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[2008] ZASCA 98
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S v Hoho (493/05) [2008] ZASCA 98; [2009] 1 All SA 103 (SCA) ; 2009 (1) SACR 276 (SCA) (17 September 2008)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
CASE NO
:
493/05
LUZUKO KERR HOHO
Appellant
and
THE STATE
Respondent
Neutral citation:
Hoho v The
State
(493/05)
[2008] ZASCA 98
(17 September
2008)
Coram: STREICHER, HEHER, MLAMBO, CACHALIA JJA &
KGOMO AJA
Heard: 15 AUGUST 2008
Corrected:
Delivered:
17 SEPTEMBER 2008
Summary: Criminal defamation – not abrogated by
disuse – consonant with Constitution.
_______________________________________________________________
ORDER
_____________________________
_______________________________________
On appeal from: High Court, Bisho (White J sitting as
court of first instance)
The appeal is dismissed.
____________________________________________________________
JUDGMENT
____________________________________________________________
STREICHER JA (HEHER, MLAMBO, CACHALIA JJA and KGOMO AJA
concurring)
[1] The Bisho High Court convicted the appellant on 22
of 23 charges of criminal defamation and sentenced him to three
years’
imprisonment suspended for five years and, in addition,
to three years correctional supervision in terms of s 276(1)(h)
of
the Criminal Procedure Act 51 of 1977 (‘the Act’). An
application for leave to appeal against the conviction and the
sentence was dismissed by the court a quo but granted by this court.
In granting leave to appeal this court indicated that argument
would
be required ‘on the question whether the crime of defamation is
still extant, and if so whether it is consonant with
the
Constitution’. It also advised the parties that it would ensure
that argument is presented on these issues independently
of any
argument that the appellant might wish to advance.
[2] The appellant was accused of having ‘compiled,
produced and/or published’ several leaflets during the period
2001
to 2002 in which he defamed the Speaker of the Legislature of
the Eastern Cape Province (‘the Legislature’), the
Premier
of the Eastern Cape Province, members of the Legislature, the
National Minister of Safety and Security, the National Deputy
Minister
of Home Affairs, the National Minister of Health, the Chief
Whip of the African National Congress in the Legislature and a legal
adviser to the Legislature. In these leaflets allegations of, amongst
others, corruption, bribery, financial embezzlement, sexual
impropriety, illegal abortion and fraud were made.
[3] At the relevant time the appellant was employed by
the Legislature as a researcher. He pleaded not guilty to the charges
and
denied in his plea explanation that he was the author and
publisher of the leaflets. He stated that any connection between him
and the utterances published ‘was being sought to be made’
by members of the security police or members of the police
services
with whom he had certain difficulties.
[4] Although the appellant did not specially plead a
defence of ‘truth and public benefit’ as is required by
s 107
of the Act, in the event of such a defence being relied
upon, the state called a number of witnesses to establish that the
defamatory
allegations were untrue. The state also called several
witnesses to prove that the appellant was the author of the leaflets.
The
appellant testified that he was not the author of the leaflets
and also called a number of witnesses. After a very lengthy trial
(the record comprises 24 volumes consisting of 2946 pages), the court
a quo found that the allegations made against the various
complainants in respect of the 22 charges that the appellant had been
convicted on, were defamatory and that the state had proved
beyond
reasonable doubt that the appellant was the author of the leaflets
and that he had published or caused them to be published.
[5] Before us counsel for the appellant did not attack
the findings of the court a quo but in effect abandoned the appeal
save in
so far as it related to the question raised by the order
granting leave to appeal ie whether our law still recognised
defamation
as a crime. They advised us that they were of the view
that should it be held that the crime of defamation is still extant
and
that it is consonant with the Constitution the conviction and
sentence should stand and addressed us only in respect of these two
issues. Consequently these are the only issues that must be dealt
with in this appeal.
[6] It should be stated at the outset that we are
indebted to Mr G Marcus SC and Mr S Budlender who kindly agreed to
appear as
amici curiae
in the matter and whose heads of argument and very fair and balanced
oral submissions at the hearing of the appeal were of considerable
assistance to us.
