Defamation Slides.

Defamation
Defamation is a delict. ‘defamation’ as a delict (tort) and is defined as the unlawful and intentional
publication of defamatory matter concerning another which causes reputational impairment.
Where the media is concerned, ‘defamation’ can be more narrowly defined as the unlawful, negligent
publication of defamatory matter concerning another which causes reputational impairment.
Elements of defamation.
• The elements of defamation, all of which must be proven by the plaintiff on a balance of
probabilities, are the following:
• (i) there must be publication (ie making known the publication to third parties)
• (ii) the matter published must have a defamatory meaning
• (iii) the defamatory matter must refer to the plaintiff.
• When looking at the defamatory meaning of the matter published, the analysis is done by way of
a two-stage approach.
• (1) The first stage is to establish the ordinary meaning of the words used and the second stage is
to establish whether the meaning of defamatory
• (2) A statement is defamatory “if it is likely to injure the good esteem in which he or she is held
by the reasonable or average person to whom it had been published.”
• The last element is that the plaintiff must prove that defamatory matter refers to them. The
objective test poses the question of whether the words are reasonably capable of conveying to
the ordinary reasonable reader that the defamatory material applies to the plaintiff.
Elements of defamation continues…
• In defamation proceedings, once the plaintiff proves that the defendant has published
defamatory material which refers to the plaintiff, two presumptions arise; namely, that
the publication is unlawful, and that the defendant acted with the intention to defame
the plaintiff.
• To succeed in defending the claim, the publisher must then rebut one or both of these
presumptions, by raising one or more of the defences. If the publisher is unable to prove
a defence, the plaintiff will succeed in their claim. The traditional grounds of lawful
justification are as follows:
• (i) the statement was true and published for the public benefit or in the public interest;
• (ii) the statement was protected comment (previously known as fair comment), being
made upon facts which were true, and which are matters of public interest;
• (iii) the statement was protected by privilege, including qualified privilege (eg because it
was made in the course of a fair and accurate report of the proceedings of a court,
Parliament or a public body);
Elements of defamation continues….
• (v) for secondary publishers, the defence of innocent dissemination

applies.
See the case of Smit v Windhoek Observer (Pty) Ltd and Another 1991 NR 327 (HC)).
See also the cases of Afshani and Another v Vaatz 2006 (1) NR 35 (HC)) and Marais v
Haulyondjaba 1993 NR 171 (HC)
Elements of defamation: Criminal liability.
• Aside from being a basis for a civil law suit, defamation can also lead to a criminal
prosecution.
• In Hoho v S the Supreme Court of Appeal confirmed that the common law crime
of defamation still exists in South African law and defined it as ‘the unlawful and
intentional publication of matter concerning another which tends to injure his
reputation.’
• The principle difference between civil defamation and criminal defamation is that
in order to obtain a conviction on a charge of criminal defamation, the State must
prove all the elements of the offence beyond reasonable doubt and not merely
on a balance of probabilities.
• Although a person charged with criminal defamation can raise all of the same
defences as in a civil case, there is no onus on the accused to disprove his or her
guilt; the onus remains on the state to prove guilt beyond a reasonable doubt.
Elements of defamation: criminal liability
continues…
Invasion of Privacy
• An invasion of privacy can occur in one of two ways, namely, either
through an unreasonable intrusion into or interference with a
person’s private sphere; or through unauthorised disclosure of private
facts. An invasion of privacy, besides constituting a civil wrong, can
also constitute a criminal offence, such as crimen injuria or
trespassing, or a breach of a certain statute.
Defences for criminal liability in relation to
invasion of privacy.
• The general defences or grounds of justification to an action for invasion of
privacy are truth for the public benefit (often referred to as the ‘public interest
defence’), and consent.
• (i) Regarding the public interest defence, the focus is usually on whether the
disclosure of the private facts was for the public benefit or in the public interest.
The public interest justification may either be because the private facts relate to a
public figure (though that will not in itself be sufficient to show public interest) or
because disclosure of the private facts is in the public interest.
• (ii) Regarding the consent defence, an individual may consent to the disclosure of
private facts either expressly or impliedly.
• Where the publication of private facts has already taken place, the primary
remedy available to a claimant is a claim for an award for damages. Where
publication has not yet taken place, an applicant may apply for an interdict
restraining publication of the private facts.

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Defamation

• (v) for secondary publishers, the defence of innocent dissemination

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