The right to freedom of expression is protected under the Constitution and forms part of the core values of freedom underlying the Constitution.[1] It is important to note that the rights in the Bill of Rights are subject to limitation in terms the law of general application or other rights contained in the bill.[2] Exceeding such limitation directly or indirectly causes damage and rises the need for reparation in the form of an action as an appropriate remedy to rebalance the conflicting interests. In this case, exceeding the limitations set out for the right to freedom of expression pounders upon the personal right to a good name, unimpaired reputation and esteem encompassed under the fundamental value for human dignity.[3] To balance these rights, the appropriate remedy is one of defamation. The remedy aims to allow the victim to vindicate his character through compensation and claim for damages for his harmed good name, character and reputation.[4] 

1. DEFINITION AND ELEMENTS OF DEFAMATION

1. Delict Defamation (amino iniuriandi)

The unlawful publication, aniimus iniuriarandi, of a defamatory statement concerning the Plaintiff which has an effect of injuring the Plaintiff’s Reputation. The elements of the delict are as follow:

• Publication

This means that the statement must be made public or made known to other or another person other than the Plaintiff in any form including though photographs, sketches, cartoons or caricatures as seen in the case of Le Roux V Dey (Freedom Of Expression Institute And Restorative Justice Center As Amici Curae) 2011 6 BCRL  577 (CC). Publication is considered to have taken place if the perpetrator foresaw or had reasonable foreseeability that a person other than the Plaintiff would take cognizance of the defamation.[5] A person who draws attention to or repeats or draws the defamatory statement will be said to have published a defamatory statement and consequently the main person that published the defamatory statement may be held liable if another person republishes such statement.[6]

The statement should be made about the Plaintiff himself. The test here is an objective and asks whether a reasonable person to whom the statement was made to would be likely to understand the statement in its context to be about the Plaintiff.[7]  Unless the statement in context makes the plaintiff readily identifiable through specifying the name of the person or other means, the Plaintiff must prove that there exist special circumstances that make the statement to be directed to him.

Publication will be presumed if

1. It is proved that that a document containing the defamation was distributed to the public
2. That defamatory words were said within the hearing of the third person.

• Animus iniuruarandi

This speaks to the intention of the person at the time of the defamation and includes the state of the mind of the person who publishes a defamatory statement recklessly without heeding whether it has the result of being defamatory to another person.  The person was expected to have knowledge of the wrongfulness, this was overturned in the case of Le Roux v Dey, the Constitutional Court in the same matter however left the question open. Where non media Defendants are concerned there must be an intention to defame the Plaintiff including knowledge of the unlawfulness, one cannot be held liable for defamation based on negligence.[8] Media bodies however can be held liable for defamation based on negligence although the case of National Media Ltd v Bogoshi overturned this decision, it did pronounce on the need to treat media houses different from ordinary persons.

• The statement must have been defamatory

Whether or not a statement amounts to defamation is determined through a two-stage enquiry.  It asks if in the ordinary meaning of the statement is defamatory and secondly whether it is in line with the definition in Hix Networking Technologies v System Publishers (Pty) Ltd and Another  “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.”

• The ordinary meaning of the words

In the interpretation of the words conveyed by the perpetrator, the test is objective. It does not concern itself with what the published statement means to the victim or what the perpetrator intended to convey by publishing it but rather what the reasonable reader/listener of ordinary intelligence would attribute to the statement in its context.[9] A reasonable reader of a statemen will read the statement in the context in which it was published to determine not only what the words are but also what they imply in the context in which they were made.[10]  This is a primary meaning of a statement. In some cases, a defendant can plead that although the primary meaning of the statement is not defamatory, there is  a secondary (innuendo) meaning that  must be proven by showing the court  that there exit special circumstances attributed  to the statement which must be seen through someone having knowledge of the unstated special circumstances.[11] If it is proven that the primary meaning of a statement amounts to defamation the defense may prove that it had a secondary meaning other than the primary meaning and must set up circumstances which take the word away from its ordinary meaning and thus renders it not defamatory.  In other circumstances a statement can be said to not be reasonably capable of having a defamatory meaning and an exception is given in such instance.[12]

