THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no: 120/04

In the matter between:

GEORGE FREDERICK HARDAKER

Appellant

and

ANDREW LIONEL PHILLIPS

Respondent
_____________________________________________________

Coram

:
SCOTT, CAMERON, BRAND, LEWIS et

PONNAN  JJA

Date of hearing :
4 March 2005
Date of delivery :
30 March 2005

Summary:
Defamation - whether words used in judicial proceedings
defamatory  -  whether relevant to an issue in the proceedings – defences of
qualified privilege and fair comment. Order in para 24
____________________________________________________
JUDGMENT
_____________________________________________________

SCOTT JA/…

SCOTT JA:
[1] The appellant is a senior investigator in the National
Directorate of Public Prosecutions attached to the Asset Forfeiture
Unit. The respondent is Mr Andrew Phillips. To avoid confusion I
shall refer to him by name. Phillips instituted action against the
appellant in the High Court, Johannesburg, arising out of an
alleged defamatory statement contained in a replying affidavit
deposed to by the appellant in motion proceedings brought by the
National Director of Public Prosecutions (‘the NDPP’) against
Phillips and 14 others. Joffe J in the court a quo upheld the claim
and awarded Phillips damages in the sum of R30 000. The appeal
is with the leave of this court.
[2] Before considering the pleadings and the issues raised on
appeal it is necessary to refer in some detail to the motion
proceedings and the circumstances in which the statement
complained of came to be included in the appellant’s replying
affidavit.
[3] For many years Phillips owned and openly operated a
business in Rivonia known as The Ranch. It involved providing a
venue and facilities for paying male customers to have sexual
relations with female prostitutes. Another business, known as the
Titty Twister, was conducted on the same premises by a company

of which Phillips was the sole shareholder. It provided for strip-
tease shows and other forms of entertainment by female dancers.
[4] On 22 December 2000 the NDPP sought and obtained in
terms of s 26 of the Prevention of Organised Crime Act 121 of
1998 (‘POCA’) a provisional restraint order in the form of a rule nisi
against Phillips and 14 other entities being companies or close
corporations of which he was either the sole shareholder or sole
member. The object of the order was to ensure that in the event of
Phillips being convicted on charges preferred against him in the
regional court under the Sexual Offences Act 23 of 1957 and the
Aliens Control Act 96 of 1991, the assets specified in the order
would be available to satisfy any confiscation order that might be
made in terms of s 18 of POCA. Phillips opposed the granting of a
final order and filed an answering affidavit. The NDPP filed
replying affidavits, one of which was the affidavit of the appellant. It
is the latter that contained the material giving rise to action in the
court a quo.
[5] The founding affidavit to the application was deposed to by
Mr William Hofmeyr who was then the head of the Asset Forfeiture
Unit in the office of the NDPP. He identified the Acts under which
Phillips had been charged, ie the Sexual Offences Act and the
Aliens Control Act and referred to the supporting affidavit of the

appellant in which, he said, the details of the offences were more
fully set out.
[6] In order to succeed the NDPP was obliged in terms of s
25(1) of POCA to place sufficient evidence before the court to
satisfy it that there were ‘reasonable grounds for believing that a
confiscation order may be made’. The appellant in his supporting
affidavit stated that from his investigations he had established that
Phillips had contravened various provisions of the Acts referred to
by Hofmeyr. (I mention in passing that he also said that he was
investigating contraventions of the Liquor Act 27 of 1989, but
nothing turns on this.) In order to substantiate his conclusions
regarding the contraventions of the Sexual Offences Act and the
Aliens Control Act he annexed statements taken from eight women
who had been employed at The Ranch as prostitutes and dancers.
Six of these were foreign woman and two were local. The
statement of one of the latter, Ms Sasha Knight, contained not only
a description of her terms of employment at The Ranch and the
services she and her colleagues rendered there, but also the
following paragraph:

