Theme 2 (Chapter 6)

Question 1

What is the dignity delicts of defamation deal with?

Answer 1

Dignity delicts of defamation deal with speech that infringes a person’s reputation (defamation) and self-esteem (insult)

Question 2

What is an infringement of a single personality right called?

Answer 2

An infringement of a single personality right is called an iniuria.

Question 3

What are the three substantive stages in the adjudication of dignity injuries, in terms of common law?

Answer 3

• A prima facie stage - Tasked to determine whether the requirements for a specific dignity delict have been met. The victim is required to only prove certain elements or requirements of a dignity delict to establish a prima facie case.
• A justification stage - Tasked to determine if any defences are available to the alleged wrongdoer to rebut an existing prima facie case. Mainly focus on the defences that are applicable
• A remedy stage - Tasked to evaluate and advise a victim, after a prima facie case of common law dignity injury has been established without any justification, which remedies are available to them.

Question 4

What is the difference between self esteem and reputation?

Answer 4

A wrongdoer must make defamatory allegations about the victim to other individuals, as a reputation is observed from third parties. Self-esteem, on the other hand, is observed internally by the victim.

Question 5

How is defamation found?

Answer 5

Khumalo defines defamation in common law is as the wrongful and intentional publication of defamatory material about the plaintiff

Question 6

What are the elements of common law?

Answer 6

In Khumalo, the common law, the elements of delict defamation are:
- The wrongful and
- Intentional
- Publication of
- A defamatory statement
- Concerning the plaintiff

Question 7

Which of the two factors can be assumed if a prima facie case of defamation is established according to Khumalo?

Answer 7

In the Khumalo case, it is held that once a plaintiff establishes that a defendant has published a defamatory statement concerning the plaintiff, it is presumed that the publication was both wrongful and intentional. A defendant wishing to avoid liability for defamation must then raise a defence which rebuts unlawfulness or intention.

Question 8

In the Khumalo what is stated about the common law defamation?

Answer 8

In the Khumalo case, stated that the common law of defamation permits a plaintiff to recover damages for a defamatory statement without establishing the falsity of the defamatory statement; it does not directly protect a powerful constitutional freedom of expression. At the heart of the constitutional dispute lies the difficulty of establishing the truth or falsehood of defamatory statements.

Question 9

What does the defence of the reasonable publication test help aviod?

Answer 9

The defence of the reasonable publication test as established in Bogoshi, helps avoid a winner-takes-all result and establishes a proper balance between freedom of expression and the value of human dignity.

Question 10

In the Bogoshi case what was held that about the defence of reasonableness?

Answer 10

In Bogoshi’s case, the defence of reasonableness in determining whether the publication was reasonable, a court will have regard to the individual’s interest in protecting his or her reputation in the context of the constitutional commitment to human dignity. It will also have regard to the individual’s interest in privacy.

Question 11

What was held in Le Roux case, about publication?

Answer 11

In Le Roux case, publication is defined as communication to at least one person other than the plaintiff. It may take many forms, such as speech or print, photographs, sketches, cartoons or caricatures.

Question 12

What are the facts in Tsati?

Answer 12

In Tsatsi case, a registered trade union drafted a document in which it stated that a particular Magistrate’s Court manager and interpreter “embraced fraudsters” as opposed to “rooting them out”. This particular document was distributed to NEHAWU members (the original publication), and some of the members redistributed the document to other non-members (the republication). The Court had to consider the liability of NEHAWU for the original publication and subsequent re-publication and the liability of those who re-published the original document.

Question 13

What was held in Tsati?

Answer 13

The court held that the NEHAWU was not responsible for the republication as liability for republication arises when the original author provided authorisation for further publication.

Question 14

What are the exceptions to internet publication as stated in s70-77 Electronic Communications and Transactions Act 25 of 2002?

