Motsepe v S (A 816/2013) [2014] ZAGPPHC 1016 (5 December 2014) per Molefe J [Janse van Niewenhuizen J concurring]

A full bench of the High Court refused to grant an application by various ‘friends of the court’ to have the common-law crime of defamation declared unconstitutional with regard to the media.  The high Court accepted that the existence of the crime of defamation limited the right to freedom of expression, it was reasonable and justifiable in an open and democratic society and was consistent with the criteria laid down in s 36 of Constitution.

[47] Having considered the competing interests and the hurdles that have to be overcome in order to secure a conviction on a charge of criminal defamation, the SCA in Hoho v The State [2008] ZASCA 982009 (1) SACR 276 (SCA) concluded that the criminalisation of defamation is not inconsistent with the constitution:

Although it is important to recognize the right of the person defamed to sue for monetary damages it is equally if not more important that society discourage the intentional publication of lies calculated to expose another individual to hatred and contempt. . . . Defamatory libel can cause long-lasting or permanent injuries to the victim.  The victim may forever be demeaned and diminished in the eyes of her community. . . . The harm that acts of criminal libel can cause is so grievous and the object of the section to protect the reputation of individuals is so meritorious that the criminal offence is of such importance that the offence should be maintained” (par [73]).