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Saying, publishing, or posting defamatory statements about another person or entity can have serious consequences for the person releasing the statement.

Defamation is a delict under South African law that is concerned with the protection of a person’s reputation. It is a serious matter that can have devastating consequences for an individual or business. Defamation can also amount to a criminal offence and will be referred to as criminal defamation to make the distinction. The difference between civil and criminal defamation, inter alia, lies within the burden of proof. In civil matters defamation is proven on the balance of probabilities, while in criminal matters the burden of proof is beyond a reasonable doubt.

In this article, we will examine defamation in South African law, including the relevant legislation, leading case law, and the remedies available to victims of defamation.

Defamation can be defined as the wrongful and intentional publication of a statement that injures a person’s reputation. It can be divided into two categories: libel and slander. Libel refers to written or permanent forms of communication, while slander refers to spoken or temporary forms of communication.

The main legislation governing defamation in South Africa is the common law, which is based on judicial decisions rather than statutory law. However, the Constitution of South Africa provides for freedom of expression, which is a fundamental right that must be balanced against the right to dignity and reputation.

The leading case on defamation in South Africa is the case of National Media Ltd and Others v Bogoshi, which established the elements of defamation. In this case, the court held that a statement is defamatory if it is published to a third party, it refers to the plaintiff, it is wrongful, and it causes harm to the plaintiff’s reputation.

To establish defamation, the plaintiff must prove that the statement was false and that it was made with the intention to injure the plaintiff’s reputation. The plaintiff must also prove that the statement was published to a third party and that it caused harm to their reputation.

If a person is found guilty of defamation, there are a number of remedies available to the victim. These include damages, an interdict, and a retraction or correction. Damages are the most common remedy in defamation cases and are awarded to compensate the victim for any harm suffered as a result of the defamation.

In South Africa, there are two types of damages that can be awarded in defamation cases: general damages and special damages. General damages are awarded for the harm suffered by the victim’s reputation, while special damages are awarded for any financial losses suffered as a result of the defamation, such as lost income or business opportunities.

In addition to damages, the victim of defamation can also seek an interdict to prevent the publication of further defamatory statements. An interdict is a court order that prohibits a person from taking a particular action, such as publishing defamatory statements.

Finally, a retraction or correction can be requested by the victim of defamation. This is a statement made by the defendant acknowledging that the statement was false and apologising for the harm caused to the victim’s reputation. The victim also has the option of laying criminal charges for defamation.

In conclusion, defamation is a serious matter in South African law, and victims of defamation have a number of remedies available to them. The relevant legislation and leading case law provide a framework for determining whether a statement is defamatory and the extent of harm suffered by the victim. While freedom of expression is a fundamental right, it must be balanced against the right to dignity and reputation, and those who engage in defamation must be held accountable for their actions.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

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