Nigel Maurice Rhett Gardener v Eric Whitaker

The applicant, Gardener, was the town clerk of East London. The respondent, Whitaker, was an East London city councillor. On 21 June 1993, during a meeting of the action committee of the City Council, while discussing a report prepared by officials including Gardener, Whitaker quoted a passage from the report and stated "I want to tell you emphatically that that is a lie." Gardener instituted action for defamation in 1993. The trial was conducted before Froneman J in the Eastern Cape Division on traditional common law lines, without reference to constitutional issues during oral argument. After the hearing but before judgment, the judge invited written argument on constitutional issues, but the parties chose not to submit such argument. Froneman J found that the words referred to Gardener and were defamatory, but held that the statement was made on an occasion of qualified privilege, related to a matter of public interest, and that Whitaker was not actuated by malice. The judge granted absolution from the instance with costs. However, Froneman J extensively addressed constitutional issues mero motu, formulating new common law principles based on the Constitution, including reversing the onus of proof in defamation cases. Gardener applied for leave to appeal to the Constitutional Court against Froneman J's constitutional findings.

• Whether the Constitutional Court has jurisdiction to hear an appeal where both constitutional and common law issues are present
• Whether appeals in defamation cases involving constitutional considerations should first go to the Appellate Division
• Whether the development and application of common law (even when informed by constitutional values under section 35(3)) falls within the jurisdiction of the Constitutional Court
• The proper scheme of appeals under section 102 of the interim Constitution where both constitutional and other issues are raised
• Whether Chapter 3 of the Constitution applied to pending litigation at the time the Constitution came into force
• Whether Chapter 3 had horizontal application between private parties

The application for leave to appeal to the Constitutional Court was dismissed. The applicant was advised that he may apply to the judge for leave to appeal to the Appellate Division, subject to obtaining condonation for lateness.

The binding legal principles established are: (1) The development and application of common law and customary law, even when undertaken in light of section 35(3) and constitutional values, falls within the jurisdiction of the Supreme Court including the Appellate Division, not the Constitutional Court. (2) Under section 98(2) of the interim Constitution, "the application and development of the common law and customary law" is not a matter within the Constitutional Court's jurisdiction and is therefore not excluded from the Appellate Division's jurisdiction under section 101(5). (3) Where a case raises both constitutional issues and other issues (factual or common law issues), and the other issues could potentially dispose of the appeal without addressing constitutional matters, the appeal must go to the Appellate Division first, not directly to the Constitutional Court. (4) Under section 102(5), if the Appellate Division can dispose of an appeal without dealing with constitutional issues that have been raised, it must do so. (5) It is not within the Constitutional Court's powers to choose between competing versions or formulations of the common law, all of which may be consistent with the Constitution - that choice on appeal belongs to the Appellate Division. (6) Courts should follow the principle of constitutional avoidance: where it is possible to decide any case without reaching a constitutional issue, that is the course which should be followed.

Kentridge AJ made several important obiter observations: (1) He expressed the view that Froneman J was exercising his function of developing the common law rather than giving direct horizontal application to section 15 of the Constitution, and had "purported to fashion or perhaps to select a new principle of the law of defamation." (2) He noted that different judges had formulated different approaches to reformulating defamation law in light of the Constitution (comparing Froneman J's approach with that of Cameron J in Holomisa v Argus Newspapers Ltd, and noting the contrary decision in Potgieter v Kilian). (3) With respect to Froneman J's key finding that the plaintiff should bear the onus of establishing precedence of one fundamental right over another, Kentridge AJ stated: "With all respect to the judge, whatever the practical merits of such a rule in the law of defamation (as to which I say nothing) I am bound to say that I can find nothing in Chapter 3 which remotely suggests that in the balancing of competing rights it can be of any moment whether the person asserting one of those rights is a plaintiff or a defendant. Such an arbitrary and mechanical test seems to me, on any interpretation of Chapter 3 to be alien to the objects of the Chapter." (4) The Court reserved for future determination "this Court's ultimate power to interpret section 35(3) and to review its application" and stated it was "unnecessary for present purposes to consider the extent of that power." (5) The Court noted that the judgment in Du Plessis v De Klerk established that although Froneman J was correct on retrospectivity (section 241(8)), the right to freedom of speech under section 15 could not be invoked as a defense to defamation uttered before the Constitution came into force.

This case is of fundamental importance in defining the jurisdictional boundaries of the Constitutional Court versus the Appellate Division (now Supreme Court of Appeal) in South African law. It establishes the critical principle that the development and application of common law - even when informed by constitutional values under section 35(3) - is primarily the function of the ordinary courts, not the Constitutional Court. The judgment clarifies the appellate scheme under the interim Constitution (section 102), establishing that where both constitutional and non-constitutional issues are present, appeals should ordinarily go first to the Appellate Division, which must attempt to dispose of matters on non-constitutional grounds if possible. This promotes judicial restraint and constitutional avoidance - courts should not decide constitutional issues if a case can be resolved on other grounds. The case also demonstrates the proper role of the Constitutional Court as a court of constitutional matters specifically, not as a general court of appeal. It recognizes that different formulations of common law development may all be consistent with constitutional values, and choosing between competing common law approaches is the function of the general appellate courts. This judgment remains influential in understanding court jurisdiction, the indirect horizontal application of the Bill of Rights through common law development, and the institutional role of the Constitutional Court in South Africa's judicial architecture.