Theme 3

CHAPTER 9

Defamation
LEARNING OUTCOMES
LEARNING ACTIVITY 9.1
9.1 INTRODUCTION
9.2 WHAT IS DEFAMATION?
9.3 THE ELEMENTS THAT MUST BE PROVED BY THE PLAIN-
TIFF IN A DEFAMATION ACTION
9.4 DEFENCES TO A DEFAMATION ACTION
9.5 WHO IS LIABLE?
9.6 DEFAMATION AS A CRIME
FEEDBACK
POINTS TO PONDER
LEARNING ACTIVITY 9.2
DISCUSSION FORUMS

LEARNING OUTCOMES
After you have studied this chapter, you should be able to:
• list all the elements a plaintiff has to prove if he or she wants to
institute legal proceedings to claim compensation for defamation
• advise an imaginary defendant in a defamation case as to how he
or she can ward off the attack of the plaintiff
• evaluate a defamation case which is at present being reported in
the newspapers (You should be able to analyse the chances of the
plaintiff winning and compare these with the possibilities
available to the defendant of counteracting the plaintiff’s case.)

LEARNING ACTIVITY 9.1 – CASE STUDY

Suppose that you are the editor of a daily newspaper. Four months
before the general election you are visited by a few members of a group
called Citizens Opposed to Crime. The group, composed of business-
men, college students, teachers, parents and others concerned about
crime, has decided to place an advertisement in your newspaper,
stating their objectives and opposing the election of a certain Mr
Schuft. They ask you to place the advertisement, and after briefly
stating the objectives of the group (Citizens Opposed to Crime), they
end with the following paragraph:
 South Africa is a beautiful country. We have come a long way
towards reconciliation and building a new and prosperous nation.
However, what prevents us most from achieving our full potential
as a nation, is crime. Crime and the use of drugs are increasing at
an alarming rate. Like a cancer it is invading our neighbourhoods,
and corrupting our children. Now is the time to take a stand, and to
fight back.
Say “YES” to the reintroduction of the death penalty! Say
“NO” to the re-election of Mr Victor Schuft! At a time like this we
need honest, hard-working, leaders that think ahead. Mr Victor
Schuft is not such a person - in fact, he is just another
spineless politician who is more interested in taking bribes than
doing his job. Join the Citizens Opposed to Crime and vote out this
man, who himself is soon to be charged with drug trafficking
and other crimes!
The Citizens Opposed to Crime group has a good reputation, and
you intend placing the political advertisement under the heading
“Advertisement”, and stating at the end that it is a “Political
advertisement paid for by Citizens Opposed to Crime”. However, the
newspaper’s reporters say they do not think that Mr Schuft has ever
been investigated for any criminal activity. Furthermore, you have read
reports that Mr Schuft is doing quite well in office. One of the reporters
makes a joke and says that if the newspaper decides to run the
advertisement and is then sued by Mr Schuft, the newspaper can
always publish an apology in the next issue.
Would publication of this advertisement present any legal dangers
? to you? If so, what specific changes would you require before accepting
the advertisement? Would publishing an apology in the next issue of the
newspaper have any effect?

9.1 INTRODUCTION
For many centuries it has been recognised in cultures all over the world that a
person"s reputation is of great importance. Reputation in this sense relates to the
opinion which other people in the community have of a person. A high opinion
creates respect. Reputation therefore contributes to the honour or esteem ascribed to
a person and can be of vital importance should such a person fulfil a public
function or be dependent on public sponsorship for his or her income. A
good reputation may be the result of much dedication and hard work, whether
in a trade or in the building of relationships with other people. However, a good
reputation can be poisoned by rumours or destroyed literally overnight by
accusations in the mass media. This is why most countries have for a long time had
laws against what is now called defamation - that is attacking the reputation of
another person.

9.2 WHAT IS DEFAMATION?

Although our Constitution does not specifically mention a right to a good name,
such a right has always existed in terms of our common law. However, the
Constitution makes provision for a right to human dignity (s 10). Such a right can be
regarded as an umbrella type of right and its scope is wide enough to include the
right to a good name. Our problem, therefore, does not lie with recognising a right
to a good name. From a legal point of view, our problem is rather to determine
when this right is affected by the conduct of other people. An attack on a person’s
name can affect his or her stature in the community - in other words, whether
he or she will still be honoured and trusted. It therefore speaks for itself that any
conduct that injures a person’s good name should in principle give the wronged person
a right to claim some sort of compensation. Where the damaging conduct is
accompanied by wrongfulness and blameworthiness, it is called “defamation”.
The terms “wrongfulness” and “blameworthiness” have already been
explained in the previous chapter. All the basic principles mentioned there
apply here as well, because defamation is a form of delict. In what follows, the
basic principles will be further refined and adapted to apply to defamation
specifically. (The same procedure will be followed in the next chapters dealing with
invasion of privacy and unlawful competition which are also delicts.)
For legal purposes, “defamation” can be defined as follows:
The publication of words or behaviour concerning a person that
tend to injure the good name of that person, with the intention of
injuring that person and without grounds of justification.
In this definition, all the elements of a delict (mentioned in the previous chapter)
are present. The act or conduct consists in the publication or making known of the
information. The fact that this information tends to injure the person’s good name
relates to the elements of causality and damage. Intention forms part of the fault
element and the requirement that it should be done without grounds of justification
indicates the presence of wrongfulness.
The person who has been defamed or injured will be the one who institutes
proceedings in a court of law. This person is therefore called the plaintiff. Such a
plaintiff can be successful only if he or she can indicate that all five of the
elements mentioned above in the definition of defamation are present in the specific
situation. We say that the plaintiff bears the “burden of proof”. Normally, the
plaintiff will only prove that publication has taken place and that the information
that was revealed is defamatory. If the plaintiff can do this, the court will give
further assistance and assume that the other elements (namely fault, wrongfulness
and causality) are also present. Then these need not be proved by the plaintiff.
Should the other party wish to rely on the absence of these elements to prevent the
plaintiff from winning the suit, the other party, called the defendant, would have to
prove absence of such an element.

9.3THE ELEMENTS THAT MUST BE PROVED BY THE PLAINTIFF IN A

DEFAMATION ACTION
9.3.1 The element of an act or conduct
The specific type of conduct that is prohibited in the case of defamation, is
publication. Without publication, there can be no defamation. The term
publication is a broad one and relates to any form of communication where
information that is defamatory is revealed. The revelation can be to the
community at large or to a single other person. Where the information does not
reach an outsider or the community, publication has not taken place. Therefore,
swearing at a person or calling him or her names, where only the speaker and the
injured party are present, cannot give rise to a claim for defamation, because the
injured person’s reputation or standing in the community has not been affected. It
does not mean that the injured person is without a remedy - he or she can claim
for the delict of insult or injury to one’s dignity (one’s sense of self-importance).
With regard to the aspect of publication, we would like to draw your attention to
the following:

9.3.1.1 Publication may take any form

Publication may take place in various ways. The person may for example utter
the words or publish them in a letter or a newspaper article. However,
“publication” does not refer to only speech or print, but may also take place in other
forms. The following interesting examples, which were all regarded as publication,
come from various court records: booing in a theatre (Gregory v Duke of
Brunswick (1843)); making or writing a caricature (a comical picture, article or
act) of or about someone, or imitating someone (Innes v Visser 1936 WLD 44);
hanging up a red light outside a woman’s house (Jeffries v Duncome (1809));
putting a wax model of the plaintiff next to that of a forger and a convicted (i.e.,
who has been found guilty) murderess (Monson v Tussauds Ltd [1894] 1 QB
671); and the publication of a photograph of a well-known wrestler alongside that of
a gorilla (Zbysko v New York American (1930)).

9.3.1.2 Publication must be made known to a third person

The only reason why compensation is granted in the case of defamation, is
to protect a person’s reputation. Unless a third person hears the defamatory words,
or reads these words in a newspaper or a magazine, or gets to know about them in
some way, no damage is done to a person’s reputation.

