Van der Berg v Coopers & Lybrand Trust (Pty) Ltd and Others

The appellant, a senior advocate, sued the respondents for damages arising from a defamatory statement made about him in an affidavit filed by the fourth respondent (Lane) in a condonation application during civil proceedings connected to the sequestration of Jurgen Harksen’s estate. The statement alleged that the appellant had manipulated attorneys to act improperly and contrary to their duties as officers of the court. The statement was made in the context of explaining delays and difficulties encountered by the trustees in filing replying affidavits in earlier proceedings. The third respondent associated herself with the affidavit, and the first and second respondents were joined on the basis of alleged vicarious liability.

The appeal was dismissed and the respondents were absolved from liability; the defence of qualified privilege succeeded and the appellant’s claim for defamation failed.

The case is an important authority on qualified privilege in South African defamation law, particularly in the context of statements made in affidavits during judicial proceedings. It clarifies the concept of relevance for purposes of privilege and emphasises an objective, common-sense approach that balances protection of reputation with freedom of expression and the proper functioning of the courts.