S v Hoho

• Jurisdiction: South Africa
• Citation: 2009 (1) SACR 276 (SCA)

S v Hoho
2009 (1) SACR 276 (SCA)

2009 (1) SACR p276

Citation	2009 (1) SACR 276 (SCA)
Case No	493/05
Court	Supreme Court of Appeal
Judge	Streicher JA, Heher JA, Mlambo JA, Cachalia JA and Kgomo AJA
Heard	August 15, 2008
Judgment	September 17, 2008
Counsel	C Ploos van Amstel SC (with PW Nel (attorney) for the appellant, instructed by the Justice Centre, King William's Town and Bloemfontein.; MPZ Sotenjwa for the respondent.; GJ Marcus SC (with S Budlender) as amici curiae.

Flynote : Sleutelwoorde

Defamation — Whether abrogated by disuse — Abrogation by disuse based on E tacit repeal 'through disuse by silent consent of whole community' — Fact that no convictions of criminal defamation under common law reported since 1953 not indicative of abrogation — Reported prosecutions in 1979, 2002 and 2006 not resulting in conviction — However, unsuccessful attempt by prosecutor to secure conviction hardly constituting conclusive F proof of attitude of community — SA Law Commission report in 1982 containing no suggestion that crime abrogated — No suggestion from academic quarters that offence abrogated by disuse, even where writers concerned themselves favouring its abolition — Consequently, it could not be said that criminal defamation repealed as crime by silent consent of whole community.

G Defamation — Elements of offence — Unlawful and intentional publication of matter concerning another which tended to injure his or her reputation — state having to prove unlawfulness and intention — However, State not having to negative merely hypothetical defences — Necessary for accused whose defence was that allegedly defamatory publications true and made for public benefit, to plead such defence as required by s 107 of Criminal H Procedure Act 51 of 1977 — Degree of seriousness not element of offence — Practice of confining criminal proceedings for defamation to serious and aggravated cases not legal rule.

Defamation — Whether offence consonant with Constitution — Although freedom of expression fundamental to democratic society, not paramount I value — law of defamation designed to protect reputations — In doing so clearly limiting right to freedom of expression — Although criminal conviction and sanction arising therefrom more severe than order to pay damages, limitation of right to freedom of expression not more severe — criminal conviction where accused having knowingly acted unlawfully constituting reasonable limitation on right to freedom of expression — J Accordingly, crime of defamation not inconsistent with Constitution.

2009 (1) SACR p277

Headnote : Kopnota

The appellant was convicted of 22 charges of criminal defamation, stemming A from his having published various leaflets defaming certain political office bearers and officials in the Eastern Cape. On appeal to the Supreme Court of Appeal the only two questions requiring determination were: (1) whether or not the offence of criminal defamation had been abrogated by disuse, and if not, (2) whether or not it was consonant with the Constitution of the Republic of South Africa, 1996. B

As to question (1)

Held, that the basis of the doctrine of abrogation by disuse was tacit repeal 'through disuse by silent consent of the whole community'. It was therefore necessary to consider whether it could be said that the South African community had tacitly accepted that defamation should no longer constitute C a criminal offence. (Paragraph [9] at 281c-e.)

Held, further, that the fact that no such convictions under the common law had been reported since 1953 was not indicative of abrogation, since it was unlikely that the prosecutions would have been instituted in the High Court. In any event, there had been reported prosecutions - in 1979, 2002 and 2006 - none of which had resulted in conviction; on the other hand, D though, an unsuccessful attempt by a prosecutor who might not even have considered whether the crime existed or not to secure such a conviction could hardly constitute conclusive proof of the attitude of the community. More significant was a report of the South African Law Commission in 1982 which touched on the issue, and which contained no suggestion that the crime had been abrogated. Subsequently, the crime of criminal E defamation had been extended in terms of Schedule 2 to the Electoral Act 73 of 1998, which prohibited the publication of false or defamatory allegations in connection with an election in respect of, inter alia, a party or candidate. Finally, there was no suggestion from academic quarters that the crime had been abrogated by disuse, even where the writers concerned were themselves in favour of its abolition. (Paragraphs [10]-[14] at 281e-283b.) F

Held, accordingly, that it could not be said that criminal defamation had been repealed as a crime by silent consent of the whole community. (Paragraph [15] at 283c.)