9.3.1.3 The words must be heard and understood

If words are published in a foreign language or in secret handwriting, according to
the law there can be no publication as regards those readers or listeners who
cannot understand the language or writing. Also, there can be no publication
where words are spoken to a deaf person. However, when a person hears the
words and does not understand them immediately, but he or she understands them
only later on, publication will take place at this (later) stage (Vermaak v Van der
Merwe 1981 (3) SA (N)). This really means that publication of defamatory words is
not merely the physical act of making something known or of communicating
something. The recipient or listener must also understand what these words mean.

9.3.1.4 Publication to a number of people

It does not matter how many people read or hear the defamatory words: that
is, even if a single third party is informed, for legal purposes publication has
still taken place. However, the courts will base the amount of compensation that
must be paid on how much the person’s reputation was damaged, and they will also
take into account how many people have heard the words. If the defamatory
statement is made known only to one or two people, the damage to a person’s
reputation may be small, and only a small amount of compensation will be granted.

9.3.1.5 Publication made known to spouses

For the purposes of the law of defamation, communication between spouses
(husband and wife) is not regarded as publication. However, where a third person
says something defamatory about one spouse to the other spouse, the element of
publication is indeed present.

9.3.1.6 The lawyer/client relationship

Communication between a lawyer and a client is also privileged (confidential), and is
not regarded as publication. However, if a lawyer makes public a letter that was
written to him or her by a client in which defamatory accusations are made,
publication of these allegations will have taken place.

9.3.1.7 Presumption of publication

In some cases, there is a presumption (i.e., we assume) that publication did in fact
take place. In other cases, the plaintiff must prove publication on a balance of
probability (see explanation of this term in ch 1). Publication is presumed when
words are said so that other people can hear them, or when they appear on a
postcard or telegram (Pretorius v Niehaus 1960 (3) SA 109 (0)), or where we know
that a book or newspaper, or any other document containing the statement, has

been sold or distributed to the public. If in the case study given at the beginning
of this chapter the advertisement is printed in the newspaper, the requirement of
publication has been complied with.

9.3.1.8 Repetition – successive (chain-like) publication

Every person who is involved in the publication may be held liable. It is no defence to
argue that someone was merely a link in the chain which in the end led to
publication. Where, for example, defamatory matter appears in a newspaper, not
only the author but also the editor, the printer, the publisher and the owner may
be held liable.
Likewise, a person who tends to gossip and who tells someone else an
interesting piece of defamatory news and says, “But naturally I don’t believe a
word of it”, is as guilty of the defamatory allegation as the original author (Vengtas v
Nydoo (5) 1963 (4) SA 358 (D)).

9.3.2 The element of wrongfulness

Conduct is wrongful when it infringes on a right which a person may have. If one
has a right to one’s good name, any conduct that lowers one’s esteem or high regard
in the community would therefore be wrongful. To have this effect, the information
that is published concerning the plaintiff should be defamatory. In other words,
it should damage the plaintiff’s reputation.
(At this stage, we would like to repeat what has already been said. In certain
circumstances, a person may have an acceptable or valid reason for uttering
defamatory statements regarding another. In legal terminology, we refer to these
reasons as grounds of justification. If they are strong enough, and therefore
acceptable, they will cancel the wrongfulness of the defendant’s conduct. You will
therefore find that the element of wrongfulness is often also called the element of
absence of grounds of justification. But more about this aspect later.)
If, in the case study, Mr Victor Schuft wishes to institute an action for
defamation, he will have to prove that the advertisement damaged his reputation
and was therefore defamatory.

9.3.2.1 How does a court judge if statements are defamatory?

How does a court determine whether words are defamatory? In general, a
court that has to decide such a problem, will ask whether “a reasonable right-thinking
person” who heard or read the words would think less of the plaintiff. This is often
called the “ reasonable-person test”. Lawyers used to refer to this test as the
“reasonable man” test, but the terminology has now been changed to do away with the
gender discrimination inherent in such term. The question is actually whether a
reasonable person of ordinary intelligence would think less of the plaintiff after
the defamatory remark regarding the plaintiff has come to his or her attention. To
answer this question, the court must take the following two things into consideration:
(1) the ordinary meaning of the words themselves
(2) what is the effect of the words on a “reasonable person”

a The ordinary meaning of the words themselves

First, the court asks what the ordinary meaning is of the words against which there is
an objection. Once the ordinary meaning has been established, the court has to
decide whether this ordinary meaning is defamatory and has therefore damaged the
plaintiff’s reputation. The court must not look at the meaning of the words on their
own, but it must look at the context within which these words were used. If, for
example, a person says that a certain woman is the mother of children, there is
nothing defamatory in this statement. If, however, this woman is unmarried, the
picture changes completely. Likewise, few people would like to be called a thief,
and most people would consider it defamatory to be called a thief, but if a woman
would tell a man, “You are the thief who has stolen my heart!”, he would find it
difficult to sue her for defamation (Broome v Agar (1928) 44 TLR 339).

Generally, it is defamatory to call someone a “bastard”, because this suggests that the
person is illegitimate (i.e. was born out of marriage). In Marruchi v Harris 1943 OPD
15, it was said that Harris had called Marruchi a bastard while they were employed
at the railway workshop in Bloemfontein. After the judge had heard all the evidence, he
found that the expression “bastard” was used as a term of affection in the railway
workshops. Thus, to determine the meaning of specific words, the context in which
these words are used must also be taken into consideration. If a publication is objectively
and in the circumstances in jest it may not be defamatory. But there is a clear line. A joke at the
expense of someone – making someone the butt of a degrading joke – is likely to be interpreted as
defamatory. A joke at which the subject can laugh will usually be inoffensive Le Roux v Dey 2011
3 SA 274 (CC)

b What is the effect of the words on a “reasonable person”

If it has been found what the meaning of the words are, it is necessary to determine
whether the reputation of the plaintiff has indeed been damaged. The problem is
usually that what the plaintiff considers to be defamatory (i.e., damaging to his
reputation), is not necessarily considered defamatory by the defendant, or even by
the community in general. Therefore, the court makes use of the “reasonable-person
test”, that is, the accepted attitude of the community in general is used to judge
whether defamation took place. This test also presents many problems, especially in
a country where the population is not similar in structure, and is divided according
to language, politics, race or religion. Which standard should be used? As far as
possible, our courts have tried to avoid the question, and it is therefore difficult to
have a definite answer to this question. However, the examples below will show
us what has in the past been considered defamatory.

