favours" the conclusion that direct horizontal application of the Bill of Rights is not intended.

He held that direct horizontal application would lead to "unsupportable" consequences, including legal uncertainty and a vastly expanded role for the Constitutional Court.

This emerged, inter alia, from the preamble and postscript to the Constitution, which made express reference to social division and conflict, as well as to the importance of national reconciliation.

In this and other respects, Kriegler rooted his argument in "the internal logic and cohesion" of the Bill of Rights, as he interpreted it in light of the broad objectives of the Constitution.

Instead they wax expansive, leaving it to the microscope of a "verticalist" to pick up hidden clues.Kriegler concluded that the Bill of Rights:has nothing to do with the ordinary relationships between private persons or associations.

What is more, it is malicious nonsense preying on the fears of privileged whites, cosseted in the past by laissez faire capitalism thriving in an environment where the black underclass had limited opportunity to share in the bounty.

The caricature is pernicious, it is calculated to inflame public sentiments and to cloud people’s perceptions of our fledgling constitutional democracy.

In any event, Madala agreed both with Kriegler's argument that the Bill of Rights provided for direct horizontal application, and with Kentridge's explication of the effect of section 35(3) on the existing common law.

Like Kriegler, Madala believed that the function of section 35(3) was to provide "for the indirect horizontal 'seepage' in those areas which are not touched directly by the provisions of Chapter 3", thus acting akin to the German model of Drittwirkung.

Second, even in that limited range of problematic cases, Kentridge's approach allowed the Bill of Rights to have "horizontal" effect, just as Kriegler's did.

Mahomed therefore sought to emphasise Kentridge's point that, even if constitutional rights did not have direct horizontal application, the common law rules that governed private disputes "would themselves be vulnerable to invasion and re-examination in appropriate circumstances" under section 35(3).

Justice Mokgoro's separate opinion concurred with Kentridge's findings and also supported Mahomed's remarks about the active development of the common law under section 35(3).

In terms of section 98(2) it has jurisdiction in the final instance over all matters relating to "the interpretation, protection and enforcement of the provisions of this Constitution".

Deputy President Mahomed agreed with Kentridge that the exercise of the section 35(3) function engaged the jurisdiction of the Appellate Division, but that the Constitutional Court held "the residual power to determine, in suitable circumstances, whether in the application of its jurisdiction in terms of section 35(3) the Supreme Court has in any particular case properly had regard to the spirit of Chapter 3 of the Constitution and its purport and objects."

In all other cases, the Appellate Division would apply and adapt the common law with due regard to the Bill of Rights, as instructed in section 35(3).