As to question (2)

Held, the court having reviewed judicial and academic authority, that the degree G of seriousness was not an element of the offence. Neither was it so that the practice of confining criminal proceedings for defamation to serious and aggravated cases had hardened into a legal rule. If a prosecution were instituted for a non-serious defamation, the lack of seriousness would be reflected in the sentence. It could be concluded, therefore, that the crime of defamation consisted of the unlawful and intentional publication of matter H concerning another which tended to injure his reputation. The State would have to prove the unlawfulness and the intention. Intentional publication required proof that the accused knew he was, or might possibly be, acting unlawfully. However, it did not follow that the State would have to negative merely hypothetical defences. It would be necessary, for example, for an accused whose defence was that the allegedly defamatory publications were I true and made for the public benefit, to plead that defence as required by s 107 of the Criminal Procedure Act 51 of 1977. (Paragraphs [21]-[26] at 285d-287d.)

Held, further, regarding the constitutionality of the offence, that although freedom of expression was fundamental to a democratic society, it was not a paramount value. It must be considered in the context of other values, J

2009 (1) SACR p278

A such as that of human dignity. The law of defamation, both criminal and civil, was designed to protect the reputation of people, and in doing so it clearly limited the right to freedom of expression. While it was so that a criminal sanction was more drastic than a civil remedy, the disparity was counterbalanced by the fact that the requirements for succeeding in a criminal matter were more onerous than in a civil one. Although a criminal B conviction and the sanction arising therefrom might be more severe than an order to pay damages, the limitation of the right to freedom of expression was not. In any event, to expose a person to criminal conviction where it was proved that he had acted unlawfully, and had known that he was acting unlawfully, was a reasonable limitation on the right to freedom of expression. (Paragraphs [29]-[33] at 288c-290b.)

C Held, accordingly, that the crime of defamation was not inconsistent with the Constitution. (Paragraph [36] at 290h.) Appeal dismissed.

Annotations:

Southern African cases

Green v Fitzgerald and Others 1914 AD 88: compared D

Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) (1996 (6) BCLR 836): referred to

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771): referred to

LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd 1974 (1) SA 747 (A): E referred to

Maisel v Van Naeren 1960 (4) SA 836 (C): referred to

Mthembi-Mahanyele v Mail & Guardian Ltd and Another 2004 (6) SA 329 (SCA) (2004 (11) BCLR 1182; [2004] 3 All SA 511): referred to

National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA) (1999 (1) BCLR 1; [1998] 4 All SA 347): followed

R v Chipo and Others 1953 (4) SA 573 (A): referred to F

R v Fuleza 1951 (1) SA 519 (A): followed

R v Harrison and Dryburgh 1922 AD 320: considered

R v Japel 1906 TS 108: considered

R v MacDonald 1953 (1) SA 107 (T): considered

R v Ndhlovu 1945 AD 369: referred to

R v Shaw and Fennell (1884) 3 EDC 323: not followed G

R v Sibiya 1955 (4) SA 247 (A): referred to

S v A en 'n Ander 1993 (1) SACR 600 (A): referred to

S v Bhulwana; S v Gwadiso 1995 (2) SACR 748 (CC) (1996 (1) SA 388; 1995 (12) BCLR 1579; [1996] 1 All SA 11): referred to

S v Bresler and Another 2002 (2) SACR 18 (C) (2002 (4) SA 524): referred H to

S v Bugwandeen 1987 (1) SA 787 (N): referred to

S v De Blom 1977 (3) SA 513 (A): referred to

S v Gibson NO and Others 1979 (4) SA 115 (D): referred to

S v Hlomza 1987 (1) SA 25 (A): referred to

S v Kgogong 1980 (3) SA 600 (A): referred to

S v Moila 2005 (2) SACR 517 (T) (2006 (1) SA 330): referred to I

S v Revill 1970 (3) SA 611 (C): referred to.

Foreign cases

R v Lucas [1998] 1 SCR 439 ((1998) 50 CRR (2d) 69 (SCC)): referred to

Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (HL) ((2000) 7 BHRC J 289; [1999] 4 All ER 609): dictum at 201 applied

2009 (1) SACR p279

Worme and Another v Commissioner of Police of Grenada [2004] UKPC 8: A compared.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 107: see Juta's Statutes of South Africa 2007/8 vol 1 at 1-353

The Electoral Act 73 of 1998, Schedule 2: see Juta's Statutes of South Africa B 2007/8 vol 5 at 1-368.

Case Information

Appeal from a decision of the Ciskei High Court (White J). The facts appear from the judgment of Streicher JA, in which Heher JA, Mlambo JA, Cachalia JA and Kgomo AJA concurred. C

C Ploos van Amstel SC (with PW Nel (attorney)) for the appellant, instructed by the Justice Centre, King William's Town and Bloemfontein.

MPZ Sotenjwa for the...