When does a defamation claim have merit?

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The Bill of Rights as contained in the South African Constitution protects human dignity. Defamation violates a person’s dignity, and more specifically his or her reputation or fama. It thus follows that a person who is defamed must have legal recourse to protect and vindicate their constitutional right.

A party who intends to claim for defamation must do so in terms of the common law rules and not rely directly on the Constitution. There are various requirements which must be met before one will succeed with a claim for defamation. These requirements are as follows:

  1. the statement must have been wrongful;
  2. the statement must have been intentional;
  3. the statement must have been published; and
  4. the statement must have been defamatory.

A statement will be regarded as defamatory if, “in the opinion of the reasonable person, the words have the tendency to undermine, subvert, or impair a person’s good name, reputation, or esteem in the community.”[1] A defamatory statement will thus be an insulting statement that negatively affects the way in which a person is seen by others.

A statement will be regarded as having been published if it is made to a person other than the aggrieved plaintiff or his or her spouse. Publication is furthermore not limited to speech or print, as photographs, sketches, cartoons and caricatures can also be regarded as defamatory. It is important to keep in mind that publication only occurs once the addressee understands the defamatory nature of the statement.[2]

The requirements of wrongfulness and intention shall be deemed to be present once a person has proven the publication of a defamatory statement. The court has stated in this regard that “[o]nce a plaintiff establishes that a defendant has published a defamatory statement concerning the plaintiff, it is presumed that the publication was both unlawful and intentional. A defendant wishing to avoid liability for defamation must then raise a defence which rebuts unlawfulness or intention.”[3]

There are certain defences available to a person against whom a claim for defamation has been instituted. These defences are aimed at rebutting the presence of one of the requirements listed above. A defendant will thus have to allege and prove that a statement was not defamatory in nature, or that it was not wrongful as the statement was reasonable and justifiable. There is a myriad of specific defences available to a defendant in a defamation case, which will be briefly considered.

The first defence often raised by media houses when confronted with a defamation claim is that the published statement is true and publication thereof is in the public interest. A media house or journalist could also raise the related public-media privilege defence if it is established that the statement was in fact false. The defendant must in this instance allege and prove that he or she had reason to believe that the statement was true and that he or she took reasonable steps to verify its correctness, and that the publication was accordingly reasonable.[4]

A defendant in a defamation matter may also raise the defence of fair comment. The defendant must then firstly allege and prove that the defamatory statement was a comment/opinion and not a statement of fact and that a reasonable person would have interpreted it as such. The defendant must furthermore allege and prove that the comment was fair, that the facts commented on were truly stated, and that it was of public interest.[5]

It is clear from the above that one must be careful when making accusations or statements which could have the effect of defaming another person. Social media and the internet, in general, have exacerbated the risks involved with making such statements as it is often instantly published to a broad audience. One should thus always ensure that statements are true and reasonable before making them.

Reference List:

  • Various case law (see footnotes)
  • Amler’s Precedents of Pleadings

[1] South African Associated Newspapers Ltd and Another v Yutar 1969 (2) SA 442 (A)

[2] Vermaak v Van der Merwe (1981) 1 All SA 432 (N)

[3] Khumalo v Holomisa [2002] ZACC 122002 (5) SA 401 (CC) para 18.

[4] Amler’s Precedent of Pleadings p 162.

[5] p 163.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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