Wrongfulness in the South African law of defamation

• Citation: (2023) 140 SALJ 285
• DOI: https://doi.org/10.47348/SALJ/v140/i2a3
• Published date: 12 May 2023
• Pages: 285-327
• Author: Fagan, A.
• Date: 12 May 2023

285

https://doi.org/10.47348/SALJ/v140/i2a3

WRONGFULNESS IN THE SOUTH AFRICAN

LAW OF DEFAMATION

ANTON FAGAN†

WP Schreine r Professor of La w, University of Cape Town

According to some S outh African delict scholar s, the South African law of defa mation

makes the wron gful ness of a defamato ry statement tu rn on two condition s: rst, that

the statement c aused reputation al damage; and, second ly, that the damage caused

was not outweigh ed by the achievement of some greate r good. This article proposes a n

alternative v iew. According to it, the wrong fulness of a defamator y statement turns on

two very die rent conditions. T he rst is that th e statement repr esented the defam ed

person (the plainti ) as having a worth wh ich is less than the worth which t he person

ought to be estimated t o have. The second is that the pe rson making the statement (the

defendant) intend ed this. The art icle starts by rai sing two objectio ns to the scholars’

view. One is that it c annot explain th e fact that a defam atory stateme nt can be false

yet lawful. T he other is that it ca nnot explain the fa ct that a defamat ory statemen t

may be found to be wron gful e ven though it caused n o reputational d amage. After

this, the articl e goes on to discuss a nd defend the alte rnative view ’s two conditions

— that is, the ‘rep resentation con dition’ and the ‘intent c ondition’. The latter is

likely to be the more con troversial, as it  ies in the face of a scho larly dogma to the

eect that w rongfulness does n ot in any way depend on fault. However, as th e article

demonstrates, it is im possible to make sense o f the wrong fulness-negating defenc es of

privileged oc casion, fair com ment, and reason able publicatio n, unless we acc ept the

intent condition.

Defamat ion – wrongfulne ss – defences – int ent

I IN TRODUC TION

South Afr ican law has never regarded the f act that a defend ant made a

defamatory statement about a plainti  to a third party a s sucient to

justif y the imposition of liability on the defenda nt. For a centur y and

a half the l aw has required, in addition, that the defend ant acted w ith

intent (or animus iniuriandi).1 For the past fort y years the law has required

not only that the defendant acted w ith intent, but a lso that the defendant

acted wrong fully towards the pla inti.2 This ar ticle focuses on the second

of these additional requirements — that is, the requirement that the

defendant acted wrongf ully towards the plainti.3

† BA LLB (UCT) BA DPh il (Oxon). I would like t o thank L eo Boonza ier,

Eduard Fag an, Dale Hut chison and Da nie Visse r for their encour aging fe edback

on earlier ver sions of this articl e.

1 S ee Anton Fag an ‘The gi st of defam ation’ in Anton Fa gan Undoin g Delict:

The South Af rican La w of Delict under t he Constitution ( 2018 ) 156 –6 7.

2 Ibid.

3 As wil l be seen, di scussion of th is requi rement unavoida bly involves some

discus sion of intent too.

(2023) 140 SALJ 285

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286 (2023) 140 THE SOU TH AFRICAN L AW JOURNA L

https://doi.org/10.47348/SALJ/v140/i2a3

The South African law of def amation contains a var iety of ru les which

have to be applied in order to determi ne whether a defendant who made a

defamat ory statement about a plaint i to a third part y acted wrongfu lly by

doing so. The most important of these rules are the followin g two:

A defendant who made a defamatory statement about a plainti  to a

third party is to be presumed to have done so wrongfu lly.4

The presumption that a defendant who made a defam atory statement

about a plainti to a third party did so wrong fully will be rebutted if

the defendant successful ly raises one of the tradit ional defences, n amely

truth and publ ic interest, pr ivileged occasion, and f air comment, or, in

the event that the statement was made i n the media, if the defendant

successfu lly raises the reas onable publicat ion defence created in National

Media v Bogoshi.5

Surpri singly, perhaps, given the crit ical role that w rongfulness plays in

determi ning liabilit y for the making of defamatory st atements, the law

does not explain its natu re. It tells us how we are to go about determ ining

whether the mak ing of a defa matory st atement was wrongful: we are to

do so by applying the two rules above, as well as the f urther r ules that

govern their application (such as the ru le that the defences of privileg ed

occasion and fa ir comment are defeated by m alice on the defendant’s part).6

But it does not tell us what it is for the mak ing of a defamatory st atement

4 Suid-Afrikaa nse Uitsaaikorpo rasie v O’Malley 1977 (3) SA 394 (A) at 401H–4 02A;

Borgin v De Vil liers 1980 (3) SA 556 (A) at 571E–F; May v Udwin 1981 (1) SA 1 (A)

at 10C–D; Marais v Richard 1981 (1) SA 1157 (A) at 1166H; Jouber t v Venter 19 85 (1)

SA 654 (A) at 695I–696A; Herselman v Botha 1994 (1) SA 28 (A) at 35C–D;