• Statement injures the person to whom it refers by lowering him in the estimation of the ordinary intelligent or right-thinking members of society

This is gives rise to by two constructs of the law of the “a right-thinking person” and “society.” A right-thinking person should not be more than a reasonable person of normal understanding and development.[13]  A “society” in this context refers to the views held by the national substantial and respectable sections of the community.  In this regard a statement will be considered as defamatory if it injure the reputation of a person in the eyes of a right thinking member of a society, in terms of such person’s character, trade, business, profession or office and exposes such person to ridicule contempt.[14] A statement that causes a right-thinking member of the society to avoid a person does not mean it is defamatory, it can only mean that the people in the Plaintiffs community understood in a defamatory sense.[15] The Constitution and its values are a determinative of what a reasonable person of good thinking should consider as defamatory as seen in the case of Sindane v Van de Merve.  Any language that is considered derogative in accordance with the constitution will be considered deformative for the purpose of this action. A statement will be considered to be deformative if it affects the moral character and imputes on dishonesty or the commission of crime or association with criminals unethical or unprincipled behavior or grave misconduct or immoral or unchastity, reflecting on the office the profession or the occupation of a person reflecting on the political character, imputing financial embarrassment and personal characteristics which lower the person to whom they refer in their estimation  of right thinking members of the society generally.

• DEFENCES

After it has been proven that the Defendant has published a statement which is defamatory in nature, an automatic rebuttable presumed rises that the publication was both unlawful and intentional.  A defendant wishing to avoid liability for such deformation must raise a defense according to Khumalo and Holomisa.

Truth and public benefit.

It is lawful to publish a statement which is of defamatory nature if it is proven to be true and is made for the interest of the public. The burden lies with the defendant to prove that the statement is in its substance true and not the Plaintiff in proving that such statement is false. [16] in determining whether a statement was made for the purpose of public benefit the manner, time and occasion in which it was published will be taken into cognizance.

Privilege

1. Absolute privilege

It is not unlawful to publish the statement of defamatory nature if the law, in the form of legislation, regards it as privileged.

• Qualified privilege

Statements published in discharge of a duty or exercise of a right, in the course of judicial or quasi judicial proceeding and report of proceedings of courts, parliaments and public bodies do not enjoy absolute immunity from the defense of defamation if it can be proven that the publication was wrongful in that the publisher acted with an improper motive. This will depend public policy.

Fair comment

It is lawful to publish a defamatory statement which is considered fair comment ( subject to it being made with improper motives) by meeting the following four requirements;

1.  the statement must amount to a comment, or an opinion as opposed to a statement of fact,

to determine whether a statement is a comment or fact an objective test that ask whether an ordinary reasonable person considers the statement as a comment and not a fact is applied.

• the comment must be fair.

This means that the opinion must be one that a fair person, however extreme, might honestly hold. When a comment takes the form of an attack on the moral character of the plaintiff other than a criticism of their action and involves imputation of wickets or dishonorable motives and is not a mere possible inference from the facts will be grounds for unfair comment.

• the facts of which the comment is based must be true and must be expressly stated or clearly indicated in the document or speech containing the defamatory statement,

To achieve this requirement, it is not necessary to set out all the facts in full however there needs to be some reference in an article or any publication what facts are being commented on. this will not be the case where the comment is based on facts that are generally known by the audience oh in a case where there’s artistic criticism where the comment will be made on the author responsible for the work and not directly at the person responsible

• the comment must relate to a matter of public interest.[17]

Consent

It is lawful to publish a defamatory statement with the consent of the defendant.

Self defense

One can publish A defamatory statement which is reasonable and necessary to protect their own character, reputation and from the conduct of another unless such person is proven to have acted with an improper motive.

Rixa and jest

One can be excluded from liability if they can prove that the person who received the publication understood the statement as a jest that caused simple amusement. 

