Chapter 36 dignity constitutional law of south africa. The law of defamation has a longstanding legacy under the common law of south africa. As english law has heavily influenced our law in the field, reference should be made to english texts. Corbisgetty images south african pass laws were a major component of apartheid that focuse. The law of defamation has provided the battleground for a conflict between the proponents of the major theories of dilectual liability. Nov 11, 2019 da legislature member david van vuuren pointed out on monday that magashule received the honorary doctorate in 2016, and the provincial government had paid r32. South african law, the power of reprieve from such sentence lies with the executive. The timely demise of criminal defamation law webber wentzel. The law of defamation in south africa by jonathan m. Jun 15, 2010 my husband and i emmigrated to south africa in 1991, we had permanent residency. South africa s landmark online defamation case occurred in 20 heroldt v wills, which saw heroldt seeking an interdict against wills for posting a defamatory facebook message about him. An analytical look into the concept of online defamation in. Comparative study of criminal defamation laws in the americas i. Discover delightful childrens books with amazon book box, a subscription that delivers new books every 1, 2, or 3 months new amazon book box prime.
The events that unfolded in the case of herman mashaba v parks tau and others case number 384092016 in the judgment delivered on 8 february 2019, took place prior to the previous local elections when herman mashaba ousted parks tau as the mayor of johannesburg. Produced for article xix by fahamu 433 clark road, glenwood, durban, 4001 kwazulu natal south africa design. Lung cancer remains the most commonly diagnosed cancer and the leading cause of cancer death worldwide because of inadequate tobacco control policies. Abolition of criminal defamation and retention of scandalum. Pen south africa, founded in 1927, is one of more than 140 centres of pen international, which currently operate in over 100 countries. The full range of liability based on intention, negligence and nofault principles is to be found within the law of defamation. Check out the new look and enjoy easier access to your favorite features. If they dont get you in touch with the spirit of the place, not much else will. This country has some of the biggest reserves of gold, manganese, coal, platinum, diamonds, va. See y mokgoro ubuntu and the law in south africa 1998 4. The law of defamation in south africa burchell, jonathan m on. In south african law the wrong of defamation is committed whenever anyone publishes a defamatory statement about another living person. The tension between free expression and defamation laws. The african commission, in resolution 169, called on all states to repeal criminal defamation laws or insult laws which impede freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the african charter, the declaration, and other regional and international instruments.
The leading textbook on this subject is burchell the law of defamation in south africa. Truth was, at last, a defence on charges of seditious libel. With some relatively minor exceptions, the laws of defamation are now uniform throughout each of the states and territories of. Apr 26, 2016 in south african law the wrong of defamation is committed whenever anyone publishes a defamatory statement about another living person. Oct 06, 2020 defamation laws contain gray areas and vary from state to state.
Aug 23, 2019 the role of defamation law is to strike a balance between the two. However, recent studies suggest that social structures emerging from most south africans believe that the major cause of crime in south africa is poverty. In 2015, the south african human rights commission sahrc accused sunette bridges, an afrikaans music artist, of hosting racial commentary on her facebook page. South african rand r zulu, xhosa, afrikaans, english, northern sotho, tswana, southern sotho, tsonga, swati, venda, ndebele top c. Decriminalising defamation in africa southern africa. The timely demise of criminal defamation law webber. An analytical look into the concept of online defamation. Da wins r300k defamation case after ancyl racist slur in. Social media and defamation in south africa law for all. Discover the best restaurants in south africa including fermier, calexico vinyl lounge and restaurant, salt. Mar 02, 2020 in south african law, the onus of proof is on the person claiming that an act of defamation has occurred and he or she must submit proof that the violation was indeed wrongful. However, last year, the african national congress introduced a bill into parliament to repeal the common law offence of criminal defamation. Defamatory words that are true can also be actionable. It is not one of the requirements of defamation for the statements or actions to be false.
