Hardaker v Phillips

• Jurisdiction: South Africa
• Judge: Scott JA, Cameron JA, Brand JA, Lewis JA and Ponnan JA
• Judgment Date: 30 March 2005
• Citation: 2005 (4) SA 515 (SCA)
• Docket Number: 120/04
• Hearing Date: 04 March 2005
• Counsel: M J D Wallis SC (with D J Joubert) for the appellant. M D C Smithers for the respondent.
• Court: Supreme Court of Appeal

Hardaker v Phillips
2005 (4) SA 515 (SCA)

2005 (4) SA p515

Citation	2005 (4) SA 515 (SCA)
Case No	120/04
Court	Supreme Court of Appeal
Judge	Scott JA, Cameron JA, Brand JA, Lewis JA and Ponnan JA
Heard	March 4, 2005
Judgment	March 30, 2005
Counsel	M J D Wallis SC (with D J Joubert) for the appellant.; M D C Smithers for the respondent.

Flynote : Sleutelwoorde F

Defamation — Defences — Qualified privilege — Comment made in course of judicial proceedings — Allegation by law enforcement official in affidavit in asset forfeiture proceedings that claimant's 'supposed condemnation of and protestations against drugs should not be taken too G seriously' — Allegation made in response to averment in claimant's founding affidavit that he had not been involved in criminal conduct complained of — Onus of rebuttal of presumptions of animus injuriandi and unlawfulness discussed — Onus to be discharged on preponderance of probabilities — Accordingly, to bring H statement within ambit of defence of qualified privilege, official bearing onus of proving that statement relevant to issue in proceedings — Court holding that statement indeed relevant — Protection afforded to litigant or witness not limited to defamatory statements relevant to issue in 'true or real' sense — Defamatory statement not only amounting to response to what respondent had said in answering affidavit about his attitude to drugs, but undoubtedly relevant to that professed I attitude — Statement complained of accordingly falling within scope of qualified privilege afforded to witnesses in judicial proceedings.

Defamation — Defences — Generally — Established defences not constituting numerus clausus — In final analysis, whether comment lawful depending J

2005 (4) SA p516

on balancing constitutionally entrenched rights to dignity and freedom of A speech — In application and development of established defences, sight not to be lost of constitutional values underlying their true object, viz rebuttal of unlawfulness.

Defamation — Defences — Fair comment — Allegation by law enforcement official in affidavit in asset forfeiture proceedings that person's 'supposed B condemnation of and protestations against drugs should not be taken too seriously' — Onus of rebuttal of presumptions of animus injuriandi and unlawfulness discussed — Allegation made in response to averment in claimant's founding affidavit that he had not been involved in criminal conduct complained of — Whether jibe 'fair' not depending solely or even principally on reason or logic — Nor did comment have to 'be impartial or C well-balanced' — 'Fair' in this context meaning only that opinion expressed to be one that 'a fair man, however extreme his views may be, might honestly have, even if the views are prejudiced' — Submission that giving succour to suspected drug dealers being discreditable and wrong and putting in question professed opposition to drug dealing fairly tenable, stated in relation to facts fully stated, and not tainted by malice — Defence upheld. D

Defamation — What constitutes — Allegation by law enforcement official in affidavit in asset forfeiture proceedings that person's 'supposed condemnation of and protestations against drugs should not be taken too seriously' — Allegation made in response to person's founding affidavit in which he had E alleged that he had not been involved in criminal conduct complained of — Implication readily apparent to the ordinary reader of the affidavit, who would typically be legal representative involved in litigation — Averment of untruthfulness per se defamatory. F

Headnote : Kopnota

In defamation proceedings the element of unlawfulness is more often than not sought to be rebutted by the defendant attempting to establish one or other of the well-established defences originating in the English law. These defences do not constitute a numerus clausus: in the final analysis, whether conduct is to be adjudged unlawful depends on a balancing of the constitutional right to dignity, on the one hand, and the right to freedom of speech, on the other. When G the well-established defences and the rules relating to each are being applied and developed, sight should not be lost of the constitutional values underlying their true object, namely the rebuttal of unlawfulness. (Paragraph [15] at 524I - 525E.)