Answer 14

ISPs can escape liability (or not be regarded as a publisher) when they:
- Belong to a representative body of ISP’s in South Africa.
- Comply with due diligence conditions as set out in the Act

Question 15

When dealing with the conduct of the plaintiff what are two issues we need to determine?

Answer 15

When dealing with the conduct of the plaintiff, we need to determine two issues:
- Does the victim have the ability to be defamed (dealt with in Reddell)
- Whether the publication referred to the victim (dealt with in Sauls)

Question 16

Which victims have the ability to be defamed?

Answer 16

The general rule is that all natural persons are capable of being defamed, juristic persons, are capable of being defamed in limited circumstances, as stated in Reddell

Question 17

What are the facts in Reddell case?

Answer 17

In Reddell case, a group of “environmentalists” (the wrongdoers/defendants) who allegedly made defamatory allegations against Australian mining companies (the victims/plaintiffs) who are engaged in extensive mining operations in the exploration and development of major mineral sands projects in South Africa. The environmentalists alleged that the mining companies were involved in “duplicitous and unlawful mining operations which were ravaging the environment”. In response, the mining companies instituted a defamation action against the environmentalists. In turn, the environmentalists raised a special plea attacking the constitutionality of awarding non-patrimonial or general damages to a juristic person in a defamation action.In this judgment, the court considered whether a juristic person is capable of being defamed, albeit through a constitutionality issue.

Question 18

What was held in the Reddell case?

Answer 18

Companies have reputational interests however, they don’t have a right to dignity. Instead, dignity protects human beings’ reputational interests because the protection of those interests is necessary to ensure that a specific purpose is realised. A company’s reputational interest is sufficiently protected by the common law, and therefore , does not enjoy the protection of a constitutional guarantee. A juristic person is capable of being defamed but its claim for damages is precarious.

Question 19

What was held in SA taxi SCA case?

Answer 19

In SA Taxi, the Supreme Court of Appeal affirmed that at common law, a trading corporation has a right to the protection of its reputation

Question 20

What are the facts in Sauls case?

Answer 20

The Sauls case, deals with group defamation. In this case, Hendrickse, during a press conference, made the following statement: “It had been shown that office bearers of the National Automobile and Allied Workers Union (NAAWU) were involved behind the scenes in the unrest” at certain so-called “coloured schools” in the Port Elizabeth and Uitenhage areas. Consequently, some of the office bearers of NAAWU instituted a defamation action against Hendrickse for the statement. The attendant issue in this case was that none of these office bearers were mentioned individually in the statement and it was questioned whether there was a causal connection between the statement and the office bearers.

Question 21

What was held in Sauls case?

Answer 21

The Sauls case held that in group defamation to succeed in their action, the applicant must establish that the words complained of would lead an ordinary, reasonable person acquainted with them to believe, on reading the statement, that such words referred to them
personally. The test is therefore an objective one, and the actual intention of the respondent is irrelevant. They must also prove that, as a member of such a group, he was included in the defamatory statement

Question 22

When is a vicitm identifiable from a publication as stated in Sauls?

Answer 22

A victim is identifiable from a publication when the publication specifically refers to the victim by name or when a reasonable person would identify the victim from the context and surrounding circumstances of the publication, according to Sauls

Question 23

What was held in Dhlomo case?

Answer 23

In the Dhlomo case, the court held that it would be wrong to demand that a corporation which claims for an injury done to its reputation should provide proof of actual loss suffered by it when no such loss is required of a natural person who sues for an injury done to his reputation

Question 24

What are the facts in Mthembi?

Answer 24

In Mthembi case tells the story of the Mail and Guardian newspaper, which published a so-called “report card” detailing the efficacy of a cabinet minister for a certain year. In response to this, one of these cabinet ministers, Sankie Mthembi, who was the minister of housing then, claimed that the newspaper defamed her by providing an unflattering “report card” and instituted defamation proceedings against the newspaper. Accordingly, the Mail and Guardian argued that the government and individual members of the government cannot sue for defamation as citizens should be free to criticise the government as protected by various rights, such as the right to freedom of expression. The question was whether the rule included the individual reputations of members of government.

