Hardaker v Phillips

The appellant, a senior investigator in the National Directorate of Public Prosecutions’ Asset Forfeiture Unit, deposed to a replying affidavit in restraint proceedings under the Prevention of Organised Crime Act 121 of 1998 against the respondent, Andrew Phillips. Phillips operated businesses involving prostitution and adult entertainment. In the replying affidavit, the appellant commented on Phillips’s professed opposition to drugs, referring to Phillips’s association with a convicted drug dealer in New Zealand and suggesting that Phillips’s condemnation of drugs should not be taken seriously. Phillips sued the appellant in the High Court for defamation based on this statement. The High Court upheld the claim and awarded damages of R30 000. The appellant appealed to the Supreme Court of Appeal.

The appeal was upheld and the High Court’s judgment awarding damages for defamation was set aside.

The case clarifies the scope of qualified privilege in South African defamation law, particularly in relation to statements made in judicial proceedings. It affirms that relevance is broadly construed and includes responses to subsidiary issues raised by a party, reinforcing protection for litigants and witnesses while balancing constitutional rights to dignity and freedom of expression.