George Frederick Hardaker v Andrew Lionel Phillips

Hardaker, a senior investigator in the National Directorate of Public Prosecutions (NDPP) attached to the Asset Forfeiture Unit, made statements in a replying affidavit in motion proceedings brought by the NDPP against Phillips and 14 other entities. The NDPP had obtained a provisional restraint order under s 26 of the Prevention of Organised Crime Act 121 of 1998 (POCA) to preserve assets pending Phillips's prosecution for offences under the Sexual Offences Act and Aliens Control Act relating to operating The Ranch, a brothel in Rivonia. Phillips owned and operated The Ranch which provided facilities for prostitution and a related business, the Titty Twister, offering striptease entertainment. In his answering affidavit, Phillips denied involvement in aggravating circumstances (drug dealing, trafficking in women, child prostitution) and stated his firm opposition to drugs on the premises. Hardaker's replying affidavit stated that while he had no evidence of Phillips's direct involvement in drug trafficking, Phillips had a 'long standing relationship' with Sailor van Schalkwyk who was convicted of dealing in ecstasy and cocaine in New Zealand, and that Phillips had travelled to New Zealand and brought approximately R65,000 for van Schalkwyk's legal defence. Hardaker concluded: 'Based on this evidence I submit that the Defendant's supposed condemnation of and protestations against drugs should not be taken too seriously.' Phillips sued Hardaker for defamation. The High Court (Joffe J) found the statement defamatory and awarded damages of R30,000.

• Whether the statements in Hardaker's replying affidavit were defamatory of Phillips
• Whether the statements were relevant to issues in the motion proceedings and therefore protected by qualified privilege
• Whether the statements constituted fair comment on a matter of public interest
• Whether the qualified privilege or fair comment defences were defeated by improper or indirect motive (malice)
• The proper test for 'relevance' in determining whether statements made in judicial proceedings attract qualified privilege
• The constitutional balance between the right to dignity/reputation and freedom of speech in defamation cases

The appeal was upheld with costs, including costs of two counsel. The order of the High Court awarding R30,000 damages was set aside and the action was dismissed with costs.

1. A statement implying untruthfulness is per se defamatory. 2. Defamatory statements made in judicial proceedings attract qualified privilege if they are relevant to issues in those proceedings. 3. 'Relevance' for purposes of qualified privilege is not capable of precise definition and is essentially a value judgment based on reason, common sense, facts and circumstances - it is not governed by hard and fast rules. 4. Protection of qualified privilege extends beyond 'true or real' issues to subsidiary issues, including responses to allegations made by the opposing party. 5. Once a party raises an issue in litigation (such as their attitude to a particular matter), the opposing party is entitled to respond to that issue and such responses are protected by privilege. 6. Issues relevant to a defence (confession and avoidance) are no less relevant than issues relevant to establishing the claim itself. 7. Qualified privilege is defeated only if the defendant acted with improper or indirect motive (malice), which is not established merely by the use of strong or emphatic language. 8. For the fair comment defence: (i) the statement must constitute comment/opinion; (ii) it must be 'fair'; (iii) the factual allegations being commented upon must be true; and (iv) the comment must relate to a matter of public interest. 9. 'Fair' in fair comment means only that the opinion must be one that a fair person might honestly hold, however extreme or prejudiced the views, and the defendant need not justify the comment itself, only the underlying facts. 10. In defamation cases, unlawfulness depends on balancing the constitutional rights to dignity/reputation and freedom of speech.

Scott JA observed that the defences available to rebut unlawfulness in defamation do not constitute a numerus clausus, and in the final analysis whether conduct is lawful depends on balancing constitutionally enshrined rights to dignity and freedom of speech, which may involve 'the application of a general criterion of reasonableness based on considerations of fairness, morality, policy and the Court's perception of the legal convictions of the community'. However, the well-established defences remain useful and convenient with the advantage of affording litigants certainty. Cameron JA noted that the 'noscitur a sociis' jibe ('a man is known by his associates') is by nature vague and imprecise, implying taint by association without specifying the degree of opprobrium. He observed that the law does not require a person giving aid to a friend standing trial on criminal charges to be considered 'soft' on the conduct charged, nor does this follow as a matter of logic, yet such inferences may be one of the 'burdens of loyal friendship'. Cameron JA also noted that Innes CJ in Crawford v Albu considered the use of the word 'fair' in the fair comment defence as 'not very fortunate' because it does not mean what the court thinks is fair, nor does the comment need to be impartial or well-balanced. The Constitution has not reduced the generous latitude afforded to fair comment.

This case provides important guidance on the scope of qualified privilege for statements made in judicial proceedings and the defence of fair comment in South African defamation law. It clarifies that the test for 'relevance' in determining qualified privilege is broad and flexible, based on reason and common sense rather than strict legal rules, and extends beyond 'true or real' issues to include subsidiary issues and matters raised in response to an opponent's allegations. The case affirms the generous scope given to 'fairness' in the fair comment defence - requiring only that the comment be an honest opinion a fair person might hold, however extreme or prejudiced, without requiring the defendant to justify the opinion itself. The judgment demonstrates the constitutional balancing between dignity/reputation and freedom of speech, particularly in the context of judicial proceedings where robust exchange is necessary for proper administration of justice. It establishes that once a party raises an issue in litigation (even a subsidiary one), the opposing party is entitled to respond and such responses attract privilege protection. The case is significant for protecting robust advocacy in litigation while maintaining limits based on relevance and absence of malice.