Authored By: Yamkela Boqo
University of South Africa
Introduction
Defamation legislation in South Africa is at the confluence of two fundamental constitutional imperatives: the right to dignity and reputation (section 10) and the right to free expression (section 16). As society grows more digital and speech gets more politicized, courts are frequently called upon to mediate this conflict. This article investigates how South African courts have handled defamation lawsuits considering constitutional ideals, with a special emphasis on recent jurisprudence and the changing role of the public interest.
Common Law Foundations of Defamation.
Under South African common law, defamation is defined as the unlawful publication of a remark about another that has the potential to harm their reputation. The plaintiff must prove:
The statement was released.
It referred to the plaintiff.
It was defamatory.
Once these conditions are met, the law presumes wrongdoing and animus iniuriandi. The defendant then has the burden of presenting a valid defense.
Defamation Defences: A Constitutional Recalibration
Under constitutional scrutiny, the classic defences of truth and public advantage, fair criticism, and privilege have all experienced substantial transformations. The landmark case of Khumalo and Others v Holomisa was significant in this sense.
Khumalo v Holomisa: A Constitutional Perspective
In Khumalo, the Constitutional Court highlighted that freedom of expression is not only a personal right, but also a pillar of democracy. However, it underlined that dignity and reputation are equally safeguarded. The court ruled that defamation laws should align with the Bill of Rights‘ spirit, purpose, and objectives.
This led to a more nuanced approach, where courts assess:
The nature of the speech (e.g. political, artistic, commercial).
The public interest involved.
The context and intent of the speaker.
Truth and the Public Interest: A Shifting Burden?
Traditionally, the truth defence required the defendant to demonstrate both the truth of the statement and the fact that it was published for the public benefit. However, since Khumalo, judges have been more prepared to assess whether the speech helps to public conversation, even if it contains factual errors.
In Le Roux v. Dey, the court dealt with a schoolboy prank involving a digitally changed image.
While the image was not factually correct, the court determined that the publishing was not in the public interest, upholding the defamation suit. 4 This case demonstrated that truth alone is insufficient public benefit remained a vital barrier.
Fair comment and honest opinion.
The defense of fair comment protects opinions rather than facts. To succeed, the defendant must demonstrate:
The statement represented a viewpoint.
It was based on facts.
It was created in good faith.
This defense is especially important in political and journalistic circumstances. In The Citizen 1978 (Pty) Ltd v McBride, the court ruled that strong criticism of public people is necessary in a democracy. Even harsh or excessive opinions can be protected if they are honestly held and grounded in facts.
Absolute and qualified privilege
It applies to statements made in specific situations, such as parliamentary sessions or judicial petitions. Absolute privilege is applicable regardless of intent, whereas qualified privilege requires good faith and relevance.
In Mthembi-Mahanyele v Mail & Guardian Ltd, the court acknowledged the media’s role in keeping public officials accountable. It extended qualified privilege to journalistic reporting that was responsible and balanced, setting the framework for the “reasonable publication” defence. ”
Social media and the Changing Landscape of Defamation
The proliferation of social media has complicated defamation law. Online platforms amplify communication, blur private and public boundaries, and enable viral reputational harm. Courts have started to adjust.
In Isparta v Richter and Others, the court ruled that Facebook posts might be considered defamatory, and both the author and anyone who “liked” or shared the post could be held accountable. 7 This case demonstrated the significance of digital responsibility and the lasting validity of common law concepts in new situations.
The Impact of Public Figures on Political Speech
Public personalities, particularly politicians, are expected to withstand increased scrutiny. In Economic Freedom Fighters v Minister of Justice and Correctional Services, the Constitutional Court stressed the importance of political speech protection. 8 The court warned against using defamation lawsuits to suppress dissent or criticism.
However, this does not imply carte blanche. The court also emphasized that false and harmful utterances, even in political situations, might weaken democratic discourse and should be curtailed.
Comparative Insight: UK and USA Approaches
South African courts frequently rely on comparative jurisprudence. The UK’s Defamation Act 2013 established a “serious harm” standard and defined defenses such as honest opinion and public interest. 9 In the United States, New York Times Co. v. Sullivan established the “actual malice” standard for public officials, which requires proof that the statement was made with knowledge of its untruth or reckless disregard. 10
While these criteria are not universally adopted in South African law, they do help to inform the balancing exercise between dignity and expression.
South African defamation law is shifting towards a more contextual, constitutional framework.
Courts are increasingly concerned with the societal function of speech, the vulnerability of reputation, and the necessity for democratic accountability.
This requires legal practitioners and researchers to adopt a more holistic approach, one that considers not only the letter but also the spirit of the law. As digital platforms transform communication and public discourse becomes more contentious, defamation law must remain flexible, principled, and fair.
Reference(S):
J Neethling, JM Potgieter and PJ Visser, Law of Delict (9th edn, LexisNexis 2020) 331.
Khumalo and Others v Holomisa 2002 (5) SA 401 (CC).
ibid [21]-[23].
Le Roux v Dey 2011 (3) SA 274 (CC).
The Citizen 1978 (Pty) Ltd v McBride 2011 (4) SA 191 (CC).
Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA).
Isparta v Richter and Another 2013 (6) SA 529 (GNP).
Economic Freedom Fighters v Minister of Justice and Correctional Services 2021 (2) SA 1 (CC).
Defamation Act 2013 (UK), s 1.
New York Times Co. v Sullivan 376 US 254 (1964).
1 J Neethling, JM Potgieter and PJ Visser, Law of Delict (9th edn, LexisNexis 2020) 331.
2 Khumalo and Others v Holomisa 2002 (5) SA 401 (CC).
3 ibid [21]-[23].
4 Le Roux v Dey 2011 (3) SA 274 (CC)
5 The Citizen 1978 (Pty) Ltd v McBride 2011 (4) SA 191 (CC)
6 Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA).
7 Isparta v Richter and Another 2013 (6) SA 529 (GNP).
8 Economic Freedom Fighters v Minister of Justice and Correctional Services 2021 (2) SA 1 (CC).
9 Defamation Act 2013 (UK), s 1.
10 New York Times Co. v Sullivan 376 US 254 (1964).