IS THE CRIME OF DEFAMATION STILL EXTANT
?
[7] In
R v Japel
1906 TS 108
the court had to decide whether ‘ordinary verbal
slander was punishable as a crime under Roman-Dutch law’.
1
Innes CJ with whom Smith and Mason JJ agreed, after having
stated that there was no doubt that serious verbal defamation was
so
punishable and having referred to Voet 47.10.15 and Matthaeus
de
Criminibus
47.4.7,
concluded ‘that ordinary verbal slander
is still a crime in this country, though the instances where
prosecutions are instituted
in respect of it are few and far
between’.
2
In
R v Harrison and Dryburgh
1922 AD 320
at 327 Innes CJ said:
‘That defamation is by our law a crime admits of no doubt; it
was so regarded by the Roman-Dutch authorities and has been
repeatedly dealt with as such by South African Courts. But the
practice has been to confine criminal proceedings to serious and
aggravated cases.’
[8] Since 1922 very few convictions for criminal
defamation have been reported. The last such reported conviction was
in the case
of
S v Revill
1970 (3) SA 611
(C). The case concerned the defamation of a judge in
contravention of s 1 of the Cape Libel Act 46 of 1882 which was
repealed
in 1977.
3
The last reported conviction for criminal defamation in terms of the
common law was
R v MacDonald
1953 (1) SA 107
(T). It is probably for this reason that the question
was raised in the order granting leave to appeal whether the crime of
defamation
was still extant ie has it not been abrogated by disuse?
Mr Budlender who presented the argument of the
amici
curiae
in respect of this issue submitted
that there must have been, since these cases were decided, many
instances of defamation in respect
of which convictions could have
been secured and that the absence of reported convictions indicated
that the South African community
no longer considered defamation to
be a crime.
[9] The doctrine that law may be abrogated by disuse is
well established in our law.
4
The basis of the doctrine is the tacit repeal ‘through disuse
by silent consent of the whole community’.
5
It is therefore necessary to consider whether it can be said that the
South African community tacitly consented that defamation
should no
longer constitute a criminal offence.
[10] The problem with Mr Budlender’s submission
based on the absence of reported convictions for a long period of
time, is
that it is unlikely that prosecutions would, in the absence
of special circumstances, have been instituted in the high courts.
Regional courts have at all relevant times had jurisdiction to impose
substantial periods of imprisonment. At the moment they may
impose
sentences of up to 15 years’ imprisonment.
6
In these circumstances, if there were prosecutions for defamation,
they are more likely to have been instituted in the lower courts
and
the judgments of the lower courts are not reported in the law
reports. The absence of reported convictions in the law reports
can
therefore not be taken as evidence of tacit consent that defamation
should no longer constitute a criminal offence.
[11] In any event, although there have not been reported
convictions for defamation since
Revill
there have been reported prosecutions. See in this regard
S
v Gibson
1979 (4) SA 115
(D & CLD) at
140G-151A,
S v Bresler
and another
2002 (4)
SA 524
(C); and
S v Moila
2006 (1) SA 330
(T). In
Moila
and
Bresler
it was not
necessary for the court to consider the defamation charge as the
charge was in the alternative to a contempt of court
charge, which
the court found to have been proved. In
Gibson
the court did consider the defamation charge and acquitted the
accused. The basis of the doctrine of abrogation being a supposed
tacit repeal ‘through disuse by silent consent of the whole
community’, not only convictions but also prosecutions
are
relevant in determining whether there had been such a tacit repeal.
See in this regard
Green v Fitzgerald
7
where the fact that there had been no criminal prosecutions for
adultery for 85 years was a factor that weighed with the court
in
finding that adultery as a crime had been abrogated by disuse.
Unsuccessful prosecutions can, however, be no more than a factor
to
be taken into account. The unsuccessful attempt to secure a
conviction for defamation by a prosecutor, who may be uncertain
as to
whether the crime still exists or who may not even have considered
the question, can hardly constitute conclusive proof of
the attitude
of the community.
