CHAPTER 6: COMMON-LAW DIGNITY

As to the common law of damage to dignity: Identify, analyse and apply the

requirements for liability for dignity infringements as well as accompanying
defences and remedies (this week's focus is only on introducing the
requirements for liability).

- When we refer to dignity in this Chapter, we are generally referring to the external
dimension of dignity (reputation) and its internal dimension (self-esteem).
- Also, within these dimensions of dignity, we need to be cognisant of the fact that these
dimensions are recognised today as protectable dignity interests under the Constitution.
- With further reference to the doctrine of adjudicative subsidiarity, the protection of the
aforementioned dignity interests generally falls within the ambit of the common law as
addressed through the dignity delicts of defamation (i.e., the infringement of reputation)
and insult (i.e., the infringement of self-esteem).

A BRIEF HISTORY OF COMMON-LAW DIGNITY

THE COMMON-LAW STAGES OF ADJUDICATING DIGNITY INJURIES

- The adjudication of dignity injuries, in terms of common law, happens practically in three
substantive stages: namely,
(a) a prima facie stage,
(b) a justification stage and
(c) a remedy stage.

These three stages help us to break down a legal problem on common law dignity injuries
into smaller and manageable bits. Thus, these three stages also serve as mental guidelines
to organise and structure our thoughts on common law dignity injuries which consist of
voluminous amounts of information. Furthermore, these stages may also be useful when
your answer questions for assessment purposes. Depending on what is being expected from
you for assessment purposes, consider a question on common law dignity injuries in these
three stages and do not conflate them with each other.

(a) In the prima fact stage, we are essentially tasked to determine whether the
requirements for a specific dignity delict have been met to establish a prima facie
case (a case based on first impressions) of common law dignity injury. The onus to
establish a prima facie case rests on the victim who is suing the alleged wrongdoer
because the one who alleges must prove. In more simplistic terms, the victim is
required to only prove certain elements or requirements of a dignity delict to establish
a prima facie case. When a prima facie case is established, certain elements or
requirements are rebuttably presumed (meaning that the victim does not have to
prove these). As we will see, the requirements for establishing a prima facie case
with the attendant rebuttable presumptions for defamation and insult will be different.
Be that as it may, the alleged wrongdoer must then “justify” their conduct, and thus
rebut the presumptions which lead us to the next stage of the inquiry.
(b) In the justification stage, we are essentially tasked to determine if any defences are
available to the alleged wrongdoer to rebut an existing prima face case of common
law dignity injury. Therefore, at the prima face stage, when establishing the
applicable elements, you should not simultaneously argue defences, as these only
become applicable when the relevant requirements have been satisfied. There are
generally defences excluding wrongfulness or intent. Therefore, you need to know
and understand

As to the common law of damage to dignity: Identify, analyse and apply the
requirements for liability for dignity infringements as well as accompanying
defences and remedies (this week's focus is only on the requirements for
establishing a prima facie case of defamation and a prima facie case of insult
is self-study).

Establishing a Prima Face Case of Defamation

- The readings in this sub-section will guide you through the elements of a defamation
case and, more specifically, when is a prima facie case of defamation established and
what are the rebuttable presumptions that are created as a result?

Khumalo v Holomisa 2002 (5) SA 401 (CC)

- This case tells a story of Bantu Holomisa, a former leader of a South African opposition
political party, who 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 an averment
in his claim that the statements made in the newspaper were false, he would then have
to prove this in the defamation trial.
- Accordingly, the Court dealt with the issue of whether falsity is an element of defamation
and set out the elements of a defamation action, including which elements must be
proven to establish a prima facie case of defamation.

Para 18: the definitional elements of a defamation action and when a prima
facie case of defamation is established.

At common law, the elements of the delict of defamation are –

(a) the wrongful and
(b) intentional
(c) publication of
(d) a defamatory statement
(e) concerning the plaintiff.
- It is not an element of the delict in common law that the statement be false.1
- Once a plaintiff establishes that a defendant has published a defamatory statement
concerning the plaintiff, it is presumed that the publication was both unlawful and
intentional.
- A defendant wishing to avoid liability for defamation must then raise a defence which
rebuts unlawfulness or intention.
- Although not a closed list,2 the most commonly raised defences to rebut unlawfulness
are:
o that the publication was true and in the public benefit;
o that the publication constituted fair comment and
o that the publication was made on a privileged occasion.
- Most recently, a fourth defence rebutting unlawfulness was adopted by the Supreme
Court of Appeal in National Media Ltd and Others v Bogoshi.
- In that case, Hefer JA, after a careful analysis of the development of a similar defence in
Australia, England and the Netherlands, held that:

“. . . the publication in the press of false defamatory allegations of fact will not be
regarded as unlawful if, upon a consideration of all the circumstances of the case, it
is found to have been reasonable to publish the particular facts in the particular way
and at the particular time.

