THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

CASE NO: 493/05

LUZUKO KERR HOHO
Appellant

and

THE STATE
Respondent

Neutral citation:
Hoho v The State (493/05) [2008] ZASCA 98 (17
September 2008)

Coram:
STREICHER, HEHER, MLAMBO, CACHALIA JJA &
KGOMO AJA
Heard:
15 AUGUST 2008
Corrected:

Delivered:
17 SEPTEMBER 2008
Summary:
Criminal defamation – not abrogated by disuse – consonant
with Constitution.

_______________________________________________________________

ORDER
____________________________________________________________________

On appeal from: High Court, Bisho (White J sitting as court of first
instance)

The appeal is dismissed.

____________________________________________________________

JUDGMENT
____________________________________________________________

STREICHER JA (HEHER, MLAMBO, CACHALIA JJA and KGOMO
AJA concurring)

[1] The Bisho High Court convicted the appellant on 22 of 23 charges of
criminal defamation and sentenced him to three years’ imprisonment
suspended for five years and, in addition, to three years correctional
supervision in terms of s 276(1)(h) of the Criminal Procedure Act 51 of
1977 (‘the Act’). An application for leave to appeal against the conviction
and the sentence was dismissed by the court a quo but granted by this court.
In granting leave to appeal this court indicated that argument would be
required ‘on the question whether the crime of defamation is still extant,
and if so whether it is consonant with the Constitution’. It also advised the
parties that it would ensure that argument is presented on these issues
independently of any argument that the appellant might wish to advance.

[2] The appellant was accused of having ‘compiled, produced and/or
published’ several leaflets during the period 2001 to 2002 in which he
defamed the Speaker of the Legislature of the Eastern Cape Province (‘the
Legislature’), the Premier of the Eastern Cape Province, members of the
Legislature, the National Minister of Safety and Security, the National
Deputy Minister of Home Affairs, the National Minister of Health, the
Chief Whip of the African National Congress in the Legislature and a legal
adviser to the Legislature. In these leaflets allegations of, amongst others,
corruption, bribery, financial embezzlement, sexual impropriety, illegal
abortion and fraud were made.

[3] At the relevant time the appellant was employed by the Legislature
as a researcher. He pleaded not guilty to the charges and denied in his plea
explanation that he was the author and publisher of the leaflets. He stated
that any connection between him and the utterances published ‘was being
sought to be made’ by members of the security police or members of the
police services with whom he had certain difficulties.

[4] Although the appellant did not specially plead a defence of ‘truth and
public benefit’ as is required by s 107 of the Act, in the event of such a
defence being relied upon, the state called a number of witnesses to
establish that the defamatory allegations were untrue. The state also called
several witnesses to prove that the appellant was the author of the leaflets.
The appellant testified that he was not the author of the leaflets and also
called a number of witnesses. After a very lengthy trial (the record
comprises 24 volumes consisting of 2946 pages), the court a quo found that
the allegations made against the various complainants in respect of the 22
charges that the appellant had been convicted on, were defamatory and that
the state had proved beyond reasonable doubt that the appellant was the
author of the leaflets and that he had published or caused them to be
published.

[5] Before us counsel for the appellant did not attack the findings of the
court a quo but in effect abandoned the appeal save in so far as it related to
the question raised by the order granting leave to appeal ie whether our law
still recognised defamation as a crime. They advised us that they were of
the view that should it be held that the crime of defamation is still extant
and that it is consonant with the Constitution the conviction and sentence
should stand and addressed us only in respect of these two issues.

Consequently these are the only issues that must be dealt with in this
appeal.

[6] It should be stated at the outset that we are indebted to Mr G Marcus
SC and Mr S Budlender who kindly agreed to appear as amici curiae in the
matter and whose heads of argument and very fair and balanced oral
submissions at the hearing of the appeal were of considerable assistance to
us.

IS THE CRIME OF DEFAMATION STILL EXTANT?
[7] In R v Japel 1906 TS 108 the court had to decide whether ‘ordinary
verbal slander was punishable as a crime under Roman-Dutch law’.1
Innes CJ with whom Smith and Mason JJ agreed, after having stated that
there was no doubt that serious verbal defamation was so punishable and
having referred to Voet 47.10.15 and Matthaeus de Criminibus 47.4.7,
concluded ‘that ordinary verbal slander is still a crime in this country,
though the instances where prosecutions are instituted in respect of it are
few and far between’.2 In R v Harrison and Dryburgh 1922 AD 320 at 327
Innes CJ said:
‘That defamation is by our law a crime admits of no doubt; it was so regarded by the
Roman-Dutch authorities and has been repeatedly dealt with as such by South African
Courts. But the practice has been to confine criminal proceedings to serious and
aggravated cases.’

[8] Since 1922 very few convictions for criminal defamation have been
reported. The last such reported conviction was in the case of S v Revill
1970 (3) SA 611 (C). The case concerned the defamation of a judge in
contravention of s 1 of the Cape Libel Act 46 of 1882 which was repealed

1 At 110-111.
2 At 111.

in 1977.3 The last reported conviction for criminal defamation in terms of
the common law was R v MacDonald 1953 (1) SA 107 (T). It is probably
for this reason that the question was raised in the order granting leave to
appeal whether the crime of defamation was still extant ie has it not been
abrogated by disuse? