Gardener v Whitaker (CCT26/94) [1994] ZAECHC 1 (12 December 1994)

Gardener v Whitaker (CCT26/94) [1994] ZAECHC 1 (12 December 1994)

The court held that leave to appeal to the Constitutional Court is necessary in this matter, as the issues raised are constitutional in nature and governed by the relevant provisions of the Constitution and the Supreme Court Act. The applicant's grounds for appeal in paragraphs 1, 2, 3, 4, 5, 7, and 8 of the notice relate to constitutional issues and present reasonable prospects of success. The grounds in paragraphs 6 and 9 do not raise constitutional issues and are not granted leave. The court found no prejudice to the applicant in the application of the Constitution to the pending matter, as both parties were given the opportunity to submit further argument and declined to do so. The...

Citation
[1994] ZAECHC 1
Parties
Applicant: Nigel Maurice Rhett Gardener; Respondent: Eric Whitaker
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
12 December 1994
Case Number
CCT26/94
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court
Outcome
Leave to appeal to the Constitutional Court is granted on specified constitutional grounds; costs of the application will be costs in the appeal.
Judges
C Froneman
Legal Topics
Freedom of Expression, Constitutional Appeal, Reasonable Prospects of Success, Leave to Appeal, Defamation, Application of Interim Constitution
Constitutional Law Civil Procedure Freedom of Expression Constitutional Appeal Reasonable Prospects of Success Leave to Appeal Defamation Application of Interim Constitution

Case Brief

Summary, issues, holding and outcome

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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

Legal Issues

  1. 1 Whether leave to appeal to the Constitutional Court should be granted on constitutional grounds.
  2. 2 Whether the applicant has reasonable prospects of success on appeal regarding the constitutional issues decided.
  3. 3 Whether the application for leave to appeal is necessary for an appeal to the Constitutional Court.

Ratio Decidendi

The court held that leave to appeal to the Constitutional Court is necessary in this matter, as the issues raised are constitutional in nature and governed by the relevant provisions of the Constitution and the Supreme Court Act. The applicant's grounds for appeal in paragraphs 1, 2, 3, 4, 5, 7, and 8 of the notice relate to constitutional issues and present reasonable prospects of success. The grounds in paragraphs 6 and 9 do not raise constitutional issues and are not granted leave. The court found no prejudice to the applicant in the application of the Constitution to the pending matter, as both parties were given the opportunity to submit further argument and declined to do so. The...

Court Disposition

Leave to appeal to the Constitutional Court is granted on specified constitutional grounds; costs of the application will be costs in the appeal.

Orders

  • Leave to appeal to the Constitutional Court is granted on the grounds set out in paragraphs 1, 2, 3, 4, 5, 7, and 8 of the notice of application for leave to appeal.
  • Leave to appeal is refused on the grounds set out in paragraphs 6 and 9 of the notice of application for leave to appeal.