Defamation law in South Africa is one of the most debated topics in our legal system, the reason being that South Africa is a democratic country founded on human dignity, equality and freedom of expression, to name just a few principles.

These founding provisions in our constitution, together with the relevant Human Rights provisions, make it difficult to find an equitable balance between these competing rights in defamation cases. We all agree that a free press is an important part of an open and democratic society but, at the same time, that false, unjustifiable attacks on an individual’s reputation are damaging and wrong. How do our courts find a balance between these competing rights?

First of all it is important to note that no right in the Constitution is an absolute right. The relevant section in the Constitution is Section 36, which provides for the limitation of rights in the following circumstances. The first requirement is that the law must be of general application. Secondly, the limitation must be reasonable and justifiable in an open democratic society. To determine when it will be reasonable the court will take certain factors into consideration, which is provided for in Section 36 of the Constitution. These factors include the nature of the right, the importance of the purpose of the limitation, the relationship between the limitation and its purpose, and whether less restrictive means were explored to achieve the purpose.

It is important to look at the relevant case law to understand how the courts interpret Section 36, as well as the balance problem between human dignity and freedom of expression, which are in direct conflict, especially when harmful, untrue statements are published in the media.

In the Supreme Court of Appeal case of National Media Ltd and Others v Bogoshi the court adopted the attitude that, although there is no constitutional value in false statements of fact, an erroneous statement of fact is nevertheless inevitable in free debate. The publication in the press of a false, defamatory allegation of fact will not be regarded as unlawful if, upon consideration of all the circumstances of the case, it is found to have been reasonable. When a court considers the reasonableness of the publication it will take into account the nature, extent and tone of the allegations, and “greater latitude” will usually be allowed in respect of political discussion. The Court held that the press should bear the onus of showing that the publication was reasonable under these circumstances.

The consequence of the Bogoshi judgement is that if a newspaper can show that a decision to publish was reasonable and justifiable, it will be able to avoid liability even in circumstances where the statements are false.

This reasoning was developed further in Sankie Mthembi-Mahanyele v Mail & Guardian Limited  where it was held that justifiability is to be determined by having regard for all relevant circumstances, including the interest of the public in being informed; the manner of publication; the tone of the material published; the extent of public concern about the information; the reliability of the source; the steps taken to verify the truth of the information (this factor would play an important role, too, in considering the distinct question whether there was negligence on the part of the press, assuming that the publication was found to be defamatory); and whether the person defamed has been given the opportunity to comment on the statement before publication. In cases where information is crucial to the public, and is urgent, it may be justifiable to publish without giving an opportunity to comment.

These judgements make it possible to strike a balance between the relevant conflicting rights contained in the Bill of Rights.

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.