## Facts

- Nigel Maurice Rhett Gardener, a municipal town clerk, sued Eric Whitaker, a city councillor, for defamation based on remarks made during a city council committee meeting.
- Whitaker quoted from a council report in which Gardener had participated and stated, in substance, that the quoted passage was “a lie.”
- In the trial court, Whitaker denied the remarks referred to Gardener and pleaded defenses including qualified privilege and truth/public benefit.
- The trial court found the statement was defamatory and referred to Gardener, but treated it as made in a political/municipal forum on a matter of public concern and held that freedom of expression justified protection.
- The trial court granted absolution from the instance with costs in Whitaker’s favor.
- Gardener sought leave to appeal directly to the Constitutional Court, arguing that the trial court’s reliance on constitutional rights brought the case within that court’s appellate jurisdiction.
- The matter before the Constitutional Court concerned only whether it had jurisdiction to entertain the appeal, not the merits of the defamation dispute.

## Issues

1. Whether the Constitutional Court had jurisdiction to hear an appeal from a defamation judgment where the lower court developed and applied the common law in light of constitutional rights.
2. How the interim constitutional provisions allocating enforcement of rights and development of the common law distribute appellate responsibility between the ordinary appellate courts and the Constitutional Court.
3. In a case presenting both common-law and discrete constitutional questions, which court should hear the appeal and how any constitutional question should reach the Constitutional Court.

## Decision

- The Constitutional Court held it lacked jurisdiction to hear the appeal.
- It ruled that an appeal from a Supreme Court judgment in a common-law defamation matter—though informed by constitutional values through development of the common law—lies to the ordinary appellate court (the Appellate Division), not directly to the Constitutional Court.
- The application for leave to appeal to the Constitutional Court was dismissed.
- The Court did not decide the substantive defamation, privilege, or freedom-of-expression questions.

## Legal Principles

- Constitutional rights may influence private-law disputes indirectly through judicial development and application of the common law by the ordinary courts, rather than through direct constitutional adjudication in every case.
- The Constitutional Court is a court of final instance for constitutional questions, but it is not the general appellate forum merely because a lower court considered constitutional values when shaping the common law.
- Appeals involving only common-law development (even when guided by constitutional “spirit, purport and objects”) proceed through the ordinary appellate hierarchy.
- Where an appeal includes both non-constitutional issues and a distinct constitutional issue necessary to decide the case, the ordinary appellate court should decide the non-constitutional issues first and then refer any remaining constitutional question to the Constitutional Court under the applicable procedures.

## Conclusion

The Constitutional Court dismissed leave to appeal for lack of jurisdiction, holding that a defamation appeal turning on common-law rules developed with reference to constitutional values must proceed to the Appellate Division, with only discrete constitutional questions reaching the Constitutional Court through referral mechanisms where necessary.


Gardener v. Whitaker, 1996 (4) S.A. 337 (S. Afr. Const. Ct. 1996)