In considering the reasonableness of the publication account must obviously be

taken of the nature, extent and tone of the allegations. We know, for instance, that

1
The falsity of a defamatory statement is not an element of the delict, but its truth may be an
important factor in deciding the legality of its publication. I find it difficult to see why (as was held in
Holomisa) a plaintiff should, as part of his claim, allege and prove something that the defendant may
rely upon in justification.
2
It is hardly necessary to add that the defences available to a defendant in a defamation action do not
constitute a numerus clausus. In our law the lawfulness of a harmful act or omission is determined by
the application of a general criterion of reasonableness based on considerations of fairness, morality,
policy and the Court’s perception of the legal convictions of the community. In accordance with this
criterion Rumpff CJ indicated in O’Malley’s case [Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977
(3) SA 394 (A)] at 402fin–403A that it is the task of the Court to determine in each case whether public
and legal policy requires the particular publication to be regarded as lawful.” (at 1204 D-E). It should
be emphasised that the court’s perception of the legal convictions of the community as a test for
determining wrongfulness in delict might well have to be reconsidered in the context of our new
constitutional order.
 greater latitude is usually allowed in respect of political discussion (Pienaar and
Another v Argus Printing and Publishing Co Ltd 1956 (4) SA 310 (W) at 318 C-E),
and that the tone in which a newspaper article is written, or the way in which it is
presented, sometimes provides additional, and perhaps unnecessary, sting. What will
also figure prominently is the nature of the information on which the allegations were
based and the reliability of their source, as well as the steps taken to verify the
information. Ultimately there can be no justification for the publication of untruths, and
members of the press should not be left with the impression that they have a licence
to lower the standards of care which must be observed before defamatory matter is
published in a newspaper.

Summary of above

In the common law system, the elements of the defamation offense include: (a) wrongful and (b) intentional
publication of (c) a defamatory statement (d) concerning the plaintiff. It is not necessary for the statement to be
false for defamation to occur. Once the plaintiff proves that the defendant published a defamatory statement about
them, it is assumed that the publication was both unlawful and intentional. To avoid liability, the defendant must
raise a defense that challenges the unlawfulness or intention. Commonly raised defenses include proving that the
publication was true and in the public interest, constituted fair comment, or was made on a privileged occasion. In a
recent case, the Supreme Court of Appeal in National Media Ltd and Others v Bogoshi introduced a fourth defense
to rebut unlawfulness. It stated that the publication of false defamatory allegations may not be considered unlawful
if, under the circumstances of the case, it was reasonable to publish the specific facts in the particular manner and
at the particular time. Factors such as the nature, extent, and tone of the allegations, as well as the reliability of the
information source and the steps taken to verify the information, are considered in determining reasonableness.
However, there is no justification for publishing untruths, and the press should not believe they have a license to
lower the standards of care when publishing defamatory material in a newspaper.

This passage explains that the publication of false defamatory statements in the press may not be considered
unlawful if, after considering all the circumstances of the case, it is determined to be reasonable to publish those
specific facts in that particular manner and at that specific time.
When assessing reasonableness, factors such as the nature, extent, and tone of the allegations are taken into
account. It is known that in the context of political discussion, more leeway is generally allowed. The way in which a
newspaper article is written or presented can sometimes add unnecessary emphasis or impact. The nature of the
information on which the allegations are based, the reliability of the source, and the steps taken to verify the
information also play a significant role in evaluating reasonableness.
However, it is emphasized that there can be no justification for publishing untruths, and members of the press
should not believe they have a license to lower the standards of care required before publishing defamatory
material in a newspaper. In essence, while reasonableness can be a defense for publishing false defamatory
allegations, there is still an expectation that journalistic standards of accuracy and care are maintained.
Para 35-45: explain the constitutionality of the definitional elements of
defamation, including the fact that falsity is not a requirement of a defamation
action.

Is the common law inconsistent with the Constitution?