[12] A more reliable indication of the attitude of the
community is to be found in the fact that the then Minister of
Internal Affairs,
in August 1982, requested the South African Law
Commission ‘to investigate the possibility of extending
criminal defamation
to include the publication of untruths concerning
a person in public, and group defamation’. The request arose
out of a recommendation
by a Parliamentary Select Committee in
respect of a proposal by a Cabinet Committee that the Electoral Act
45 of 1979 be amended
to make the publication of false or defamatory
allegations about an election candidate punishable.
8
The Parliamentary Select Committee would seem not to have considered
criminal defamation to have been abrogated by disuse. The
Commission
reported that it investigated the matter and that more than 60
persons and bodies responded to a questionnaire prepared
by it. The
investigation did not, however, reveal any need for the proposed
amendment of the law and the opinion poll showed a
substantial
majority feeling against it.
9
It thus recommended ‘that the legal position regarding criminal
defamation be left unchanged’.
10
Of even more importance to the present enquiry is the fact that
notwithstanding the investigation there is no suggestion in the
report that criminal defamation had by 1982 been abrogated by disuse.
[13] Notwithstanding the Law Commission’s report,
the extension of the crime of criminal defamation was subsequently
introduced
by the Legislature in terms of the
Electoral Act 73 of
1998
. Schedule 2 of that Act contains an Electoral Code of Conduct
which provides in para 9(1)(b) thereof that no registered party or
candidate may publish false or defamatory allegations in connection
with an election in respect of a party, its candidates,
representatives
or members or a candidate or that candidate’s
representatives. In terms of s 94 of that Act no person or party
bound by the
Code may contravene a provision of the Code and in terms
of s 97 such a contravention constitutes an offence.
[14] I have not been able to find and we have not been
referred to any suggestion by an academic or anybody else, before
this case,
that criminal defamation has been abrogated by disuse. The
text books on criminal law that I consulted contain a section dealing
with the crime without any suggestion that it has been abrogated by
disuse.
11
Even more telling is the fact that it is not suggested by those
academics who are in favour of the abolition of the crime. They
would, because of that attitude, certainly have raised the
possibility that the crime had been abrogated, had they considered
that to be a possibility.
12
[15] In the light of the foregoing it cannot be said
that criminal defamation has been repealed as a crime by silent
consent of
the whole community.
IS THE CRIMINALISATION OF DEFAMATION CONSONANT WITH THE
CONSTITUTION?
[16] Criminal defamation is defined by JRL Milton as the
unlawful and intentional publication of matter concerning another
which
tends to injure his reputation.
13
But he then says that although not authoritatively decided, criminal
defamation should be restricted to serious cases.
14
The inclusion of the additional requirement that the injury to
reputation should be serious is supported by CR Snyman
15
but not by John van der Berg (although he is in
favour of the abolition of the crime)
16
and F F W van Oosten.
17
[17] I referred above to the statement by Innes CJ in
R
v Harrison and Dryburgh
that ‘the
practice has been to confine criminal proceedings to serious and
aggravated cases’. It is implicit in this
statement that Innes
CJ did not consider seriousness to be an element of criminal
defamation. In
R v Fuleza
1951 (1) SA 519
(A) the court had to determine whether slander, or
injuria verbis
, was a
crime in the Colony of the Cape of Good Hope as at 10 June 1891. Van
den Heever JA examined the Roman Dutch authorities,
referred to Voet
47.10.15 who says ‘all injuries, whether grave or slight, may
be prosecuted criminally’
18
and concluded, in relation to the question whether gravity was an
element of the offence of criminal defamation, that ‘it
is
abundantly clear therefore that the apparent conflict between the
Roman-Dutch authorities relates to procedure and policy in
regard to
prosecution not to the elements of the offence’.
