Gardener v Whitaker

• Jurisdiction: South Africa
• Judge: Froneman J
• Judgment Date: 11 November 1994
• Citation: 1995 (2) SA 672 (E)
• Docket Number: 997/93
• Court: Eastern Cape Division

E Froneman J:

The plaintiff in this matter is the town clerk of East London. The defendant is a city councillor. The plaintiff sues for damages resulting from an alleged defamatory statement made by the defendant in the course of an action committee meeting of the council, when certain council affairs, affecting the defendant's council ward, were discussed. F The action was instituted in 1993 and the trial heard in September 1994. On 27 April 1994 the new Constitution of the Republic of South Africa Act 200 of 1993 came into operation.

A number of legal issues arise for decision in the matter. They include:

(1) whether the provisions of the Constitution are to be applied in litigation that was pending at the time of the commencement of the G Constitution;

(2) whether the provisions of chap 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 H

(4) the effect of the conclusions reached in respect of the first three issues on the present matter.

The background to the dispute arises from activities at the Quigney Baptist Church in the Quigney, East London. The defendant is the councillor representing the interests of the residents of the Quigney area I in the East London City Council. The church fronts on Tennyson Street in the Quigney and opposite it, across the street, is a public open space or green area. As a result of unauthorised expansion of its building the church ran into trouble with the City Council about the zoning requirements relating to the availability of parking. The City Council J contended that the church was in breach of these requirements and

Froneman J

A instructed a local firm of attorneys to take the necessary legal steps to enforce its requirements. A member of the firm of attorneys negotiated with representatives of the church and an agreement was reached, to the apparent satisfaction of both, to overcome the problem. The attorney informed the plaintiff of the agreement and its contents. A report was B then compiled by officials of the City Council and presented to the action committee of the Council for discussion on 21 June 1993.

An action committee meeting is attended by councillors and municipal officials and its purpose is to afford discussion of the items on the agenda for the meeting by councillors and officials alike. Once this discussion on a broader basis is concluded, the action committee then C makes a recommendation to be approved of, or rejected, by a later meeting of the City Council itself, without the participation and attendance of the officials involved in the relevant matter. In this way the meeting of the action committee serves not only to inform councillors in greater detail about the background to issues under discussion, but also allows D councillors to scrutinise the actions of council officials and to hold them to account for their actions.

The full report presented to the action committee meeting on 21 June 1993 reads as follows:

'Action committee: 5/04/93 : 21/06/1993 E Director of Planning and Engineering Services Town Clerk

53 Quigney Baptist Church 12/4/6/807

On 4 April 1993 the action committee referred back the attached report on the provision of parking by the Quigney Baptist Church. The Directorate of Planning and Engineering Services was requested to look into the traffic implications of the proposal to close portion of Tennyson Street F for sale to the Quigney Baptist Church. The Directorate reports:

(a)

A traffic study for the Esplanade and Quigney areas was carried out by Steward Scott Inc for the Council in 1992.

(b)

The report identified the need to cater for the heavy flows of through traffic by providing two main routes with high capacity (discouraging the use of other roads by through traffic) by introducing traffic calming measures.

(c)

G Moore, Currie and Fleet Streets have been identified as the most suitable roads to carry the through traffic.

(d)

The abovementioned roads would be able to carry the traffic generated by the proposed development on the old Spoornet "sleeper site".

(e)

The closure of the portion of Tennyson Street in question would not have any adverse impact on the traffic flows in the area. The closure as suggested would be the first step towards introducing "traffic calming measures". H

A meeting has been held with representatives of the Quigney Baptist Church who have suggested that it is possible to provide 288 parking bays on The Green opposite the Baptist Church. The layout of the proposed bays is shown on the annexure attached hereto prepared by Michael J Freeman, architect. It will be noted that a larger area than was originally envisaged will be provided. This plan will in due course be subject to I the usual need for formal approval.

