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Defamation – the right to recourse

When do I have the right to claim defamation?

Calumny. Vilification. Traducement.

These are the most common words to describe a well known concept commonly known as defamation. But what exactly constitutes a defamatory comment or statement? What needs to be proved by the complainant and more importantly, are there any defences available for the defamer?

What is defamation?

Defamation can be described as the unlawful and intentional publication of a defamatory statement concerning the complainant which has the effect of lowering the complainant’s good name (reputation). From this definition there are three essential elements that must be present in order for the complainant to be successful in a claim for defamation, namely:

  1. Unlawful / wrongful – The defamatory comment or statement must be made contra bonos mores. Simply stated, the community must see this statement in a wrongful light and as unacceptable. 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.
  2. Intentional – The Latin term animus iniuriandi refers to the intention to injure. This subjective concept comprises of two components. Firstly the direction of the defamer’s will towards injuring the reputation of the complainant and secondly, the defamer must have the necessary knowledge that to impair the reputation of the complainant is unlawful.
  3. Publication – A factual violation of one’s right to reputation can only be violated if one person communicates a defamatory statement to a third person ie publication. The publication can be written, made verbally or even by using body language or hand gestures. The test which applies to this element is whether a reasonable objective person would understand the communication in a negative light.

Who bears the onus of proof?

The complainant bears the onus to prove that a wrongful and factual violation has occurred. The law assists the complainant in this regard by recognising a presumption that the defamer’s conduct was unlawful and that the defamer acted with intent. The onus then shifts to the defamer to rebut a wrongfulness presumption and ultimately prove that there is no claim.

What defences can be used as a justification?

In South African law there are three defences most commonly used to justify a defamatory claim, namely:

  1. Truth and in public interest / public benefit – The defamer must prove that the material is substantially true and that the public has an advantage or legitimate interest in the material. Both elements must be proven.
  2. Fair comment – This defence differs from the truth and public interest defence mentioned above in that the basis of this defence is the fact that a comment or opinion exists. This defence therefore protects the right of a citizen to honestly express his genuine opinion.
  3. Privileged occasion – There must be a certain type of relationship between the person making the defamatory statement (the defamer) and the person to whom the content was communicated for example, an attorney-client relationship (the recipient). Whether the comment is true or untrue, and whether it is fact or opinion, is not important. It is the circumstance under which the comment was made that is privileged. The defamer has a legal and/or moral obligation to make the recipient aware of the comment and in return, the recipient has a legal interest to be made privy to the content thereof.

A third party’s right to recourse against the complainant’s attorney in divorce proceedings

The question comes to mind whether a third party can sue an attorney who publishes defamatory material regarding a third person in divorce proceedings. Simply explained, does X (the third person) have a claim against Y (the attorney) if it is stated in the court summons that X had an affair with the spouse of Y’s client? Currently in South Africa there is no case law dealing with this particular set of facts. However, we are of the view that this does not mean that an attorney simply has carté blanché to publish defamatory material without taking some measures to test the veracity thereof.

How can attorneys ensure they are not accountable?

It is recommended that an attorney who is acting on his or her client’s instruction and which instruction involves accusing a third party of any wrong doing – which accusation under normal circumstances and if not contained in a legal letter or court process would indeed constitute defamatory remarks – attempts to establish corroborating facts or circumstances for these allegations before committing them to writing. Although accountability is normally sought to be discharged by using phrases such as “it is my instructions ….” or “according to my client…”, this may possibly not be sufficient to elude a claim for defamation.


The complexity of a claim for defamation lies in the balance that needs to be maintained between two fundamental rights and testing those rights to what the broader society finds acceptable or unacceptable. With changing morals in modern society, in the near future it might become even harder to prove a defamatory comment.

For assistance or more information please contact:

Juan Smuts,

Litigation Department, Abrahams & Gross Attorneys

T     021 422 1323       E    info@abgross.co.za

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