9.3.2.2 Statements that were considered defamatory in court cases

(1) Any suggestion that a person is a criminal or has committed a
criminal act, is generally defamatory (see e.g. Mavromatis v
Douglas 1971 (2) SA 520 (R); Mahomed v Kassim 1973 (2) SA 1
(RA); Fayd’herbe v Zammit 1977 (3) SA 1 (D)). But, here too, there may
be problems. Accusations that a person has committed serious crimes
such as murder, theft and robbery are clearly defamatory, but is a
reasonable person going to think less of a person if someone suggests
that, for example, such person has committed a number of traffic
offences or has purposely filled in his income-tax form incorrectly in
order to pay less income tax?
(2) Any suggestion of immorality (i.e., not acting according to
accepted standards of [sexual] behaviour) is usually defamatory. In
Khan v Khan 1971 (2) SA 499 (RA), an allegation that a woman
was a prostitute and would sleep with any man for minimal payment
was considered defamatory.
 (3) The allegation that someone is insane is defamatory (Rutland v
Jordan 1953 (3) SA 806 (C)).
(4) The suggestion that someone is suffering from an unacceptable
social disease, such as syphilis, is defamatory (Tothill v Foster
1925 TPD 857).
(5) It is defamatory to suggest that someone is unfit to practise his or
her profession (South African Associated Newspapers Ltd v Yutar
1969 (2) SA 442 (A)).
(6) It is defamatory to allege that a businessman or a business is
insolvent, or that the financial position of a businessman or
business is precarious (liable to failure). In Kritzinger v
Perskorporasie v Suid-Afrika (Edms) Bpk 1981 (2) SA 373 (0), a
defamatory allegation in this connection was acknowledged even though,
strictly speaking, the plaintiff was not a businessman.
(7) It is also defamatory to suggest that a judge has convicted and
sentenced an accused, not because of the evidence presented in the
case, but because he (the judge) was prejudiced (i.e., had an
unreasonable dislike of that person) (Esselen v Argus Printing &
Publishing Co Ltd 1992 (3) SA 764 (T)).
The above examples serve only as guidelines. A comment may still be regarded as
defamatory even if it differs completely from the examples given above. The test
is whether the reasonable person thinks that the plaintiff has suffered damage to his
or her reputation. If this is so, the remark is defamatory, even if there have been no
similar cases in the South African courts.
In the case of HRH King Zwelithini of KwaZulu v Mervis 1978 (2) SA 521
(W), the Sunday Times, of which Mr Mervis was the editor, had published an article in
which King Zwelithini was supposed to have acknowledged that he was an “isoka”, or,
freely translated, a “ladies’ man”. The King believed that these words implied
that he was immoral, and that his honour was tarnished (damaged). The court
differed with him over the meaning of the words. The court consulted a number of
dictionaries, and then decided that the words did not suggest immoral conduct,
but that the words rather referred to a man who liked women, and whose behaviour
towards them was respectful. There is nothing defamatory in such a remark - on
the contrary, it should be interpreted as a compliment.

9.3.2.3 The constitutional court and wrongfulness

Importantly in a 2011 decision by the constitutional court the court had to decide on the
defamation of school teachers by learners. Without doubt, the issues in this case were
unprecedented, as is evident from the sharp divisions among the judges of both the
Supreme Court of Appeal and the Constitutional Court. You are strongly advised to read
both the majority judgment as well as the dissenting decision.
What was unique about this case was that it was the first time – at least here
in South Africa – where schoolchildren have been held liable for defaming their
schoolteachers in a school setting. 
In Le Roux v Dey 2011 3 SA 274 (CC)a vice-principal at a well-known secondary
school in Pretoria instituted two separate claims for sentimental damages under the actio
iniuriarum for insult (infringement of dignity) and defamation (infringement of reputation)
against three school learners. The defendants published manipulated pictures of the
plaintiff and the principal of the school depicting them both naked and sitting alongside
each other with their hands indicative of sexual activity or stimulation. The school crests
were superimposed over their genital areas. The plaintiff succeeded with both claims in
the High Court (Dey v Le Roux 2008-10-28 case no 21377/06 (GNP)) but the Supreme
Court of Appeal (Le Roux v Dey 2010 4 SA 210 (SCA)) held that the separate claim for
insult was ill-founded because in assessing damages for defamation, the court should also
take the plaintiff’s humiliation into account. The Supreme Court of Appeal nevertheless
confirmed the trial court’s award of R45 000. The Constitutional Court by a majority upheld
the defamation finding but reduced the damages to R25,000.
Brand AJ (315A-D) made the following statement with regard to the wrongfulness
element:
“In the more recent past our courts have come to recognise, that in the
context of the law of delict:
(a) the criterion of wrongfulness ultimately depends on a judicial
determination of whether – assuming all the other elements of delictual
liability to be present – it would be reasonable to impose liability on a
defendant for the damages flowing from specific conduct; and
(b) that the judicial determination of that reasonableness would in turn
depend on considerations of public and legal policy in accordance with
constitutional norms. Incidentally, to avoid confusion it should be borne in
mind that, what is meant by reasonableness in the context of wrongfulness
has nothing to do with the reasonableness of the defendant’s conduct, but
it concerns the reasonableness of imposing liability on the defendant for the
harm resulting from that conduct.”

The judgment confirms that school learners are not immune to defamation actions by their
teachers and serves as a warning to learners that there are limits to the pranks and jokes
directed at their teachers. In this regard it should be noted that the court expressly
confirmed that the same conduct causing insult and defamation cannot give rise to two
actions under the action iniuriarum, but that the award for defamation should compensate
the victim for both loss of reputation and wounded feelings. The court also went further
and introduced into the law of defamation the so-called new variation of the test for
wrongfulness, namely that wrongfulness depends on whether – assuming that all the other
elements of delictual liability are present – it would be reasonable to impose liability on the
defendant. The court also emphasised and applied the concept of restorative justice by
ordering the defendants to tender an unconditional apology to the plaintiff.

9.3.3 A causal connection between the act (conduct) and the damage
9.3.3.1 The defamatory words must relate to the plaintiff
Publication of defamatory information can damage a person’s reputation only if the
information is indeed defamatory and if it can be linked to the specific person. This
requirement of a causal connection between the publication and the lowering of the
esteem (respect) in which the plaintiff is held in the community is seldom discussed by
our courts. There are, however, certain aspects that deserve attention.
A person’s good name may be affected only if the defamatory words or
behaviour refer to him or her. Therefore, it is clear that the plaintiff must prove that
the defamatory words were directed at him or her, and that these words did not refer
to anybody else. If the plaintiff’s name was specifically mentioned, there is no problem.
If, however, the speaker did not specifically mention the plaintiff’s name, as it was
in our case study, the plaintiff may find it more difficult to prove that he
or she was the particular person who was being referred to. Nevertheless, it is
logical to accept that the defendant should not be able to avoid liability if the
defendant not actually mentions the plaintiff’s name, but speaks in such a way that
everyone knows whom he or she is talking about.
The most important question that needs to be answered, therefore, is whether
a reasonable person (in terms of the “reasonable-person” test) who heard the
words would have realised that these words referred to the plaintiff. If, for
example, it is said that the person who is in control of school funds has embezzled
(stolen) money, the particular school’s headmaster will be able to institute an
action, although his name has not been mentioned.
In some cases, it can be quite problematic to indicate the presence
of such a causal connection. One can think of various such situations. It could be that
the plaintiff is not specifically mentioned by name, but that the defamatory
statements relate to a group of people and the plaintiff is a member of this group.
Or else it could be that the defamed person is no longer alive and the children or
relatives wish to clear his or her name. Another possibility is that the defamed
person is not a natural person, but a company or business enterprise, or even the
government. What would the situation be in these respective cases?

a Groups
Difficult situations can arise where the defendant has referred merely to a group of
people, and the plaintiff is a member of such a group, although his or her name
has not been mentioned. If the plaintiff is unable to prove that the defamatory
allegation concerned him or her, one cannot say that he or she has been defamed.
For example, it was said in the English case of Eastwood v Holmes (1858) that
[I]f a man wrote that all lawyers were thieves, no particular
lawyer could sue him, unless there was something to point to the
particular individual (our emphasis).
On the other hand, if X had said that all the lawyers in Graaff- Reinet were
thieves, every lawyer in Graaff-Reinet would have been able to institute an action,
since the number of lawyers in a town like Graaff-Reinet is limited and each lawyer
would have been identifiable. The words could therefore have been interpreted to
concern each individual person.
What happens if the group to which reference is made is large, and the
members differ greatly from one another? Assume, for example, reference is made
to all the people involved in the fur industry. If we now also assume that the
commentary regarding this group is indeed defamatory, the next question would be
to determine who precisely has been defamed. In the case of A Neumann v Beauty
Without Cruelty International 1986 (4) SA 675 (C), a manufacturer of fur coats was
not successful in his claim for compensation because the court thought that the group
concerned was too big and too diverse (had members that differed too much from
one another). A reasonable person who had heard the defamatory statement would
therefore not have thought that the specific fur manufacturer’s reputation had been
harmed.
We cannot give any specific rules about when the courts will
consider a group small enough so that its members can be identified. In our case law
there are different instances where individual members of particular classes or
groups have been awarded compensation for defamation. Examples of these are a
member of a jury (Le Roux v Cape Times 1931 CPD 316), a member of a medical
council (Hertzog v Ward 1912 AD 62), a member of a company’s management (Bane
v C olvin 1959 (1) SA 863 (C)), the administrative committee of a trade union (De
Klerk v Union Government 1958 (4) SA 496 (T)).
Every case must be judged on its merits (i.e., on how good or worthwhile it
is, rather than on people’s personal feelings). The courts must take into consideration
the size of the group, the diversity of (differences among) its membership, how
common the complaint is, and how defamatory the statement is, in order to decide
whether the defendant referred to a particular plaintiff or not.

