Grounds of justification associated with infringements of personality interests

- A court’s conclusion on whether conduct is wrongful is an expression of what society considers

acceptable or unacceptable conduct

- Therefore, the conclusion is an expression of society’s legal convictions or boni mores as to whether

there could be a claim in delict

- Over time, categories of circumstances have surfaced in which courts have not allowed certain claims

because a defendant’s conduct is justified in the circumstances, provided that certain criteria have been

satisfied (Note 1)

- Grounds of justification are defences that a defendant can use to rebut a wrongfulness presumption and

prove that, in the circumstances of the case, there should be no claim.

1. Truth for public benefit

- The legal convictions of the community dictate that, as a matter of policy, a defendant should be

protected against a claim if the material in question is true and has been made known for the benefit of

the public

- This defence, which is sometimes called the defence of justification, has two parts to it:

(i) truth,

(ii) (ii) public benefit.

- For the defence to take effect, both these parts must be present. This means that truth alone cannot be

a defence, and so, a statement that is true but not made in the public interest may lead to liability in

delict (Note 1)

.
i. Truth

- The defence of truth for public benefit operates only in circumstances where a defendant makes factual

allegations

- A defendant cannot use it where the material in question amounts to comment. A statement is either true

or it is not true, irrespective of what anyone might think or might have meant to convey.

- The truth of any statement is a matter of fact and is proved just like any other factual allegation : by

producing evidence to that effect (Note 1)

- In line with the presumption of wrongfulness, the law presumes that a statement is false, unless the

defendant proves otherwise by showing that the substance of the material is true. In other words, a

defendant does not have to prove that the material is true in all respects – a person could exaggerate,

for example – but the material allegations must be substantially true.

ii. Public benefit

- The second part of the defence requires that the material must have been published for public benefit,

or in the public interest

- The primary meaning of these phrases differs: ‘benefit’ means that there must be some advantage that

accrues, while ‘interest’ indicates that the material must be ‘of interest, or have curiosity value’.

- Both phrases are intended to convey the notion of public concern, in the sense that the material is

important and relevant, and that the public is made aware of the information because the knowledge

may be of interest in the public domain.

- The underlying reason for such an interest may be that society would benefit in some way, but the

defence is not limited to those instances where a person can show actual benefits.
- A defendant, therefore, has to show that the information will be of some significance to society, and

that it is reasonable for society to have that information

- Courts will make the decision based on the nature of the material, as well as the time, manner and

place of its publication

- Information about public figures is normally of public interest, but the disclosure of private morality, even

of public figures, would not usually be in the public interest, except to the extent that this might reflect

on their fitness to fulfil their public duties

- In Heroldt v Wills the Court said:

The ‘truth plus public benefit/interest’ test will generally protect both public figures and those who write

about them provided it is remembered that it is not in the public interest that every titbit of information and

not every morsel of salacious gossip about a public figure be made publicly known.
- There is legitimate public interest in the affairs of public figures. Legitimate interest in what they do does

not overshadow the fact that public figures have the same human rights as everyone else. They too

enjoy a constitutional right to privacy. Our law protects every person’s right, not only to dignitas (inner

tranquillity) but also to fama (reputation)

- Previous conduct should also be forgiven, as a number of old cases illustrate. For example, in Lyon v

Steyn the Court found that a reference to a true incident that happened 30 years previously 11 was not

one that the public needed to know about. The law of defamation protects people against the raking-up

of their past

Johnson v Rand Daily Mail

Modiri v Minister of Safety and Security

Fair comment

- Freedom of expression is a prized right in a constitutional democracy, and so public policy requires the

law to give a considerable amount of freedom to citizens expressing opinions

- Courts should protect honest and fair criticism, as well as opinions and comments that are fair. The

defence of fair comment, therefore, protects: the right of the citizen honestly to express his genuine

opinion on a matter of public interest, however wrong, exaggerated or prejudiced that opinion may be.

- The basis of this defence is that a comment or an opinion exists, unlike truth and public benefit, which

is based upon allegations of fact

- Comments and opinions express value judgements, which by their very nature cannot be true or false,

so the protection extends to instances where views and opinions are honestly held and fairly made

- The criteria for assessing what constitutes fair comment are:

i. The material must amount to comment or opinion, and not a statement of fact.

ii. The facts upon which the comment or opinion is based are substantially true, and either widely known

or incorporated by reference.

iii. The comment or opinion pertains to a matter of public interest

iv. The comment or opinion is fair.