Updated 060319 simon eeman eyeem getty images when planning a visit to a new country, the first thing you are likel. South africa is rich in minerals, and it supplies a large amount of the worlds production of these minerals thanks to an active mining industry. Criminal laws restricting freedom of expression argentinas law 26. The first south african case involving defamation via social media was heroldt v wills 20 2 sa 530 gsj, where an interdict was sought against the defendant for a facebook post suggesting that the plaintiff was not a proper man for allegedly failing to care for his daughters because of the alcohol, the. Where south african defamation law stands on naming and shaming. Apparently, defamation is one of the areas in the law of tort that no lawyer can sidestep. After doing a lot of keyword research, i found that cases on defamation is one of the key phrases searched by lawyers all over the world. Where south african defamation law stands on naming and. Oct 04, 2015 our law of criminal defamation is essentially a combination of romandutch law which inherited the concept from roman law as well as english law. Many people in south africa lack the insight and expertise to pursue legally online defamation cases and the lack of a clear legislative framework regulating online defamation in south africa could in the future exacerbate the situation. To what extent this set of legal rules are relevant in a modern, electronically connected, african state is open to question. Criminal defamation is a relic of colonial totalitarianism. There is little dispute that defamation laws can serve a legitimate purpose and it is recognised internationally as a valid grounds for restricting freedom of expression.
The law of defamation in south africa paperback author. The law of defamation is otherwise based on the provisions of the defamation act 2005 and the common law, that is the law derived from judicial precedent. Defamation bachelors of law llb 98680 unisa studocu. To revisit this article, visit my profile, then view saved stories. Republic of south africa gauteng high court pretoria case nos 3072905 3073005 3264805 3264905 wraypex pty ltd plaintiff v barnes and others defendants civil trial claim for damages, defamation, etc. This text should be useful to anyone involved in the public sector or communications. As far as the south african law is concerned if you say anything on a social media platform which would potentially be considered as harming another persons reputation or undermines hisher dignity, thats likely to be a defamation action. These are 20 of the best things to do in south africa, including swimming with sharks, teeing off at top golf courses, and more with a map. Apr 22, 2016 defining defamation in south african law the wrong of defamation is committed whenever anyone publishes a defamatory statement about another living person. In many african countries, defamation laws virtually contradict the right to freedom of.
Law of delict defamation principles applicable thereto damages awarded purpose of award of damages and principles applicable thereto law of evidence proper approach to factfinding where the evidence adduced by the parties, is disparate and totally irreconcilable. A good defamation law one which lays the groundwork for striking a proper. Defamation law protects an individuals reputation or feelings from unwarranted attacks. Many defamation laws originated as part of the criminal law of the state. Apr 10, 2018 this article serves to supplement the theoretical legal framework for recourse for defamation with claims arising primarily from the use of social media. Defamation can be defined as the wrongful and intentional publication of a defamatory statement concerning a person plaintiff. In my book of life i am a south african citizen, in his book of life he is a non south african citizen. Things to do with kids best beaches best surfing best dive destinations best golf resorts kruger n. A worldwide, politically nonaligned organisation of writers, pen international is dedicated to promoting freedom of expression, and encouraging the growth and strengthening of literature. The central purpose of defamation law is the protection of reputation. The south african supreme court of appeal ruled on the question of whether strict liability. In south african law, the onus of proof is on the person claiming that an act of defamation has occurred and he or she must submit proof that the violation was indeed wrongful. This approach towards the liability, especially of the media, seeks to achieve a better balance between the protection of reputation on the one hand and the right and duty of the press to inform the public about. In fact the applicants did not rely upon any justification ground.
Once this has been proven by the plaintiff the other elements of liability are presumed to exist, meaning. South africa in south africa, even though criminal defamation is sparingly used, it is clear that the presence of the law on the statute book has a chilling effect on a number of those journalists who are aware of it. Your state or county bar association may have free referral services to qualified local attorneys and may also offer free consultations with attorneys who specialize in handling the legal issues relevant to your case. Defamatory refers to any allegation that would tend to lower the plaintiffs in this case the 11 mens standing in the eyes of rightthinking people. Freedom of speech and the law of defamation strauss daly. South africa boasts one of the worlds most developed bodies of dignity jurisprudence. The law of defamation aimed to protect this reputation and as such was very much the product of a specific colonial and victorian time and place. It is probably the most committed tort in the society today. Your best chance at success will be to hire an attorney. Dec 07, 2018 in 2015, south africa s ruling african national congress party announced intentions to repeal criminal defamation and angola is pursuing penal code reform, but the ancs promise has yet to. The politics of defamation insights into the law in south. In south african law, the onus of proof is on the person claiming that an act of defamation has occurred and he or she must submit proof that the. Defamatory refers to any allegation that would tend to.
