Before you read this article, make sure you have read Part 1, Part 2 and Part 3 of this series.
Having established intention, what is the next requirement? The following has to be established in order to determine whether or not we are dealing with defamation, but, as you will see from this chapter, the plaintiff does not always have to prove it – it is often deemed (assumed) to be the case & the defendant must then prove the contrary: The elements are: (1) that the publication/utterance is wrongful (also referred to as ‘unlawful’ – lawyer.co.za); and (2) fault or blameworthiness on the part of the defendant; (3) that it was contra bonus mores i.e. against public morals and (4) that the defendant owed plaintiff a duty imposed by law and breached that duty (Mckerron – ‘The Law of Delict’ page 5) – so what does all of this mean?
Wrongful/unlawful
The test here is an objective and it has to be ‘determined whether or not the plaintiff’s personality right was infringed in an unlawful way and without justification’ (Wikipedia) – the latter is one of the defences available to the alleged wrongdoer (More about that later).
Accordingly wrongfulness or unlawfulness is presumed/deemed to the case unless the wrongdoer can successfully rely on one of the defences such as the aforesaid or consent, privilege, fair comment or truth and public benefit.
Fault/blameworthiness
Fault comes in two guises: intention and negligence – however for the purposes of defamation, fault must be in the form of intention. One cannot be held liable for having negligently insulted or defamed another, or for having negligently invaded another’s privacy. (Wikipedia)
Nevertheless a negligent omission is can be regarded blameworthy “if it occurs in circumstances that the law regards as sufficient to give rise to a legal duty to avoid negligently causing harm’ Stedall v Aspeling (1326/2016) [2017] SCA 172. An interesting finding in this case is that the phrase “legal duty” must not be confused with the English law concept of “a duty of care” – this will no doubt surprise some people and in due course I will do an article analyzing this aspect of the case.
Against public morals
The defamatory statement must be made contra bonos mores (against public morals). This simply means that the broad public must see the statement as wrongful and unacceptable. It is here where the Courts have the difficult task of balancing the rights enshrined in the Constitution; on the one hand someone’s right to an untainted reputation and character and on the other hand freedom of expression (Schoeman Law).
The court inquires into whether or not the defendant’s conduct is socially acceptable:
- by balancing the interests of the parties;
- by looking at the relationships which exist and the consequences of the defendant’s conduct; and
- by considering the results of a decision in favour of either party. (Wikipedia)
Simply stated, the community must attach a negative connotation to the statement. It is a task for the Court to balance two conflicting constitutional rights while deciding on this element, namely the right to reputation of the complainant and the right to freedom of speech of the defamer.(Abrahams & Gross)
Duty (of care)
I write in Field News in 2008 about this duty – generally speaking a number of situations can give rise to such a duty but the main one for the purposes of this discussion is that the relationship between the parties which may give rise to such a duty and if a statement is made in breach of such a duty, it may result in a defamation claim.
This article was written by tourism specialist Advocate Louis Nel, also known as Louis–the–Lawyer.
This article is intended to provide a brief overview of legal matters pertaining to captioned matter and is not intended as legal advice. As every situation depends on its own facts and circumstances, only professional advice should be relied on. Please contact Adv. Louis Nel at louis@louisthelawyer.co.za or on +27 83 679 4556 for further advice.
