Nagan v Hlophe (10061/08) [2009] ZAWCHC 56 (19 March 2009)

Nagan v Hlophe (10061/08) [2009] ZAWCHC 56 (19 March 2009)

The court found that the applicant had made out a prima facie case for leave to sue the respondent for damages arising from allegedly defamatory remarks made in the course of judicial functions. The remarks, although made during judgment delivery, were alleged to be irrelevant and without reasonable foundation, and malice was averred. The respondent did not oppose the relief but challenged the merits in his affidavit. The court held that good cause had been shown, as required by section 25(1) of the Supreme Court Act, and that constitutional rights to dignity, access to courts, and equality before the law supported granting leave. The issue of costs was deferred to the trial court, as...

Citation
[2009] ZAWCHC 56
Parties
Applicant: Winston P Nagan; Respondent: John Hlophe
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
19 March 2009
Case Number
10061/08
Procedural Posture
Leave to Appeal / Application for Leave to Sue a Judge Under Section 25(1) of the Supreme Court Act
Outcome
Leave to sue the respondent for damages is granted; costs are reserved for determination at trial.
Judges
Majiedt
Legal Topics
Leave to Sue Judge, Defamation, Qualified Privilege, Good Cause Requirement
Civil Procedure Delict Leave to Sue Judge Defamation Qualified Privilege Good Cause Requirement

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Parties

Winston P Nagan

Applicant

John Hlophe

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Sue a Judge Under Section 25(1) of the Supreme Court Act

Legal Issues

  1. 1 Whether the applicant has shown good cause to be granted leave to sue the respondent, a sitting judge, for alleged defamatory remarks.
  2. 2 Whether the remarks made by the respondent in the course of judicial functions are protected by qualified privilege or expose him to liability for defamation.
  3. 3 Whether the interests of justice and constitutional values require granting leave to sue in this case.

Ratio Decidendi

The court found that the applicant had made out a prima facie case for leave to sue the respondent for damages arising from allegedly defamatory remarks made in the course of judicial functions. The remarks, although made during judgment delivery, were alleged to be irrelevant and without reasonable foundation, and malice was averred. The respondent did not oppose the relief but challenged the merits in his affidavit. The court held that good cause had been shown, as required by section 25(1) of the Supreme Court Act, and that constitutional rights to dignity, access to courts, and equality before the law supported granting leave. The issue of costs was deferred to the trial court, as...

Court Disposition

Leave to sue the respondent for damages is granted; costs are reserved for determination at trial.

Orders

  • The applicant is granted leave in terms of section 25(1) of the Supreme Court Act 59 of 1959 to issue summons against the respondent for damages in the sum of R6,000,000 including interest a tempore morae, arising out of allegedly defamatory remarks made by the respondent on or about 2 March 2007.
  • Costs of this application will stand over for determination at the trial.