There are three defences in south african law that justifies a defamatory statement. Mbura v katjiri and another unknown204382 2017 nahcmd. In south africa, criminal defamation had been declared to be consistent with the constitution in the supreme court of appeal in 2008. If defamation is part of the criminal law, the criminal standard of proof beyond a reasonable doubt should be fully satisfied. This power has now extended and is held by 30 million residents, the majority of whom are not affiliated with media institutions. Here is a brief history of what happened when the south african government tried to force women to carry passes through apartheids reign. Only the federal constitutional courts gloss on the meaning of. South africas defamation law was amended in 1998 to protect residents against the mass publication power that was once exclusive to the media. Find a description of the pass laws in apartheidera south africa, the contents of the muchhated passbooks, and the consequences of violating them. Additionally, the chapter in mckerrons book the law of delict 7 ed dealing with defamation in south africa is a useful reference as it states the south african law. With some relatively minor exceptions, the laws of defamation are now uniform throughout each of the states and territories of australia. Defining defamation in south african law the wrong of defamation is committed whenever anyone publishes a defamatory statement about another living person. The republic of south africa is one, sovereign, democratic state founded on the following values. Ajgm sanders internal conflict of laws in south africa 1990 21.
The plaintiff need only establish that the conduct of another was in the form of a publication which is harmful to the plaintiffs reputation. However, as substantial differences exist between south african and zimbabwean law arising out of differing approaches to the concept of animus injuriandi, care should be taken in relying upon this south african text. Criminal defamation laws in south america committee to. The gist of wills post was the heroldt was an unfit parent due to his alleged substance abuse. President ramaphosa appointed him as inspecting judge of correctional services from 1 january 2020 and in october 2019 he was. He is well known for his hivaids and gayrights activism and was hailed by nelson mandela as one of south africa s new heroes.
In early roman law someone who recited words that harmed another person with ridicule was a crime and it was punished with the death penalty. Without features screenprint by hassaan ali ahmed acknowledgments. Jun 26, 2019 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. However, with the constant evolution of new forms of media and particularly the evergrowing popularity of social. Many of the tensions that pervade the law of delict as a whole are reflected in the south african law of defamation. The determination of quantum in respect of sentimental damages is inherently difficult and requires the exercise of discretion, more properly called a value. Find all the books, read about the author, and more. Sep 29, 2015 eradicating criminal defamation from the law entirely which is the approach of zimbabwes constitutional court, the minority judges in the african court decision and, by all accounts, the approach we will now follow in south africa is far preferable to keeping the crime but watering down its penalty.
This limitation on the right to freedom of expression is aimed, at its core, at restoring the good name and reputation of a person who has been defamed through the publication of a false or unjust statement. A detailed and systematic exposition of the law of defamation in south africa. Your guide to defamation leading brisbane law firm. What is defamation and what constitues defamatory conduct. For the time being, it is imperative that the knowledge base around such an inherent area of the law increases. Apr 15, 2019 in south africa the courts have used the constitutional provisions on freedom of expression to develop the common law on defamation. There are also some indications that the intimidating effects extend beyond the fear of a criminal conviction. The animals have competition from the countrys rampant culture, food, design, fashion and arts scenes. Sep 23, 2015 this announcement from the ruling party in effect means that the days of criminal defamation are numbered in south africa. Most south africans believe that the major cause of crime in south africa is poverty. The law of defamation in south africa unknown binding january 1, 1985 by jonathan m burchell author visit amazons jonathan m burchell page. Pen report on criminal defamation laws in africa pen south. Edwin cameron born 15 february 1953 in pretoria is a retired judge who served as a justice of the constitutional court of south africa. If the statement is true and in public interest the statement is substantially true and the public has a legitimate interest in hearing it.
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