Enforcing the Delictual Claim of Defamation in South Africa
Section 36 of The South African Constitution contains a General Limitation Clause, which provides for all rights in the Bill of Rights to be limited in terms of the law of general application.
Section 36 provides certain factors that must be taken into account by the courts when determining if a limitation is reasonable and justifiable:
· The nature of the right.
· The importance of the limitation
· The nature and extent of the limitation
· The relation between the limitation and its purpose, and
· Less restrictive means to achieve the purpose.
Being one of those rights, it follows that freedom of expression as espoused in the same Constitution is not without limitation. In the exercise of one’s rights, conduct which infringes on the enjoyment of rights by other persons is tested on a hinge of lawfulness, depending on the circumstances.
Defamation amounts to the unlawful, intentional, unprivileged and injurious publication of information resulting in the impairment of the victim’s good name and reputation in a society of persons. In other terms these are injuries to reputation, which however may result in patrimonial damages stemming from an impairment of fame. It is important to note that the statement is not required to be false at law.
A defamatory statement can be argued to have injured the dignity of the claimant as well. In the case of Manuel v Economic Freedom Fighters and Others (2019) ZAGPJHC 157 the High Court held that the statement made by the Respondent implied that the Applicant was dishonest, unscrupulous and lacking in integrity. Arguably such implications have a negative impact on the Applicant’s dignity.
To succeed in a claim for defamation one needs to prove that the statement is;
i. Defamatory;
ii. Unlawful and intentional;
iii. Without privilege;
iv. Injurious to name and repute;
v. Published i.e verbally or in writing.
There are three defences recognized at law regarding a defamation lawsuit, them being that the statement was under privilege, the statement was fair comment and that the information is substantially true and there is a legitimate public interest in the information.
With regards to the quantum of damages there are various factors which will be considered in order to decide on an appropriate award, and these awards may take the form of monetary awards, a retraction of the statement, an apology or a combination of these. The Courts determine these on a case by case basis. In Le Roux and Others v Dey 2011 (3) SA 274 (CC) the Court awarded a principal R25 000 and ordered the concerned school students to offer an apology after they had published a picture in which ‘the principal's face was superimposed on an image of a gay man engaged in a sexually explicit pose.’
Mindful of the fact that the core of a defamation claim hinges on a person’s repute and good name, it follows that the actual standing of that person in society plays a huge role, firstly. People who are well known in society (TV celebrities) are accepted to suffer more to their name and fame than ordinary members of the community, and therefore their claim for a higher quantum of damages may be awarded more readily than of a lesser known person. Secondly the extent of the publication is also another important factor.
A defamatory statement published in a local newspaper will more likely attract a lesser award than had the same statement been published in a national newspaper with a wider audience. Lastly the damage itself, if proven. It is a known fact that celebrities get their work in the entertainment and advertising industry owing to their fame and reputation. Numerous brands shun working with celebrities of impaired reputations, as it is believed that it will harm sales of the brand if seen to be advertised by a celebrity of impaired standing. Similarly, a local butchery will suffer financial harm due to a defamatory statement to the effect that their products are stale, inedible or sourced from unethical suppliers.
The onus to prove the defamatory statement is of course on the Plaintiff whilst the Defendant must prove, in defence, that the statement was not unlawful by pleading the defences as described above. A defamation case is sophisticated and may be a costly and lengthy process. At NVDB Attorneys we are comprehensive in our approach putting you in a better position to defend your rights.
