By Ismail Joosub, Legal Officer of Constitutional Programmes at the FW de Klerk Foundation, on 29/04/2024

In a significant move for South Africa’s legal landscape, the crime of defamation has been abolished. This marks a crucial development in the protection of free speech within the country. President Ramaphosa has assented to the Judicial Matters Amendment Act, 2023, repealing the common law crime of defamation (section 34(1)). This legislative change, while technical in nature, carries profound significance for journalists, civil society and the broader framework of free expression in South Africa.

What is criminal defamation?

Criminal defamation was a common law crime in South Africa until the President abolished it this year. (The Supreme Court of Appeal (“SCA”) had previously held that this crime was not inconsistent with the Constitution.)

Someone was guilty of the crime of defamation (and could be criminally prosecuted by the State for it), when they unlawfully and intentionally published something about someone else that injured that person’s reputation (i.e. their dignity, a right they are entitled to in terms of section 10 of the Constitution). (Note: A statement would not be unlawful if it was true and for the public benefit, or was, for example, a fair comment.)

Why was it abolished? 

International norms, such as those articulated in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, emphasise the importance of robust protections for freedom of expression.

In the memorandum to the Act, when it was tabled before Parliament as a Bill (i.e. a proposed law), the Department of Justice stated that, “Defamation is currently a criminal offence in the Republic and also forms the basis of delictual liability. The United Nations, as well as foreign authorities, have expressed concerns about the ‘chilling effect’ of such offences, especially on journalists and advocate for the abolition of such laws. There are well established civil remedies based on delict, in addition to the offence of crimen injuria.”

What is unchanged?

It is important to note that civil remedies for defamation remain intact, as per section 34(2) of the Act. Thus, one can still be sued for defamation with remedies such as financial compensation, interdicts to prevent further publication, public apologies and legal costs orders available. 

It also does not affect other statutory crimes, such as the Electoral Act, 1998’s criminalisation of the publication of false or defamatory allegations in connection with an election in respect of a party, its candidates, representatives or members; or a candidate or that candidate’s representatives. Doing so can land the party’s guilty candidate in jail for up to 10 years (section 94 read with sections 97 and 98 of the Act). 

In conclusion:

We should celebrate the fact that the crime of defamation is being abolished, because being jailed for freedom of speech is a serious act in a democracy, with many arguing that it should only be reserved for the most extreme cases – such as, for example, propaganda for war (see section 16(2) of the Constitution) – not for damaging someone’s reputation. Many have viewed this as too steep an inroad into the right to freedom of expression to protect someone’s dignity.

The abolition of criminal defamation represents a departure from South Africa’s legacy of censorship etc. and underscores a commitment to upholding the fundamental right to freedom of expression (section 16 of the Constitution).