The common law crime of defamation has been abolished!

South Africa has followed a trend in the democratic world to repeal the common law crime of defamation. Governments and leaders can use it to punish criticism and insults. But, is the government banking on the Hate Speech Bill to do some of the work of criminal defamation?

PRESS RELEASE

On 3 April the President assented to the Judicial Matters Amendment Act (Act), No. 15 of 2023. The Presidency’s press release notes that the Act is technical in nature and is intended to improve service delivery within the justice system.

Of particular interest to the Free Speech Union of South Africa is the repeal of the common law crime of defamation:

‘Repeal of law 34. (1) The common law relating to the crime of defamation is hereby repealed. (2) Subsection (1) does not affect civil liability in terms of the common law based on defamation.’

Most of us associate “defamation” as a civil action which protects people’s reputations by allowing them to sue for damages for the publication of material that lowers their standing in the eyes of others.

Traditional defences against a claim for defamation are truth and fair comment on matters of public concern. Since 1994, the Constitutional Court has ruled that the crucial test is whether publication is ‘reasonable’ in all the circumstances.

Remedies for civil defamation include an award of financial compensation for the harm done to their reputation; an interdict to prevent further publication of the defamatory statement; an order that the defendant issue a public apology or retraction of the defamatory statement; and an order that the defendant pays the plaintiff’s legal costs.

The history of defamation laws in South Africa has been marked by a complex interplay between legal principles, political regimes, and societal values. Throughout different periods, these laws have been wielded as tools of suppression, stifling dissent and inhibiting the free exchange of ideas. The abolition of the common law crime of defamation represents a significant departure from this legacy, signaling a commitment to upholding the fundamental right to freedom of expression enshrined in South Africa's Constitution.

However, charging someone criminally with defamation in South Africa has its origins in common law which is based on Roman Dutch Law. Although the crime of defamation has been held to be consonant with the Constitution (Hoho v The State (493/05) 2008 ZASCA 98 17 September 2008), the arguments for its abolition have been that the involvement of the state in prosecuting alleged defamers risks moving ‘the matter very quickly into the punishment of dissent’.

This has a particularly chilling effect on journalism resulting in the fear of being charged with criminal defamation for “insulting” or criticising the head of state. This appears to have motivated the repeal of this crime:

‘Various international and local stakeholders and interested parties have expressed concerns about the alarming effect of such offences on journalists and have advocated for their abolition.’

The repeal of the crime of defamation, particularly in these politically tumultuous times, is a welcome recognition that free speech and expression should be limited as little as possible. By removing the threat of criminal prosecution for defamation, South Africa affirms its commitment to balancing the protection of reputation with the principles of free speech and press freedom. This shift not only ensures greater consistency with constitutional values but also enhances the integrity and fairness of the legal system as a whole.

However, the FSU SA is concerned that its repeal is seen as convenient since the Hate Speech Prevention and Combating of Hate Crimes and Hate Speech Bill [B9B-2018] provides for the criminalisation of what is deemed to be hate speech. The FSU SA fears that the Bill, as IRR Head of Policy Dr. Anthea Jeffery says ‘will expose people to arrest, prosecution and punishment simply for engaging in comment or debate on issues vital to democracy and prosperity’.

Could it be that the retention of the crime of defamation is considered unnecessary by the government because the Hate Speech Bill will serve the same purposes? All that needs to happen for it to become law is for the President to sign his assent to it. A conviction for hate speech can carry a penalty of a fine and/or up to 5 years imprisonment.

While the abolition of criminal defamation represents a significant milestone in the protection of freedom of expression, ongoing advocacy efforts are necessary to ensure that these rights are fully upheld in practice. FSU SA will continue to monitor the implementation of the Act and advocate for further reforms aimed at strengthening free speech.

We therefore persist in our demand that the Hate Speech Bill is unconstitutional and should be withdrawn.