[35] The applicants argued that to the extent that the common law of defamation does not
require a plaintiff to allege and prove the falsity of a defamatory statement, it is inconsistent
with the Constitution. There can be no doubt that the constitutional protection of freedom of
expression has at best an attenuated interest in the publication of false statements. As Cory
J observed in the Canadian case, Hill v Church of Scientology of Toronto:

“False and injurious statements cannot enhance self-development. Nor can it ever be
said that they lead to healthy participation in the affairs of the community. Indeed,
they are detrimental to the advancement of these values and harmful to the interests
of a free and democratic society.”

Similarly, no person can argue a legitimate constitutional interest in maintaining a reputation

based on a false foundation.

[36] To the extent, therefore, that the common law of defamation permits a plaintiff to recover
damages for a defamatory statement without establishing the falsity of the defamatory
statement, it does not directly protect a powerful constitutional freedom of expression
interest, for there is no powerful interest in falsehood. Nor does it provide necessary
protection for the constitutional value of human dignity. For, in the main, a person’s interest
in their reputation can only further constitutional values if that reputation is a true reflection of
their character.3

[37] However, the common law delict of defamation does not disregard truth entirely. It
remains relevant to the establishment of one of the defences going to unlawfulness, that is,
truth in the public benefit. The common law requires a defendant to establish, once a plaintiff
has proved the publication of a defamatory statement affecting the plaintiff, that the

3
However, it has long been recognised that past mistakes should not be raked up after a
long period of time has elapsed.
publication was lawful because the contents of the statement were true and in the public
benefit. The burden of proving truth thus falls on the defendant.

[38] In considering the constitutionality of this rule, it must be realised that it is often difficult,
and sometimes impossible, to determine the truth or falsity of a particular statement. As
Stevens J noted in a dissenting judgment in the United States Supreme Court in
Philadelphia Newspapers, Inc v Hepps (1985) 475 US 767 at 785-6:

“The danger of deliberate defamation by reference to unprovable facts is not merely

a speculative or hypothetical concern. Lack of knowledge about third parties, the loss
of critical records, an uncertain recollection about events that occurred long ago,
perhaps during a period of special stress, the absence of eyewitnesses – a host of
factors – may make it impossible for an honorable person to disprove malicious
gossip about his past conduct, his relatives, his friends or his business associates.”

In not requiring a plaintiff to establish falsity, but in leaving the allegation and proof of falsity
to a defendant to a defamation charge, the common law chooses to let the risk lie on
defendants. After all, it is by definition the defendant who published the statement and
thereby caused the harm to the plaintiff.

[39] The difficulty of proving the truth or otherwise of defamatory statements, and the
common-law rule which lets the risk of the failure to establish truth lie on defendants, in the
absence of a defence of reasonable publication, does cause “a chilling effect” on the
publication of information. A publisher 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. As Lord Keith said in Derbyshire
County Council v Times Newspapers –

“What has been described as ‘the chilling effect’ induced by the threat of civil actions
for libel is very important. Quite often the facts that would justify a defamatory
publication are known to be true, but admissible evidence capable of proving those
facts is not available. This may prevent the publication of matters which it is very
desirable to make public.”

But this chilling effect is reduced considerably by the defence of reasonable publication
established in Bogoshi’s case. For it 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.

[40] In seeking to assert that the common law rule was inconsistent with the Constitution, the
applicants relied upon the United States Supreme Court decision New York Times Co. v
Sullivan (1964) 376 US 254 at 279-80 in which Brennan J held:

“A rule compelling the critic of official conduct to guarantee the truth of all his factual
assertions – and to do so on pain of libel judgments virtually unlimited in amount –
leads to a comparable ‘self-censorship.’ Allowance of the defense of truth, with the
burden of proving it on the defendant, does not mean that only false speech will be
deterred. Even courts accepting this defense as an adequate safeguard have
recognized the difficulties of adducing legal proofs that the alleged libel was true in all
its factual particulars. . . . Under such a rule, would-be critics of official conduct may
be deterred from voicing their criticism, even though it is believed to be true and even
though it is in fact true, because of doubt whether it can be proved in court or fear of
the expense of having to do so. . . . The constitutional guarantees require, we think, a
federal rule that prohibits a public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement was
made with ‘actual malice’ – that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.” (footnote omitted).

In that case, the United States Supreme Court thus established a principle that for public
figures to succeed in defamation actions they need to establish not only that a false
defamatory statement has been published concerning them, but that it was published with
“actual malice”. This decision represents the high-water mark of foreign jurisprudence
protecting the freedom of speech and many jurisdictions have declined to follow it. It should
be noted that the applicants do not assert the “actual malice” standard in this case. They
only rely on the case to the extent that it imposes an obligation on the plaintiff to establish
that the defamatory article was false.

