n Stellenbosch Law Review = Stellenbosch Regstydskrif - Laster : waarheid en bewyslas




The judgment of the Constitutional Court in <I>Khumalo v Holomisa&lt;/I&gt; deals with the question whether the plaintiff in a defamation action should be required to allege and prove that the defamatory statement is untrue. The defendants attacked the common law rule which requires of the plaintiff only to allege and prove the publication of a defamatory statement pertaining to him or her. In terms of this rule it is then for the defendant to allege and prove that the statement was true and that the publication was in the public interest. The rule was attacked on the basis of an alleged conflict with the right of freedom of expression guaranteed by section 16 of the Constitution. The plaintiff argued that the rule is justified on the basis of the protection of human dignity (including reputation and privacy) guaranteed by section 10 of the Constitution. <BR>The first issue was whether these constitutional rights bind private persons in terms of section 8(2) of the Constitution, and if so to what extent. The Constitutional Court had to consider this question with regard to the nature of the rights and the nature of any correlative duties. The court considered that the defendants were members of the media who are expressly identified as bearers of constitutional rights to freedom of expression. There can be no doubt that the law of defamation does affect the right to freedom of expression. Given the "intensity" of the constitutional right in question, coupled with the potential invasion of that right which could be occasioned by persons other than the state or organs of state, the court held that the right to freedom of expression applies directly in this case, as contemplated by section 8(2) of the Constitution. <BR>The further enquiry was whether the court in this case should apply or develop the common law to give effect to that right. The Constitutional Court here considered whether the common law rule which requires the defendant to allege and prove truth and public benefit in a defamation action unjustifiably limits the right to freedom of expression. If it did, it would be necessary to develop the common law in the manner contemplated by section 8(3) of the Constitution, including a possible limitation of a conflicting right in accordance with section 36(1) of the Constitution. The court held that the common law rule in question does not unjustifiably limit the constitutional right to freedom of expression, mainly because a defendant who cannot establish the truth, or finds it disproportionately expensive or difficult to do so, may show that in all the circumstances the publication was reasonable, in terms of the judgment of the Supreme Court of Appeal in <I>National Media v Bogoshi</I>. In determining whether publication was reasonable, a court will have regard to the individual's interest in protecting his or her reputation and privacy in the context of the constitutional commitment to human dignity. <BR>Further conclusions reached in the above article are the following: If an "audit" is done on the common-law elements of defamation, without taking into account constitutional arguments, it is arguable that the publication of a defamatory statement is in itself <I>prima facie&lt;/I&gt; wrongful (regardless of the truth or untruth of the statement), because not only the reputation, but also the privacy and dignity of the person defamed is in issue. It is therefore justifiable that the defendant should allege and prove truth and public benefit. The incidence of the onus of proof in respect of the truth or untruth of the statement concerned is not directly relevant in an exception where it is alleged that the pleadings do not disclose a cause of action.


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