The respondent had instituted action against the appellant, a senior investigator in the National Directorate of Public Prosecutions (NDPP) attached to the Asset Forfeiture Unit. The claim arose out of an H allegedly defamatory statement made by the appellant in proceedings brought by the NDPP against the respondent and 14 other people. The respondent operated a brothel and an adult entertainment venue. The NDPP obtained a restraining order in terms of s 26 of the Prevention of Organised Crime Act 121 of 1998 (the Act) to protect the assets specified in the order to satisfy a confiscation order in the event of I the respondent being convicted of offences under the Sexual Offences Act 23 of 1957 and the Aliens Control Act 96 of 1991. The respondent filed an answering affidavit in these proceedings and the NDPP filed two replying affidavits, one of which was the appellant's affidavit in which he mentioned the respondent's friendship with a person who was arrested and convicted of drug dealing in New Zealand and he J

2005 (4) SA p517

submitted that the respondent's 'supposed condemnation of and protestations against drugs should not be taken too A seriously'. The appellant denied that the statements complained of were defamatory. In the alternative, he pleaded that they were relevant and material to the issues raised in the litigation in question and accordingly made on a privileged occasion and were not unlawful. In the further alternative, it was pleaded that, by reason of the circumstances in which the statements were made, the appellant lacked B the necessary intention to injure the plaintiff in his reputation. In yet further defences in the alternative, it was alleged that the statements were true and made for the public benefit, or constituted comment or an opinion which was fair on a matter of public interest or public importance. Finally, a defence was raised that, by reason of the circumstances in which the statements were made, the appellant was indemnified from personal liability in terms of s 78 of the Act. In C response, a replication was filed in which it was alleged that in the event of the defences of privilege or fair comment being established, they could not prevail as the statements had been made with an improper or indirect motive. The Court a quo found that the statements complained of were defamatory of the respondent and rejected each one of the defences raised. On appeal, D

Held (per Scott JA; Brand JA, Lewis JA and Ponnan JA concurring), that to say that one's 'supposed condemnation of and protestations against drugs should not be taken too seriously' in response to such a condemnation contained in an affidavit implied untruthfulness. The implication, would readily be apparent to the ordinary reader of the appellant's affidavit, who typically would be the legal representative involved in the litigation. An averment of untruthfulness was per se E defamatory. It followed that the comment was defamatory of the respondent. (Paragraph [13] at 524D - E.)

Held, further, that in the present case the statement in question was made in the course of judicial proceedings. To bring it within the ambit of the defence of qualified privilege the appellant bore the onus of proving that it was relevant to an issue in the proceedings. Similarly, unless in some way relevant to an issue in F those proceedings, there was little prospect of the defence of fair comment succeeding as it was unlikely that the comment would then be regarded as being in the public interest. In either event, the question of relevance was determinative. (Paragraph [16] at 525E - F/G.)

Held, further, that the problem lay in fixing the boundaries: on the one hand, it was necessary in the interests of the proper administration of justice not to restrict unduly the protection G afforded to a litigant or witness. On the other, it had always been accepted that the protection should not be afforded where the defamatory statement had no connection whatsoever to an issue in the case. To hold otherwise would be to undermine the defamed person's right to have his or her dignity protected by the law. (Paragraph [17] at 525G - H.) H

Held, further, that the protection afforded to a litigant or witness was not limited to those defamatory statements relevant to an issue in the 'true or real' sense. If that were the case the protection would be extremely limited and litigation would be a lot more perilous than it already is. (Paragraph [18] at 526E.)

Held, further, that the defamatory statement was not only a response to what the respondent had said in his answering affidavit about his attitude to drugs but was undoubtedly relevant to that I professed attitude. It followed that the statement complained of fell within the scope of the qualified privilege afforded to witnesses in judicial proceedings. (Paragraphs [19] and [21] at 526F and 527G.)

Held (per Cameron JA; Brand JA, Lewis JA and Ponnan JA concurring), that in addition to enjoying a qualified privilege, the comment was protected as J

2005 (4) SA p518

free speech because it constituted fair comment. It is clear that the appellant's comment was A relevant to the issues. (Paragraph [25] at 528E.)

Held, further, as to whether the comment was 'fair', that what the appellant had done was to employ the classic 'noscitur a sociis' jibe against the respondent: 'a man is known by his associates'; or, updated and expanded, 'your character can be inferred from those...