S v Hoho

• Jurisdiction: South Africa
• Judge: Streicher JA, Heher JA, Mlambo JA, Cachalia JA and Kgomo AJA
• Judgment Date: 17 September 2008
• Citation: 2009 (1) SACR 276 (SCA)
• Docket Number: 493/05
• Hearing Date: 15 August 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.
• Court: Supreme Court of Appeal

Streicher JA:

E [1] The Bisho High Court convicted the appellant on 22 of 23 charges of criminal defamation and sentenced him to three years' imprisonment suspended for five years and, in addition, to three years' correctional supervision in terms of s 276(1)(h) of the Criminal Procedure Act 51 of F 1977 (the Act). An application for leave to appeal against the conviction and the sentence was dismissed by the court a quo but granted by this court. In granting leave to appeal this court indicated that argument would be required 'on the question whether the crime of defamation is still extant, and if so whether it is consonant with the Constitution'. It also advised the parties that it would ensure that argument is presented G on these issues independently of any argument that the appellant might wish to advance.

[2] The appellant was accused of having 'compiled, produced and/or published' several leaflets during the period 2001 to 2002 in which he defamed the Speaker of the legislature of the Eastern Cape Province (the H legislature), the Premier of the Eastern Cape Province, members of the legislature, the National Minister of Safety and Security, the National Deputy Minister of Home Affairs, the National Minister of Health, the Chief Whip of the African National Congress in the legislature and a legal adviser to the legislature. In these leaflets allegations of, amongst I others, corruption, bribery, financial embezzlement, sexual impropriety, illegal abortion and fraud were made.

[3] At the relevant time the appellant was employed by the legislature as a researcher. He pleaded not guilty to the charges and denied in his plea explanation that he was the author and publisher of the leaflets. He J

Streicher JA

A stated that any connection between him and the utterances published 'was being sought to be made' by members of the security police or members of the police services with whom he had certain difficulties.

[4] Although the appellant did not specially plead a defence of 'truth and public benefit' as is required by s 107 of the Act, in the event of such a B defence being relied upon, the State called a number of witnesses to establish that the defamatory allegations were untrue. The State also called several witnesses to prove that the appellant was the author of the leaflets. The appellant testified that he was not the author of the leaflets and also called a number of witnesses. After a very lengthy trial (the C record comprises 24 volumes consisting of 2 946 pages), the court a quo found that the allegations made against the various complainants in respect of the 22 charges that the appellant had been convicted on, were defamatory and that the State had proved beyond reasonable doubt that the appellant was the author of the leaflets and that he had published or D caused them to be published.

[5] Before us counsel for the appellant did not attack the findings of the court a quo but in effect abandoned the appeal save insofar as it related to the question raised by the order granting leave to appeal, ie whether our law still recognised defamation as a crime. They advised us that they were of the view that should it be held that the crime of defamation is still E extant and that it is consonant with the Constitution the conviction and sentence should stand and addressed us only in respect of these two issues. Consequently these are the only issues that must be dealt with in this appeal.

[6] It should be stated at the outset that we are indebted to Mr G Marcus SC F and Mr S Budlender who kindly agreed to appear as amici curiae in the matter and whose heads of argument and very fair and balanced oral submissions at the hearing of the appeal were of considerable assistance to us.

Is the crime of defamation still extant?

G [7] In R v Japel 1906 TS 108 the court had to decide whether 'ordinary verbal slander was punishable as a crime under Roman-Dutch law'. [1] Innes CJ with whom Smith and Mason JJ agreed, after having stated that there was no doubt that serious verbal defamation was so punishable and having referred to Voet 47.10.15 and Matthaeus de Criminibus 47.4.7, H concluded 'that ordinary verbal slander is still a crime in this country, though the instances where prosecutions are instituted in respect of it are few and far between'. [2] In R v Harrison and Dryburgh 1922 AD 320 at 327 Innes CJ said:

That defamation is by our law a crime admits of no doubt; it was so I regarded by the Roman-Dutch authorities and has been repeatedly dealt with as such by South African Courts. But the practice has been to confine criminal proceedings to serious and aggravated cases.