19
In respect of Van Leeuwen (
Romeinse Hollandse
Reg
, 4.37.1
in fin
)
who ‘avers that a criminal prosecution does not lie in respect
of oral defamation “unless it is an uncommon defamatory
statement which affects the commonwealth because of its results”’
Van den Heever JA said:
‘The distinction, if it relates to the definition of the
offence and not to policy in regard to its prosecution, seems to
me
arbitrary, variable and uncertain. It is as incapable of practical
application as the Byzantine degrees of
culpa
, descriptions of
which read well, but which no one has been able to apply to practical
affairs and which have now generally been
discarded.’
20
[18] The other members of the bench in
Fuleza
were Hoexter JA and Fagan JA. Hoexter JA found it unnecessary to
express a view as to whether the gravity of the defamation was
an
element of the offence.
21
Fagan JA, having stated that he wished to guard himself against a
finding which could encourage prosecutions for less serious cases
of
slander, accepted the statement by Innes CJ ‘that the practice
has been to confine criminal proceedings to serious and
aggravated
cases’. But he left open the question ‘whether this
limitation is merely a matter of policy depending on
the decision of
the public prosecutor in each individual case in which a complaint is
lodged with him, or whether the practice
has in the course of time
hardened into a legal rule which should also be applied by a court
trying the criminal charge’.
He conceded that it may be
difficult to draw a line, for the purpose of applying this limitation
as a legal principle, between
cases that are serious and those that
are not.
22
It follows that he agreed with Van Heerden JA that the apparent
conflict between the Roman-Dutch authorities relates to procedure
and
policy in regard to prosecution not to the elements of the offence.
[19] In
R v MacDonald
23
the accused had been convicted of defamation and sentenced to a fine
of ₤10. On appeal the court did not consider the defamation
in
question to be an aggravated defamation but concluded that the weight
of modern authority precluded it from deciding that a
court had a
discretion as to whether to convict according to the seriousness of
the offence.
24
[20] Milton submits that the Roman-Dutch (and the
pre-1951 South African) position is sufficiently equivocal for our
courts to decide
this matter on considerations of policy without
worrying about problems of desuetude.
25
According to him a third group of Roman-Dutch jurists ‘actually
qualifies the definition of criminal defamation by requiring
“an
extraordinary case of defamation, affecting the common weal in its
results”’.
26
Burchell, on the other hand, agrees with Van den Heever JA that the
Roman-Dutch writers fall into two groups, the one holding that
the
criminal remedy lay whether the injury was serious or slight and the
other, apparently accepting that view, holding that for
policy
reasons only serious cases should be prosecuted. According to him Van
Leeuwen and Van der Keessel, who, according to Milton
fell into the
third group, would ‘appear to be commenting on the fact that
prosecutors do not prosecute for slight, as opposed
to serious,
injuries’.
27
According to Van der Berg the correct interpretation of the
Roman-Dutch authors ‘seems to be that non-serious
iniuriae
were regarded as crimes, but were, as a
matter of policy, infrequently prosecuted.
28
Van Oosten rejects seriousness as a requirement for criminal
defamation and states that the view that it is a requirement leads
to
uncertainties, anomalies, inconsistencies and confusion in regard to
criminal liability.
29
[21] In the light of these authorities I am not
persuaded that the authoritative analysis of the law by Van den
Heever JA in
Fuleza
is
wrong and that a degree of seriousness was an element of the crime of
defamation in Roman-Dutch law or that it is an element
of criminal
defamation in our law. I am also not aware of any evidence that the
practice of confining criminal proceedings for
defamation to serious
and aggravated cases has hardened into a legal rule, being the
possibility mooted by Fagan JA in
Fuleza.
In
the case of a common assault seriousness is not an element of the
offence (that is not to say that the
de
minimis
rule does not apply in cases where
the offence is so trivial that a court should not take notice
thereof).
30
I can see no reason why the position should be different in the case
of an injury to a personality right such as a person’s
reputation.
[22] It would seem to be accepted that seriousness is a
requirement for the crime of
crimen injuria
31
but it is not clear what the test for seriousness is. In this regard
I agree with Thirion J that ‘[t]he test requiring the
injuria
to be “serious”, in so far as it can be called a test at
all, is so nebulous as to lead to arbitrariness in its application’.
