Even when statement may on first blush (‘prima facie‘) appear to be defamatory and may in fact be so (in which case it will be deemed to be wrongful and with intention to injure – Media 24 v Khumalo), there are a number of defences available to the defendant: Some of these have been mentioned in the previous insert, but here is a list of these defences i.e. truth and public benefit (interest); privilege; fair comment; mistake; jest; rixa; compensation and then the vexed question as to whether a lack of intent (animus injuriandi) plays a role.
I will deal with these in the next couple of articles, the first being the defence of truth and public benefit.
Let’s look at the concept of truth first. This pertains to the substance of the publication i.e. it must be substantially true. So it has been said that it need not be literally true in every detail (McKerron 186) – it must be true as a whole and ‘in every material part thereof’ (Feldt v Bailey; Johnson v Rand Daily Mail). If it is not then the court will not even consider the 2nd ‘leg’ namely public interest (Media 24 v Khumalo)
What about exaggeration? It has been held that it will only negate the defence if ‘it is calculated to convey the wrong impression to the detriment of the Plaintiff’s character’ (Johnson above) or, as we will see later if the applicable privilege has been exceeded (Sher v Vermaak)
What must be true is the ‘sting of the charge’ or the material allegations only (zimlii.org)
Once it is conceded that the statement is false, this defence was away (www.poligticsweb.co.sa – EFF v Trevor Manuel)
This means you will not be liable for defamation if you can show to a court that what you had said was both true and was on a matter that was in the public interest. Making true statements about a friend on a matter of no public interest remains defamatory. It also means that if you are a columnist or cartoonist and you make adverse or even scathing defamatory comments about another person on a matter of public interest, you will have a defence to a defamation claim, unless there is no factual basis for the comment or you made the comments with malice (www.constitionallyspeaking.co.za)
If it can be shown that the allegations of rape against each one of the 11 men are true, the defendants will enjoy complete protection. The standard of proof – “on the balance of probabilities” – is lower than that applied in criminal cases – “beyond reasonable doubt” – and could potentially be satisfied by victims’ testimony. (www.news.uct.ac.za)
Public benefit is often referred to as ‘interest’ but that can get a bit confusing as the judge stated in the Durban High Court ‘ .. public interest. is not the same as being interesting to the public.
‘The court will have regard not only to the subject matter of the statement but to all the circumstances surrounding the publication and in particular the time, manner and occasion of the publication’ (Patterson v Engelenberg; Independent Newspapers v Suliman)
I will deal with the other defences in my next insert.
DISCLAIMER – Each case depends on its own facts & merits – the above does not constitute advice – independent advice should be obtained in all instances
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