b Deceased persons
It is established law in both England and South Africa that a deceased (dead) person
cannot be defamed - or, to put it in another way, that no action can be instituted
(by eg descendants or family) in respect of the defamation of the deceased. The
leading South African case in this respect is Spendiff v East London Daily
Dispatch 1929 EDL 112. In this case S lost his life during the 1922 strike on the
Witwatersrand. In an article in the Daily Dispatch it was incorrectly stated that he
had been found guilty of murder, and that he had been executed. An action for
defamation which was instituted by his family failed on the ground that dead persons
cannot be defamed. The court did, however, state that if the defamatory allegation
had cast any other person than the deceased person in a bad light, an action could
have been instituted. If, for example, it had been said that the deceased person was
not married to the woman with whom he had lived, their children could have
claimed compensation, because such an allegation would not have defamed the
deceased as such, but would have implied that the children were illegitimate.

c Juristic persons
A juristic person is not a “person” in the true sense of the word. The term relates to
an artificial “person” such as a company, trade union or university. For legal
purposes, such an institution is regarded as “a person”. In other words, it is granted
a separate legal personality that is independent of its members, and therefore it has
its own status and reputation. If someone would then make an allegation which
affected this reputation, could such a juristic person institute an action for
defamation against the defamer? According to the general principles of delict that
you have already studied it is clear that a person can definitely claim
compensation if he or she has suffered real financial damage. The problem exists
where the juristic person cannot prove financial damage, for example in respect of
its goodwill, but wants to rely solely on the damage that was done to its name or
reputation.
Until now, the situation in South African law has been very uncertain
in this respect. One finds differing opinions on this matter, both in court decisions
and in the works of various legal authorities. On the one hand, there is the view that
only a natural person can have rights in respect of his or her good name, and that
a juristic person, therefore, cannot be defamed. Thus, a juristic person may claim
only for actual patrimonial loss that has been suffered, but this is not classified
as compensation (satisfaction) for defamation. This point of view is expressed in
Church of Scientology in SA Inc v Reader’s Digest Association SA (Pty) Ltd 1980 (4)
SA 313 (K), where it is stated that
a corporation cannot sue for defamation but may well be able to
recover damages should it suffer patrimonial loss as the result of
an unlawful attack upon its reputation as an integral part of its
patrimony.
In contrast, there is the decision in Multiplan Insurance Brokers (Pty) Ltd v Van
Blerk 1985 (3) SA 164 (D), which was decided in another division of the High
Court. The defendant, a certain Mrs van Blerk, insured her property with the
insurer. Two separate claims which she submitted were both turned down within
a period of two months. She then put up boards in her car which read,
“Multiplan Insurance won’t pay”. She further threatened to have T-shirts printed with
the slogan (words), “Multiplan won’t pay my claim; will they pay yours?” The
insurance company sought an interdict (an order issued by the court) that would
prevent her from continuing with such behaviour, and the company succeeded.
The judge concerned found (decided) that a commercial juristic person may institute
an action for defamation without proof of real financial damage.
To a large extent, the uncertainty has been removed by the decision of
the Supreme Court of Appeal in Dhlomo NO v Natal Newspapers (Pty) Ltd 1989 (1)
SA 945 (A). In this case, the Secretary- General of Inkatha Yesiswe at the time (Dr
Oscar Dhlomo) instituted an action for defamation on behalf of Inkatha (which was
described in the pleadings [see our explanation of this term in ch 1] as a
“non- incorporate association”) against the owner, publisher, printer and editor of
a newspaper for certain statements made against Inkatha. The court decided as
follows:
(1) A trading corporation has the right to sue for defamation for injury
to its business reputation without proof that it suffered actual loss. At
 page 953 of the decision, Rabie ACJ stated the following:
It would be wrong, I think, to demand of a corporation which
claims for an injury done to its reputation that it should
provide proof of actual loss suffered by it, when no such proof
is required of a natural person who sues for an injury to his
reputation.
(2) A nontrading corporation, including a voluntary association, may
sue for defamation if it is believed that a defamatory statement
concerning the way in which it conducts its affairs causes it
financial prejudice (harm).
A question which still remains unanswered and which the court did not find
necessary to decide in this particular case, is whether nontrading corporations
may sue for defamation if the defamatory matter does indeed relate to the
conduct of their affairs, but it is not believed that it caused them financial
prejudice.
In respect of welfare, charitable and religious organisations, the court found that
[I]t is conceivable that in the case of a non-trading corporation
such as a benevolent society or a religious organisation -
these are but examples - which is dependent upon voluntary
financial support from the public, a defamatory statement about
the way in which it conducts its affairs would be calculated
to cause it financial prejudice in the aforementioned sense.
This does not necessarily mean that a nontrading corporation
will in all circumstances have a right to sue for defamation. In
certain instances, it may happen that the court denies it this right
on the ground of considerations of public or legal policy.
As far as political groups are concerned, the court determined in a later decision
(Argus Printing & Publishing Co Ltd v Inkatha Freedon Party 1992 (3) SA 579 (A))
that, where a political group had been defamed and where the defamation was
calculated to cause financial loss, such a political party could protect its reputation
by means of the law of defamation.

d The government
As far as the question whether or not the government can be defamed is concerned,
there are significant problems. In the past, the principle was always that the
government could not be defamed. That which a person said against the government
could perhaps have caused that he was charged with insurrection (“rebellion”) or high
treason (treachery towards one’s country or its ruler), but it could not have been
used against him in an action for defamation.
The reason for this point of view was that the courts thought that it would be
unreasonable to use the taxpayers" money to institute actions for defamation against
taxpayers who, in a free country, had criticised the government’s actions. It was
believed to be part of our right to free speech to criticise the government without fear
of a defamation action. The government could always reply to such criticism in other
ways, for example in the press or by means of parliamentary declarations.
This was the case until 1975, that is, until the decision in South African
associated Newspapers Ltd v Estate Pelser 1975 (4) SA 797 (A). The background to
the case was as follows: a black man and a white man together committed a
murder. They were tried (i.e., they appeared in court) together, and both were
sentenced to death. The State President later reprieved the white man (i.e.,
postponed or cancelled his punishment), but the black man was hanged. Although
there were reasons for this decision, many people did not know about them and
thought that this was a case of extreme discrimination. Allegations in this regard
were published in the Sunday Times. The Minister of Justice at that time, Mr
Pelser, who had been responsible for the decision to reprieve the white man,
instituted an action for defamation against the newspaper. He said that the
reasonable reader who understood how such decisions were taken, would think that
the criticism in the newspaper was criticism against a cabinet decision, and that
he, as a cabinet member, was being criticised. The Supreme Court of Appeal said
that he was right.
Since it is difficult to think of any criticism of the government that does not
refer to a particular person, the Pelser case has significantly limited the criticism
which the man in the street (i.e., the ordinary man) may use against the government
without fear of a defamation action.
In a case heard by the Zimbabwe Supreme Court, namely Posts and
Telecommunications Corp v Modus Publications (Pvt) Ltd 1998 (3) SA 1114 (ZS), the court
found that it is in fact possible to criticise the government without being liable for
defamation.
In this case, defamatory articles about the Posts and Telecommu- nications
Corporation (PTC) were published in a newspaper and the PTC sued the
newspaper. The court found that the PTC was part of the state because it was
created by statute, and a minister administered the statute and had extensive
control over the PTC. Furthermore, the state was ultimately responsible for the
funds of the PTC and its financial autonomy only existed within the parameters
laid down by parliament. The PTC had a monopoly on providing the essential public
services that were traditionally provided by the government. It would involve a
serious interference with the free expression of opinion enjoyed in the country if
the wealth of the state, which was obtained from the citizens, could be used to
launch actions against people because they had criticised and condemned the
management of the country.

