Criminal Defamation

 Is it a crime to defame someone?

Before 2009 it was uncertain whether the crime existed in our law. In the case of Hoho v The State the Supreme Court of Appeal held that the crime had not ceased to exist because of disuse, that there were no good reasons why it should not still exist, and that its existence was not incompatible with the provisions of the Constitution.

Criminal defamation covers both defamation in writing (libel) and verbal defamation (slander).

The court in Hoho expressly held that violations of a person’s reputation are criminal even if the degree of violation is not serious.

If it is a crime, how willing are the police to prosecute? Prosecutions for this crime are rare, even though people are defamed every day. No-one one has been convicted of this crime for decades. As the authorities have to deal with more serious crimes, it’s unlikely that an offender will be charged criminally. If this were not the case, former minister Manuel would have also sought criminal prosecution against EFF leader, Julius Malema, instead of just suing him for defaming his good name and reputation.

The court defined Criminal defamation as the unlawful and intentional publication of matter concerning another which tends to injure his reputation.

The elements of the crime are the following:

·         the publication of a defamatory allegation concerning another

The case law suggests that words are defamatory “if they tend to expose a person to hatred, contempt or ridicule, or if they tend to diminish the esteem in which the person to whom they refer is held by others”.  A person's good name or reputation can be harmed only if the conduct or words complained of come to the notice of someone other than that person, through publication of the offending words.

·         unlawfully

The person accused of criminal defamation can raise the same defences available to a defendant in a civil defamation action, namely a) that it is the truth and that, in addition, it is for the public benefit that it be made known; (b) that it amounts to fair comment, or (c) that the communication is privileged.

·         intentionally

X must intend to harm Y's reputation by the unlawful publication of defamatory matter concerning him and that he must intend the allegation to refer to Y (and not to somebody else).