The Freedom of Speech Union of South Africa has cautiously welcomed the abolition of criminal defamation in South Africa but is concerned that its repeal may be seen as being convenient, given that the Prevention and Combating of Hate Crimes and Hate Speech Bill provides for the criminalisation of what is deemed to be hate speech.
The FSU SA says it 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’.
In a statement, FSU SA director Sara Gon says: ‘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 this draft legislation to become law is for the President to sign his assent to it. A conviction for hate speech can carry the 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 Judicial Matters Amendment Act (providing for the abolition of criminal defamation) 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‘We therefore persist in our demand that the Hate Speech Bill is unconstitutional and should be withdrawn.’
The FSU SA notes that on 3 April the President assented to the Judicial Matters Amendment Act (Act), a change the Presidency said in a statement was ‘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 (1) The common law relating to the crime of defamation is hereby repealed.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” with 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 reputational harm; 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 FSU SA says: ‘The history of defamation laws in South Africa has been marked by a complex interplay between legal principles, political regimes, and societal values. Throughout, in 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, signalling 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.’
The FSU SA says 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 FSU SA says that 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.’
Nevertheless, ‘ongoing advocacy efforts are necessary to ensure that these rights are fully upheld in practice’.
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