Mistake

A person can be exempted if they can prove that they lack the subjective intent to injure the victim. The plaintiff must have the intention to injure the plaintiff in his or her reputation and the knowledge of the injury as a result, if the two lacks, the person will be said to lack the necessary intention. In Le roux v Dey, the court held that it is not necessary for the person to have knowledge of the wrongfulness of their act and accepted colourful intent to establish animus inuararandi.

2.2. Criminal defamation

Although the defense is widely known to be one of civil nature, a criminal offence of defamation may be charged on a person who “unlawful and intentional publish a matter concerning another which tends to injure his reputation.” [18]  The elements of the crime are as follows:

• The publication of a defamatory allegation concerning another

The publication can either be in writing or vocal however it should be made to the notice of any other person than the complainant.[19] Words are considered to be defamation if they tend to expose a person to hatred, contempt or ridicule or if they tend diminish the esteem in which the person to whom is held by others.[20]

• Unlawfully

The publication must be justifiable. This means that one can raise a defense that the statement made is true and made to the benefit of the public interest, the statement amounts to fair comment and the communication is privileged.[21] 

• Intentionally

The publication must be made with the intention of harming the victim, the publisher should also be aware that what they are publishing tend injure the victim. Similar to the requirements under the first element, the published information must be made known to anyone other the actual victim and the defenses raised under the element of unlawfulness can be raised to render this element unsatisfied.

• Snyman submits that there is a forth element to this crime, he provides that the violation of one’s reputation and good name must be serious. This is in line with some case law including Modus Publications (Pty) Ltd.[22] This standing has had so much uncertainty which was addressed  In a more recent case of S v Hoho where the court proclaimed that seriousness in not an element to this crime and thus does not need to be proven, a person can still be prosecuted for a statement made unlawfully and with the  necessary intent.[23]

The argument on the abolishment of criminal defamation between Snyman and Burchell was laid to rest by the Hoho case. The court tested the crime against the Constitutional values and said that it should not be abolished merely because it has not been used over the years and such fact does not disqualify it from the requirements and values of the constitution. While other authors submit that this contradicts the concept of double jeopardy, I respectfully submit that the person is not necessarily being trialed on the same matter. One matter is against the state and prosecution is done to achieve goals in line with the criminal justice system while the civil matter aims at compensation for damages caused through violation to the person’s personal rights directly to the person harmed. The facts are the same but the correct measures used are entirely different. Snyman suggests that it goes against fairness as the only cases that involve criminal defamation are high profile cases with public figures and refers to Cf Revill and Modus Publications (Private) Pty Ltd,[24]where a judge and a President of a state was defamed.

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[1] Constitution of the Republic of South Africa, 1996.

[2] Constitution of the Republic of South Africa, 1996. S 36

[3] Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W)

[4] Media 24 v SA Taxi Securitization (Pty) Ltd 2011 4 ALL SA 9 (SCA)

[5] Hall v Zietsman 1899 16 SC 213

[6] Tsichlas v Touch Line Media (Pty) Ltd 2004 SA 112 (W)

[7] Young v Kemsley 1940 AD 258 281

[8] Suid afrikaanse Uitsaaikorporaise Bpk v O’Malley 1977 (3) SA 395 (A)

[9] NEHAWU v Tsatsi 2006 1 ALL SA 327 (SCA) 8.

[10] Sindani v Van der Merwe 2002 (2) SA 32 (SCA)

[11] Le Roux v Dey 2011 3 SA 274 (CC)

[12] Mangope v Asmal 1997 4 SA 277 (T)

[13] Burchell Principles Of Criminal Law 2006 SALJ

[14] Le Roux v Dey (n 11) 

[15] Associated newspapers v Schoeman 1992 ALL SA 577 (A)

[16] National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA),

[17] The Citizen v McBride – 2011 4 SA 191 (CC)

[18] Burchell Principles of Criminal Law 2005 , pg 741

[19] n 19 above

[20] Snyman Criminal Law 2008 475.

[21] Snyman (n 21) above.

[22] 1998 2 SACR 151 (ZSC)

[23] 2009 1 ALL SA 103 (SCA)

[24] 1998 (3) SA 1114 (ZS)