1. Comment or opinion and not a statement of fact

- A person making a comment is expressing an opinion, not a fact

- The difference is not always easy to determine. An opinion can masquerade as a fact. In Crawford v

Albu Crawford and eight others were deported to England after being arrested in connection with labour

disturbances. Albu believed the government had acted correctly in deporting them, and at a meeting

shortly after their deportation said:

All this strife has been caused by men who are fanatics – no they are not fanatics – they are criminals in

the fullest sense of the word

- It may seem obvious that this statement is a comment in the form of a criticism based on certain facts,

but one eminent judge of appeal, Innes CJ, considered this to be a statement of fact

- The test for determining whether a statement is an expression of fact or opinion is the opinion of the

reasonable reader, listener or viewer

- The use of phrases such as ‘it seems to me’ or ‘in my view’ help to establish the distinction between

fact and comment, although not conclusively. Sometimes the context in which the words are used will

also help.

- If a court cannot determine, on the face of the statement, whether it is a comment or a statement of

fact, it will presume the statement is factual

2. Based upon substantially true facts that are known

- The law requires that the comment must be based on facts, and that those facts must be known to the

reasonable reader, listener or viewer, either because they were stated expressly when making the

comment, or because they were so well known that they constituted common knowledge.

- Fair comment is a ‘truth-based’ defence, and so, while the comment cannot be true or false, the facts

upon which the comment is based must be true

- An opinion based upon false or distorted facts cannot be a reasonably held opinion. As with the

defence of truth for the public benefit, every detail of the facts does not have to be true

3. Related to a matter of public interest

- In this context, ‘public interest’ has the same meaning that ‘public benefit’ has in the defence of truth for

the public benefit

- If a matter may affect other people, so that they may be legitimately interested in it or concerned about

how it might affect them or others, it is a matter of public interest

4. The comment must be fair

- To be a fair comment, the comment must fall within prescribed limits

- The issue is not whether the comment is valid, impartial or balanced. The criterion for setting these

limits is whether the comment is a genuine expression of opinion, relevant, honest, and free from

malice (not prompted by an improper motive)

- The comment could be extravagant or exaggerated, and possibly even prejudiced, provided the nature

of the prejudice does not offend constitutional values.

- This also applies to comments on social media. In Heroldt v Wills the Court linked the defence to the

right to freedom of expression and said:

The ‘fair comment’ test will generally come to the aid of those who wish to express themselves lavishly and

perhaps even extravagantly. Trenchant commentaries on the performances of politicians as politicians,

entertainers as entertainers, musicians as musicians, artists as artists, writers as writers, poets as poets,

sports stars as sports stars will generally pass legal muster, even if posted in the social media.

3. Privileged occasion

- Unlike truth for public benefit and fair comment, the defence of privileged occasion may protect both

true and untrue statements, and it does not matter whether they are statements of fact or opinion

- The emphasis is on circumstances in which the law recognises that the free flow of information is more

important than a person’s reputation.

- The public interest demands that courts should not impede freedom of expression, even where that

expression consists of defamatory or untrue statements

- Sometimes this defence is called a ‘privilege’, but it is important to note that it is not the statement or its

content that is privileged, but the circumstances in which the statement is made

- For this reason, it is better to speak of a ‘privileged occasion’ than of ‘privilege’. This also highlights the

need for a statement to be relevant to such an occasion before a person can claim the defence

- Courts distinguish between occasions of absolute privilege – which effectively create situations of

immunity in which everything, no matter what, is protected – and those where the privilege is qualified,

and where protection is extended only if certain criteria are met

i. Absolute privilege

In the interests of democracy, free speech and full and effective deliberation, statements made while

participating in parliamentary proceedings and those of provincial legislatures are accorded absolute

protection against actions under the actio iniuriarum

- Provincial legislatures may grant similar immunity in respect of municipal councils and their members

- The protection adheres, irrespective of the truth of or the motive behind making the statement,

provided that:

• The person making the statement is a member of the legislature or council.

• It forms part of the business of the legislature and its committees, and the way in which issues are

communicated in conducting its business

- Non-members cannot claim protection, nor can members who have acted outside legislative or council

business.

- It has been argued that the law should protect outsiders who have been called to testify before a

committee and that the law should extend the protection to all legislative and council business, whether

conducted within or outside formal proceedings

Qualified privilege

- A defendant may rebut the presumption of wrongfulness by showing that the communication is

protected because it was made for moral, social or legal reasons – in other words, in circumstances

public policy dictates should not attract liability

- So, the defendant’s aim is to negative the wrongfulness element of the delict. This is unlike absolute

privilege, which protects even those communications that meet all the elements of a delict, including the

element of wrongfulness.

- As with absolute privilege, the rationale for the defence is to protect freedom of expression. Malicious

communication is not protected

- The core issue, as with all wrongfulness questions, is whether the criterion of reasonableness has been

met, and to do so the communication must: