The applicant, Mr Gardener, was the town clerk of East London. He sued the respondent, Mr Whitaker, an East London city councillor, for damages arising from an allegedly defamatory statement made during a City Council action committee meeting on 1 June 1993. During discussion of an official report co-authored by Gardener, Whitaker quoted from the report and stated: “I want to tell you emphatically that that is a lie.” Gardener alleged that this statement referred to him and was defamatory. Whitaker denied that the statement referred to Gardener or that it was defamatory, and alternatively pleaded truth, public benefit, and qualified privilege. The Eastern Cape Division found the statement defamatory but held that it was made on an occasion of qualified privilege relating to a matter of public interest and granted absolution from the instance. Gardener sought leave to appeal directly to the Constitutional Court, raising constitutional arguments concerning the application of fundamental rights to private defamation disputes.
The application for leave to appeal to the Constitutional Court was dismissed for lack of jurisdiction; any appeal lay to the Appellate Division.
This case clarified the jurisdictional boundaries between the Constitutional Court and the Appellate Division in cases raising both constitutional and common-law issues. It reaffirmed that the development and application of the common law, even when influenced by constitutional values, is primarily the function of the Supreme Court. The decision also reinforced the principle that constitutional issues should be avoided where a matter can be resolved on non-constitutional grounds.