THE LAW OF DEFAMATION

We all have the Right to freedom of Expression, however itโ€™s important to know that this right is limited {Sec 36(1) of the Constitution}. When one exceeds their limitations it can result in the defamation of another persons good name.

๐——๐—˜๐—™๐—”๐— ๐—”๐—ง๐—œ๐—ข๐—ก occurs when someone unlawfully and intentionally publishes a defamatory statement concerning you that lowers your good name and reputation in the eyes of the community.

In order for someone to succeed in a delictual claim for defamation, there are 3 elements that need to be present.

1. Wrongfulness

2. Intention and

3. Publication

๐—ช๐—ฟ๐—ผ๐—ป๐—ด๐—ณ๐˜‚๐—น๐—ป๐—ฒ๐˜€๐˜€: as an element of defamation is the infringement of a persons right to his good name and reputation.

๐—œ๐—ป๐˜๐—ฒ๐—ป๐˜๐—ถ๐—ผ๐—ป: the person making the statement must have had the intention to damage the other persons good name.

๐—ฃ๐˜‚๐—ฏ๐—น๐—ถ๐—ฐ๐—ฎ๐˜๐—ถ๐—ผ๐—ป: a defamatory statement must be published or made known to a third party or more. This includes communications made verbally and written; including any and all social platforms such as watsapp, twitter, Instagram etc.

Any person who repeats or confirms these defamatory statements can indirectly be held responsible for the publication thereof!!!

Please note: the law does not require the statement to be false in any way. You can be defamed with the truth.

In SA law, there are ๐Ÿฏ ๐—ฑ๐—ฒ๐—ณ๐—ฒ๐—ป๐˜€๐—ฒ๐˜€ that can justify a defamatory statement:

1. If the statement is true and in the public interest

2. The statement is seen as a fair statement and

3. If the statement is made on a privilege occasion (attorney-client relationship)

The person who is instituting a civil claim for defamation can ask the court for damages. A detrimental effect on the psyche or sensory feelings can be regarded as an infringement of body integrity.

In determining quantum, the court must have regard to: – the seriousness of the defamation – the nature and extent of publication – the reputation, character and conduct of the plaintiff and – the motives and conduct of the defendant {Vide muller v SA Associated newspapers}. There is no set amount that is awarded for damages. It is purely at the discretion of the court.

In the past the following monetary awards were issued by SA courts: In Mthimunye v RCP Media and another, an amount of R35 000 was awarded to a Municipal Manager about whom a report was published in the City Press about alleged sexual harassment of a secretary in his office. In De Flamingh v Pakenodorf en Andre an amount of R2500 was awarded to an Advocate for defamation by a defendant who published a libellous report. In the recent case of Manuel v EFF and others 2019 the High courts award of R500 000 in general damages in favor of Mr Manuel, is one of the largest awards for a defamation case.

Itโ€™s very important to be cognizant of the limitations present on what we can say in public!

29 thoughts on “THE LAW OF DEFAMATION”

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