‘Drug [use] was taking place on the premises as far as I know. I say
this because I overheard a conversation by two of the bouncers. They were in
the toilet of the girls change rooms and I heard one of them say to one of the

girls as they left the toilet that she had missed out because they had just “cut
a line”. The term “cutting a line” means to snort cocaine. I never personally
saw drug usage on the premises, although one of the customers once
produced a dagga joint and offered to take me outside to smoke it but I
declined. On numerous occasions I was offered ecstasy and cocaine by
various customers. I always declined these offers. I cannot say for sure that
any of the other girls used these drugs, but on occasions some of the girls
would be in a state which I would associate more with being high on drugs as
opposed to being under the influence of liquor. When they were in such a
state they would be withdrawn off stage but would have extreme confidence
on the stage or when dancing for customers. Some of them were constantly
sniffing and some would check up their nostrils in the mirror, I presume to
ensure that traces of cocaine were not visible.’
The statement of one of the other women, Ms Augustine
Grundling, also contained a reference to drugs, but it was
innocuous.  She said:
‘I do not have insight into any drug usage on the premises but I can say that
there are signs displayed prohibiting the use of drugs.’
[7] In his answering affidavit Phillips sought to refute the NDPP’s
case that there were reasonable grounds for believing that a
confiscation order would be made. He said that the State regarded
prostitution as a low priority offence and that prosecutions would
follow only in the event of a specific complaint. Moreover, the
Asset Forfeiture Unit, he said, had on previous occasions indicated

that in the absence of aggravating circumstances POCA would not
be invoked in such prosecutions. The aggravating circumstances
that had been identified by the Asset Forfeiture Unit, he said, were
drug dealing, international trafficking in women and child
prostitution. He denied his involvement in any of these and argued
that in the circumstances he had ‘a legitimate expectation’ that he
would be neither prosecuted nor have his property confiscated. He
accordingly contended that both the prosecution and the
application for a confiscation order in terms of s 18 of the Act
would fail.
[8] At a later stage in his affidavit he dealt specifically with the
supporting affidavit of the appellant. Responding to the paragraphs
quoted above in the statements taken from Knight and Grundling
he categorised them as no more than an attempt to paint him ‘in
the worst possible light’ and found it necessary to say the
following:

‘The applicant is well aware of my stated position in respect of drugs. I
need do no more in this regard than refer again to “ALP 1” to my answering
affidavit in the Chapter 6 proceedings. Hofmeyr is well aware of this stance.
So is Hardaker. Yet they persist in their dishonest attempts to mislead this
Court into thinking that The Ranch is a place where drugs are permitted or, at
least, tolerated. This is untrue. They know it to be such.

By the very nature of things, it is not possible to body-search every
person entering The Ranch or The Titty Twister to ensure that they do not
have drugs concealed somewhere in their clothes or on their person. Every
owner of every club, bar or other place of amusement is in precisely the same
position. However, “ALP 1” makes it very clear that drug use of any kind is not
permitted and is not tolerated at The Ranch or at The Titty Twister. Any
person found using or in possession of drugs will be escorted off the premises
and not allowed to return.’
(The reference to the Chapter 6 proceedings is a reference to a
previous application of the NDPP for a preservation order in terms
of s 38 of the Act. Annexure ALP 1 is a copy of a notice outlawing
the use or possession of drugs, of which, according to Phillips,
there were about 20 on display on the premises of The Ranch and
The Twitty Twister.)
[9] In his replying affidavit Hofmeyr denied that either he or the
NDPP had in any way fettered the powers conferred on them to
institute prosecutions for offences involving prostitution or to
invoke the provisions of the Act in the event of such prosecutions.
He admitted that their resources were limited and not all offenders
could be prosecuted but explained that not only did The Ranch
operate ‘on a scale unmatched by any other operator’ but there
was a suspicion that The Ranch was involved with trafficking in
women and that Phillips was linked with drug trafficking. As far as

this suspicion was concerned, he referred to the affidavit of the
appellant in which, he said, the allegations were dealt with more
fully. I quote from Hofmeyr’s replying affidavit:

