Defamation in South Africa - Part One
Have you ever heard the saying – “sticks and stones may break my bones, but words can never harm me”?
Sure, that’s all well and good on the playground, but in the “real world” – words can harm.
Saying something about someone else with the intention of causing harm can result in grave consequences for the person “blabbering away”.
In legal lingo, this is called defamation.
Now here comes the tricky bit. You see, in South Africa we have what is known as “freedom of expression.” Which according to the Oxford Dictionary means –
“The power or right to express one's opinions without censorship, restraint, or legal penalty.”
But does this mean that you can say whatever you want because the Bill of Frights affords you that freedom?
Definitely not. The freedoms afforded within our Bill of Rights come with their own limitations.
The South African Bill of Rights
Freedom of Expression is contained in South Africa’s Bill of Rights –
Section 16, promotes Freedom of Expression -
“Everyone has the right to freedom of expression, which includes —
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
- The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm.”
BUT -
It is the limitation that is contained in Section 16(2) which we feel needs some repetition – because freedom of expression is not an unlimited freedom.
No person may abuse this right in a way that incites or promotes war, which incites violence, which causes hatred based on race, ethnicity, gender, or religion or that includes incitement to cause harm.
And deciding on whether someone has suffered harm, consists of a weighing up of rights. Specifically, the right to freedom of expression versus the right to dignity (enshrined in Section 10 of the Bill of Rights) – remembering at all times that -
“This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality, and freedom When someone exceeds their right to freedom of expression, by tarnishing another person’s good name and reputation, they are – in essence - infringing on another person’s right to human dignity.”
Now infringing on another person’s right to dignity (as enshrined in our Constitution) is exactly what our Bill of Rights aims to prevent.
And this leads us defamation.
Let’s be honest – we all kind of know what defamation means. At least we have heard about it in the news or in movies. Even online. We know that it’s a dreadful thing and that it can involve court judgements and damage claims.
But do we all know the real crux of what defamation entails?
What is defamation?
In the in-depth analytical article undertaken by the University of Fort Hare in 2021 titled An Analytical Look into the Concept of Online Defamation in South Africa, the following was set out -
“Defamation is widely regarded as the “intentional infringement of another’s right to his good name, or, more comprehensively, the wrongful, intentional publication of words or behaviour concerning another which has the tendency to undermine his status, good name or reputation”. The law of defamation in South Africa is based on the actio iniuriarim, which originated from Roman law, and serves to protect a person whose personality rights have been infringed. In other words, defamation occurs where a person’s good name or standing in society has been tarnished in the “eyes of the community”.
And this definition as provided above is supported by a hoard of case law –
In the matter of Hix Networking Technologies v System Publishers (Pty) Ltd and Another1 defamation was explained as follows - “a defamatory statement is one which injures the person to whom it refers by lowering him in the estimation of the ordinary intelligent or right-thinking members of society…”.
In the matter of South African Associated Newspapers Ltd and Another v Yutar 1969 (2) SA 442 (A), a statement will be regarded as defamatory if “in the opinion of the reasonable person, the words have the tendency to undermine, subvert, or impair a person’s good name, reputation, or esteem in the community.”
In the matter of Heroldt v Wills [2014] JOL 31479 (GSJ), the court held that –
“The common law rights to privacy and to freedom of expression have been enshrined in our Constitution.
The courts have a duty to develop the law in accordance with the principles of our Constitution. The nature of social media and of Facebook in particular was examined by the Court.
In our law, it is not good enough, as a defence to or a ground of justification for a defamation claim, that the published words may be true. It must also be to the public benefit or in the public interest that they be published.”
As further explained by LawforAll – “The court maintained that the assessment for determining whether the information posted has a defamatory meaning is whether a reasonable person, of ordinary intelligence, might reasonably understand the words concerned to convey a meaning that is defamatory.”
Lastly, in the very recent matter of Becker V Brits [2022] ZAWCHC 44, Judge Wille J discussed defamation as follows (at paragraph’s 81 and 82) –
“[81]
Defamation laws are generally aimed at protecting a person’s right to an unimpaired reputation and good name. Reputation is the reflection which the individual has in the eyes of society. In Masetlha, the following was stated generally in connection with the career and reputation of an individual, namely:
‘…People live not by bread alone; indeed, in the case of career functionaries, reputation and bread are often inseparable…’
[82]
Reputation and dignity are discrete concepts. Respect for reputation and dignity of others is a requirement of our law with unfortunate consequences for defaulters. Thus, damages arising from defamation, fall to be awarded to an injured party thereto.”
How do you prove a case of defamation?
Defamation is covered under South African Law of Delict. More specifically, under the Actio iniuriarum - relating to injuries concerning personality. And whilst all the general elements of delictual liability must be present – namely intention and causation – we look to the common law for guidance.
In An Analytical Look Into the Concept of Online Defamation in South Africa, there are certain common law elements of delict that need to be satisfied before a claim for defamation will succeed. These include –
“(a) the wrongful and (b) intentional; (c) publication of; (d) a defamatory statement; (e) concerning another.”
Accordingly, all 5 elements would need to be present in order to successfully prove that someone had suffered harm.
In addition, and once again referring back to An Analytical Look into the Concept of Online Defamation in South Africa
“In South Africa, the onus of proof rests on the person claiming defamation to prove the above elements. In respect of wrongfulness, the element is satisfied if a person’s reputation has been injured and an objective test is used to determine whether in fact a person’s good name has been tarnished. The courts infer the intention to injure once the publication of the defamatory material has been proven. Publication would be established once the defamatory statement is made known to at least another person and it can occur in various forms such as speech, print and online forums like websites, newsgroups, and bulletin boards. It must be noted that publication will be presumed in instances where there is a strong likelihood that the defamatory statement would be read or heard unless the contrary is proved. In order to prove that the material is of a defamatory nature, the ordinary or primary meaning of the words must be impugned. At times, words may have a hidden or secondary meaning, and this innuendo has to be identified before it is established that they carried a defamatory assertion.”
When looking at how the courts would apply the above, the matter of Mthembi-Mahanyele v Mail & Guardian Ltd and Another, specifically at paragraph 25, provides guidance. An objective test should also be applied.
Judge Lewis JA sets out the following –
“[25] The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words . . . to convey a meaning defamatory of the plaintiff. . . . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’ (per Corbett CJ in Argus Printing and Publishing Co Ltd v Esselen’s Estate [1]).”
Only once all of the above have been satisfied will a claim for defamation succeed (at least on the face of it).
There is so much to consider and so much law – sometimes opposing – to keep in mind, that it can make your head spin. Do you have a claim for defamation? Do you have a defence for something you said? It all very much depends on the circumstances of each matter. Something we will discuss in Part Two of this series.
All we can say is this – be cautious.
In the meantime, if you have any questions on the information we have set out above or have a personal issue which you want to discuss with a suitably qualified legal professional, please do not hesitate to contact us at NVDB Attorneys.
We are a law firm that considers honesty to be core to our business. We are a law firm that will provide you with clear advice and smart strategies - always keeping your best interests at heart.