[41] In deciding whether the common law rule complained of by the applicants does indeed
constitute an unjustifiable limitation of section 16 of the Constitution, sight must not be lost of
other constitutional values and in particular, the value of human dignity. To succeed, the
applicants need to show that the balance struck by the common law, in excluding from the
elements of the delict a requirement that the defamatory statement published be false, an
appropriate balance has been struck between the freedom of expression, on the one hand,
and the value of human dignity on the other.

[42] Although 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. At the heart of the
constitutional dispute lies the difficulty of establishing the truth or falsehood of defamatory
statements. Burdening either plaintiffs or defendants with the onus of proving a statement to
be true or false, in circumstances where proof one way or the other is impossible, therefore
results in a zero-sum game. Either plaintiffs will benefit from the difficulties of proof, as
happened previously under common law rules; or defendants will win, as the applicants
propose. Such a zero-sum result, in whomsoever’s favour, fits uneasily with the need to
establish an appropriate constitutional balance between freedom of expression and human
dignity.

[43] Were the Supreme Court of Appeal not to have developed the defence of reasonable
publication in Bogoshi’s case, a proper application of constitutional principle would have
indeed required the development of our common law to avoid this result. However, the
defence of reasonableness developed in that case does avoid a zero-sum result and strikes
a balance between the constitutional interests of plaintiffs and defendants. It permits a
publisher who can establish truth in the public benefit to do so and avoid liability. But if a
publisher cannot establish the truth, or finds it disproportionately expensive or difficult to do
so, the publisher may show that in all the circumstances the publication was reasonable. In
determining whether publication was reasonable, a court will have regard to the individual’s
interest in protecting his or her reputation in the context of the constitutional commitment to
human dignity. It will also have regard to the individual’s interest in privacy. In that regard,
there can be no doubt that persons in public office have a diminished right to privacy, though
of course their right to dignity persists. It will also have regard to the crucial role played by
the press in fostering a transparent and open democracy. The defence of reasonable
publication avoids therefore a winner-takes-all result and establishes a proper balance
between freedom of expression and the value of human dignity. Moreover, the defence of
reasonable publication will encourage editors and journalists to act with due care and
respect for the individual interest in human dignity prior to publishing defamatory material,
without precluding them from publishing such material when it is reasonable to do so.
[44] It is true, as the applicants assert, that the effect of excluding the falsity of a defamatory
statement as an element of the delict of defamation will mean that from time to time a
plaintiff may succeed in a defamation claim even when a defamatory statement was in fact
false. In this regard, however, we cannot disregard the fact that it is the defendant who
publishes the defamatory statement and who therefore causes any damage. So it will only
be where defendants establish neither that the statement was true and its publication in the
public interest, nor that the publication was reasonable in all the circumstances, that they will
be held delictually liable. This outcome does not unduly burden defendants. Contrarily, to
hold as the applicants argued, that plaintiffs may never succeed unless they can establish
that a defamatory statement was false would clearly put plaintiffs at risk. It would destabilise
the careful balance struck between plaintiffs’ and defendants’ interests achieved by the
Supreme Court of Appeal’s development of a defence of reasonable publication.

[45] In the circumstances, the applicants have not shown that the common law as currently
developed is inconsistent with the provisions of the Constitution and their appeal must fail.
Now that we have a better understanding of what a prima facie case of defamation is,
we are in a position to unpack each of the elements separately.

 Publication (Conduct)

 Le Roux and Others v Dey 2011 (3) SA 274 (CC)

- In this case, the Court gave a succinct summary of the main principles regarding the
publication element at para 86.
- Please take note that this judgment will be discussed in greater detail below under
defamatory effect element.
- However, this judgment in itself does not necessarily provide a sufficient illustration of the
potential contentious nature of this element such as issues concerning the re-publication
of defamatory material (i.e., repeating the defamatory material of another).

Para 86: a succinct summary of the main principles regarding the publication
element.

[86] “Publication” means the communication or making known to at least one person other
than the plaintiff. It may take many forms. Apart from the obvious forms of speech or print,
the injurious information can also be published through photographs, sketches, cartoons or
caricatures.

