The Status Of Criminal Defamation In South Africa

This article discusses the elements of defamation and how our domestic courts have dealt with the crimes of defamation in comparison to the rest of the world. It will further outline the South African current status with reference to the S v Motsepe 2015 (2) SACR 125 GP.

Background facts

Cecil Motsepe was a journalist at the daily newspaper the Sowetan. He was convicted in June 2013, sentenced to a fine of R10 000 or a suspended 10 month prison term wholly suspended for 5 years on certain conditions, in connection with an article he published in the Sowetan newspaper entitled “Spot the Difference. The article dealt with two sentences respectively imposed by magistrate Serfontein in the Meyerton magistrate court on a black male and white female for the same offence of drunk driving. In the article the journalist incorrectly alleged that the magistrate imposed a heavier sentence on the black male.

In reaching his conclusion, Mr. Motsepe relied on the information received from two court officials, the one known to court as Mr. Machimana, a lawyer who actually informed Mr. Motsepe that the magistrate lack consistency and in fact was biased when dealing with people of different races. Mr. Motsepe relied heavily on the information from Mr. Machimana because the proceedings were in Afrikaans and he could not properly follow what was happening. Upon receiving the information, he failed to verify it, even though there were a number of resources he could have utilized .The magistrate sued the journalist for defamation, alleging that the article was false and that it had irreversibly damaged his reputation. The appellant said that he relied on the information provided to him by Mr. Machimana as he had previously done so in the past without any repercussions and that at the time of the publication, he didn’t think the information was false and that it was in the public interest to publish the truth.

The court’s finding

The court considered the definition of criminal defamation as re-stated in the SCA case S V Hobo and concluded that the crime of defamation consists of the ”…unlawful and intentional publication of matter concerning another which tends to injure his reputation…”. The court went on to say that in order to establish whether the accused was acting unlawfully the state has to prove, beyond a reasonable doubt, that the accused knew he was acting intentionally or might possibly be acting unlawfully.

In dealing with the question whether the accused had acted intentionally and unlawfully to injure the reputation of the magistrate, the court a quo court held that the appellant was negligent in not taking further steps to verify the information he received in view of the fact that there were resources available to the appellant to utilize and ensure that the information published was correct.

The appeal court criticized the court a quo’s decision in that it was not supported by the evidence before the court, as it is not established that the appellant reconciled to the fact that the information could be wrong, instead the appellant relied on the truth of the statement and deemed it in the public interest to publish the facts. The court concluded that the court a quo failed to prove beyond reasonable doubt that the appellant had intentionally published the facts and the appeal was upheld with the conviction set aside.

A further parties to the appeal were coalitions of amici of prominent local and international organisations, advocating for the freedom of media and freedom of expression. They were granted leave to intervene in the proceedings and they brought in an application to challenge the constitutionality of criminal defamation in that it infringes on the right to freedom of expression (Constitution of the Republic of South Africa, section 16) and they submitted that the court must develop it to be in line with the constitution. In their application they requested that criminal defamation be limited to defamatory statements made by persons who are not members of the media.

They further submitted that criminal defamation is inconsistent with the constitution and amounts to an unjustified limitation in terms of the right to freedom of expression.

The amicus council further argued that the crime of defamation stifled or created a chilling effect on investigative public journalism in that it undermined the role played by the media in our democratic society.

 

The court in reaching its decision had the following reasoning:

it first emphasized the important role played by the media in our constitutional democracy. However when dealing with defamation, there is a balancing of interests between the right not to be defamed and the right to freedom of expression.

The court further held that the right to freedom of expression is not of paramount value and it must be construed in light of other rights in the constitution. The right to freedom of expression is also subject to section 36 of the Constitution.

The court also held that declaring criminal defamation unconstitutional undermines the constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. The judge further expressed his view that a criminal sanction is a drastic measure however it is counter balanced by the burden of proof placed upon the state to prove the requirements beyond a reasonable doubt.

The court further emphasized that criminalization of defamation is not inconsistent with the constitution because it will ensure that society is discouraged from the intentional publication of defamatory statements, whilst restoring the reputation of the victim.

It totally disregarded the amicus reliance on international instruments in that it does not find application in the South African context, where both the media and citizens enjoy the full benefit of the law and the constitution.

“The court concluded that even though the crime of defamation undoubtedly limits the right to freedom of expression, such limitation is reasonable in an open and democratic society and consistent with the criteria laid down in section 36 of the Constitution.”

Based on this case we see a trend where our local court has declared that criminal defamation is constitutional despite a worldwide outcry. It has totally disregarded African developments and a recent Constitutional case in Zimbabwe which set precedent and declared criminal defamation unconstitutional.

This case read together with S v Hoho demonstrates a clear indication that our court are reluctant to develop the law and is actually taking a step backward in the decriminalisation of defamation. This is a predicament which can be described as a missed opportunity, especially in light of the current bill that is being debated in Parliament to decriminalise defamation.

By Boitumelo Shongwe
boitumelo@dayson.co.za