There is in my view no reason to extend this requirement, accepting
that it is a requirement in the case of
crimen
injuria
, to criminal defamation. There has
been no suggestion that the courts’ valuable time has unduly
been taken up by serious
criminal defamation cases, let alone
non-serious ones. Should the prosecuting authority oblige and
prosecute for non-serious defamation,
which seems to me to be highly
unlikely, the fact that the defamation is not serious would be
reflected in the sentence. In trivial
cases it may be found that the
de minimis
rule
applies.
[23] I, therefore, conclude that the crime of defamation
consists of the unlawful and intentional publication of matter
concerning
another which tends to injure his reputation.
[24] In regard to the element of unlawfulness it has
long been recognized that if defamatory matter is true and published
for the
public benefit, or constitutes fair comment or is published
on a privileged occasion, the publication is not unlawful. But those
are not the only circumstances that would render the publication of
defamatory matter lawful. In
National Media
Ltd and others v Bogoshi
1998 (4) SA 1196
(SCA) this court had to consider whether the publication by the press
of false defamatory statements may in appropriate circumstances
be
lawful. In his judgment, with which all the members of the court
agreed, Hefer JA said that the three mentioned defences do
not
constitute a
numerus clausus
of defences and added:
32
‘In our law the lawfulness of a harmful act or omission is
determined by the application of a general criterion of
reasonableness
based on considerations of fairness, morality, policy
and the Court’s perception of the legal convictions of the
community.’
Hefer JA then, after having referred to the competing
rights, namely the right to reputation and the right to freedom of
expression,
the way in which these two interests have been weighed in
this country in the past and the way the matter has been resolved
elsewhere,
concluded ‘that the publication in the press of
false defamatory allegations of fact will not be regarded as unlawful
if,
upon a consideration of all the circumstances of the case, it is
found to have been reasonable to publish the particular facts in
the
particular way and at the particular time’.
33
[25] In
Q v Shaw
3 EDC 323
at 328 the court held that the onus in respect of a plea of
justification rests on the accused. That statement does not, however,
accord with the fundamental principle of our common law that the
State has to prove all the elements of an offence. The common
law
recognised only two exceptions to that general principle namely where
an accused raised a defence of insanity and where a statute
created
an exception (
R v Ndhlovu
1945 AD 369
at 380-381 and 386-387). In the absence of any statutory
exception the fundamental principle applies in the case of criminal
defamation.
34
This fundamental principle of the common law has now been entrenched
in s 35(3)(h) of the Constitution which provides that
every
accused person has a right to a fair trial, which includes the right
to be presumed innocent, to remain silent and not to
testify during
the proceedings.
35
[26] It follows that the state must prove the unlawful
and intentional publication of defamatory matter. Intentional
publication
also requires proof that the accused knew that he was
acting unlawfully or that he knew that he might possibly be acting
unlawfully.
36
As in any other criminal case the degree of proof required is proof
beyond reasonable doubt.
37
It does not follow that the state has to negative merely hypothetical
possible defences.
38
It would be necessary, for example, for an accused, whose defence is
that the alleged defamatory allegations were true and made
for the
public benefit, to plead that defence as is required by s 107 of
the Act. Precisely what circumstances would require
the state to
negative other defences will depend on the particular circumstances
and will be left for decision when the need to
do so arises.
[27] Having determined the elements of the crime of
defamation and that those elements are to be proved by the state
beyond reasonable
doubt I shall now proceed to deal with the question
whether the crime is consonant with the Constitution.
[28] In terms of s 16 of the Constitution everyone
has the freedom to receive and impart information. The section reads:
‘(1) Everyone has the right to freedom of expression, which
includes –
freedom of the press and other media;
freedom to receive or impart information or ideas;
freedom of artistic creativity; and
academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to –
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.’
[29] The importance of the right to freedom of
expression has often been stressed by our courts.
39
Suppression of available information and of ideas can only be
detrimental to the decision-making process of individuals,
corporations
and governments. It may lead to the wrong government
being elected, the wrong policies being adopted, the wrong people
being appointed,
corruption, dishonesty and incompetence not being
exposed, wrong investments being made and a multitude of other
undesirable consequences.