 NEHAWU v Tsatsi 2006 (6) SA 327 (SCA)

- In this regard, study the Tsatsi case where the Court had to consider the legal effect of
re-publication.
- Briefly restating the facts, NEHWAU, a registered trade union, drafted a document in
which it was stated that a particular Magistrate’s Court manager and interpreter
“embraced fraudsters” as opposed to “rooting them out”.
- This particular document was distributed to NEHAWU members (i.e., the original
publication). In turn, some of the members redistributed the document to other non-
members (i.e., the republication).
- As such, the Court had to consider the liability of NEHAWU for the original publication
and subsequent re-publication and the liability of those who re-published the original
document.
Paras 15-16 for liability pertaining to re-publication.

[15) As I have already indicated, the court a quo rejected the defence of privilege on the
basis that the publication was not limited to NEHAWU members thereby finding that the
appellants re-published the statements to non-members. There is however no proof that the
second appellant or any of the employees of NEHAWU was directly responsible for such re-
publication.

[16] As to whether the appellants were liable for the re-publication, there can be no doubt
that one or more of NEHAWU members present at the meeting might have re-published the
report to non-members (including the plaintiff and Mr Molefe). There is however no evidence
to show that the appellants authorised or were otherwise responsible for the re-publication of
the report. On that basis they cannot be held liable for the wrongs committed by their
members without their authorisation. The court a quo found, however, that the appellants
should have taken steps to preclude the re-publication, thereby implying, first, that they
acted negligently in failing to take steps to prevent such re-publication. It bears note that the
plaintiffs claim was not based on negligence. Moreover, the plaintiff has not shown what
steps the appellants ought to have taken or second, that they were vicariously liable for the
conduct of those who might have disseminated the statements – there is no evidence to
suggest that a relationship of an employer – employee or principal – agent existed for the
appellants to be held so liable. The finding by the court a quo is therefore, with respect,
without legal basis and places an undue burden on the appellants. For these reasons the
plaintiff’s claim ought to have been dismissed with costs.
Summary of above

In paragraphs 15 and 16, the court discusses liability pertaining to the re-publication of statements made by
NEHAWU members.

The court states that there is no evidence to directly link the second appellant (and other NEHAWU
employees) to the re-publication of the statements to non-members. While it is possible that some NEHAWU
members present at the meeting may have re-published the report to non-members, there is no proof that the
appellants authorized or were responsible for such re-publication. Therefore, the court concludes that the
appellants cannot be held liable for the actions of their members without authorization.

However, the court below found that the appellants should have taken steps to prevent the re-publication,
implying that they acted negligently by not doing so. The court notes that the plaintiff's claim was not based on
negligence, and the plaintiff has not demonstrated what specific steps the appellants should have taken to
prevent the re-publication. Additionally, there is no evidence to suggest an employer-employee or principal-
agent relationship that would make the appellants vicariously liable for the actions of those who may have
disseminated the statements. Therefore, the court finds the lower court's decision to be without a legal basis
and placing an undue burden on the appellants. As a result, the plaintiff's claim should have been dismissed
with costs.

 Max Loubser & Rob Midgley (eds) The Law of Delict in South Africa 3rd
ed (2018)

- Furthermore, we also need to establish who can be regarded as a publisher for purposes
of determining liability under this element.
- The general rule, subject to exceptions, is that every individual who contributed towards
the publication of defamatory material is regarded as publisher and thus liable.
- In this regard, Max Loubser & Rob Midgley (eds) The Law of Delict in South Africa 3rd ed
(2018) at 417-418 provides the following useful summary:
 In cases that involve written materials: the author, editor, newspaper owners, printers,
publishers, distributors and libraries.
 In cases involving oral material: the speaker, the broadcaster and, where appropriate,
the presenter or talk-show host.
 With intent publications the host, network provider, service provider, as well as a
person who is ‘tagged’ in an online post and does not remove the ‘tag’.
- Regarding internet publications, we need to take into account a very important exception
in terms of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”).
- This exception applies to Information Service Providers (“ISPs”).
- These ISPs, for instance, lay internet cables, create web browsers that caches data, and
host sites like Facebook or Twitter.
- In terms of sections 70-77 of ECTA, ISPs can escape liability (or not be regarded as a
publisher) when they:

(1) Belong to a representative body of ISP’s in South Africa. In other words, a self-
regulatory body that has “adequate”: membership criteria, codes of conduct, and
monitoring and enforcement mechanisms; and

(2) Comply with due diligence conditions as set out in the Act. For example, ISP’s must
ensure that they comply with take-down notices in terms of the Act. A take-down
notice is a procedure set out in section 77 of the Act that provides for a process to
request that unlawful content on a website be removed from the internet

 About the Plaintiff (Causation)