In many african countries, defamation laws virtually contradict the right to freedom of. The central purpose of defamation law is the protection of reputation. The plaintiff need only establish that the conduct of another was in the form of a publication which is harmful to the plaintiffs reputation. What is defamation and what constitues defamatory conduct. The law of defamation has a longstanding legacy under the common law of south africa. 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. Find a description of the pass laws in apartheidera south africa, the contents of the muchhated passbooks, and the consequences of violating them. The full range of liability based on intention, negligence and nofault principles is to be found within the law of defamation. Many of the tensions that pervade the law of delict as a whole are reflected in the south african law of defamation. There are three defences in south african law that justifies a defamatory statement. Where south african defamation law stands on naming and. If they dont get you in touch with the spirit of the place, not much else will. Most south africans believe that the major cause of crime in south africa is poverty. In south africa, criminal defamation had been declared to be consistent with the constitution in the supreme court of appeal in 2008.
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. 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. The south african supreme court of appeal ruled on the question of whether strict liability. Apr 15, 2019 in south africa the courts have used the constitutional provisions on freedom of expression to develop the common law on defamation. Updated 060319 simon eeman eyeem getty images when planning a visit to a new country, the first thing you are likel. A detailed and systematic exposition of the law of defamation in south africa. Pen report on criminal defamation laws in africa pen south. With some relatively minor exceptions, the laws of defamation are now uniform throughout each of the states and territories of australia. The law of defamation in south africa unknown binding january 1, 1985 by jonathan m burchell author visit amazons jonathan m burchell page. 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.
Defining defamation in south african law the wrong of defamation is committed whenever anyone publishes a defamatory statement about another living person. Discover the best restaurants in south africa including fermier, calexico vinyl lounge and restaurant, salt. Mbura v katjiri and another unknown204382 2017 nahcmd. For the time being, it is imperative that the knowledge base around such an inherent area of the law increases. Produced for article xix by fahamu 433 clark road, glenwood, durban, 4001 kwazulu natal south africa design. Many defamation laws originated as part of the criminal law of the state. The republic of south africa is one, sovereign, democratic state founded on the following values. Corbisgetty images south african pass laws were a major component of apartheid that focuse. Ajgm sanders internal conflict of laws in south africa 1990 21. To what extent this set of legal rules are relevant in a modern, electronically connected, african state is open to question. The timely demise of criminal defamation law webber wentzel. Da wins r300k defamation case after ancyl racist slur in. Your best chance at success will be to hire an attorney. 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.
Comparative study of criminal defamation laws in the americas i. Criminal defamation is a relic of colonial totalitarianism. The politics of defamation insights into the law in south. Colonial, apartheidera laws hur southern africas press. Things to do with kids best beaches best surfing best dive destinations best golf resorts kruger n. 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. There are also some indications that the intimidating effects extend beyond the fear of a criminal conviction. The timely demise of criminal defamation law webber. The determination of quantum in respect of sentimental damages is inherently difficult and requires the exercise of discretion, more properly called a value. Defamation law protects an individuals reputation or feelings from unwarranted attacks. Chapter 36 dignity constitutional law of south africa. Aug 23, 2019 the role of defamation law is to strike a balance between the two. 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.
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. See y mokgoro ubuntu and the law in south africa 1998 4. 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. If the statement is true and in public interest the statement is substantially true and the public has a legitimate interest in hearing it. With some relatively minor exceptions, the laws of defamation are now uniform throughout each of the states and territories of. 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.
The law of defamation in south africa by jonathan m. 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. 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. However, with the constant evolution of new forms of media and particularly the evergrowing popularity of social. Truth was, at last, a defence on charges of seditious libel. South africa boasts one of the worlds most developed bodies of dignity jurisprudence. Find all the books, read about the author, and more. Apparently, defamation is one of the areas in the law of tort that no lawyer can sidestep.