9.3.4 Fault
We have already shown that fault can take one of two forms, namely intention (i.e.,
where a person willingly and knowingly does something wrong) and negligence (i.e.,
where a person is not careful enough). In the case of defamation, fault must be
present in the form of intention - (except in the case of the media). The plaintiff
must therefore show that the defendant defamed him on purpose, or, as one says it in
legal terms, that the defendant had the animus iniuriandi, that is the intention
to injure, another person. In practice, it usually happens that, once the plaintiff
has proved that defamatory words were published, the court accepts without
anything further that the defendant had the necessary intention. The defendant can
then raise (give) the defence that he had no such intention.

9.3.4.1 The situation with regard to the media

Although intention is a requirement for liability in respect of defamation, an
exception was traditionally made in the case of the media, because in the case of
the media no form of fault was required. In other words, when a plaintiff wished to
institute an action for defamation, the plaintiff usually had to prove that the
defendant acted with some degree of fault. However, when the defendant was the
mass media (see the explanation below), it was not necessary for the plaintiff to prove
that the defendant acted with any form of fault. This meant that as far as the media
was concerned, there was strict (also called an “absolute” or “severe”) liability. In
practical terms this means that if the defendant disseminated (spread) information
that proved to be defamatory and false, the plaintiff could win a lawsuit, even if
the defendant had done its best to make sure that the information was true.
What do we mean by “the media”, and why was there this exception in
the case of the media? When we use the terms “media” or “mass media”, we generally
refer to all mass-publication media. This includes the press, radio and television.

The newspaper in our case study will therefore fall into the category of
“mass media”. We can also assume that this could refer to mass publication by
means of, for example, computers, such as publications on the Internet or World
Wide Web. A more detailed discussion of the problems surrounding defamation and
new technology will be given in the last section, which deals with “New media
technology and the law”.
The reasons why there was “strict liability of the media”, is because of the
historical development of our approach to defamation. Owing to the influence which
the English law of defamation had on our law of defamation, it was decided in older
court decisions that where editors, owners, printers and publishers were
defendants, they were, without exception, held strictly liable (e.g. Dunning v
Thomson 1905 TH 313).
On the other hand, the liability of sellers and distributors of newspapers was
based on negligence. Sellers and distributors could be held liable for defamatory
allegations contained in newspapers only if they should reasonably have been aware
of them (Dunning v Thomson 1905 TH 313 and 317). This view remained
unchanged, so that today, in the case of sellers and distributors, negligence must still
be proved. In other words, if a plaintiff wishes to institute an action for
defamation against a seller or distributor of, for example, newspapers which contain
defamatory allegations, the form of fault which needs to be proved is not intention,
but negligence.
In Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) 394 (A) the
Appellate Division discussed the reasons why this exception in the case of the press
was necessary. Briefly, the court decided that it was essential to hold the press (and
therefore the mass media) strictly liable for the publication of defamatory allegations:
firstly, because the mass media had such tremendous power that could ruin the
reputation of a defenceless individual, and secondly, since it was very difficult to
link intention to injure (animus iniurandi) - in other words, the intention to defame
another person - to a specific person.
In Pakendorf v De Flamingh 1982 (3) SA 146 (A), the Supreme Court of
Appeal (the Appellate Division, at that time) confirmed that the press (and therefore
also the rest of the mass media) should be held strictly liable for defamation. The
court represented by Rumpff CJ, held (decided) that the strict (absolute) liability of
the press, and specifically the liability of the owners, editors, printers and publishers
of newspapers, must be enforced (i.e., it must be made sure that it is applied).
A very important decision on the strict liability of the media was given in the
Supreme Court of Appeal. It alters the whole situation as set out in the previous
paragraphs and therefore you should be fully aware of it. In National Media Ltd v
Bogoshi 1998 (4) SA 1196 (SCA)/ 1999 (1) BCLR 1 (SCA) the owner and publisher,
the editor, distributor and printer of a newspaper were sued by the plaintiff
for damages arising from the publication of a series of allegedly defamatory
articles published in the newspaper. During the proceedings in the trial court, the
court had found that the members of the newspaper could not rely on the defence
that they were not aware of the defamatory material in their newspapers because
members of the media are strictly liable.
The Supreme Court of Appeal argued that the whole issue of the newspaper
members’ liability hinged on the question of whether their conduct was lawful or
not. Lawfulness would then be determined by applying a general criterion of
reasonableness based upon considera- tions of fairness, morality, policy and the
court’s perception of the legal convictions of the community. It was therefore the task
of the court to determine whether public and legal policy required a particular
publication to be regarded as lawful.
When dealing with defamation, the court had to balance the right to a good
reputation on the one hand and the right to freedom of expression on the other. In
the Pakendorf case this weighing of interests had not taken place and the right to
freedom of expression had not been considered. Therefore Pakendorf’s case could not
be accepted as reflecting the correct legal situation in this country and had to be
rejected.
The function of the press is to make available to the public information
and criticism about every aspect of public, political, social and economic activity and
thus to contribute to the formation of public opinion. In this way the press
becomes the voice of the people. To enable the press to do this, a free flow of
information is necessary and therefore strict liability cannot be defended and should
be rejected.
The court went even further to state that where information published in the
press was false, it would not be regarded as unlawful if the court were to find that
it was reasonable to publish the facts in the particular way at the particular time.
Factors to be taken into account in order to determine whether the publication was
reasonable, would include:
(1) the interest which the public had in the material as opposed to
material that was merely interesting to the public
(2) whether the publication related to a political discussion where
greater latitude was usually allowed
(3) the tone in which a newspaper article was written
(4) the nature of the information, the reliability of the source and steps
taken to verify the information
(5) the opportunity given to the person concerned to respond
(6) the need to publish before establishing the truth in a positive
manner
Unfortunately, the court does not always distinguish clearly between the two
elements of wrongfulness and fault. The result is that the decision is not as
clear as one would like it to be. It nevertheless seems as if the court now
determines that negligence is the form of fault to apply in the case of the media. This
is also how most of the legal writers interpret this decision.
It would also seem that a media defendant will not be liable for defamation if, in
light of all the circumstances, it was reasonable to publish the relevant material in the
particular way and at the particular time. This also amounts to a defence of
absence of negligence on the part of the media defendant. The defence remains in an
early stage of development.
A good example that illustrates the application of the reasonableness defence and
the difficulty of predicting whether it will succeed, is the decision of the Supreme Court of
Appeal in Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA). In this
case, the Mail & Guardian newspaper succeeded in defending a claim brought by Sankie
Mthembi-Mahanyele, the former Minister of Housing, in relation to a claim made by the
Mail & Guardian that Mthembi-Mahanyele was corrupt. Although the Mail & Guardian did
not argue that this statement was true, two of the judges in the Supreme Court of Appeal
agreed that the newspaper had acted reasonably in making the allegation, as a result of
the political nature and context of the speech and the steps taken by journalists to verify
the allegation, amongst other factors. However, two other judges disagreed with this
approach. The newspaper ultimately succeeded because it was held that the allegation
was not defamatory of Mthembi-Mahanyele in the first place and that the publication was
both justifiable and reasonable (not negligent).

It should also be noted that defamation is not only a delict in South Africa, but can also be
a crime.

