Qualified privilege

- A defendant may rebut the presumption of wrongfulness by showing that the communication is

protected because it was made for moral, social or legal reasons – in other words, in circumstances

public policy dictates should not attract liability

- So, the defendant’s aim is to negative the wrongfulness element of the delict. This is unlike absolute

privilege, which protects even those communications that meet all the elements of a delict, including the

element of wrongfulness.

- As with absolute privilege, the rationale for the defence is to protect freedom of expression. Malicious

communication is not protected

- The core issue, as with all wrongfulness questions, is whether the criterion of reasonableness has been

met, and to do so the communication must:

1. Be made on an occasion that the law recognises as privileged :

- Statements made because there is a moral, social or legal duty to do so, or to further a legitimate

interest or in the discharge of a duty.

- The key issue here is reciprocity. A person must not only further an interest or discharge a duty, but the

recipient of the information must have an interest in receiving the information

2 Statements made during judicial or quasi-judicial proceedings

- Judicial or quasi-judicial proceedings constitute a privileged occasion for judges, magistrates,

advocates, attorneys, litigants and witnesses

- The ambit of protection is far wider for judicial officers than for the other participants, since public

interest in the due administration of justice requires that they be given free rein to speak their minds in

the exercise of their judicial functions without incurring liability for damages.
3. Statements made in reports on court and parliamentary proceedings and those of public bodies

- In a democratic society, the public needs to know what is happening in its governmental institutions.

- Fair and substantially accurate reports of judicial or parliamentary proceedings (which are protected)

that contain defamatory material, for example, will also be protected

4. Be relevant or germane to the occasion

- There is no set rule for proving the relevance of a statement.

- In Van der Berg v Coopers and Lybrand Trust (Pty) Ltd the Court held that the assessment amounts to

a value judgement, based on reason and common sense, as to what would be reasonably necessary to

protect the interest or to discharge the duty upon which the privilege is founded

5. Not be malicious
- Malice or improper motive will defeat any claim to the defence of privileged occasion, because society

believes that there can be no legal, moral, or social duty to publish matter for malicious reasons

- For liability to arise there would have to be some abuse of the occasion – for example, where a witness

has no reasonable grounds for believing the truth of a statement.

- When an untrue statement is made, one can infer that it was made with malice, unless the

circumstances

- indicate otherwise

- The general rule is that when an infringement of a personality right is proved, a presumption of

wrongfulness arises and the onus shifts to the defendant to disprove wrongfulness

- A bald denial is not enough to rebut the inference

- The defendant usually does this by establishing the first two criteria: that the occasion was privileged,

and that the statement was relevant to the occasion.

- The onus then shifts back to the plaintiff to show that the occasion was abused, by proving malice

- However, the situation with respect to presiding officers (judges and magistrates) is different. Presiding

officers are presumed to have acted lawfully when they make defamatory statements while performing

their duties, which means that, contrary to the general rule, proving the infringement of a personality

right does not raise presumption of wrongfulness

De Waal v Ziervogel

4. The defence of reasonable publication

- The defence of reasonable publication, confirmed in National Media Ltd v Bogoshi, was expressly

stated for the first time in Khumalo v Holomisa

- The defence of reasonable publication permits a publisher who can establish truth in the public benefit

to do so and avoid liability. But if a publisher cannot establish the truth, or finds it disproportionately

expensive or difficult to do so, the publisher may show that in all the circumstances the publication was

reasonable

- This defence is particularly important in the context of false defamatory statements published in the

press, although it could also apply in other areas

National Media Ltd v Bogoshi

- Bogoshi had sued for defamation arising from the publication of a series of articles. National Media Ltd

alleged that the publication was lawful and therefore objectively reasonable based on its right to

freedom of expression. The Supreme Court of Appeal reaffirmed that public policy grounds paved the

way for recognising new situations that could render a defendant’s conduct lawful.
- The criterion to apply in each case is: the general criterion of reasonableness based on considerations

of fairness, morality, policy and the Court’s perception of the legal convictions of the community

- The Supreme Court of Appeal specifically addressed the conditions under which they would consider

the publication of false defamatory matter lawful.

- In trying to determine whether the media deserve some form of protection for publishing false

information, the Court seemed to refer to principles similar to those for the defence of privileged

occasion

- It recognised that within this category it may sometimes be reasonable to publish particular untrue

facts in a particular way and at a particular time, depending on all the circumstances of the case

- Courts should consider the following factors, subsequently confirmed when assessing whether any

mistake or ignorance is objectively reasonable and amounts to a ‘justifiable publication’

i. The interest in the public being informed

ii. The manner of publication

iii. The tone of the material published

iv. The extent of the public concern in the information

v. The reliability of the source

vi. The steps taken to verify the truth of the information

vii. Whether the person defamed was given the opportunity to comment on the statement before

publication. In cases where information is crucial to the public, and is urgent, it may be justifiable to

publish without providing an opportunity to comment

- The Supreme Court of Appeal cautioned that this did not mean that journalistic standards could be

lowered and held that:

members of the press should not be left with the impression that they have licence to lower the standards

of care which must be observed before defamatory matter is published in a newspaper

- According to Van der Walt and Midgley the Bogoshi judgment establishes the following rule:9

Publication in the press of false defamatory material in which the public has an interest will not be unlawful

if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish

the particular facts in the particular way and at the particular time.

- Prior to the Bogoshi decision ignorance of the law and mistake did not avail a defendant of a

justification ground to rebut unlawfulness. The Bogoshi decision paved the way for a court to determine

whether society would regard a defendant’s mistake or ignorance as objectively reasonable or

justifiable