‘Another factor was a suspicion of aggravating circumstances, such as
the involvement in the trafficking in women. The affidavit of Hardaker [the
appellant] filed herewith refers to some of the circumstances that gave rise to
the suspicion that the Ranch was involved in trafficking in women, or, at the
very least, provided a ready market for those who engaged in such actions. I
had also received a number of reports from other law enforcement officials
that there were suspicions that Defendant [Phillips] may be linked to other
serious offences, such as trafficking in drugs and corruption of law
enforcement officials. These allegations are dealt with more fully by Hardaker
in his affidavit.’
[10] The appellant in his replying affidavit dealt with the question
of drug trafficking in the context of his response to Phillips’s
answer to the reference to drugs in the statement of Knight. (The
relevant paragraphs of Phillips’s answering affidavit are quoted in
para 8 above.) It is that response, contained in the following three
paragraphs of his replying affidavit, which formed the subject
matter of Phillips’s action for defamation in the court a quo.
’27.
Defendant has gone out of his way to deny that he is involved in drug
trafficking. He has held himself out as an ardent opponent of drug trafficking.
Although I am not in possession of evidence indicating any direct involvement
by the Defendant in drug trafficking, I point out that he has a long standing

relationship with Sailor van Schalkwyk, who was arrested and convicted of
dealing in the drugs ecstasy and cocaine in New Zealand. So close is the
relationship that the Defendant travelled to New Zealand for Van Schalkwyk’s
trial after being asked by him for assistance. He was monitored by the New
Zealand police officials during his stay at New Zealand. I refer to the
confirmatory affidavit of Timothy Leitch, which is annexed hereto and marked
“GFH9”, and in which these facts are confirmed. The copy of the affidavit has
been transmitted by facsimile and the original together with the certificate of
the South African consul in Auckland which has been dispatched by courier
will be filed upon arrival.
28.
Leitch also testifies that he obtained a warrant for and did in fact search
the Defendant in New Zealand and found cash in the sum of 10 000-00 ZN
dollars (approximately R65 000), which he suspected was to be used for the
legal defence of Van Schalkwyk. The Defendant and his female travelling
companion each imported the equivalent of about R65 000 into New Zealand.
Leitch also interviewed the Defendant who admitted to him that Van
Schalkwyk was his good friend. Once more these facts are confirmed in
annexure “GFH9”. I believe Van Schalkwyk was at court in the company of
the Defendant during the previous hearing of this matter.
29.
Based on this evidence I submit that the Defendant’s supposed
condemnation of and protestations against drugs should not be taken too
seriously.’
[11] It appears from the affidavit of Detective Timothy Leitch of
the New Zealand Police (which was annexed to the appellant’s
replying affidavit) that following the importation into New Zealand

from South Africa of a large number of tablets of a drug commonly
known as ecstasy, four persons were arrested and charged. Two
were South Africans, namely John Goldsmith and Albertus (Sailor)
van Schalkwyk. It was subsequently established that a similarly
large quantity of ecstasy tablets originating in South Africa had
previously been imported into New Zealand. As a result of
information received from the New Zealand customs Leitch
executed a search warrant in respect of a hotel room which turned
out to be that of Phillips. The latter told him that he was a good
friend of Van Schalkwyk but did not ‘really know’ Goldsmith.
Nonetheless Phillips had arranged and assisted in securing legal
representation for both South Africans. It was also not in dispute
that Phillips had brought into New Zealand a large sum of money
which he had disclosed to the New Zealand customs on his arrival
and which, he said, was for Van Schalkwyk’s legal expenses. A
letter found in Phillips’s room, which was established to have been
written by Van Schalkwyk to Phillips, strongly suggested that the
latter did not approve of the former’s conduct. The letter contains
the following –

