Case Summary and Outcome

The Constitutional Court of South Africa refused to develop the common law definition of defamation to add a new element, namely that the published statement must be false. The editor of a newspaper argued that the respondent,  the subject of an article in the newspaper, had not disclosed a cause of action in his defamation suit because he had not explicitly stated that the allegations made in the article were false. The Constitutional Court reasoned that the defense of reasonable publication in the National Media Ltd v. Bogoshi 1998 (4) SA 1196 (SCA) case created the appropriate balance between the rights to freedom of expression and to dignity and that no further factor was necessary.

Facts

Bantu Holomisa, the leader of a South African opposition political party, sued the Sunday World newspaper after the newspaper published an article stating that Holomisa was under police investigation for his involvement with a gang of bank robbers. Khumalo, the editor of the newspaper, argued that Holomisa had not denied the truth of the article in his particulars of claim and that, as the information was in the public interest, he had therefore not disclosed a cause of action. Khumalo said that the onus should be on a plaintiff to establish that the statement in question is false when the statement is made in the public interest or it concerns the fitness of a public official to hold office.

The practical effect of this would be that if Holomisa was forced to include a statement in his claim that the statements made in the newspaper were false, he would then have to prove this in the defamation trial.

The High Court dismissed Khumalo’s argument and Khumalo appealed directly to the Constitutional Court.

Decision Overview

O’Regan J delivered the unanimous judgment of the Constitutional Court.

The central issue for the Court to determine was whether Khumalo was entitled to raise an objection that Holomisa’s particulars of claim did not disclose a cause of action and were therefore not allowed because he had failed to state that the statements in the article were false. This was a constitutional issue because, as O’Regan said, it “raised the question whether, to the extent that the law of defamation does not require a plaintiff in a defamation action to plead that the defamatory statement is false in any circumstances, the law limits unjustifiably the right to freedom of expression as enshrined in section 16 of the Constitution” (para. 4).

Khumalo argued that when the plaintiff was a politician or public figure and if the defamatory statement related to the public interest then the onus to prove the falsity of a defamatory statement should be on the plaintiff. He argued that this was in line with the constitutional protection of freedom of expression and that the common law of defamation should be developed to bring the tort in line with the Constitution. If Khumalo’s argument was accepted by the Constitutional Court it would mean that the elements of defamation should, in the circumstances identified by Khumalo (namely when the plaintiff was a public official and the publication was in the public interest), include a requirement that the defamatory statement was false (paras. 2-4).

O’Regan set out the elements of the tort of defamation, namely “the wrongful and intentional publication of a defamatory statement concerning the plaintiff”  and clarified that “[i]t is not an element of the delict in common law that the statement be false”. She explained that the defendant in a defamation action is obliged to raise a defense once the plaintiff has proven that a defamatory publication concerning the plaintiff was made. O’Regan referred to the South African Supreme Court of Appeal case, National Media Ltd v. Bogoshi 1998 (4) SA 1196 (SCA), which had introduced a new defense of “reasonable publication” that allowed “media defendants to establish that the publication of a defamatory statement, albeit false, was nevertheless reasonable in all the circumstances”. O’Regan said that the Bogoshi case established that, if a defamatory statement is false, media defendants have to demonstrate both that they had no knowledge of the falsity but also that they were not negligent in not establishing the truth or falsity of the statement (paras. 18-20).

O’Regan emphasized the importance of freedom of expression and of the media in a democracy, quoting the Australian case of Theophanous v. Herald & Weekly Times Ltd (1994) 124 ALR 1 and the South African case of South Africa v. Sunday Times Newspaper 1995 (2) SA 221 (T) (paras. 22-23). She said that “[i]n a democratic society, then, the mass media play a role of undeniable importance” and that “[a]s primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility”. O’Regan stressed that, in the South African constitutional framework, freedom of expression “is not a paramount value” as it must be “construed in the context of other values enshrined in our Constitution”. She explained the role that the right to dignity plays in the South African constitutional order and states that the “value of human dignity in our Constitution is not only concerned with an individual’s sense of self-worth, but constitutes an affirmation of the worth of human beings in our society”. She explained that because of this importance of dignity, “[w]hen considering the constitutionality of the law of defamation, therefore, we need to ask whether 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” (paras. 24-28).

O’Regan then assessed whether the common law of defamation was inconsistent with the Constitution. She discussed whether or not the Constitution protects the publication of false statements. With reference to the Canadian case of Hill v. Church of Scientology of Toronto (1995) 126 DLR (4^th) 129 (SCC) she said that “no person can argue a legitimate constitutional interest in maintaining a reputation based on a false foundation”. She added that allowing an individual to claim damages for the publication of a false statement “does not directly protect a powerful constitutional freedom of expression interest, for there is no powerful interest in falsehood”. A defendant can raise truth of the published statement as a defence to the defamation claim, and O’Regan explains that the onus of proving the truth of the statement lies with the defendant because his or her publication of the statement did cause harm to the plaintiff. She acknowledged that placing the onus on the defendant does cause a “chilling effect” because publishers will “think twice before publishing a defamatory statement where it may be difficult or impossible to prove the truth of that statement and where no other defence to defamation would be available”. However, that chilling effect is mitigated by the “reasonableness defence” introduced in the Bogoshi case. O’Regan states that this defence “permits a publisher who is uncertain of proving the truth of a defamatory statement, nevertheless to publish where he or she can establish that it is reasonable” (paras. 35-39).

O’Regan rejected Khumalo’s reliance on the U.S. case of New York Times Co. v. Sullivan (1964) 376 U.S. 254 – which she describes as “the high-water mark of foreign jurisprudence protecting the freedom of speech” (para. 40) and she said that many other jurisdictions have not followed the Sullivan case.

O’Regan identified the weakness in Khumalo’s proposed approach by pointing out that there was no constitutional benefit in allowing the publication of false statements. She said that “[a]lthough the applicants are right when they contend that individuals can assert no strong constitutional interest in protecting their reputations against the publication of truthful but damaging statements, the applicants can also not show that publishers have a strong constitutional speech interest in the publication of false material”. She added that the main difficulty requiring a demonstration of truth or falsity is that so often it is impossible to do so, and so either the plaintiff will generally benefit if the defendant has to prove the truth of a statement or the defendant will benefit if the plaintiff has to prove its falsity. O’Regan termed this a “zero-sum game” but stated that the introduction of the defense of reasonable publication in the Bogoshi case “avoids therefore a winner-takes-all result and establishes a proper balance between freedom of expression and the value of human dignity” (paras. 42-43).

O’Regan acknowledged that by excluding the requirement that a plaintiff prove that a statement is false means that sometimes a plaintiff will succeed in being awarded damages when the statement in question is false. However, she reiterated that this was fair because the harm suffered by the plaintiff is caused by the defendant’s publication of a defamatory statement and that it is not an undue burden on defendants to prove that the publication was either true and in the public interest or reasonable (para. 44).

The Constitutional Court therefore affirmed the Supreme Court of Appeal’s reasoning in the Bogoshi case, and held that the approach adopted by that Court created the appropriate balance between the rights to freedom of expression and dignity in defamation cases.