It is for this reason that it has been said
‘that freedom of expression constitutes one of the essential
foundations of a
democratic society and is one of the basic
conditions for its progress and the development of man’.
40
Although false information will not benefit a society, democratic or
otherwise, the right to freedom of expression is not restricted
to
correct or truthful information because errors are bound to be made
from time to time and to suppress the publication of erroneous
statements on pain of penalty would of necessity have a stifling
effect on the free flow of information.
41
But the freedom of expression is not unlimited. Although it is
fundamental to our democratic society it is not a paramount value.
It
must be construed in the context of other values such as the value of
human dignity.
42
[30] Human dignity is stated in s 1 of the
Constitution to be a foundational value of our democratic state and s
10 of the
Constitution provides:
‘Everyone has inherent dignity and the right to have their
dignity respected and protected.’
‘
The value of human dignity in our Constitution .
. . values both the personal sense of self-worth as well as the
public’s
estimation of the worth or value of an individual’
43
ie an individual’s reputation. In regard to the importance of
protecting an individual’s reputation Lord Nicholls of
Birkenhead
said in
Reynolds v Times Newspapers Ltd
[2001] 2 AC 127
at 201:
‘Reputation is an integral and important part of the dignity of
the individual. It also forms the basis of many decisions
in a
democratic society which are fundamental to its well-being: whom to
employ or work for, whom to promote, whom to do business
with or to
vote for. Once besmirched by an unfounded allegation in a national
newspaper, a reputation can be damaged for ever,
especially if there
is no opportunity to vindicate one’s reputation. When this
happens, society as well as the individual
is the loser. For it
should not be supposed that protection of reputation is a matter of
importance only to the affected individual
and his family. Protection
of reputation is conducive to the public good. It is in the public
interest that the reputation of public
figures should not be debased
falsely. In the political field, in order to make an informed choice,
the electorate needs to be
able to identify the good as well as the
bad.’
[31] The law of defamation, both criminal and civil, is
designed to protect the reputation of people. In doing so it clearly
limits
the right to freedom of expression. Such limitation can be
consistent with the Constitution only if it can be said that ‘an
appropriate balance is struck between the protection of freedom of
expression on the one hand, and the value of human dignity on
the
other’.
44
In
Khumalo
that was
held to be the case in so far as the civil remedy for defamation is
concerned.
[32] In regard to criminal defamation Burchell
45
poses the question whether a criminal sanction for defamatory words
is too drastic a means of regulating free speech, especially
when
there is a relatively well developed civil-law remedy. Snyman
46
submits that our law will be no poorer if the crime is abolished. He
bases his submission on the small number of prosecutions and
the
existence of a civil remedy. Milton
47
thinks that there is a strong and persuasive case for the
decriminalisation of defamation and Van der Berg,
48
referring to the frequency of prosecutions, the limited redress which
a victim may achieve through a criminal prosecution, the
existence of
a civil remedy and trends in other jurisdictions, says that the need
for the crime of defamation has become highly
suspect.
[33] A criminal sanction is indeed a more drastic remedy
than the civil remedy but that disparity is counterbalanced by the
fact
that the requirements for succeeding in a criminal defamation
matter are much more onerous than in a civil matter. In a civil
action
for defamation unlawfulness and
animus
injuriandi
are presumed once the publication
of defamatory material is admitted or proved
49
and the onus is on the defendant to prove whatever he relies upon in
justification.
50
In the case of criminal defamation not only is there no presumption
of unlawfulness or
animus injuriandi
,
the state has to prove both elements and has to do so beyond
reasonable doubt. Media defendants in a civil action have to go even
further than proving absence of
animus
injuriandi
- they have to prove absence of
negligence;
51
whereas in a criminal matter they would escape liability if the state
cannot prove that they knew that they were acting unlawfully
or that
their actions might be unlawful. It is therefore substantially more
difficult to secure a conviction on a charge of defamation
than it is
to succeed in a civil claim for defamation and although a criminal
conviction and the sanction arising therefrom may
be more severe than
an order to pay damages the limitation of the right to freedom of
expression is, in my view, not. In any event
to expose a person to a
criminal conviction if it is proved beyond reasonable doubt, not only
that he acted unlawfully, ie without
justification, but also that he
knew that he was acting unlawfully in my view constitutes a
reasonable and not too drastic a limitation
on the right to freedom
of expression.