‘I don’t know what to say but that I am really sorry for disappointing
you. Andrew I know your feeling on the shit that I got myself into therefore I
will not ask for any help and will take what they give me and hopefully come

out the other side a better person.  I got involved because of greed and
wanting more. Andrew all I’m asking for is that you can forgive me and that
one day when I came out at least you would be there as a friend . . . .’
(The letter was annexed to Leitch’s affidavit in the motion
proceedings.)
[12] In his plea, the appellant denied that the statements
complained of were defamatory. In the alternative, he pleaded that
they were relevant and material to the issues raised in the litigation
in question and accordingly made on a privileged occasion and
were not unlawful. In the further alternative, it was pleaded that by
reason of the circumstances in which the statements were made
the appellant lacked the necessary intention to injure the plaintiff in
his reputation.  In yet further defences in the alternative, it was
alleged that the statements were true and made for the public
benefit, or constituted comment or an opinion which was fair
on a matter of public interest or public importance. Finally
a defence was raised that by reason of the circumstances in
which
the
statements
were
made
the
appellant
was
indemnified from personal liability in terms of s 78 of the Act. In
response, a replication was filed in which it was alleged that in the
event of the defences of privilege or fair comment being
established, they could not prevail as the statements had been

made with an improper or indirect motive. The court a quo found
that the statements complained of were defamatory of Phillips and
rejected each one of the defences raised.
[13] Were the statements defamatory of Phillips? In the first two
paragraphs, ie paras 27 and 28, the appellant fairly summarises
the evidence available to him. This much is apparent from Leitch’s
affidavit. In para 29 he makes a comment in the form of a
submission based on what had gone before. It is this that contains
the sting. To say that one’s ‘supposed condemnation of and
protestations against drugs should not be taken too seriously’ (my
emphasis) in response to such a condemnation contained in an
affidavit implies untruthfulness. The implication, in my view, would
readily be apparent to the ordinary reader of the appellant’s
affidavit who typically would be the legal representative involved in
the litigation. An averment of untruthfulness is per se defamatory
(Penn v Fiddel 1954 (4) SA 498 (C) at 500F-G). It follows that in
my view para 29 is defamatory of Phillips.
[14] It is now firmly established that publication of a defamatory
statement (or other defamatory material) gives rise to two
presumptions: first, that the publication was unlawful, and second,
that the statement was made animo injuriandi, ie with a deliberate
intention to inflict injury. (See eg Joubert v Venter 1985 (1) SA 654

(A) 696A.) While the two presumptions arise from the same event,
they are essentially different in character. The presumption of
animus injuriandi relates to the defendant’s subjective state of
mind; the presumption of unlawfulness relates to objective matters
of fact and law. (Neethling v Du Preez; Neethling v Weekly Mail
1994 (1) SA 708 (A) at 768I-769A.) Until comparatively recent
times, there was doubt as to the nature of the onus of rebuttal. It is
now settled that the onus on the defendant to rebut one or other
presumption is a full onus, ie it must be discharged on a
preponderance of probabilities. (Mohamed v Jassiem 1996 (1) SA
673 (A) at 709H-I.) A bare denial on the part of the defendant will
therefore not suffice. Facts must be pleaded by the defendant that
will legally justify the denial of unlawfulness. (National Media Ltd v
Bogoshi 1998 (4) SA 1196 (SCA) at 1202H.)
[15] The element of unlawfulness is more often than not sought to
be rebutted by the defendant attempting to establish one or other
of the well-established defences which either owe their origin to or
bear the influence of English law. These typically include qualified
privilege in relation to judicial proceedings and fair comment. But
the defences available to rebut unlawfulness do not constitute a
numerus clauses. (See Bogoshi, supra, at 1204D.) In the final
analysis whether conduct is to be adjudged lawful or not depends

on a balancing of the constitutionally enshrined right of dignity,
including as it does the right to reputation on the one hand, and the
right to freedom of speech, on the other. (See Khumalo v Holomisa
2002 (5) SA 401 (CC) paras 25 and 27.) This may involve, as
proposed by Hefer JA in Bogoshi, supra at 1204D-E  –
‘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’.
(See further the remarks of Ackermann and Goldstone JJ in
Carmichele v Minister of Safety and Security and another (Centre
for Applied Legal Studies Intervening) 2001 (4) 938 (CC)  para 56.)
But, the above notwithstanding, the well-established defences and
the rules relating to each are both useful and convenient and in
addition have the advantage of affording litigants a degree of
certainty. Nonetheless, in their application and development, sight
should not be lost of the constitutional values underlying their true
object which is the rebuttal of unlawfulness. It is also worthy of
note that because they all have the same object, depending on the
circumstances, a certain degree of overlapping is inevitable.
[16] In the present case the statement in question was made in
the course of judicial proceedings. But as previously observed, it
took the form of a submission or comment. To bring it within the