Question 25

What is held in Mthembi?

Answer 25

When dealing with political speech in particular circumstances, the publication of defamatory statements about a cabinet minister (or any member of government) may be justifiable in the particular circumstances and therefore not unlawful

Question 26

What was held in Le Roux case about the defamatory effects?

Answer 26

In Le Roux it was held that there are two requirments to the defamatory effect of a publication: the meaning of the publication must be established and it must be established whether the meaning of the publication harmed the reputation of the victim

Question 27

What does Le Roux case say about the community good name?

Answer 27

In Le Roux case, since a person is part of society and, by nature, a social creature, the esteem in which he is held by others with whom he is in contact is particularly important to him. Any action which tarnishes or lowers a person’s reputation within the community infringes on their good name.

Question 28

What was held in Le Roux about the meaning of defamation?

Answer 28

In Le Roux it was held that there are two meanings: the primary, which a reasonable person would have gotten to, and this can be implied and the secondary one is based on special context, innedieo. In establishing the ordinary meaning, the court is not concerned with the meaning that the maker of the statement intended to convey. In applying this test, it is accepted that the reasonable reader would understand the statement in its context and that he or she would have had regard not only to what is expressly stated but also to what is implied. In applying this test, it is accepted that the reasonable reader would understand the statement in its context, and that he or she would have had regard not only to what is expressly stated but also to what is implied

Question 29

What was held in Basner about the innuendo of defamatory words?

Answer 29

In Basner, it was held that the test looked at when relying on the innuendo of words, is whether a reasonable person of average intelligence and education with knowledge of the circumstances pleaded in the declaration might reasonably have understood them in the sense assigned to them in the innuendo.

Question 30

What was held in Tsedu v Lekota about a reasonable reader?

Answer 30

In Tsedu v Lekota it was held that when dealing with an article a reasonable reader would have read the article and therefore it cannot be taken in isolation. The statement must be taken into account with the context

Question 31

What was held in the isparta case?

Answer 31

Isparta case, it is held that a person tagged in a defamatory social media post may be held liable if they are aware of the post and allow their name to be associated with it.

Question 32

What are the facts in the Mohammed case?

Answer 32

In Mohamed v Jassiem, the victim, Jassiem, was called a "supporter of Ahmadis," which was considered highly insulting to a Muslim in the Western Cape. The case revolved around whether calling Jassiem a sympathiser with the Ahmadis was defamatory. The court had to consider the meaning of this statement within the specific context of the Western Cape Muslim community.

Question 33

What is held in the Mohammed case?

Answer 33

The court determined that a statement could be defamatory even if it only lowers the esteem of the person in the eyes of a particular segment of the community, rather than the public at large as long as the norms are not contra bonos mores or anti-social. The court considered that the statement implied Jassiem was a non-Muslim, disbeliever, and apostate, who should be denied admittance to mosques and Muslim burial grounds and with whom marriage is prohibited under Muslim law. The court found that the evidence proved this innuendo. The gist of the judgment is that the court upheld the defamation claim, finding that falsely labelling someone a sympathiser of Ahmadis within the Western Cape Muslim community was defamatory because it lowered his esteem within that specific community.

Question 34

What was held in Le Roux case about the prima facia case of insult?

Answer 34

Le Roux holds that a prima facia case of insult is one that infringes on a person's self-esteem or self-worth

Question 35

When is the prima dacie case of delict according to De Lange?

Answer 35

A prima facie case of delict is established according to De Lange when: - A factual violation of their self-esteem (this requirement is subjective) - Wrongfulness, - A rebuttable presumption of intent arises.

Question 36

What was held in the Delange case about what the requirements of liability for the delict of insult?

Answer 36

In Delange case it was held that the requirements of liability for the delict of insult are: - There must be a factual violation of the victim’s self-esteem; - This factual violation must be wrongful; - This factual violation must be intentional.