[34] The onerous requirements in the case of criminal
defamation are probably a reason for the paucity of prosecutions for
defamation
compared to civil defamation actions. Another reason is
probably the fact that, in civil defamation actions, plaintiffs very
seldom
give evidence and thus avoid being exposed to
cross-examination. In criminal cases on the other hand the
complainant is not in
control of the proceedings and would in most
cases be called to give evidence specifically in order to prove that
the relevant
allegations are untrue.
[35] It does not follow that there is no need for the
crime. Another reason for the paucity of prosecutions may be the
effectiveness
of the remedy in the sense that defamatory allegations
are not published when it is known that they could be proved beyond
reasonable
doubt, to be untrue.
52
There have been cases in the past where complainants required the
state to prosecute for defamation and there may well be such
cases in
the future. It is true that there is a civil remedy available for
defamation but there is also a civil remedy available
for common
assault, yet nobody would suggest that there is for that reason no
need for the crime of common assault. There is in
my view no reason
why the state should oblige and prosecute in the case of a complaint
in respect of an injury to a person’s
physical integrity but
not in the case of a complaint in respect of an injury to reputation,
which may have more serious and lasting
effects than a physical
assault. In any event, the need for the crime in addition to the
civil remedy is proved by the present
case. The complainants in this
case did not know who was responsible for the publication of the
defamatory allegations and had
to enrol the assistance of the police
and the prosecuting authorities to prove that it was the appellant.
[36] For these reasons I am of the view that our crime
of defamation is not inconsistent with the Constitution. Support for
this
finding is to be found in
Worme and
another v Commissioner of Police of Grenada
[2004] UKPC 8
where the Privy Council had to decide whether the
hindrance to freedom of speech under s 10(1) of the Grenada
Constitution
constituted by the statutory crime of intentional libel
was reasonably justifiable in a democratic society.
53
It concluded that the offence was reasonably required to protect
people’s reputations and that it did not go further than
was
necessary to accomplish that objective.
54
In respect of the question whether the crime is justifiable in a
democratic society it held:
55
‘Of course, some democratic societies get along without it. But
that simply shows that its inclusion is not the hallmark
of the
criminal law of all such societies. In fact criminal libel, in one
form or another, is to be found in the law of many democratic
societies, such as England, Canada and Australia. It can accordingly
be regarded as a justifiable part of the law of the democratic
society in Grenada.’
[37] For these reasons the appeal is dismissed.
__________________
P E STREICHER
JUDGE OF APPEAL
APPEARANCES:
For Appellant: C Ploos van Amstel SC
P W Nel (Attorney)
Instructed by
The Justice Centre, King William’s Town
Bloemfontein Justice Centre, Bloemfontein
For Respondent: M P Z Sotenjwa
Amici curiae G J Marcus SC
S Budlender
Instructed by
The Director of Public Prosecutions, Bisho
The Director of Public Prosecutions, Bloemfontein
1
At 110-111.
2
At 111.
3
Section 1 of the Pre-Union Statute Law Revision
Act 43 of 1977.
4
Green v Fitzgerald and others
1914 AD 88
at 111;
R v Chipo
1953 (4) SA 573
(A) at 578-579; and
R v
Sibiya
1955 (4) SA 247
(A) at 265D-F.
5
Green v Fitzgerald supra
at 110; and
LTA Engineering Co Ltd v
Seacat Investments (Pty) Ltd
1974 (1)
SA 747
(A) at 771G-H.
6
Section 92(1)
of the
Magistrates’ Courts
Act 32 of 1944
.
7
Above at 112.
8
South African Law Commission Annual Report 1983 p 15.
