The repeal
of criminal defamation in South Africa, enacted through the Judicial Matters
Amendment Act No. 15 of 2023, is a significant advancement for press freedom
and the right to free expression. This repeal removed a major obstacle to the
constitutional right to freedom of expression, which previously subjected
journalists and social activists to potential criminal charges, fines, and
imprisonment.
Introduction:
The Judicial Matters Amendment Act No. 15 of 2023 marks a historic moment for South Africa, as it repeals the common law crime of defamation. This legislative change is a victory for press freedom and the broader right to free expression, aligning with the democratic values enshrined in the South African Constitution.
History
of Criminal Defamation:
Criminal
defamation in South Africa has its roots in tort law, covering both libel
(written defamation) and slander (spoken defamation). Historically defined as
the false publication of a statement that damages a person's reputation,
criminal defamation laws have been contentious, particularly in a
constitutional democracy that values free expression. The Supreme Court of
Appeal reiterated this in S v Hoho 2009 (1) SACR 279 SCA, defining defamation
as the unlawful and intentional publication of matter that harms another's
reputation.
Previously,
these laws stifled journalistic freedom and investigative reporting, remnants
of an era that prioritized social order over free speech. In practice, criminal
defamation was used to silence dissent and criticism, contrary to the spirit of
the South African Constitution.
Why It
Was Repealed:
For decades,
journalists and human rights organizations have called for the repeal of
criminal defamation laws, arguing that they were tools for silencing critical
voices and undermining democratic principles. The case of Cecil Motsepe in
2013, a journalist convicted and fined for criticizing a magistrate,
highlighted the chilling effect these laws had on free speech. Although his
conviction was overturned, it underscored the professional risks journalists
faced.
The repeal
responds to these concerns, dismantling a legal mechanism that was often
misused to suppress free expression. Anton Harber of the Campaign for Free
Expression hailed the repeal as a significant victory for democracy and free
speech, removing a weapon used to stifle open discussion and criticism.
Conclusion:
While the
repeal of criminal defamation laws is a significant step forward, it is
essential to maintain a balance between protecting individuals' reputations and
safeguarding free expression. South Africa's legal framework still provides
civil remedies for defamation, ensuring accountability without criminal
penalties. However, concerns remain about other legislative measures, such as
the Prevention and Combating of Hate Crimes and Hate Speech Bill, which some
fear could undermine the gains made by repealing criminal defamation.
Overall, the
repeal is a triumph for democracy in South Africa, underscoring the nation's
commitment to constitutional values and the protection of free speech. It
represents a beacon of hope for those who value democratic principles and
robust public debate. As South Africa progresses towards greater freedom and
equality, the abolition of criminal defamation laws stands as a crucial
milestone in the journey towards upholding the rights of all citizens.
