Written By Adv Riaan de Jager
In order to determine whether someone has slandered or defamed you, regard should be had to our common law. In terms of our law of delict, defamation is defined as “the intentional infringement of another person’s right to his or her good name” or, to elaborate, “the wrongful, intentional publication of words or behaviour concerning another person which has the effect of injuring his status, good name or reputation”.
Since the good name, respect or status which a person enjoys in society relates to the opinion of others concerning him or her, and defamation consists in the infringement of his or her good name, it is self-evident that defamation will arise only if the defamatory statement or behaviour has been published or disclosed to a third person. Publication is thus a necessary requirement for defamation and will be satisfied if the words or conduct are made known or disclosed to at least one person other than the plaintiff (i.e. you, as the person who wants to sue for defamation) him or herself.Once publication is established, the plaintiff must prove that the defendant (i.e. the person being sued for defamation) was responsible for the publication.
Another requirement for defamation is wrongfulness and this lies in the infringement of a person’s right to his or her good name. The only relevant question is whether, in the opinion of a reasonable person with normal intelligence and development, the reputation of the person concerned has been injured– this is thus an objective approach.
It is noted that the prima faciewrongfulness of the conduct of the defendant will be cancelled if the latter proves that the defamatory remarks were true and to the public benefit or in the public interest that they be published. The defendant therefore only needs to prove that the remarks were substantially – and not literally – true (i.e. that the sting of the charge is true). What is in the public interest will depend on society’s sense of justice and fair play (the so-called boni mores) and in this regard, the time, the manner and the occasion of the publication play an important role.
The prima faciewrongfulness of a defamatory publication may also be set aside if the defendant proves that the defamation forms part of a fair comment on facts that are true and in the public interest. In order to qualify as “fair comment”, the comment “must be based on facts expressly stated or clearly indicated and admitted or proved to be true”. The comment must thus be justified and malice or improper motive by the perpetrator of the comment also acts to defeat the defence of fair comment. The law requires as well that there must have been the intent to defame, in other words, the mental disposition to will the relevant consequences, with the knowledge that the consequence will be wrongful. If a person is therefore unaware of the wrongfulness of his defamatory publication, intent will be absent. His or her mistake therefore rebuts the presumption of intent.
In order for you to succeed with a claim for damages against a person based on defamation, a court will determine which version of events (i.e. yoursversusculprit) will be the most probable (i.e. a balance of probabilities as opposed to “beyond a reasonable doubt” which will apply in criminal proceedings).
The common law rights to privacy and to freedom of expression have been enshrined in our Constitution and the South African courts thus have a duty to develop the law in accordance with the principles of the Constitution.
I have found two judgments of the High Court (H v W2013 (5) BCLR 554 (GSJ) and Heroldt v Wills JOL 31479 (GSJ)) in which the court granted an interdict against parties who defamed the applicants on Facebook and ordered them to remove any defamatory posting on the internet as he applicants had a clear right to privacy and the protection of their reputation.
You will entitled to approach the High Court on an urgent basis to obtain an interdict against Leon to prohibit him from posting any other defamatory postings. You could then also claim damages for defamation as well as your legal costs from him.
It is, however, essential for you to brief an attorney to guide you further in these matters.