ambit of the defence of qualified privilege the appellant bore the
onus of proving that it was relevant to an issue in the proceedings.
Similarly, unless in some way relevant to an issue in those
proceedings, there would seem little prospect of the defence of fair
comment succeeding as it is unlikely that the comment would then
be regarded as being in the public interest. In either event, the
question of relevance is determinative.
[17] The problem, of course, lies in fixing the boundaries. On the
one hand, it is necessary in the interests of the proper
administration of justice not to restrict unduly the protection
afforded to a litigant or witness. On the other, it has always been
accepted that the protection should not be afforded where the
defamatory statement has no connection whatsoever to an issue in
the case. To hold otherwise would be to undermine the defamed
person’s right to have his or her dignity protected by the law. In
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd 2001 (2) SA
242 (SCA)  para 22 Smalberger JA pointed out that the concept of
relevance in the context of qualified privilege was not capable of
precise definition and listed some of the phrases used in the past
to describe the concept, such as ‘in some measure relevant to the
purpose of the occasion’, ‘germane to the matter dealt with’ and

‘relevant tot die onderwerp onder bespreking’. The learned judge
summed up the position as follows (at para 26):
‘[26]
Ultimately, the concept of relevance under discussion is, in my view,
essentially a matter of reason and common sense, having its foundation in the
facts, circumstances and principles governing each particular case. The
words of Schreiner JA in R v Matthews and Others 1960 (1) SA 752 (A) at
758A that “(r)elevancy is based upon a blend of logic and experience lying
outside the law” have particular application in a matter such as the present,
even though they were said in the context of evidential relevance (cf
Hoffmann and Zeffertt The South African Law of Evidence  4th ed at 21). The
assessment of whether a defamatory statement was relevant to the occasion
to which it relates is therefore essentially a value judgment in respect of which
there are guiding principles but which is not governed by hard and fast rules.
And in arriving at that judgment due weight must be given to all matters which
can properly be regarded as bearing upon it.’
[18] What are sometimes referred to as the ‘true or real’ issues in
litigation are those which it is necessary to determine one way or
the other in order to decide the outcome of the dispute between
the parties. They may relate to an element of the appellant’s (or
plaintiff’s) case or that of the respondent (or defendant). These
must be contrasted with the countless side or subsidiary issues
which frequently arise, particularly in motion proceedings, and
which often are only tenuously linked, if at all, to what I have called
the true or real issues. They may, for example, relate solely to a

question of credibility. In many instances they will be unnecessary
to decide or even consider in the resolution of the litigation. From
what has been said above it is apparent that the protection
afforded to a litigant or witness is not limited to those defamatory
statements relevant to an issue in the ‘true or real’ sense. If that
were the case the protection would be extremely limited and
litigation would be a lot more perilous than it already is.
[19] In the present case the defamatory statement was not only a
response to what Phillips had said in his answering affidavit about
his attitude to drugs but was undoubtedly relevant to that
professed attitude. The complaint therefore is not that the
appellant’s statement was irrelevant to the allegations he was
answering but that the whole question of drug abuse and Phillips’s
attitude was irrelevant and had arisen only because of the
reference in Knight’s affidavit to drugs. If the contention were
correct, it would mean that the appellant would have been
precluded from responding to allegations that Phillips himself had
made and which included, I might add, the obviously defamatory
statement of the appellant and Hofmeyr that they were persisting
‘in their dishonest attempts to mislead the court’. This strikes me
as a most extraordinary result. Had Phillips regarded the reference
to drugs in Knight’s affidavit as irrelevant he could either have

