The elements of defamation

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Patrick Bracher | Partner | Norton Rose Fulbright South Africamail me |


The Johannesburg High Court discussed the balance between the constitutional right to freedom of expression and the required respect for inherent dignity ‘to all human beings’.

The defendant in Mostert and Others v Nash and Others (34664/2017) [2018] ZAGPJHC 511; [2018] 4 All SA 267 (GJ) (14 August 2018) argued the allegedly defamatory statements made about the plaintiff were true and in the public interest.

It is for the defendant in a defamation claim to establish the truth of the allegations and the fact that they are in the public interest. The context in which the statements were made, their reasonableness, the tone used, the identity of the person who made the statements, and the identity of the victim are all relevant because they determine whether freedom of expression justifies the violation of a person’s right to dignity.

A trustee of two pension funds that had been accused by the curator & liquidator of fraud and corruption made a number of allegations against the curator/liquidator. It was found that the truth of the allegations had not been proved. There was also evidence that the allegations were made in retaliation against the plaintiff for uncovering the fraud and corruption.

The elements of the delict of defamation were met because the defendant had published wrongful and intentional defamatory statements concerning the plaintiff. Freedom of expression does not in these circumstances trump the right to dignity because the statements were not made honestly and in good faith nor supported by any evidence.

Most of the cases dealing with freedom of expression relate to the media which have a public duty to bring facts to public attention. This is not the same in the hands of an individual making statements concerning others. The defendants were interdicted from disseminating the allegations and ordered to close down the website on which they were found.


 

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