What are the three substantive stages in the adjudication of dignity injuries, in terms of common law?
- A prima facie stage.
- A justification stage
- A remedy stage
How is defamation found?
Khumalo defines defamation in common law is as the wrongful and intentional publication of defamatory material about the plaintiff
What are the elements of common law defamation?
In Khumalo, the common law, the elements of delict defamation are:
- The wrongful and
- Intentional
- Publication of
- A defamatory statement
- Concerning the plaintiff
Which of the two factors can be assumed if a prima facie case of defamation is established according to Khumalo?
In the Khumalo case, it is held that once a plaintiff establishes that a defendant has published a defamatory statement concerning the plaintiff, it is presumed that the publication was both wrongful and intentional. A defendant wishing to avoid liability for defamation must then raise a defence which rebuts unlawfulness or intention.
What does the defence of the reasonable publication test help aviod?
The defence of the reasonable publication test as established in Bogoshi, helps avoid a winner-takes-all result and establishes a proper balance between freedom of expression and the value of human dignity.
In the Bogoshi case what was held that about the defence of reasonableness?
In Bogoshi’s case, the defence of reasonableness in determining whether the publication was reasonable, a court will have regard to the individual’s interest in protecting his or her reputation in the context of the constitutional commitment to human dignity. It will also have regard to the individual’s interest in privacy.
What was held in Le Roux case, about publication?
In Le Roux case, publication is defined as communication to at least one person other than the plaintiff. It may take many forms, such as speech or print, photographs, sketches, cartoons or caricatures.
What was held in Tsati?
The court held that the NEHAWU was not responsible for the republication as liability for republication arises when the original author provided authorisation for further publication.
When dealing with the concerning plaintiff what are two issues we need to determine?
When dealing with the conduct of the plaintiff, we need to determine two issues:
- Does the victim have the ability to be defamed (dealt with in Reddell)
- Whether the publication referred to the victim (dealt with in Sauls)
Which victims have the ability to be defamed?
The general rule is that all natural persons are capable of being defamed, juristic persons, are capable of being defamed in limited circumstances, as stated in Reddell
What was held in the Reddell case?
Companies have reputational interests however, they don’t have a right to dignity. Instead, dignity protects human beings’ reputational interests because the protection of those interests is necessary to ensure that a specific purpose is realised. A company’s reputational interest is sufficiently protected by the common law, and therefore , does not enjoy the protection of a constitutional guarantee. A juristic person is capable of being defamed but its claim for damages is precarious.
What was held in SA taxi SCA case?
In SA Taxi, the Supreme Court of Appeal affirmed that at common law, a trading corporation has a right to the protection of its reputation
What was held in Sauls case?
The Sauls case held that in group defamation to succeed in their action, the applicant must establish that the words complained of would lead an ordinary, reasonable person acquainted with them to believe, on reading the statement, that such words referred to them
personally. The test is therefore an objective one, and the actual intention of the respondent is irrelevant. They must also prove that, as a member of such a group, he was included in the defamatory statement
When is a vicitm identifiable from a publication as stated in Sauls?
A victim is identifiable from a publication when the publication specifically refers to the victim by name or when a reasonable person would identify the victim from the context and surrounding circumstances of the publication, according to Sauls
What was held in Dhlomo case?
In the Dhlomo case, the court held that it would be wrong to demand that a corporation which claims for an injury done to its reputation should provide proof of actual loss suffered by it when no such loss is required of a natural person who sues for an injury done to his reputation
What are the facts in Mthembi?
In Mthembi case tells the story of the Mail and Guardian newspaper, which published a so-called “report card” detailing the efficacy of a cabinet minister for a certain year. The question was whether the rule included the individual reputations of members of government.
What is held in Mthembi?
When dealing with political speech in particular circumstances, the publication of defamatory statements about a cabinet minister (or any member of government) may be justifiable in the particular circumstances and therefore not unlawful
What are the two requirments in Le Roux case about the defamatory effects?
In Le Roux it was held that there are two requirments to the defamatory effect of a publication: the meaning of the publication must be established and it must be established whether the meaning of the publication harmed the reputation of the victim
What does Le Roux case say about the community good name?
In Le Roux case, since a person is part of society and, by nature, a social creature, the esteem in which he is held by others with whom he is in contact is particularly important to him. Any action which tarnishes or lowers a person’s reputation within the community infringes on their good name.
What was held in Le Roux about the primary meaning of defamation?
The primary meaning refers to the ordianry gramatical meaning in light of the context. This includes the implication of the content
What was held in Basner about the innuendo of defamatory words?
In Basner, it was held that the test looked at when relying on the innuendo of words, is whether a reasonable person of average intelligence and education with knowledge of the circumstances pleaded in the declaration might reasonably have understood them in the sense assigned to them in the innuendo.
What was held in Tsedu v Lekota about a reasonable reader?
In Tsedu v Lekota it was held that when dealing with an article a reasonable reader would have read the article and therefore it cannot be taken in isolation. The statement must be taken into account with the context
What was held in the isparta case?
Isparta case, it is held that a person tagged in a defamatory social media post may be held liable if they are aware of the post and allow their name to be associated with it.
What are the facts in the Mohammed case?
In Mohamed v Jassiem, the victim, Jassiem, was called a “supporter of Ahmadis,” which was considered highly insulting to a Muslim in the Western Cape. The case revolved around whether calling Jassiem a sympathiser with the Ahmadis was defamatory. The court had to consider the meaning of this statement within the specific context of the Western Cape Muslim community.