ignored it or applied to have it struck out. But he did neither. He
responded at length and in so doing raised the issue of his attitude
to drug abuse. Once having done so, and even assuming that it
was a subsidiary and not a ‘true or real issue’ in the sense
described above, he cannot, I think, be heard to contend that the
appellant’s response, although relevant to a subsidiary issue, is to
be denied the benefit of the privilege by reason of its irrelevancy.
[20] But the issue of drugs and Phillips’s attitude towards them
was more than a side or subsidiary issue. It is true that the NDPP
relied solely on offences under the Sexual Offences Act and the
Aliens Control Act in his attempt to procure an order in terms of s
26 of POCA. But a defence raised by Phillips was that in the
absence of aggravating circumstances, such as dealing in drugs,
he had a ‘legitimate expectation’ that he would not be prosecuted
under the Sexual Offences Act or have the provisions of POCA
invoked against him.  As indicated above, Hofmeyr in his replying
affidavit denied the existence of any basis for the alleged
expectation and added that there was in any event a suspicion that
Phillips was indeed linked to other serious offences, including
trafficking in drugs. In support of the suspicion, he referred to the
replying affidavit of the appellant in which, he said, some of the
circumstances giving rise to the suspicion were set out. The

appellant, in turn, responded to what Phillips had said in his
answering affidavit concerning his professed attitude to drugs but
in so doing sought in addition to substantiate  the suspicion
referred to by Hofmeyr with the object of rebutting the alleged
absence of aggravating circumstances.
[21] In the course of his judgment in the court a quo Joffe J said:
‘As set out above dealing in drugs or possession of drugs forms no part of the
NDPP’s application against the plaintiff. Despite this, inadmissible evidence
relating thereto was contained in the affidavit by Knight which formed part of
the founding papers. Admittedly plaintiff answered these allegations. His
answer did not make that which was irrelevant relevant. Defendant’s reply
thereto which contains the offending paragraphs was equally irrelevant.’
The approach of the learned judge appears therefore to have been
that because dealing in drugs or possessing them formed no part
of the NDPP’s case against Phillips, therefore the appellant’s
statement concerning Phillips’s attitude to drugs was irrelevant and
not covered by the privilege. But quite apart from the fact that the
statement was in any event a relevant response to what Phillips
himself had said, this approach overlooks that an issue relevant to
a defence involving a confession and avoidance is no less relevant
than an issue relevant to the establishment  of the claim itself.
From what had been said above, it is clear that the issue of drugs
and Phillips’s attitude towards them was undoubtedly relevant to

the defence raised by Phillips. It follows that in my view the
statement complained of falls within the scope of the qualified
privilege afforded to witnesses in judicial proceedings.
[22] Counsel for the respondent argued that in the event of its
being found that the defamatory statement was relevant to an
issue in the proceedings, the privilege, being a qualified one, was
defeated by reason of the appellant having acted with an improper
or indirect motive (cf Basner v Trigger 1946 AD 83 at 95). He
based his submission principally on what he described as the
sarcastic tone of the language used and its lack of objectivity. In
my view there is no substance in the submission. The defamatory
words are contained in a submission. The expression ‘not to be
taken too seriously’ is no more than a euphemism. It does not give
rise to an inference of an improper motive. Moreover, the appellant
fairly and quite properly placed before the court all the evidence
available to him on which his submission was based. That included
Van Schalkwyk’s letter to Phillips which cast the latter in a more
favourable light.
[23] The appeal must therefore succeed. It is necessary to add
that subsequent to preparing this judgment I have had the privilege
of reading the judgment in draft of my brother Cameron. I concur in
that judgment.

[24] The appeal is upheld with costs, including the costs
occasioned by the employment of two counsel. The order of the
court a quo is set aside and the following is substituted in its place:

‘The action is dismissed with costs, including the costs

occasioned by the employment of two counsel.’

