South Africa Defamation Laws: Civil & Defences

Defamation in South Africa is a civil wrong (a delict under the common law), and as of April 2024 it is no longer a crime, because the Judicial Matters Amendment Act 15 of 2023 abolished the common-law crime of defamation. Reputation is protected through damages claims, not prosecution.

Is defamation civil or criminal in South Africa?

Defamation in South Africa is now a civil matter only. It is a species of the delict known as the actio iniuriarum, which protects a person's reputation (fama). For most of the country's history a common-law crime of defamation also existed, and the Supreme Court of Appeal confirmed in S v Hoho (2008) that the crime remained valid and constitutional. That position changed when Parliament passed the Judicial Matters Amendment Act 15 of 2023, which expressly repealed the common law relating to the crime of defamation. President Ramaphosa signed the Act and it commenced on 3 April 2024. A person who feels defamed must now sue in the civil courts for damages rather than lay a criminal charge. The distinct crime of crimen iniuria, which deals with the unlawful and intentional serious impairment of another person's dignity, is a separate offence and continues to apply.

What counts as defamation?

The Supreme Court of Appeal has defined defamation as the wrongful and intentional publication of a defamatory statement concerning the claimant. A claimant must prove three elements on a balance of probabilities: that there was publication (the statement was communicated to at least one third party), that the words or images were defamatory (they tended to lower the claimant in the estimation of right-thinking members of society), and that the matter referred to the claimant. Once those elements are shown, the law presumes that the publication was both wrongful and intentional. The burden then shifts to the defendant to raise a recognised defence that rebuts wrongfulness or intent. Defamation covers permanent forms such as writing, broadcasts and online posts, as well as spoken words, and a statement can defame by innuendo as well as expressly.

What defences are available?

South African law gives a defendant several established defences, most of which negate the presumed wrongfulness of the publication.

Watch out: Truth alone is not a complete defence. Under South African law a defendant relying on truth must also show that publication was for the public benefit, so a true but purely private and damaging revelation may still be actionable.

Remedies and damages

A successful claimant can obtain three main remedies. The first is damages, which compensate for the injury to reputation and dignity (general damages) and any proven financial loss (special or patrimonial damages). There is no statutory cap, and amounts are assessed by the court according to factors such as the seriousness of the allegation, the extent of publication, and the conduct of the parties. The second remedy is an interdict, a court order restraining further publication or compelling removal of the offending material, which is common in social media cases. The third is an order requiring an apology, retraction or correction. Courts have generally emphasised that damages in South Africa are intended to vindicate reputation rather than to punish, so awards tend to be more conservative than in some other jurisdictions.

Limitation period

A defamation claim is a debt for the purposes of the Prescription Act 68 of 1969, and the general prescription period is three years. Time normally runs from the date on which the defamatory matter was published, which is when the claimant has knowledge of the identity of the wrongdoer and of the facts giving rise to the claim. A claimant who does not issue summons within that period risks the claim becoming unenforceable through extinctive prescription. Different timing rules can apply where a claim lies against the State, so a claimant in that situation should check the notice requirements that govern proceedings against organs of state.

Online and social media defamation

The ordinary law of defamation applies in full to the internet. South African courts have held that a defamatory Facebook post, tweet or WhatsApp message is a publication just like print, and the author can be liable. In Heroldt v Wills the High Court granted an interdict and ordered the removal of a defamatory Facebook post, and in Manuel v Economic Freedom Fighters the courts confirmed that social media statements are actionable and can attract substantial damages. A person who shares, retweets or repeats a defamatory statement may also be treated as a publisher. The Electronic Communications and Transactions Act 25 of 2002 provides a notice-and-takedown framework that can limit the liability of internet service providers in some circumstances, but it does not shield the original author.

How a defamation claim is brought

A civil defamation claim is brought in the High Court or, depending on the amount and nature of the relief, the Magistrate's Court. Proceedings typically start with a letter of demand requiring an apology, retraction and sometimes payment, followed by a summons if the matter is not resolved. The claimant pleads the publication, its defamatory meaning and the reference to them, and the defendant raises any defences. Where the priority is to stop ongoing harm rather than recover money, a claimant can apply for an urgent interdict to have the material removed. Courts have generally encouraged correction and apology as proportionate outcomes, particularly for online disputes.