9.3.5 Damage or prejudice

Damage or prejudice (harm) is the fifth element that needs to exist before there
can be defamation. This element is seldom discussed in decisions regarding
defamation. This is so because the courts take this element into consideration only
when they determine the sum of money that must be paid as compensation. It is very
difficult to determine how much a person’s reputation is worth to him or her, but a
court will take into consideration such factors as that person’s position in society, the
group of people in which one can find such a person, the persons to whom the
defamatory statement was published (made known), how serious the statement
really was, and also the possibility that the plaintiff may have suffered real
financial loss because of the defamation, because the plaintiff’s career depended
on his or her reputation.

If, for example, a court decides that the advertisement in our case
study mentioned above is defamatory of Mr Schuft, the fact that an apology was
published would have no effect on the defamatory nature of the advertisement. It
will be taken into consideration only for a possible reduction in the sum of money
which has to be paid as compensation.

9.4 DEFENCES TO A DEFAMATION ACTION

Once the plaintiff has stated his or her case, the defendant is given the opportunity to
rebut (i.e., supply proof against) any of the plaintiff’s allegations (i.e., accusations). If
the defendant cannot supply such proof, it could very well happen that the plaintiff
will win the case. Thus, the defendant must now convince the court of his or her
innocence. How can the defendant do this? This can be done in the following ways:
(1) the defendant can allege that the particular conduct was not
wrongful (i.e., that the defendant had the right to say what he or she
did). There may be various reasons for this. The following three
defences are the ones used most often for this purpose:
(a) that the defamatory words were the truth, and that it was in the
interest of the public to make these words known
(b) that the defamatory words were simply fair (reasonable)
comment on other words or another happening, or
(c) that the defamatory allegation was made on a privileged
occasion,
or
(2) the defendant can allege that there was no fault - in other
words, that he or she did not act intentionally. (In law we say that
the defendant alleges that he or she had no animus iniuriandi to
defame the plaintiff.)
We shall now briefly discuss these defences.

9.4.1 Truth and public benefit

If what was said about the plaintiff is the truth, and it was also to the benefit of (ie,
to the advantage of) the public that they were informed of what was said, the
defendant will not be held liable for any damage which he or she caused to the
plaintiff’s reputation. In other words, the defendant will be able to justify (i.e., give a
good reason for) his or her attack on the plaintiff’s reputation.
What happens when, mostly, that which was said is true, but some details (i.e.,
little facts) were incorrect, or the speaker made a mistake about the details? Such a
statement does not need to be absolutely true, but, generally speaking, it must be
essentially (generally) or substantially (mostly) true (see, eg, Johnson v Rand
Daily Mail 1928 AD 190, especially at 203; Verwoerd v Paver 1943 WLD 153).
The words must not only be true, but they must also have been published
for the benefit of the public. It is often difficult to establish whether or not a
particular comment was in the interest of the public, and the courts therefore use the
following guidelines:
(1) The fact that the public is interested in a particular issue does not
mean that all observations in this respect are in the public interest. The
question is not whether the public wants the information to be
published, but whether it ought to be published.
(2) In practice, nearly everything about public officials, especially
politicians, whether it is in connection with their public or their
private lives, is in the public interest, and can be published. The
reason for this is that the public pays the salaries of these officials. The
public therefore has the right to know the truth about the
activities of these officials, even when it comes to their private
lives. However, the private lives of people who are not public
officials are protected from having information published about
them (see also the section on invasion of [intruding into] privacy in this
regard; cf. (compare) further Graham v Ker (1892) 9 SC 185).
(3) Generally speaking, it is also to the benefit of the public to make
known that a person has been found guilty of a crime. One of the
reasons why criminals are punished for their crimes, is to deter (ie, try
to prevent) other people from committing the same crimes. However,
we must also remember that criminals must be given the opportunity
to reform (i.e., to better themselves). It is not to the benefit of the
public to make known, many years after a crime, the fact that a
respected member of the community was found guilty in his youth of
committing such a crime (see Patterson v Engelenburg & Wallach’s Limited
1917 TPD 350).
Remember that the defendant’s disposition (mood) when he made the defamatory
statements plays no role when relying on this defence. Consequently, malice (i.e., ill
will or the desire to cause harm) is not relevant to this ground of justification.

9.4.2 Fair comment

The basis of the defence of fair comment is that everyone has the right to make
comments on matters that are of interest to the public. In this connection, Birkett LJ
(Lord Justice) stated the following in the English decision of Kemsley v Foot (1951) All
ER 331 at 338:
[I]t matters not whether the comments are made to the few or the
many. Whether they are made by a powerful newspaper or by an
individual, whether they are written or spoken. The defence that
the words are fair comment on a matter of public interest is open
to all.
However, this does not mean that there are no limitations to the defence. One
cannot, for example, say, “I think that Tom Jones is a thief” and think that one is
not liable, because one has not said, “Tom Jones is a thief”. In other words, if a
defendant who has disguised a factual statement says that he was merely
expressing an opinion, he will not succeed.
The following four requirements must be fulfilled before a defendant may
successfully rely on this defence:
(1) The statement objected to must be a comment or an opinion
concerning facts, and not merely a list of disparate (different) facts. For
 example, if one says, “The police found my stolen car in Tom’s garage.
I think that he is a thief”, this is not a statement of a specific fact,
but a comment which is based on a fact. The defence will then be
available (see Crawford v Albu 1917 AD 102).
(2) The comment must be fair. In practice, it is very difficult to
establish whether or not a comment is fair. According to our case law,
a comment is fair when it is the defendant’s honest opinion, even if
the opinion is exaggerated (made bigger, better or worse), extreme
(unacceptable) or biased (influenced by own opinions, rather than
facts). Thus Innes J stated in Crawford v Albu, supra, “Any genuine
expression of opinion is fair, if it is relevant, and if it is not such as to
disclose in itself actual malice”.
An opinion is fair when it is honest and relevant, and when it
has not been inspired by malicious motives (i.e., a desire to cause
harm).
(3) The facts on which the comments were based, must be true and
correctly stated. In Crawford v Albu, supra, Innes J (at 114) noted the
following: “[T]here can be no fair comment upon facts which are not
true.”
In cases where comment is based on facts which the reasonable
man knows about, it is unnecessary to state the facts (Heard v
Times Media Ltd 1993 (2) SA 472 (CPD)).
(4) The comment must be expressed on a matter which is in the public
interest. It is impossible to give a definition of what is meant by “in the
public interest”. What is relevant, however, is that this phrase must be
given as wide a meaning (i.e., including a lot) as possible. It should
therefore include more than merely matters of public interest,
and should include, among other things, matters concerning the
administration of justice, the conduct of public figures, political and
state matters, the administration of public institutions and other
bodies, books, films and works of art in general.
From the above it is clear that the requirements for successful reliance on this
defence are strict. Before any person, newspaper or magazine comments on facts
which are in the public interest in a manner which could be defamatory, they
should make sure whether the facts are true and whether they have been presented
accurately. It is also useful to make it clear that a comment is being made.

9.4.3 Privilege
Often a defendant cannot rely on one of the other defences, but he or she is
nevertheless protected in an action for defamation because he or she (the defendant)
acted on a privileged occasion. In other words, the defendant will rely on the defence
of privilege. Such an occasion occurs when someone has a right, duty or interest in
respect of the publication of statements, and the person to whom they are addressed
has a similar right, duty or interest in respect of hearing them. Therefore, privileged
circumstances exist for the communication of allegations for a specific purpose.
However, the allegations must, within reason, be related to this purpose.
There are two forms of privilege, namely absolute and qualified privilege.
Absolute privilege, as the name indicates, grants absolute (total and complete)
protection once it has been proved. Qualified privilege, on the other hand, offers
only limited protection, since it is applicable only in certain circumstances.

