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).

Employer liability for damages caused by sexual harassment in the workplace

The news is replete today with the Me-Too movement against the widespread prevalence of sexual assault and harassment, especially in the workplace.

When can an employer be liable for acts of sexual assault and harassment by one of its employees?

Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a legal relationship to the person who did act negligently.

Common law

In PE v Ikwezi Municipality and others 2016 (5) SA 114 (ECG) the court had to consider sexual harassment in the workplace, which gave rise to the plaintiff’s Post Traumatic Stress Disorder. She instituted a claim against the perpetrator and the employer for damages in excess of R4 million. 

The question before the court in this matter is like the question in Grobler v Naspers Bpk en n Ander 2004 4 SA 221 (C):

“[Is] the unlawful act sufficiently connected to the conduct authorised by the employer to justify the imposition of vicariously liability? The existence of a significant relationship between the creation or increase in the risk of the commission of the unlawful act and resultant wrong indicated a sufficient relationship for imposition of vicarious liability. Relevant factors were the opportunity presented to the harasser to abuse his authority, the ambit of his authority and the vulnerability of the potential victim to the abuse therefor.” 

The court held that the Ikwezi Municipality placed the perpetrator in the position where he was able to act the way he did. Therefore, the employment relationship facilitated his actions. The implicit trust in the collegial relationship “forged a causal link” between the perpetrator’s position as a Corporate Services Manager and the wrongful behaviour. Ultimately the court held the Municipality vicariously liable for the sexual harassment by its employee. 

The Employment Equity Act (the EEA)

In addition to the common law, employees may have an alternative remedy against the employer in terms of s60 of the EEA. In terms of subsection 2, an employer must take all reasonable steps to eliminate contravention of the Act, which includes sexual harassment. Failure by the employer to take such reasonable steps, will render the employer liable for the conduct of the employee in that the employer will be deemed to have committed the wrongful conduct. The Labour Appeal Court has awarded damages in the amount of R250 000 to an employee who was a victim of sexual harassment. Liberty Group Limited v Margaret Masango (Case no: 105/2015)

To avoid vicarious liability, employers need to be proactive and put into place and strictly enforce a Code of Good Practice on the Handling of Sexual Harassment. More importantly, they need to train staff on sexual harassment in the workplace and put measures in place which provide employees with an effective channel of reporting sexual harassment in the workplace.

Personal information for my survivors upon my death or incapacity

I have posted a Wishes and Memories booklet on our website that will be a clear record of your funeral wishes, a source of important documents for legal and public records, and a permanent keepsake of your fondest memories to speak to future generations.

To save your survivors as much heartache as possible immediately following your death, I advise you to: 

o   Put together a box file containing all your important documents, and tell your nearest and dearest, where it is. In this box file, store your will, marriage contract, insurance policies, title deeds, papers for cars, caravans and boats, timeshare information. and other important papers; 

o   List your creditors (credit card, loans, mortgages, store accounts, etc.);

o   List important numbers for your executor and family, such as the name of your broker, lawyer, doctor, dentist, financial advisor, etc.;

o   Leave a list of family and friends, to contact on your death; 

o   List what happens to your DSTV, armed response, personal and home insurance, etc.; 

o   List codes for your security system, and post office box, etc.; 

o   Describe where you want to be buried or cremated, and your funeral wishes, in general; 

o   List all your virtual accounts, usernames and passwords (ranging from email accounts to your social networking profiles (Facebook, Twitter, LinkedIn, etc.), blog posts, photo or music sharing accounts and digital purchases through for example eBay or Takealot.com. Retain these passwords, with other valuables, in a safety deposit box, to be revealed to your executors, only on your death; 

o   Create a digital estate plan (in your will or in a letter of wishes) Instructing your executors whether to maintain your social media sites.

o   Facebook asks: How do I report a deceased person or an account on Facebook that needs to be memorialized? Memorialized accounts are a place for friends and family to gather and share memories after a person has passed away. Memorializing an account also helps keep it secure by preventing anyone from logging into it.

o   What happens to your Twitter account when you die or become incapacitated? “In the event of the death of a Twitter user, we can work with a person authorized to act on behalf of the estate, or with a verified immediate family member of the deceased to have an account deactivated. In the event a Twitter user is incapacitated, due to medical or other reasons, we can work with a person authorized to act on the behalf of the user to have an account deactivated”.

What is defamation?

Defamation occurs If someone unlawfully and intentionally publishes a defamatory statement concerning you that lowers your good name and reputation in the eyes of the community.

You may be able to sue someone in court to compensate you for injured feelings and for the hurt to your dignity and reputation that you suffered by what someone said about you or published in an email, in a newspaper or magazine or on social media. The publication does not have to be in writing – e.g. someone can defame you in a pub in front of other people.

The court will assess the amount of the damages you may claim based on circumstances of your case and the prevailing attitudes of the community in which you live or practise your trade or profession.

To succeed in any claim, you must prove that that the remarks concerning you were defamatory (offending words that harmed your reputation), intentional (the person set about damaging your good name) and unlawful (would an unbiased person view the statement as unacceptable), that they referred to you directly and were published (other people heard the defamatory remarks, read them in a newspaper, magazine or in social media, etc.)

The factors which the court may consider include:

·         The nature of the defamatory statement

Given the changed morality of our times, if someone calls you a liar and a thief, this would likely cause greater hurt to your dignity and reputation than a statement that you are an adulterer.

·         The nature and extent of the publication

A defamatory statement published in the Sunday Times that has a very large readership as opposed to one in the Nelspruit Herald may attract a higher award of damages.

·         The reputation, character and conduct of the plaintiff

Someone who enjoys a reputation of high moral character will likely be able to claim more than someone who is of dubious integrity.

·         The motives and conduct of the defendant

The court would award more damages to someone that acts out of pure malice and embarks on a deliberate and unfounded attempt to destroy your reputation, as opposed to a person that thinks that he or she acts out of a sense of perceived duty.

·         Dignity and privacy v. freedom of expression

The court must weigh up your constitutional rights of dignity and privacy on the one hand, and freedom of expression on the other.

Defences to claims for defamation

There are three defences in South African law that justifies a defamatory statement: If the statement is true and in public interest (the statement is substantially true and the public has a legitimate interest in hearing it); the statement is seen as a fair comment (allowing freedom of expression) and if the statement is made on a privileged occasion (a  certain type of relationship exists between the person making the defamatory statement and the person to whom the content was communicated, for example an attorney-client relationship).