The tension between free expression and defamation laws. This country has some of the biggest reserves of gold, manganese, coal, platinum, diamonds, va. 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. The animals have competition from the countrys rampant culture, food, design, fashion and arts scenes. The law of defamation in south africa paperback author. Where south african defamation law stands on naming and shaming. The report stifling dissent impeding accountability criminal defamation laws in africa focuses on the continued retention of such laws in uganda, zambia, south africa and sierra leone and examines the impact of the repeal of criminal defamation laws in ghana in 2001. Apr 26, 2016 in south african law the wrong of defamation is committed whenever anyone publishes a defamatory statement about another living person. In fact the applicants did not rely upon any justification ground. South africas defamation law was amended in 1998 to protect residents against the mass publication power that was once exclusive to the media. 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. The leading textbook on this subject is burchell the law of defamation in south africa. Defamatory refers to any allegation that would tend to.
Jun 15, 2010 my husband and i emmigrated to south africa in 1991, we had permanent residency. Defamatory words that are true can also be actionable. Criminal defamation laws in south america committee to. President ramaphosa appointed him as inspecting judge of correctional services from 1 january 2020 and in october 2019 he was. 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. 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. An analytical look into the concept of online defamation.
Social media and defamation in south africa law for all. In south african law the wrong of defamation is committed whenever anyone publishes a defamatory statement about another living person. A good defamation law one which lays the groundwork for striking a proper. The gist of wills post was the heroldt was an unfit parent due to his alleged substance abuse. However, recent studies suggest that social structures emerging from most south africans believe that the major cause of crime in south africa is poverty. Decriminalising defamation in africa southern africa.
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. 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. 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. 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 2015, the south african human rights commission sahrc accused sunette bridges, an afrikaans music artist, of hosting racial commentary on her facebook page. To revisit this article, visit my profile, then view saved stories. South african law, the power of reprieve from such sentence lies with the executive. The law of defamation has provided the battleground for a conflict between the proponents of the major theories of dilectual liability.
Sep 23, 2015 this announcement from the ruling party in effect means that the days of criminal defamation are numbered in south africa. An analytical look into the concept of online defamation in. 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. If defamation is part of the criminal law, the criminal standard of proof beyond a reasonable doubt should be fully satisfied. Lung cancer remains the most commonly diagnosed cancer and the leading cause of cancer death worldwide because of inadequate tobacco control policies. Defamation can be defined as the wrongful and intentional publication of a defamatory statement concerning a person plaintiff. Check out the new look and enjoy easier access to your favorite features. Without features screenprint by hassaan ali ahmed acknowledgments. It is not one of the requirements of defamation for the statements or actions to be false. Defamation bachelors of law llb 98680 unisa studocu.
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. A worldwide, politically nonaligned organisation of writers, pen international is dedicated to promoting freedom of expression, and encouraging the growth and strengthening of literature. Once this has been proven by the plaintiff the other elements of liability are presumed to exist, meaning. Freedom of speech and the law of defamation strauss daly. 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. 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. 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. South african rand r zulu, xhosa, afrikaans, english, northern sotho, tswana, southern sotho, tsonga, swati, venda, ndebele top c. Your guide to defamation leading brisbane law firm. It is probably the most committed tort in the society today. 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.
However, last year, the african national congress introduced a bill into parliament to repeal the common law offence of criminal defamation. Edwin cameron born 15 february 1953 in pretoria is a retired judge who served as a justice of the constitutional court of south africa. Abolition of criminal defamation and retention of scandalum. This power has now extended and is held by 30 million residents, the majority of whom are not affiliated with media institutions. The law of defamation in south africa burchell, jonathan m on. Oct 06, 2020 defamation laws contain gray areas and vary from state to state. 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. This text should be useful to anyone involved in the public sector or communications. 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. 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. As english law has heavily influenced our law in the field, reference should be made to english texts.
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. In my book of life i am a south african citizen, in his book of life he is a non south african citizen. Pen south africa, founded in 1927, is one of more than 140 centres of pen international, which currently operate in over 100 countries. Here is a brief history of what happened when the south african government tried to force women to carry passes through apartheids reign. 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. 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.
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