Streicher JA

[8] Since 1922 very few convictions for criminal defamation have been A reported. The last such reported conviction was in the case of S v Revill 1970 (3) SA 611 (C). The case concerned the defamation of a judge in contravention of s 1 of the Cape Libel Act 46 of 1882 which was repealed in 1977. [3] The last reported conviction for criminal defamation in terms of the common law was R v MacDonald 1953 (1) SA 107 (T). B It is probably for this reason that the question was raised in the order granting leave to appeal whether the crime of defamation was still extant, ie has it not been abrogated by disuse? Mr Budlender who presented the argument of the amici curiae in respect of this issue submitted that there must have been, since these cases were decided, many instances of defamation in respect of which convictions could have been secured and C that the absence of reported convictions indicated that the South African community no longer considered defamation to be a crime.

[9] The doctrine that law may be abrogated by disuse is well established in our law. [4] The basis of the doctrine is the tacit repeal 'through disuse by silent consent of the whole community'. [5] It is therefore necessary to D consider whether it can be said that the South African community tacitly consented that defamation should no longer constitute a criminal offence.

[10] The problem with Mr Budlender's submission based on the absence of reported convictions for a long period of time, is that it is unlikely that E prosecutions would, in the absence of special circumstances, have been instituted in the High Courts. Regional courts have at all relevant times had jurisdiction to impose substantial periods of imprisonment. At the moment they may impose sentences of up to 15 years' imprisonment. [6] In these circumstances, if there were prosecutions for defamation, they are F more likely to have been instituted in the lower courts and the judgments of the lower courts are not reported in the law reports. The absence of reported convictions in the law reports can therefore not be taken as evidence of tacit consent that defamation should no longer constitute a criminal offence.

[11] In any event, although there have not been reported convictions for G defamation since Revill there have been reported prosecutions. See in this regard S v Gibson NO and Others 1979 (4) SA 115 (D) at 140G - 151A; S v Bresler and Another 2002 (2) SACR 18 (C) (2002 (4) SA 524); and S v Moila 2005 (2) SACR 517 (T) (2006 (1) SA 330). In Moila and Bresler it was not necessary for the court to consider the defamation charge as the charge was in the alternative to a contempt of court charge, which the court found to have been proved. In Gibson the court did consider the H defamation charge and acquitted the accused.

Streicher JA

A The basis of the doctrine of abrogation being a supposed tacit repeal 'through disuse by silent consent of the whole community', not only convictions but also prosecutions are relevant in determining whether there had been such a tacit repeal. See in this regard Green v Fitzgerald [7] where the fact that there had been no criminal prosecutions for adultery B for 85 years was a factor that weighed with the court in finding that adultery as a crime had been abrogated by disuse. Unsuccessful prosecutions can, however, be no more than a factor to be taken into account. The unsuccessful attempt to secure a conviction for defamation by a prosecutor, C who may be uncertain as to whether the crime still exists or who may not even have considered the question, can hardly constitute conclusive proof of the attitude of the community.

[12] A more reliable indication of the attitude of the community is to be found in the fact that the then Minister of Internal Affairs, in August 1982, requested the South African Law Commission 'to investigate the D possibility of extending criminal defamation to include the publication of untruths concerning a person in public, and group defamation'. The request arose out of a recommendation by a Parliamentary Select Committee in respect of a proposal by a Cabinet Committee that the Electoral Act 45 of 1979 be amended to make the publication of false or E defamatory allegations about an election candidate punishable. [8] The Parliamentary Select Committee would seem not to have considered criminal defamation to have been abrogated by disuse. The commission reported that it investigated the matter and that more than 60 persons and bodies responded to a questionnaire prepared by it. The investigation did not, however, reveal any need for the proposed amendment of F the law and the opinion poll showed a substantial majority feeling against it. [9] It thus recommended 'that the legal position regarding criminal defamation be left unchanged'. [10] Of even more importance to the present enquiry is the fact that notwithstanding the investigation there is no suggestion in the report that criminal defamation had by 1982 been G abrogated by disuse.

[13] Notwithstanding the Law Commission's report, the extension of the crime of criminal defamation was subsequently introduced by the legislature in terms of...