Defamation – don't rush into suing

 

Someone has posted a defamatory statement about you in a WhatsApp group or a Facebook post. You feel understandably upset and want urgently to right the wrong. Be careful about rushing off to court, as our courts have been reluctant to award substantial damages unless the person defamed is a high-profile person.

Your attorney will call upon the person who defamed your good name and reputation to retract the publication with an immediate apology.

If they refuse to do so, you should think twice about going to court. Damages for defamation and an apology can only be resolved once a judge hears oral evidence. When you and your attorney prepare for trial, during the trial and long after that - regardless of the outcome - the anger will live like a monkey on your shoulder. Don't forget about the potentially huge legal costs you may incur if the matter proceeds to court.

The requirements for defamation are: (a) the wrongful; and (b) intentional; (c) publication of; (d) a defamatory statement; and concerning the plaintiff,

Once you establish publication of the defamatory words, it is presumed that the statement was both wrongful and the publisher intended to defame you. To be discharged on a preponderance of probability, the Defendant bears the onus to negate or raise a defence.

In the case of Manyi v. Dhlamini, Dhlamini posted hugely defamatory statements about Manyi in a WhatsApp group conversation. Manyi sued for R5m damages out of the Gauteng High Court. He used an attorney and a senior advocate. The claims were R3 million for damages for defamatory statements and R2 million for threats to his life (you ought to be necklaced).

The court found for the Plaintiff: "Taking all the words referred to hereinabove, individually and or collectively, I do not doubt in my mind that they have the effect of impairing the plaintiff's right to dignity and the right to have such dignity respected, in terms of s10 of the Bill of Rights of the Constitution".

In determining quantum in respect of defamation, the Court must have regard to:

·         the seriousness of the defamation

·         the nature and extent of publication

·         the reputation, character and conduct of the Plaintiff

·         the motives and conduct of the Defendant 

Although the judge found for the Plaintiff, he was not prepared to award more that R50,000 for the first claim and R5,000 for the second. He was not impressed that Plaintiff employed senior counsel, stating that in his view "the issues in this matter were not complex to warrant the services of senior counsel. Besides, the Plaintiff's claimed amounts were highly inflated to bring the matter within the jurisdiction of this court. Besides, the total award falls within the jurisdiction of the Magistrates' Court". The judge ordered Defendant to pay the Plaintiff's taxed and allowed costs at the magistrate party and party scale.

It is safe to assume that the legal costs of the attorney and the senior counsel substantially exceeded the amounts awarded by the court.

Instead of spending hundreds or even thousands of Rands in a quest for justice, it may make more sense to defuse the situation by working out an appropriate response to any backlash the defamatory statement may have caused.