s subjects, could be used to bring defamation actions against those subjects. This restriction is not applicable to public servants - the Supreme Court of Appeal has confirmed that a cabinet minister may also sue for defamation in circumstances where the criticism is directed at him or her as an individual, rather than at governmental policies or decisions.
The law allows a plaintiff to claim against a defendant if the plaintiff is able to prove three elements: that the defendant (a) published, (b) defamatory matter, (c) referring to the plaintiff. In respect of defamatory material published on the Internet, the High Court has held that publication takes place where the material is accessed (ie where the content of the website is downloaded).
On proof of the above three elements, the defendant is presumed to have published the matter wrongfully and with the intention of defaming the plaintiff. It is then for the defendant to rebut either of these presumptions by relying on a defence. There are three traditional defences:
- truth in the public interest: to succeed with this defence, the defendant must establish that the material allegations contained in the defamatory statement are substantially true and were made in the public interest;
- fair comment: this defence is applicable when the defamatory statement amounted to fair comment on a matter of public interest (eg an editorial or a satirical cartoon); or
- qualified privilege: the defendant will escape liability on this basis if he or she is under a legal, moral or social duty to publish defamatory matter, and the recipient has a similar interest or duty in receiving it (eg an employment reference). This defence also extends to the fair and accurate reporting of the proceedings of Parliament, courts and certain other public bodies. The defence can be rebutted if the plaintiff proves that the publication was motivated by malice.
In respect of media defendants, there is an additional defence of reasonable publication, which is also known as the Bogoshi defence (see below). This defence is available to a media defendant who acted as a responsible journalist when publishing defamatory material and was not negligent in doing so. The defence is available even if the defamatory allegations later turn out to be false.
If the plaintiff succeeds in an action for defamation, he or she will be entitled to damages to compensate him or her for the infringement of reputation. In Media 24 Ltd v SA Taxi Securitisation (Pty) Ltd, a case recently decided by the Supreme Court of Appeal, the court held that in order for a plaintiff to succeed with a claim for actual financial loss arising from a defamatory publication, the plaintiff must allege and prove that the allegations complained of were false.
Recent cases suggest that, as an alternative to damages, a court may award the plaintiff an apology or retraction. In one case, the court made a declaration of falsity on application by a defamed plaintiff.
In certain limited circumstances, an interdict may be granted prohibiting publication where the defamatory material has not yet been released, or is sought to be published on a continuous basis.
Defamation and the Media
Specific considerations apply to the media. Before 1998, a media defendant was strictly liable for defamation. This meant that a media defendant was liable in the absence of fault and could thus not escape liability on the basis that it lacked the intention to defame the plaintiff. A media defendant could only rely on the traditional defences negating the presumption of unlawfulness.
The Supreme Court of Appeal re-examined the law in respect of defamation actions against the media in National Media Limited and others v Bogoshi 1998 (4) SA 1196 (SCA). In this case, the court rejected the test of strict liability for the media and held that the appropriate test for media liability is reasonableness.
A media defendant will therefore not be liable for defamation if, in light of all the circumstances, it was reasonable to publish the relevant material in the particular way and a