________________

D G SCOTT

JUDGE OF APPEAL

CONCUR:

BRAND
JA
LEWIS
JA
PONNAN JA

CAMERON JA:
[25] I concur in the judgment of my brother Scott JA and wish to add a
further ground on which the defence was good.  The impugned
statement took the form of a submission the defendant Hardaker made
in an affidavit in proceedings the National Director of Public
Prosecutions had brought against Phillips.  As Scott JA points out (para
16), the determination whether the statement was ‘relevant’ to the issues
that arose in those proceedings, for purposes of qualified privilege,
relates also to the defence of fair comment.  In my view, in addition to
enjoying a qualified privilege, the comment was protected as free
speech because it constituted fair comment.
[26] Defendants in this country first sought to invoke the defence as
early as the 19th century;1 and it was authoritatively imported into our law
from the English law of libel nearly ninety years ago in Crawford v Albu.2
Innes CJ explained that the defence ‘rests upon the right of every
person to express his real judgment or opinion upon matters of public
interest’.  Drawing on that exposition, this court in Marais v Richard3
summarised the requirements as follows:  (i) The statement must
constitute comment or opinion; (ii) it must be ‘fair’; (iii) the factual

1 See Davis & Sons v Shepstone (1886) 11 LR App Cas 187 (Privy Council, on appeal from
the Supreme Court of Natal) 190 and Ribbink v Marais and Roos (1892) 4 SAR 236 at 245
(Kotze CJ, Ameshoff and De Korte JJ concurring).
2 1917 AD 102 at 114.
3 1981 (1) SA 1157 (A) 1167F, per Jansen JA, applied in Delta Motor Corporation (Pty) Ltd v
van der Merwe 2004 (6) SA 185 (SCA) 13-15.

allegations being commented upon must be true; and (iv) the comment
must relate to a matter of public interest.
[27] Here, Hardaker cast doubt on the authenticity of Phillips’s claim
that he was opposed to drugs (‘Based on this evidence I submit that the
Defendant’s supposed condemnation of and protestations against drugs
should not be taken too seriously’).  His statement was cast explicitly as
a comment.  The mere fact that it was advanced as a legal ‘submission’
does not of course automatically qualify it as a ‘comment’.  The test is
whether the reasonable reader of Hardaker’s affidavit would understand
his statement as a comment. 4  One of the hallmarks of a comment is
that it is connected to and derives from discernible fact.  This is a
textbook instance of a comment plainly presented as such.  Hardaker
expressly related it to the facts on which he based it (‘based on this
evidence’).  That he sought to obtain the court’s endorsement for his
conclusion – the purpose of a ‘submission’ – does not detract from its
status as a comment.  Requirement (i) was therefore fulfilled.
[28] The facts on which the comment was based – Phillips’s mission to
New Zealand to fund the drug-prosecution defence of his embattled
friend ‘Sailor’ van Schalkwyk – were not disputed (requirement (iii)).

4 Compare South African Associated Newspapers Ltd v Yutar 1969 (2) SA 442 (A) 453E-
454H (statement in question must appear and be recognisable to the ordinary reasonable
person as comment and not as a statement of fact).

[29] The question of relevance arises in relation to requirement (iv).  In
this particular setting (an exchange of affidavits in contested
proceedings) the comment could relate to ‘a matter of public interest’
only if it was germane to the issues in those proceedings.  This is
because there is no discernible value in protecting litigants who make
irrelevant comments that injure the reputation of others in court
proceedings.  For the reasons Scott JA gives, it is clear that Hardaker’s
comment was relevant to the issues.
[30] That leaves the question whether the comment was ‘fair’.  What
Hardaker did was to employ the classic ‘noscitur a sociis’ jibe against
Phillips:  ‘a man is known by his associates’; or, updated and expanded,
‘your character can be inferred from those with whom you associate’.
His ‘submission’ suggested to the court that because Phillips went to the
aid of a friend standing trial on drug charges, his own professed
opposition to drugs or drug-dealing should be treated with suspicion.
[31] That was hard hitting.  As a matter of objective appreciation it
cannot be said that one who gives aid to a friend standing trial on
criminal charges is necessarily ‘soft’ on the conduct charged.  Nor does
that follow as a matter of logic.  Yet the jibe that associating oneself with
a disreputable, delinquent or criminal person taints one with the
opprobrium the associate deserves is as old, surely, as human