9
Op cit p 16.
10
Loc cit.
11
JRL Milton
South
African Criminal Law and Procedure
Vol
ll
Common-Law Crimes
3 ed p
520-535; and CR Snyman
Criminal Law
5 ed p 475-477; and Jonathan Burchell
Principles
of Criminal Law
3 ed p 741.
12
JRL
Milton loc cit; CR Snyman loc cit; Jonathan M
Burchell
The Law of Defamation in South
Africa
p 332-333; and John van
der Berg ‘Should There be a Crime of Defamation’
(1989) 106
SALJ
p 276.
13
JRL
Milton op cit 520. See also Jonathan Burchell
Principles of Criminal Law
3 ed p 741.
14
JRL Milton op cit 531.
15
CR Snyman op cit 477.
16
John van der Berg ‘Is gravity really an
element of
crimen injuria
and criminal defamation in our law?’
(1988)
THRHR
54
p 72.
17
FFW van Oosten ‘Seriousness, Defamation and Criminal
Liability’ (1978) 95
SALJ
p 505.
18
At 525G-H.
19
At 526E-F.
20
At 525E-G.
21
At 529F-G.
22
At 532E-G.
23
1953 (1) SA 107
(T).
24
At 110G-H.
25
JRL Milton op cit p 531.
26
Op cit p 529.
27
Jonathan M Burchell
The
Law of Defamation in South Africa
p
326.
28
Van der Berg ‘Is gravity really an element
of
crimen injuria
and criminal defamation in our law?’
(1988)
THRHR
54
p 59.
29
FFW van Oosten op cit p 507-508 and 512-513.
30
S v Kgogong
1980
(3) SA 600
(A) 603G-604A; and
S v A and
another
1993 (1) SACR 600
(A) at
607 d-f.
31
S v Bugwandeen
1987 (1) SA 787
(N) at 794D-796E; John van der Berg ‘Is
gravity really an element of crimen iniuria and criminal defamation
in our law?’(1988)
THRHR
p 54.
32
At 1204D-E.
33
At 1212G-H.
34
See
Worme and
another v Commissioner of Police of Grenada
[2004] UKPC 8
para 24 where the Privy Council came to the same
conclusion.
35
S v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC) para 15.
36
S v De Blom
1977
(3) SA 513
(A);
S v Hlomza
1987 (1) SA 25
(A) at 31H-32G; and see
Maisel
v Van Naeren
1960 (4) SA 836
(C) at
840 in respect of the requirement of
animus
injuriandi
in the civil context.
37
R v Ndhlovu
1945
AD 369
at 386-387.
38
Op cit at 381; see also
S
v De Blom
above at 532E-H.
39
National Media Ltd and others v Bogoshi
1998 (4) SA 1196
(SCA) 1207I-1208G;
Khumalo and others v Holomisa
[2002] ZACC 12
;
2002 (5) SA
401
(CC) para 21-25; and
Mthembi-Mahanyele v Mail & Guardian
Ltd and another
2004 (6) SA 329
(SCA) para 65.
40
Bogoshi
at 1208.
41
Holomisa v Argus Newspapers Ltd
1996 (2) SA 588
(W) at 616I-J; and
National
Media Ltd and others v Bogoshi
at
1210G-I.
42
Khumalo and others v Holomisa
para 25.
43
Op
cit at para 27.
44
Op
cit para 28.
45
Jonathan M Burchell
The
Law of Defamation in South Africa
p
325.
46
CR Snyman
Criminal
Law
5 ed p 476.
47
JRL Milton op cit p 520.
48
John van der Berg ‘Should there be a Crime
of Defamation’, (1989) 106
SALJ
p 290.
49
National Media Ltd and others v Bogoshi
at 1202G-H.
50
Op cit 1218D-F.
51
Op cit 1215H-J.
52
Worme and another v Commissioner of Police of Grenada
[2004]
UKPC 8
at 455E-F para 42; and
R v Lucas
[1998] SCR 439
para
55.
53
Para 41.
54
Para
42.
55
Para 43.