Question 37

What was held in Dendy case?

Answer 37

In Dendy it was held that the factual violation must be objectively humiliating and to determine this, we must establish whether a reasonable observer would also have felt humiliated.

Question 38

When does a factual violation occur?

Answer 38

A factual violation occurs when a victim’s self-esteem is infringed through insulting behaviour which causes the victim to feel humiliated (contumelia). The insulting behaviour must be directed to the victim and it is not required that third parties observe this or that the insulting behaviour is communicated to any other person than the victim

Question 39

What are the grounds for justification in respect of common law dignity injuries?

Answer 39

- The defence of truth for the public interest - The defence of protected comment - The defence of privileged occasion - The defence of reasonable publication

Question 40

What is the principle for the defence of truth for the public intrest?

Answer 40

The defence of truth for the public interest - the defendant’s publication contained factual allegations of which the truthfulness can be proven.

Question 41

What is the principle for the defence of protected comment?

Answer 41

The defence of protected comment - the defendant’s publication contained an opinion of which the truthfulness of the factual basis of such an opinion can be proven.

Question 42

What is the defence of priileged occasions?

Answer 42

The defence of privileged occasion - The circumstances under which the defendant made the publication are protected not the content.

Question 43

What is the defence of reasonable publication?

Answer 43

The defence of reasonable publication - the defendant’s publication contained a factual allegation or an opinion of which the truthfulness of its factual basis cannot be proven

Question 44

In the defence for truth fot the public intrest what must the wrongdoer prove?

Answer 44

Defence for truth for the public interest is the wrongdoer must prove that the words were substantially true (the material facts of the allegation must be true) and must be in the public interest.

Question 45

What are the facts in Suliman?

Answer 45

Independent Newspapers Holdings v Suliman case, is about a newspaper story in Cape Times these articles named Walleed Suliman as a suspect, included his photograph in the write-up, and stated that he had been arrested and detained overnight by the police in connection with the bombing. The court had to examine the scope and limitations of the truth and for public interest defence, given the competing constitutional considerations at stake.

Question 46

What was held in Suliman case about reading text?

Answer 46

It was held in Suliman that when reading a defamatory statement, it is held that you should read the defamatory text as a whole rather than as separate pieces in order to determine whether it is substantially the truth.

Question 47

What does Suliman say about public intrest test?

Answer 47

In Suliman the public interest criteria allows for considerable elasticity in its application and is woefully unhelpful in allowing any indication of what is meant of public benefit or interests, the court will determine this on a case-by-case basis. The test of public interest or benefit is objective

Question 48

What was held in the Suliman case?

Answer 48

It was held that the consequences of a premature disclosure of the identity of a suspect can be so traumatic for and detrimental to the person concerned when they are never charged and that greater weight should be assigned to the protection of the constitutional right to dignity and privacy and the common-law right of reputation, than to the right of the press to freely impart information to the public in this instance.

Question 49

What are the factors to be considered to determine if the information is in the public interests, as stated by Suliman?

Answer 49

- Doesn't mean informationthat the public will find interesting or entertaining - When considered reasonable for the public to have the information, it will enable them to make informed decisions - The status of the victim is important, public figures should be able to endure more scrutiny than individuals - New worthy or public interest events such as crimes, natural disasters and scandals of public concern - The reasonable observation test will be applied

Question 50

What is the defence of protected comment refer to?

Answer 50

Defence of protected comment refers to the rights of citizens to express their genuine opinions on a matter of public interest to enable debate, even though the debate may be biased, extreme or exaggerated

Question 51

What must the wrongdoer do to establish the defence of protected comment?

Answer 51

This becomes available when the wrongdoer made a defamatory publication containing an opinion or comment that can be proven to be true.

Question 52

What is the facts in McBride case?

