Case Summary and Outcome

The Supreme Court of Appeal of South Africa ruled that the criminal offense of defamation is not unconstitutional. Observing that respect for human dignity and the preservation of freedom of expression are equally considered, the Court noted that the criminal law had safeguards built into it that made it very difficult for a prosecution to succeed, and that the present case concerned exactly the kind of circumstances in which a criminal prosecution had been necessary. A constitutional challenge had been brought by Luzuko Kerr Hoho, a former parliamentary researcher, who had been convicted by the Bisho High Court on 22 charges of criminal defamation and sentenced to three years’ imprisonment, suspended for five years, and three years correctional supervision.

Facts

Luzuko Kerr Hoho was alleged to have printed several leaflets during the years 2001 and 2002 when he worked as a parliamentary researcher. In these leaflets, he was alleged to have disparaged the Speaker of the Legislature of the Eastern Cape Province, the Premier of the Eastern Cape Province, members of the Legislature, the National Minister of Safety and Security, the National Deputy Minister of Home Affairs, the National Minister of Health, the Chief Whip of the African National Congress in the Legislature and a legal adviser to the Legislature. His leaflets accused these individuals of corruption, bribery, embezzlement, sexual indecency, illegal abortion, and fraud, among other things. Hoho pleaded not guilty to the 23 charges of criminal defamation that had been laid against him, but the Bisho High Court ultimately convicted him on 22. Hoho was sentenced to a prison term of three years suspended for five years and  three years of correctional supervision.

Hoho appealed to the Supreme Court of Appeal and the matter was heard on August 15^th, 2008. Although Hoho had denied that he was the publisher of the leaflets during his trial in the Bisho High Court, that was not the issue before the Supreme Court of Appeal. The issues were whether or not the crime of defamation still existed and if it was consistent with the Constitution.

Decision Overview

Judge Streicher wrote the majority opinion and Judges Heher, Mlambo, Cachalia, and Kgomo concurred.The issues before the Court were whether the crime of defamation still exists and if so, whether it contradicts the constitutional guarantee of the right to freedom of expression.

In relation to the first question, the Court held that the crime of defamation still exists. Although there were few reported cases, this did not mean that the public does not believe that defamation is illegal. The Court explained the lack of reported convictions because the majority of convictions are handed out in lower courts, whose decisions go unreported. The Court pointed out that since the 1970 case of S v Revill there have been prosecutions for the crime of defamation, and that the offense of criminal defamation was included in the 1998 Electoral Code of Conduct.

In relation to the second question, the Court held that the crime of defamation does not violate the Constitution. The Court pointed out the high threshold, stating that, first, “that the crime of defamation consists of the unlawful and intentional publication of matter concerning another which tends to injure his reputation.” [para. 26] This excluded lawful publications, such as truthful defamatory statements published in order to benefit the public, “or [that] constitutes fair comment or is published on a privileged occasion.” [para. 26] The Court pointed out furthermore that knowledge of unlawful action and/or knowledge of the potential to act unlawfully are essential elements of intentional publication and must be proved beyond a reasonable doubt.  The Court stated that criminal and civil defamation laws (which limit the right to freedom of expression) are in place to prevent the assassination of a person’s character. Limiting freedom of expression in this manner is only constitutional if, “an appropriate balance is struck between the protection of freedom of expression on the one hand, and the value of human dignity on the other.” [para. 31]

In conclusion, the Court observed that “it is … substantially more difficult to secure a conviction on a charge of defamation than it is to succeed in a civil claim for defamation.” [para. 33] This in itself provided a significant safeguard against abuse. Furthermore, the Court held that  “although a criminal conviction and the sanction arising therefrom may be more severe than an order to pay damages the limitation of the right to freedom of expression is, in my view, not. In any event to expose a person to a criminal conviction if it is proved beyond reasonable doubt, not only that he acted unlawfully, ie without justification, but also that he knew that he was acting unlawfully in my view constitutes a reasonable and not too drastic a limitation on the right to freedom of expression.” [para. 33]

On the argument that criminal defamation is unconstitutional because a civil action is available, the Court argued that, “there is also a civil remedy available for common assault, yet nobody would suggest that there is for that reason no need for the crime of common assault. There is in my view no reason why the state should oblige and prosecute in the case of a complaint in respect of an injury to a person’s physical integrity but not in the case of a complaint in respect of an injury to reputation, which may have more serious and lasting effects than a physical assault.”

Finally, the Court observed that the present case concerned exactly the type of fact pattern where a criminal prosecution had been necessary: “The complainants in this case did not know who was responsible for the publication of the defamatory allegations and had to enroll the assistance of the police and the prosecuting authorities to prove that it was [Hoho]” [para. 35]