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 at the particular time. This also amounts to a defence of absence of negligence on the part of the media defendant. The defence remains in an early stage of development.
A good example that illustrates the application of the reasonableness defence and the difficulty of predicting whether it will succeed, is the decision of the Supreme Court of Appeal in Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA).
In this case, the Mail & Guardian newspaper succeeded in defending a claim brought by Sankie Mthembi-Mahanyele, the former Minister of Housing, in relation to a claim made by the Mail & Guardian that Mthembi-Mahanyele was corrupt.
Although the Mail & Guardian did not argue that this statement was true, two of the judges in the Supreme Court of Appeal agreed that the newspaper had acted reasonably in making the allegation, as a result of the political nature and context of the speech and the steps taken by journalists to verify the allegation, amongst other factors. But two other judges disagreed with this approach. The newspaper ultimately succeeded because the remaining judge held that the allegation was not defamatory of Mthembi-Mahanyele in the first place.
It should also be noted that defamation is not only a delict in South Africa, but can also be a crime. In the criminal context, the State must prove all the elements of the offence beyond a reasonable doubt, including the fact that the defendant acted unlawfully and with the intention to defame.
The Films and Publications Act
The Publications Act, No. 42 of 1974 (the 1974 Act) gained notoriety as the tool with which the government of the day prevented the general public from viewing and reading any materials that were considered to be "undesirable". The 1974 Act included the power to ban items such as statues, models, films and newspapers on the basis that they were undesirable. The term "undesirable" was the subject of much debate.
The transition to a democracy based on freedom and tolerance brought about a radical rethink of the censorship regul