9.4.3.1 Absolute privilege

In the case of absolute privilege, the statements of the defendant are absolutely
protected in the sense that there cannot be liability if the defendant can prove that
there is a privileged occasion - even if the allegations were irrelevant (not
important), or maliciously inspired (with the desire to cause harm). Thus, a
member of Parliament has complete freedom of speech: that is, he or she can say
what he or she likes in Parliament, subject to the rules of debate (see s 2 of the
Powers and Privileges of Parliament Act 91 of 1963). It often happens,
especially during stormy debates on contentious issues (on which there is a lot of
disagreement or arguments), that the Speaker reprimands members for their
comments (officially tells them that they should not have said them), and orders
them to retract (say that they did not mean) some of their allegations.
Consequently, a member of Parliament can defame another member as much as he or
she likes, without a defamation action being instituted against him or her.
The privilege is, however, limited to what is said and done by a member in the
exercise of his or her duties as a member, and in performing the business of
Parliament. A personal quarrel which is conducted in a member’s private capacity
within the walls of the parliamentary building and which is not linked to
parliamentary business, is not covered by this defence (Poovalingam v Rajbansi 1992
(1) SA 283 (A)). This is why one member of Parliament often challenges another
member to repeat an allegation made in Parliament, outside. What takes place
outside, is naturally not subject to this particular privilege.

9.4.3.2 Qualified privilege

In the case of qualified privilege, the defendant enjoys only a provisional
privilege. This provisional privilege arises once the defendant has proved that
there was a privileged occasion, and that the allegations were reasonably related to
the purpose of the privilege. The provisional privilege is, however, cancelled if the
plaintiff proves that the defendant exceeded the limits of his or her ground of
defence (ie, that the defendant misused the privileged occasion) by acting with
improper (dishonest) motives (malice).
In the case of qualified privilege we can distinguish between three categories, namely
(1) allegations made in the fulfilment of a duty (obligation), or in the
promotion or protection of an interest
(2) allegations made in the course of legal proceedings
(3) privileged reports

a Allegations made during the fulfillment of a duty or in the promotion or

protection of an interest
The duty or right to make defamatory allegations, whether in legal, moral or
social matters, affords the speaker limited protection if the person to whom
these allegations are made has a corresponding (similar) duty or interest in
respect of hearing them (De Waal v Ziervogel 1938 AD 112). The defendant has
to use the privileged occasion for the purpose for which it exists. If the defendant
uses it for another purpose, the defendant exceeds the limits of the privilege and this
defence falls away.
First, it must be determined whether the occasion on which an allegation was
made was privileged. It is sometimes extremely difficult to determine whether there
was a moral or social duty to make the allegation. The judge must decide as best he
or she can whether, in the view of the reasonable person, such a duty existed. The test
is objective rather than subjective. The question is not whether a defendant speaks
from a sense of duty, but whether the circumstances in the eyes of a reasonable
person create a duty or an interest which entitles the defendant to speak. The
test revolves around the reasonableness of the statements. (Strydom v Bence [2002]
4 All SA 539 (SE).) For example, a privileged occasion exists if employer A, who
intends to employ X, enquires about X’s character, et cetera, from B, X’s former
employer. In such circumstances, B has a moral (or social) duty to respond to the
request, and A has a corresponding interest in hearing B’s opinion (see, eg Monckten v
BSA Co 1920 AD 324). In the same way, a relative may make an allegation to a
woman about the character of her suitor (i.e. the man who wants to marry her).
Secondly, it must be established whether the allegation fell within the limits of the
privileged occasion. Thus the defendant must prove not only that there was a
privileged occasion, but also that the defendant used it in accordance with the
purpose of the privilege. Therefore the defendant cannot abuse (misuse) a privileged
occasion which exists for the promotion and protection of interests by making
defamatory allegations about completely unrelated matters (Geyser v Pont 1968 (4)
SA 67 (W) 74).
(See, also, in this regard, the section on “express malice” below.)

b Allegations made in the course of legal proceedings

Allegations made by attorneys, advocates, witnesses, magistrates, judges, et
cetera, in the course of legal proceedings are protected provisionally (i.e., it could be
changed later). The protection falls away only if the plaintiff can prove that the
allegation was entirely irrelevant to the case before the court, and that the
defendant abused the privileged occasion to make a defamatory allegation owing to
improper motives. In practice, it is extremely difficult for a plaintiff to upset this
provisional protection (see Moolman v Slovo 1964 (1) SA 760 (W); May v Udwin 1981
(1) SA 1 (A); Van der Berg v Coopers & Lybrand Trust (Pty) Ltd [2001] 1 All SA 425
(A)).

c Privileged reports
This defence applies specifically to reports of Parliamentary proceed- ings and
reports of lawsuits. The basis of the defence is public interest, for it is in the interest
of the public to be fully informed of what is said and done in Parliament, and of what
takes place during legal proceedings.
Reports in newspapers or other publications of statements or speeches made in
Parliament or in court during proceedings are therefore privileged, as long as the
statements made are reported with fairness and are substantially correct (see
Hearson v Natal Witness Ltd 1935 NPD 603 at 605 and De Waal v Ziervogel 1938
AD 112).
Reports of the proceedings (i.e., organised series of events) of other public bodies
(i.e., organised groups of people) created in terms of a statute (law), and exercising
public functions in terms of such a statute, are also privileged (see Smith & Co v SA
Newspaper Co (1906) 23 SC 310). Reports of ordinary public meetings are not
privileged (see Smith & Co, above, at 318).

9.4.3.3 Exceeding the bound of privilege (express malice)

We have already indicated that a defendant who wishes to rebut (supply proof
against) the presumption (something that is assumed) of unlawfulness by raising
(making use of) a plea of privilege, must prove that there was a privileged occasion
and that his allegation was in accordance with the purpose of the privileged
occasion. The allegation must therefore have been made with an honest motive and
intention, That is, the defendant must not have abused the existence of a
privileged occasion maliciously (i.e., with the desire to cause harm) to defame the
plaintiff. As McKerron (The law of delict 7 ed at 196) states: “Proof of the
existence of a malicious motive will therefore destroy the privilege” (own
emphasis).
Thus if the plaintiff can prove that the defendant abused a privileged
occasion, that is, that he exceeded the limits of his defence, it is said that there is
“ express malice” on the part of the defendant. Qualified privilege therefore offers
only limited protection to a defendant, since proof of “express malice” on the
part of the defendant causes the protection of the privilege to fall away. Thus if
the editor of newspaper A enquires from the editor of newspaper B about the
ability of a reporter who wishes to work for newspaper A, the editor of newspaper B
cannot use the privileged occasion to say unpleasant and untrue things about the
reporter’s character because he personally has something against him. In such a
case the provisional (i.e., that can be changed later) protection of the privilege falls
away.
An interesting case that came before our courts recently was Botha & another v
Mthiyane and another 2002 (1) SA 289 (W). Certain defamatory allegations were
made on a privileged occasion. However, that was not the end of the story. The
defendants thereupon informed a newspaper reporter and, as a result, a series of
articles appeared in the newspaper. The court accepted the defendants’ defence of
qualified privilege with regard to the publication made on the privileged occasion.
However, the interview with the news reporter and the resultant publication in
the newspapers could not be regarded as privileged and here the defendants were
liable for defamation. This was not really a case of exceeding the bounds of privilege,
but rather of two different occasions where publication of the same defamatory
information occurred. In the first case, the defence of qualified privilege was
acceptable, but, in the second case, it was rejected.

9.4.4 Mistake or lack of intention

As already stated, one of the elements of defamation is that the defendant
must have intended or proposed to defame the plaintiff. The defendant must have
realised that his or her use of the particular words would affect the plaintiff’s standing
in the community. If the defendant made a mistake, or was under the false impression
that what he or she said was not defamatory, while indeed it was, he or she will
not be liable (Maisel v Van Naeren 1960 (4) SA 836 (K); Nydoo v Vengtas 1965
(1) SA 1 (A)).
If a mistake is made concerning a name, this can serve as a valid defence if
the defendant did not intend to defame the plaintiff and did not act carelessly. For
example, a local priest learns that one of the doctors in his congregation performs
illegal operations. He attacks Dr X from the pulpit and ruins his reputation. In reality
it is Dr Y who must be blamed for the illegal operations. If the priest has made an
honest mistake and the allegation has not been directed against Dr X intentionally,
Dr X will not succeed with a claim for defamation if he does institute one.
In the same way, a defendant who makes a comment in the belief that it is
justified because, according to him, it is the truth and it is in the public interest, he
will not be held liable, even if it later appears that it is not the truth. This state of
affairs has been criticised, because it is so easy to avoid liability.