relationships themselves: it may even be one of the burdens of loyal
friendship.
[32] More importantly, whether the jibe is ‘fair’ does not in law depend
solely or even principally on reason or logic.  In Crawford v Albu, Innes
CJ suggested that the use of the word ‘fair’ in connection with the
defence ‘is not very fortunate’.5  This is because it is not what the court
thinks is fair (a critical comment or opinion, Innes CJ said, need not
‘necessarily commend itself to the judgment of the Court’).  Nor does the
comment have to ‘be impartial or well-balanced’.6  Indeed, ‘fair’ in this
context means only that the opinion expressed must be one that ‘a fair
man, however extreme his views may be, might honestly have, even if
the views are prejudiced’.7  Hence Innes CJ’s observation that the
defendant ‘must justify the facts; but he need not justify the comment’.8
[33] And in the nearly 90 years since Crawford v Albu, our courts have
firmly established that once the other three requirements are
established, a generous leeway is permitted in determining ‘fairness’.9
In Crawford, Innes CJ recommended the adoption of an exceptionally
wide test: ‘any genuine expression of opinion is fair if it is relevant, and if

5 1917 AD 102 at 114.
6 1917 AD 102 at 114.
7 Johnson v Beckett 1992 (1) SA 762 (A) 780-781 (Harms AJA).
8 1917 AD 102 at 117.
9 See for instance Johnson v Beckett 1992 (1) SA 762 (A) 775C-H (van den Heever JA); 778-
781 (Harms AJA); 782-783 (Corbett CJ).

it is not such as to disclose in itself actual malice’.10  In Johnson v
Beckett,11 Corbett CJ asked whether, objectively speaking, the comment
‘qualified as an honest, genuine (though possibly exaggerated or
prejudiced) expression of opinion relevant to the facts on which it was
based, and not disclosing malice’.  The Constitution has certainly not
occluded this latitude.
[34] The ‘noscitur a sociis’ jibe is by its nature vague and imprecise.
While it invariably implies that the association somehow taints the
subject of the comment, it does not necessarily suggest that the
opprobrium is equal.  The facts here illustrate.  Why should Phillips’s
‘supposed condemnation of and protestations against drugs’ ‘not be
taken too seriously’?  Hardaker’s comment invites speculation as to a
range of possible reasons, without itself giving the answer.  One could
be that Phillips is himself a drug dealer; another that though not a drug
dealer, he colludes in their activities.  A third is that though Phillips does
not support drug dealing himself, the mere fact of giving comfort and
succour by bank-rolling an alleged drug dealer’s defence is in itself
discreditable and incompatible with genuine opposition to drug-dealing.
[35] This was the most obvious meaning of Hardaker’s comment.  He
disclaimed evidence showing ‘any direct involvement’ by Phillips in drug

10 1917 AD 102 at 115.
11 1992 (1) SA 762 (A) 783B, Hefer JA and Kriegler AJA concurring.

trafficking.  The sole basis for his jibe, offered as such, was Phillips’s
‘long standing relationship’ with ‘Sailor’ and his mission to New Zealand
to support him.12
[36] In these circumstances there can be little doubt that the comment
that Phillips’s ‘condemnation of and protestations against drugs’ should
be treated with scepticism qualified as ‘fair’.  Hardaker’s opinion was no
doubt shaped by the tough-minded moralism of a law enforcement
officer with nearly 25 years’ experience.  It may have been ‘prejudiced’
in the sense that he was literally ‘on Phillips’s case’.  Perhaps it showed
little deference to what in others’ opinion would be the sentimental
claims of loyal friendship.  But the law does not require Hardaker to
justify his opinion.  His submission that giving succour to suspected drug
dealers is discreditable and wrong and puts in question professed
opposition to drug dealing was fairly tenable, stated in relation to facts
fully stated, and not  tainted by malice.  In  my  view  the  appeal  must
succeed also on this ground.

E CAMERON

JUDGE OF APPEAL
CONCUR:

BRAND JA
LEWIS JA
PONNAN JA

12  The ‘evidence’ for the comment, attached to Hardaker’s affidavit, included a letter from
‘Sailor’ to Phillips that made it clear that ‘Sailor’, at least, thought that Phillips would deplore
what he had done.