The crime of defamation – still defensible in a modern constitutional democracy?
Paper presented at the 2013 CLEA Conference in Durban
University of KwaZulu-Natal, South Africa
The common-law crime of defamation has attracted criticism in South Africa for a number of reasons. It has been argued that the basis for using a criminal sanction to deal with what is ordinarily a delict (tort) – the need to prevent disturbances of the public peace – is of limited utility in a modern society. Moreover, since defamation constitutes a basis for a delictual claim, this is the appropriate means of resolving such a dispute. By involving the might of the state in such a matter, the practical effect is to unduly inhibit freedom of expression and media freedom. This concern is all the more pertinent in the context of the constitutional democracy, based on a justiciable Bill of Rights, that South Africa has become. Thus the rights to freedom of expression and media freedom are enshrined in s 16 of the Constitution. Furthermore, prosecutions for this crime are infrequent. It has consequently been argued that the common-law crime of criminal defamation should be decriminalised.
In the recent Supreme Court of Appeal case of S v Hoho  1 All SA 103 (SCA) the court was not however persuaded by the arguments for abolishing this crime. It was held that the crime had not been abrogated by disuse, that the crime did not infringe the right to a fair trial (since the burden of proof of such crime remained on the State), and that there was no reason in principle why the State should prosecute assault (bodily injury) and not defamation (injury to one’s reputation). In finding that the crime of defamation is not inconsistent with the Constitution, the court adverted to the Privy Council case of Worme and another v Commissioner of Police of Grenada  UKPC 8, where the statutory crime of intentional libel was held to be constitutional, despite the protection of the right to freedom of expression in the Grenada Constitution.
In this paper the arguments for the retention and abolition of the crime of defamation will be considered, in the light of the approach adopted in other Commonwealth jurisdictions, and in particular taking into account the ambit of the right to freedom of expression.