9.4.5 Other defences

The ordinary defences that can generally be raised in the case of all delicts
(wrongful acts), will probably also be valid in the case of defamation. Possibilities
are permission, self-defence, jest (joke), provocation (to make angry) (Jeftha v
Williams 1981 (3) SA 678 (K); Jasat v Paruk 1983 (4) SA 728 (N)).

9.5 WHO IS LIABLE?

In all cases the plaintiff can sue the person who uttered or wrote the actual words.
Where the defamatory words are printed or broadcast, the plaintiff can claim
compensation from an additional number of people.
In the case of a broadcast, the radio or television company can be sued. On
the other hand, if written defamatory matter is printed in a book or magazine and
this is sold, not only the writer but also the printer, the publisher and, in certain
cases, even the bookseller, are liable. The editor of a newspaper or magazine is
personally liable, whether he or she was aware of the defamation or not.

9.6 DEFAMATION AS A CRIME

As was mentioned in chapter 1, a delict can also be a crime. This is also true in the
case of defamation: a defamatory statement may give rise not only to a civil action
(i.e., not involving criminal law), but also to a criminal prosecution (i.e.,
involving criminal law). The latter is, however, relatively rare, for the following
reasons:
(1) It is easier to prove a civil claim (proof on a balance of
probabilities - see our explanation of this term in ch 1) than a
criminal charge (proof beyond a reasonable doubt - also explained in
ch 1).
(2) A magistrate’s court is not really the place for a complex legal
dispute concerning defamation - and some disputes are very
complex indeed.
(3) Most plaintiffs prefer a civil case, as damages (in the form of
money) are awarded to them if they succeed.
(4) Prosecuting authorities (those who take legal proceedings against
people) are not really interested in defamation prosecutions, because
they see them as essentially “civil” disputes (arguments).

However, there could be both a civil and a criminal case. In practice the
criminal case is disposed of first, and then the civil action is heard. Note, too, that
the essentials (things that need to be there) of, and the defences to, a defamatory
statement are the same in both a criminal and a civil case.
One final point must be mentioned here: The courts have held that not all
defamatory statements are (really) crimes, but only those which are of a serious or
aggravated nature (this would include defamation that is likely to lead to a breach
of the peace, or to the defaming of a government official or judge [R v Ginsberg
1934 CPD 166; S v Revill 1970 (3) SA 611 (C)]). You should note, however, that no
accused has ever been acquitted (declared not guilty) on the ground that the
defamation complained of was not serious enough to justify a prosecution.
A case of criminal defamation namely S v Modus Publications (Pvt) Ltd 1998
(2) SACR 151 (ZS), was heard in the Zimbabwe Supreme Court. In this case the
court agreed with what was said above, that is, that defamation can be regarded as a
crime only if it is serious enough. To determine how serious the defamation is,
one should consider:
(1) the extravagance of the allegation
(2) the extent of the publication
(3) whether the words are likely to have results that may detrimentally
affect the interests of the state or the community

In this specific case a newspaper published an article on an alleged wedding of

President Mugabe. Although the President himself, the judge who had allegedly
performed the ceremony and the Cabinet Minister who had allegedly been a
witness vehemently denied the report, the newspaper stood by its story thereby
casting doubt on the credibility of the President as well as the judge and the
Cabinet Minister concerned. The court found that the statement was serious
enough to constitute criminal defamation.
FEEDBACK

(1) “Defamation” can be defined as the publication of words or behaviour concerning

a person that tend to injure the good name of that person, with the intention of
injuring that person and without grounds of justification.

(2) There are a few requirements attached to the phrase “publication of words or
behaviour” in the definition in (1) above. It is important to note that the word
“publication” used here has a lego-technical (legal) meaning, namely “communication
to another person”. In other words, it has a wider meaning than what is generally
understood by “publication” in everyday life (namely, “producing something in written
form”). Publication of the defamatory allegation is not limited to publication in written
form (eg in a newspaper), but may take any form (e.g. booing in a theatre).
Unless a third person hears the defamatory words, or reads these words in a
newspaper or a magazine, or gets to know about them in some way and understands
them, no damage is done to a person’s reputation. In certain circumstances there is a
presumption that publication did in fact take place.

(3) To judge whether statements are defamatory, a court will look first at the
ordinary meaning of the words themselves, and secondly at whether the
“reasonable person” would regard them as infringing the plaintiff’s good name.

(4) There should be a causal connection between the act (conduct) and the damage. In
other words, the defamatory words must refer to the plaintiff (i.e., the person who
institutes the action).

(5) In the case of defamation, fault must be present in the form of intention: the
plaintiff must therefore show that the defendant defamed him or her on purpose.

(6) The form of fault required in the case of the mass media is negligence
according to the Bogoshi case, and not strict liability.

(7) The element of harm or prejudice is taken into account when determining the sum
of money that must be paid as compensation.

(8) The defendant will be able to rely on the defence “truth and public benefit” if what
was said about the plaintiff was the truth, and if it was also to the advantage of the
public that they were informed of what was said.

(9) The basis of the defence of “fair comment” is that everyone has the right to make
comments on matters that are of interest to the public.

(10) The defendant can rely on the defence of privilege if he or she acted on a
privileged occasion. There are two forms of privilege, namely absolute and qualified
privilege. Absolute privilege grants absolute protection once it has been proved.
Qualified privilege offers only limited protection, since it is applicable only in certain
circumstances.
(11) Since the defendant must have intended to defame the plaintiff when he or she
uttered or wrote the defamatory words, such defendant could also rely on the defence
of “mistake or lack of intention”.

POINTS TO PONDER
What are your views on the following:
Neethling and Potgieter (1995 THRHR 713-715) put forward the
following general policy considerations which will make the protection
of the good name possible without unreasonably limiting media
freedom:

(1) As the position is in Australia, the media industry should consider

budgeting every year for possible defamation actions, which costs could be
recovered from the broad media users public by adding a small price
increase to their product (newspaper, magazine or whatever the case
may be). In this way, freedom of the media is guaranteed, but people’s
reputation in the community is not being injured without punishment.
(2) Apart from the fact that satisfaction (compensation) may be awarded,
the court should also be able to restore a person’s injured good
name by other means. Some possibilities are the following: to allow the
alleged defamation to be withdrawn, an apology by the defendant, or to
allow the plaintiff an opportunity to reply to the defamation (the “right
to reply”). Midgley (“Retrac- tion, apology and right to reply” 1995
THRHR 288) suggests the following statutory provision on 296:

1 In any instance where a delictual claim has been brought in terms

of the actio iniuriarum, a court may, irrespective of whether an
award of damages is made, order a defendant to retract and
apologise, or to grant the plaintiff an opportunity to reply, in such
terms and on such conditions as it may deem fit.
2 Notwithstanding the provisions of section 1, a retraction and
apology, or an offer thereof, and a defendant’s offer to grant the
plaintiff an opportunity to reply, may serve as mitigating factors in
respect of any award of damages.

Accordingly such a provision will not only have the effect of protecting the plaintiff’s
name without forfeiting (giving up) freedom of speech unreasonably, but will also, as far
as the right to reply is concerned, promote the right to freedom of speech - in actual
fact that of the plaintiff’s.

LEARNING ACTIVITY 9.2 – TEST YOURSELF QUESTIONS

Questions relating to this chapter can be found under Discussion Forum 9.2.

DISCUSSION FORUMS
You are encouraged to discuss Learning Activities 9.1 & 9.2 online in the Discussion Forum.