Gardener v Whitaker (CCT26/94) [1996] ZACC 11; 1996 (6) BCLR 775; 1996 (4) SA 337 (15 May 1996)

Gardener v Whitaker (CCT26/94) [1996] ZACC 11; 1996 (6) BCLR 775; 1996 (4) SA 337 (15 May 1996)

The Constitutional Court held that although constitutional issues were raised regarding the application of Chapter 3 to private litigation and the development of the common law of defamation, the case also involved factual and mixed law issues suitable for the Appellate Division. The lower court's judgment was based on the development of the common law in light of constitutional values, not on direct horizontal application of constitutional rights. The Constitutional Court does not have jurisdiction to choose between competing versions of the common law, and appeals involving both constitutional and other issues must first be heard by the Appellate Division. Accordingly, the application...

Citation
[1996] ZACC 11
Parties
Applicant: Nigel Maurice Rhett Gardener; Respondent: Eric Whitaker
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
15 May 1996
Case Number
CCT26/94
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court From the Eastern Cape Division Judgment.
Outcome
Application for leave to appeal to the Constitutional Court dismissed.
Judges
Kentridge, Chaskalson, Mahomed, Ackermann, Didcott, Kriegler, Langa, Madala, Mokgoro, O'Regan, Sachs
Legal Topics
Horizontal Application of Bill of Rights, Retrospective Application of Constitution, Defamation, Qualified Privilege, Freedom of Expression, Human Dignity
Constitutional Law Delict Horizontal Application of Bill of Rights Retrospective Application of Constitution Defamation Qualified Privilege Freedom of Expression Human Dignity

Case Brief

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Parties

Nigel Maurice Rhett Gardener

Applicant

Eric Whitaker

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court From the Eastern Cape Division Judgment.

Legal Issues

  1. 1 Does Chapter 3 of the Constitution apply to litigation between private persons, particularly actions for defamation?
  2. 2 Does the Constitution apply to proceedings pending at the date of its commencement?
  3. 3 What is the impact of constitutional rights on the common law of defamation, specifically regarding the onus of proof and balancing of rights?

Ratio Decidendi

The Constitutional Court held that although constitutional issues were raised regarding the application of Chapter 3 to private litigation and the development of the common law of defamation, the case also involved factual and mixed law issues suitable for the Appellate Division. The lower court's judgment was based on the development of the common law in light of constitutional values, not on direct horizontal application of constitutional rights. The Constitutional Court does not have jurisdiction to choose between competing versions of the common law, and appeals involving both constitutional and other issues must first be heard by the Appellate Division. Accordingly, the application...

Court Disposition

Application for leave to appeal to the Constitutional Court dismissed.

Orders

  • The application for leave to appeal is dismissed.
  • The applicant may, if so advised, apply to the judge for leave to appeal to the Appellate Division, subject to condonation for lateness.