Gardener v Whitaker

• Jurisdiction: South Africa

Gardener v Whitaker
1995 (2) SA 672 (E)

1995 (2) SA p672

Citation	1995 (2) SA 672 (E)
Case No	997/93
Court	Eastern Cape Division
Judge	Froneman J
Heard	August 29, 1994; August 30, 1994; August 31, 1994
Judgment	November 11, 1994

Flynote : Sleutelwoorde F

G Constitutional law — Constitution — Constitution of the Republic of South Africa Act 200 of 1993 — Courts — Jurisdiction — Effect of provisions of s 241(8) of Constitution on cases pending before Constitution came into effect — Different approaches whether s 241(8) merely deals with question of jurisdiction or whether it precludes Courts from applying provisions of H Constitution to pending proceedings — Section 241(8) not excluding the operation of substantive fundamental rights in pending cases.

Constitutional law — Constitution — Constitution of the Republic of South Africa Act 200 of 1993 — Applicability of — Presumption against retrospective operation of statutes — Principles applicable in determining I whether operation of provisions of Constitution retrospective or prospective — Chapter 3 of Constitution is legislation with a beneficial effect and, where retrospective effect of legislation is beneficial, rationale for presumption against retrospectivity does not apply.

Constitutional law — Constitution — Constitution of the Republic of South J Africa Act 200 of 1993 — Applicability of — Whether applicable only

1995 (2) SA p673

A to litigation between individual and organs of State or also to litigation between private individuals — Fundamental rights charters primarily aimed at safeguarding rights of individuals against unjustified intrusion by public organs of State — No uniform or single answer whether alleged breach of fundamental right contained in chap 3 can found action between B private individuals and entities or whether it applies only between individuals and State organs — Depends on nature and extent of the particular right, values that underlie it and context in which alleged breach of right occurs — All aspects of common law should, in cases that now come before Courts, be scrutinised to decide whether they accord with C demands of Constitution.

Constitutional law — Constitution — Constitution of the Republic of South Africa Act 200 of 1993 — Applicability of — Impact of Constitution on common law of defamation — Fundamental right to free speech and expression having only indirect application in common-law defences of truth and D public benefit, privilege and fair comment — Common-law right to one's good name and reputation interpreted as forming part of right to human dignity — Resulting in right to reputation finding equal footing with right to free speech and expression in Constitution.

Constitutional law — Human rights — Allegation of competing fundamental E rights — Constitution of the Republic of South Africa Act 200 of 1993 creating no hierarchy of fundamental rights and thus proper boundaries must be placed — By balancing the competing interest, a court of law must decide on precedence of one fundamental right over another, competing, fundamental right. F

Headnote : Kopnota

The plaintiff, the town clerk of East London, sued for damages in a Provincial Division resulting from an alleged defamatory statement made by the defendant, a city councillor, in the course of an action committee meeting.

The dispute arose from activities at the Quigney Baptist Church. The defendant was the councillor representing the interests of the Quigney area in the East London City Council. As a result of unauthorised G expansion, the church ran into trouble with the City Council. The City Council's attorneys negotiated with representatives of the church and an agreement was reached. A report was subsequently compiled by officials of the City Council and presented to the action committee for discussion. What transpired at the action committee meeting was reflected in the minutes: '. . . (T)he "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. That the H council will close a portion of Tennyson Street." Mr Chairman, I want to tell you emphatically that that is a lie.' Plaintiff alleged that the above-mentioned quotation was wrongful and defamatory of him and that it was made intentionally to mean that he was dishonest and responsible for deliberately misleading the city councillors. The defendant denied that the statement was intended to defame the plaintiff. In the alternative he relied on the defence of truth and public benefit, as well as qualified privilege. On this factual basis, a number of legal issues arose for I decision, viz (1) whether the provisions of the Constitution of the Republic of South Africa Act 200 of 1993 were to be applied in litigation pending at the time of the commencement of the Constitution; (2) whether the provisions of chap 3 of the Constitution applied to litigation between private individuals or entities; (3) if so, whether those provisions affected the present common law of defamation and (4) the effect of the conclusions reached in respect of the first three issues on the present J matter.

1995 (2) SA p674

A Regarding the first issue the Court pointed out that different approaches had been adopted in various Provincial Divisions of the Supreme Court. (At 678C/D.) There were three main objections to applying the provisions of the Constitution to pending proceedings. The first was that s 241(8) could only be interpreted by way of linguistic treatment and that a broader construction based on the benevolent spirit of the Constitution was inappropriate. The second was based on the presumption against retrospective operation of legislation and the third upon practical B considerations relating to the procedure in pending proceedings. (At 678G/H-I/J.)

Held, that s 241(8) was capable of different interpretations. (At 679B.) Where the jurisdictional issue involved a choice as to whether the fundamental rights as contained in the Constitution were to be applied in a court or not at all, a broader approach based on the inherent values of the Constitution would be permissible. (At 679D-D/E.)

C Held, further, that where the retrospective effect of legislation is beneficial, the rationale for the presumption did not apply and the presumption should not come into operation. Chapter 3 of the Constitution was quite clearly legislation with a beneficial effect. (At 679G-H.)

Held, further, that practical difficulties would arise in pending proceedings if the provisions of the Constitution were applied, but that an important exception to the presumption against retrospectivity was that D it did not apply to matters of a procedural nature. (At 680B-C.)

Held, accordingly, that s 241(8) did not exclude the operation of substantive fundamental rights in pending cases. (At 680E.)

With regard to the second issue, it was apparent that fundamental rights charters were primarily aimed at safeguarding the rights of individuals against the unjustified intrusion upon those rights by public organs of E the State. The answer to the problem was to be sought in the provisions of the Constitution itself, interpreted properly by having regard to comparative law and the underlying values and objects of the Constitution. Thus, in deciding whether the Constitution operated horizontally as well as vertically, the Court

Held, that there was no uniform or single answer to the question whether an alleged breach of a fundamental right contained in chap 3 could found F an action between private individuals and entities, or whether it only applied between individuals and State organs. It all depended on the nature and extent of the particular right and the context in which the alleged breach of the right occurred. (At 684H/I-I/J.) All aspects of common law should in cases that came before the courts be scrutinised to decide whether they accorded with the demands of the Constitution. (At 686A/B-B.)

The third issue raised the question whether the provisions of the Constitution affected the common law of defamation. The law of defamation G protected the good name or reputation of a person, the respect and esteem in which a person was held by the community. Sections 10 and 15 of the Constitution protected the right to respect for and the protection of one's dignity and the right to free speech and expression. However, the right to free speech and expression only found indirect application in the common-law defences of truth and public benefit, privilege and fair comment in the law of defamation. The common law of defamation had historically placed greater emphasis on the protection of an individual's H good name or reputation, even when these 'public interest' defences had been raised, as could be seen from the rules placing the onus to prove these defences on the defendant. Therefore the current law of defamation clearly conflicted with the dictates of the Constitution as far as the question of onus was concerned. In deciding this issue, the Court

Held, that the right to one's good name and reputation could be interpreted as forming part of the right to human dignity. (At 690H-I.) The result was that the right to one's reputation would, in terms of the I Constitution be on equal footing with the right to free speech and expression. (At 691A.)

Held, further, that where there was an allegation of competing fundamental rights, a court of law, by balancing the competing interests, should decide on the precedence of one fundamental right over another, competing, fundamental right. (At 691B/C-C/D.)

In terms of the fourth issue, the question arose as to what effect the conclusions reached in respect of the first three issues had on the present matter, viz the alleged...