The Town Clerk has obtained senior counsel's opinion relating to the provision of parking by the church. The decision by Council to require the provision of 195 parking bays by the church was a valid decision and is enforceable. The Council is bound, in terms of the Land Use Planning Ordinance 1985, to enforce the provisions of its own zoning scheme. In other words the Council has no right to waive the provisions of its own J scheme. This has been explained to representatives

Froneman J

A of the Quigney Church who, although not agreeing with the opinion of counsel, have prepared the attached plan to accommodate the parking requirements as required by the Council. The valuer has valued the land to be sold at R23,33 per square metre.

The church representatives initially suggested that The Green be purchased and that Tennyson Street would not need to be closed. The church representatives suggested that The Green could be notarially tied to the B church ground so as to ensure that parking is provided in perpetuity. The Council's attorneys have advised that this is not possible as it is not legally competent to notarily (sic) tie tracts of land that are not contiguous with each other. The Council's attorneys have contacted representatives of the Quigney Baptist Church who have agreed that the procedure that can best be applied to overcome the position will be as follows:

1.

C The Council will close a portion of Tennyson Street.

2.

The church will purchase a portion of Tennyson Street and portion of The Green at a price of R23,33 per square metre.

3.

The land comprising the street and The Green will be rezoned.

4.

A notarial deed of servitude in favour of the Council will be registered over the portion of Tennyson Street which will then belong to the church. The notarial deed of servitude will provide continued D through access for the public along Tennyson Street and for the protection of municipal services.

5.

The Green can then be laid out to make provision for the parking requirements of the church as provided in the scheme.

6.

The church will bear the costs of taking all the steps necessary to complete the above proceedings. E

It is recommended that:

1.

The Town Clerk enter into formal agreements with the church in order to carry out the steps set out in the body of this report subject to all the planning requirements of the Directorate of Planning and Engineering Services set out in the report to the action committee of 5 April 1993 mutatis mutandis.

2.

F That enforcement of the zoning scheme in terms of the previous resolutions of the Council be held in abeyance until the steps required to be carried out have been completed, provided that the programme is completed within 18 months of this resolution.

(Resolved item)

nmrg/nns G a: action 18

2: 7/6/1993

3: 11/6/1993.'

What transpired at the action committee meeting when this item came up for discussion is reflected as follows in the minutes:

H 'Mr Gardener: Item 53.

Councillor Whitaker: Yes, Mr Chairman.

Councillor Pulford: Ah, Councillor Whitaker!!!

Councillor Whitaker: I'm going to be a good member of the Baptist Church by the time I'm finished. But Mr Chairman for a start, if one goes to the bottom of page 245, to the last few lines, it says, the "Council's attorneys have contacted representatives of the Quigney Baptist Church who I have agreed that the procedure that can best be applied to overcome the proposition will be as follows. That the Council will close a portion of Tennyson Street." Mr Chairman, I want to tell you emphatically that that is a lie. It has never been discussed with the Quigney Baptist Church and I have that on the authority of Mr Tony Bryant who serves on the committee and a few other members of the committee. It, that has not been discussed J with them and it is not a decision of the Quigney Baptist Church.'

Froneman J

A The plaintiff alleges that the emphasised portion in the quotation is wrongful and defamatory of him and was made intentionally to mean that he was dishonest and responsible for deliberately misleading the City Councillors and certain servants of the municipality. The defendant denied that the statement was defamatory, or that it referred to the B plaintiff, or that he intended to defame the plaintiff. As an alternative he relied on the defence of truth and public benefit, as well as that of qualified privilege.

Further aspects of the evidence will be referred to in more detail later, but it is now necessary to return to the issues relating to the Constitution which were mentioned at the beginning of the judgment.

C The first issue, then, is whether s 241(8) of the Constitution has the effect of excluding the operation of the provisions of the Constitution to pending proceedings such as the present. Different approaches have been adopted in various Provincial Divisions of the Supreme...