Hardaker v Phillips (120/2004) [2005] ZASCA 28; 2005 (4) SA 515 (SCA) (30 March 2005)

Hardaker v Phillips (120/2004) [2005] ZASCA 28; 2005 (4) SA 515 (SCA) (30 March 2005)

The Supreme Court of Appeal held that the appellant's statement in his replying affidavit, which cast doubt on the respondent's professed opposition to drugs, was defamatory as it implied untruthfulness. However, the statement was made in response to allegations raised by the respondent and was relevant to the issues in the proceedings, specifically the respondent's defence that, absent aggravating circumstances such as drug dealing, he had a legitimate expectation not to be prosecuted or have his assets confiscated. The court found that the issue of drug abuse and the respondent's attitude towards it was more than a subsidiary issue and was directly relevant to the defence raised....

Citation
[2005] ZASCA 28
Parties
Appellant: George Frederick Hardaker; Respondent: Andrew Lionel Phillips
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 March 2005
Case Number
120/2004
Procedural Posture
Civil Appeal / Appeal From High Court, Johannesburg
Outcome
Appeal upheld; action for defamation dismissed.
Judges
Scott, Cameron, Brand, Lewis, Ponnan
Legal Topics
Defamation, Qualified Privilege, Fair Comment, Animus Injuriandi, Relevance in Judicial Proceedings
Delict Civil Procedure Defamation Qualified Privilege Fair Comment Animus Injuriandi Relevance in Judicial Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

George Frederick Hardaker

Appellant

Andrew Lionel Phillips

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, Johannesburg

Legal Issues

  1. 1 Whether the statements made by the appellant in judicial proceedings were defamatory of the respondent.
  2. 2 Whether the statements were relevant to an issue in the proceedings and thus protected by qualified privilege.
  3. 3 Whether the defence of fair comment applies to the statements in question.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant's statement in his replying affidavit, which cast doubt on the respondent's professed opposition to drugs, was defamatory as it implied untruthfulness. However, the statement was made in response to allegations raised by the respondent and was relevant to the issues in the proceedings, specifically the respondent's defence that, absent aggravating circumstances such as drug dealing, he had a legitimate expectation not to be prosecuted or have his assets confiscated. The court found that the issue of drug abuse and the respondent's attitude towards it was more than a subsidiary issue and was directly relevant to the defence raised....

Court Disposition

Appeal upheld; action for defamation dismissed.

Orders

  • The appeal is upheld with costs, including the costs occasioned by the employment of two counsel.
  • The order of the court a quo is set aside and substituted with: 'The action is dismissed with costs, including the costs occasioned by the employment of two counsel.'