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By Zimri Attorneys

There are many recent examples of individuals who have made disparaging remarks on a public platform and have had to pay the consequences. This shows an unmistakable need for greater understanding about the link between the right to express yourself and the responsibility to behave conscientiously and respect other people’s rights. Therefore, one must always keep in mind that this right is not unfettered as there is a corresponding responsibility attached thereto. The repercussions of disparaging remarks may result in a claim for defamation and the payment of hefty damages.

Defamation is simply defined as the act of damaging or infringing the good name and reputation of another. The four elements of defamation are: (a) the wrongful and (b) intentional (c) publication of (d) a defamatory statement concerning the Plaintiff.  It is not a prerequisite for the Plaintiff to establish every one of these elements in order to succeed. All the Plaintiff is required to prove at the outset is the publication of a defamatory statement which concerns him/her. Once the Plaintiff has accomplished this, it is presumed that the statement is both wrongful and intentional.

Once defamation has been established, the onus is on the Defendant to raise a defence in order to avoid liability. There are three possible defences available against defamation: firstly, that the statement is true and in public interest; secondly, that the statement is seen as fair comment and thirdly, that the statement is made on a privileged occasion (a certain relationship exists between the parties concerned).

In the adjudication thereof, the Court is required to balance the constitutional rights of dignity and privacy on one hand, and that of freedom of expression on the other. The established principle in South Africa which states that any person who repeats, confirms or draws attention to a defamatory statement will be held responsible for its publication, can result in far reaching consequences with social media and other forms of mass communication which are now ubiquitous. The Defendant can be ordered by the Court to pay hefty damages to the Plaintiff.

The damages would be calculated on the basis of the harm done to the Plaintiff’s reputation. It is not required of the Plaintiff to prove any actual loss in order for the Court to assess the damages claimed. The assessment depends largely on the views of the respective Judge who is guided by the doctrine of judicial precedent; and other factors such as the nature and extent of the publication, the presence of malice, the presence or absence of an adequate apology and/or the social status of the Plaintiff whose reputation was allegedly damaged.

Previously, the only remedy available to the Plaintiff was damages under common law. The Plaintiff was therefore unable to sue for an apology even in circumstances where it would have been the most effective method of restoring dignity. In the of case of Le Roux v Dey (CCT 45/10) [2011] ZACC 4, the Respondent was defamed by means of an image associating him with an indecent and sexually suggestive situation. The Respondent in this case had submitted to the Constitutional Court (CC) that the case was not about money for him, but rather about the restoration of his dignity. In its judgment, the CC submitted that our law should be developed in such a manner that the re-establishment of relationships destroyed by infringements of dignity should preferably occur before matters reached a Court. The CC thus ordered an apology in addition to damages amounting to R25 000.  

In the case of Economic Freedom Fighters and others v Manuel (Media Monitoring Africa Trust as amicus curiae) [2021] 1 All SA 623 (SCA), one of the issues considered by the Supreme Court of Appeal (SCA) was whether an apology and retraction as ordered by the Court would be appropriate in the circumstances. In reaching its findings, the SCA referred to Le Roux v Dey and held that the case does not suggest that publication of a retraction and/or an apology may be ordered on its own and not in conjunction with an award of damages. It found that the question of whether an order for an apology should be made is inextricably bound up with the question of damages.

Although our courts have stated that other remedies should be available in the context of defamation, i.e., an apology and/or retraction on its own, damages still seem to largely flow to the successful claimant/Plaintiff.  Ultimately it is always best to err on the side of caution as even though such litigation may prove lengthy and costly, our courts have been shown to consistently award damages to Plaintiffs.