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.