Answer 52

McBride case tells the story of Robert McBride, who had been an operative for Umkhonto we Sizwe, the armed wing of the ANC. In 1986, he carried out a car bombing outside a bar in Durban that killed three and injured 69. He was found guilty of murder and sentenced to death; however, in 1997, he applied for amnesty under the Reconciliation Act, and it was granted in 2001. In 2003, McBride was a candidate for head of the Ekurhuleni Metro Police. The Citizen newspaper published articles and editorials questioning his suitability for the position. The articles stated that he was unsuitable for the post; called him a “criminal” and a “murderer,” sometimes without mentioning the amnesty, and referred to the car bombing. McBride sued the Citizen, its editor and the journalists who had written the articles for defamation stating that having received amnesty it was not permissible for the media to label him a “murderer”; that the Citizen’s coverage was malicious; and that the articles would be understood by readers of the Citizen to mean that he was a criminal because he had made common cause with gun dealers in Mozambique. The Citizen and its journalists argued that the articles were protected as “fair comment”; they related to matters of public interest, specifically, whether McBride was suited to a job with the police, and the facts on which the comments were based were true.

Question 53

What was held in the McBride case?

Answer 53

The Court examined the scope and limitations of the “fair comment” defence, which the Court relabelled as “protected comment”. Once the contention of malice fails, aside from the claim that Mr McBride was not contrite, the bulk of the Citizen's comment was based on facts that were adequately stated, and that fell within the bounds of constitutionally protected comment. The Citizen's claim that Mr McBride lacked contrition was therefore unfounded and false. Alternatively, if the Citizen wished to express the view that Mr McBride was not contrite, it was obliged to inform its readers of the facts underlying its opinion, since they were not notoriously known. Except for the false accusation that Mr McBride lacked contrition, the appeal must therefore succeed

Question 54

What are the requirmets for the defence of protected comment?

Answer 54

McBride case states that it has four requirements for the defence of a protected comment - The defamatory statements must be comments or opinions - The factual allegations being commented upon are true - The comments relate to a matter of public interest - It must be ‘fair’

Question 55

What does the requirment fair in the requirment of a protected comment mean?

Answer 55

McBride states that the use of the term fair to describe the defence needs to be fair in the sense that it qualifies as an honest, genuine, though possibly exaggerated or prejudiced opinion in light of the facts it was based, without malicious intent. The comment being fair, doesn't mean it has to be well-balanced, but a reasonable reader must see that it is honest, genuine and without malicious

Question 56

What was held in the Dikoko case?

Answer 56

In Dikoko case, it was held that comments made during parliamentary debates are covered by absolute privilege.

Question 57

What must be met in the defence of qualified privilege to succeed?

Answer 57

In the defence of qualified privilege to succeed, the following requirements must be met: - The occasion under which the publication was made is privileged - The publication is relevant to the purposes of the occasion - The person is not motivated by malice, which is determined through the criterion of reasonableness.

Question 58

What was held in Van der Berg case?

Answer 58

In Van der Berg v Coopers reports on such judicial proceedings, or exercising a right or discharging a duty

Question 59

What was held in Bogoshi case?

Answer 59

Bogoshi case, tells the story of National Media, the owner and publisher of the weekly newspaper the City Press, who had been sued for defamation alongside the editor, distributor, and printer of the City Press. The newspaper had published a series of articles between November 1991 and May 1994 which alleged that Nthedi Bogoshi, an attorney in South Africa, had defrauded his clients, had touted for business and was under investigation by the Auditor-General. In the High Court, National Media had initially pleaded that its defence to the suit was that the alleged defamatory statements were true. It then sought to amend its pleadings and introduce three additional defences. The crucial aspects of these additional defences were that the newspaper had not intended to defame Bogoshi, that it had not acted negligently and given that the Interim Constitution had recently been adopted, that the publication of the articles was lawful and protected under the freedom of speech and expression clause in the Constitution. Accordingly, the court considered the defence of “reasonable publication”, the fault requirement, and the difference between media and non-media defendants.

