n South African Law Journal - Three keys to defamation : Media 24 in a comparative perspective : notes




The judgment of the Supreme Court of Appeal of South Africa in 2011 (5) SA 329 (SCA) raises questions of central significance, not simply for the law of defamation - and more generally the law of iniuriae, of which defamation will be regarded as a component part in a South African context - but for delict theory in general. These pertain to the nature of the loss sustained by the defamed (or insulted) party; the relationship between the original injury to reputation and any consequential - in this case, as often, financial - loss; and the ability of a juridical entity to sue on defamation or iniuria. Although not the only issues addressed by the case, these are the questions regarded by the present writer as of foundational importance for this province of the law. Both the majority judgment and the dissent deserve careful attention in this respect, because their disagreement goes to the heart of the purpose of the law of defamation. While focused on South African law, this note aims to be informed by comparative references to (mainly) English law and Roman law, the two pillars on which the modern law of South Africa was erected.


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