Neethling v Du Pr eez 1994 (1) SA 708 (A) at 768J; National Media v Bogoshi 19 98 (4 )

SA 1196 (SCA) at 1202G–H; Van der Be rg v Coopers & Lybrand Trust 20 01 (2)

SA 242 (SCA) at 252B– C; Khumalo v Holomisa 2002 (5) SA 401 (CC) at 414A–B;

Delta Motor Cor poration v Van der Merwe 2 004 (6) SA 185 (SCA) at 191H; Hardaker

v Phillips 2005 (4) SA 515 (SCA) at 524F; Le Roux v Dey 2 011 (3) SA 274 (CC)

at 304C–D (‘Le R oux v Dey (CC)’); Modiri v Minister of Safety and Se curity 2011 (6)

SA 370 (SCA) at 375B–C; EFF v M anuel 2021 (3) SA 425 (SCA) at 439H.

5 Suid-Afrikaa nse Uitsaaikor porasie v O’Malley ibid at 4 02H–403B; B orgin v

De Villiers ibid a t 571F–G; May v Udwin ibid at 10F –G; Marais v Richard ibid at

1166 H–116 7C; Pak endorf v De F lamingh 1982 (3) SA 146 (A) at 156C; Joubert v

Vent er ibid at 696B– C; Argus Printing a nd Publishing Co v In katha Freedom Par ty

1992 (3) SA 579 (A) at 588H–I; Herselman v Botha ibid at 35F; Argus Print ing and

Publishing Co v Es selen’s Estate 1994 (2) SA 1 (A) at 25D–E; Moha med v Jassiem

1996 (1) SA 673 (A) 710D; National Medi a v Bogoshi ibid; Khumalo v Holomisa ibid

at 414B–C; Delta Motor Cor poration v Van der Merwe ibid at 193F, 195D–E; Hardaker

v Phillips ibid at 524I–J; Le Roux v D ey (CC) ibid at 314I–315A, 315E–F; Modiri v

Minister of Safe ty and Security ibid at 375H; EFF v Manue l ibid at 440A–B, 441A–B.

6 A disti nction is usuall y drawn between qua lied privile ge, which is defeated

by malice, a nd absolute privileg e, which is not. In this a rticle the term ‘priv ileged

occasion’ is most ly used to refer only to the fo rmer. The context wil l make it clear

when it is not.

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WRONGFULN ESS IN THE SOUT H AFRICAN LAW OF DEFAM ATION 287

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to be wrongf ul. It does not tell us what is presumed when the making of a

defamatory statement i s presumed to be wrongfu l. Nor does it tell us what

is rebutted when the presumption of wrongful ness is rebutted.

Some may object that t he two rules above provide us with a ll the

explanat ion that is needed. For, so they might say, to act wrongfu lly for

the purposes of the law of defam ation is simply to make a defamatory

statement to which none of the defences mentioned in the second rule

applies, no more and no less. But this w ill not do. It would have odd

implications for the oft-articul ated idea that t he wrongf ulness-negating

defences do not constit ute a numerus clausus, so that new defences could

be added over time (as the reasonable publication defence was added

to the three traditiona l ones in 1998).7 It would mean that a court was

not applying the ex istin g requirement of w rongfu lness when creating a

new defence, but was rather changing the meaning of that requi rement

by its creation of the defence. It would also mean that the creat ion of a

new defence could never be said to h ave involved a misapplication of the

wrong ful ness requirement.

How then are we to charac terise the wrongf ulness that is requ ired if the

making of a defamatory statement is to be capable of att ractin g liabil ity?

The most obvious way of doing so, which I wil l call t he ‘simple view’, is

as follows:

A defendant who made a defamatory statement about a plainti  to a

third pa rty acted wrong fully by doing so if a nd only if: (1) the statement

caused the third part y to change h is beliefs about the plaint i’s worth

for the worse; and (2) the statement did not have a benet (or benets)

which outweighed the cost to the plainti of that change of belief.

The simple view’s two condit ions can be more br iey stated: the

statement damaged the pla inti ’s reputation w ithout achieving greater

good. According to this v iew, the presumption of wrongful ness which

arises whenever a defendant made a defamator y statement about a plainti 

to a third party is t he presumption that conditions (1) and (2) are satised.

As for the defences, they rebut the presumpt ion of wrongf ulness by

showing that condition (2) is not, after all, satised. In other words, the

defences do not rebut the presu mption by showing t hat the statement did

not, after all, damage the pla inti ’s reputation. They do so, instead, by

showing that the statement did , after all, achieve greater good.

7 See Argus Printing an d Publishing Co v Ink atha Freedom Part y supra note 5

at 590D; Neethling v D u Preez supra note 4 at 777E –F; National Media v Bogosh i supra

note 4 at 1204D; Khumalo v Holomisa supra not e 4 at 414B; Mthembi-Mahanyele v

Mail & Guardian 2 004 (6) SA 329 (SCA) at 350 G–I; Hardake r v Phillips supra

note 4 at 524J–525A; Le R oux v Dey (CC) supr a note 4 at 315E–316A.

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