Question 60

What was held in the Bogoshi case?

Answer 60

Bogoshi acknowledged that the media has an important role in a democratic society, as they inform the public of matters of public interest, adding to the public opinion. The court warned that they must uphold this duty and cannot unlawfully attack an individual or business knowingly and untrue. Bogoshi decision, that the defence of reasonable publication was explicitly based on the lawfulness of the publication, and negligence might be determinative of its lawfulness.

Question 61

When will the publication an untruth not be regarded as wrongful?

Answer 61

The publication of an untruth will not be regarded as wrongful, taking into account the relevant circumstances of the case, if it is found to be reasonable to publish the particular facts, in a particular way, at that particular time

Question 62

What was held in EFF v Manuel case?

Answer 62

EFF v Manuel it was held that the defence is only available to media defendants and not ordinary members of the public. It is only available to the media when they are unable to prove the truthfulness of a publication but act reasonably.

Question 63

What are the factors we should look at when determining if the media acted reasonably?

Answer 63

In Bogoshi the court stated that when determining if the media acted reasonably, we should look at a range of factors which are not a closed list of factors - Publication related to matters of public interest - Greater latitude is given to matters related to political discussion - Whether the publication contained unnecessary defamatory wording - The nature of the information-gathering process and verification used - Whether the media gave the victim the opportunity to respond to the information before publication - The need to publish defamatory information, in order to establish the truth by looking at the timing of the publication

Question 64

What was held in Lange v Australian case?

Answer 64

In Lange v Australian Broadcasting Corporation case, the requirement for the defence of reasonable protection of an untruth is that reasonableness of conduct as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, so far as they were reasonably open, to verify the accuracy of the material

Question 65

What is the three-stage test in the Reynolds case to determine whether any individual occasion is privileged?

Answer 65

In the Reynolds case, preferred a three-stage test to determine whether any individual occasion is privileged: - The duty test - The interest test - The circumstantial test

Question 66

What is the duty test?

Answer 66

The duty test: Was the publisher under a legal, moral or social duty to those to whom the material was published (which in appropriate cases may be the general public) to publish the material?

Question 67

What is the intrest test?

Answer 67

The interest test: Did those to whom the material was published have an interest in receiving that material?

Question 68

What is the circumstantial test?

Answer 68

The "circumstantial test" poses the question: Were the nature, status and source of the material, and the circumstances of the publication, such that the publication should in the public interest be protected in the absence of proof of express malice?

Question 69

What does the Le Roux case state about forsability of wrongfulnes?

Answer 69

In Le Roux case, it was held that the person using this defence bears the onus of establishing that defence of absence of knowledge of wrongfulness on a preponderance of probabilities, it further established principles of our law that dictate that motive to raise a laugh and not to injure, in itself, would not exclude animus iniuriandi. In our law motive does not necessarily correlate with intent. A defendant who foresaw the possibility that his attempt at humour might be defamatory of the plaintiff, but nonetheless proceeds with the attempt, will have animus iniuriandi or intent in the form of dolus eventualis.

Question 70

What are the defences exusing intent in common law?

Answer 70

- Jest is where the wrongdoer’s injurious conduct was intended as a joke and not directed at injuring the victim’s reputation or self-esteem. In these circumstances, it was originally argued that the defendant lacked direction of will as an essential component of animus iniuriandi. However, courts added an objective consideration to jest and required that a reasonable bystander should also have regarded the conduct in question as a joke and branded this as “legitimate jest”. - Mistake where wrongdoers are unaware of the wrongfulness of their injurious conduct because, they think or believe their conduct is lawful.

Question 71

What is held in the Maisel v Van Naeren case?

Answer 71

In Maisel v Van Naeren, the plaintiff reasonably believed that when he published the defamatory material, a ground of justification existed that negated the publication’s wrongfulness. As such, he lacked knowledge of wrongfulness as one of the components of animus iniuriandi.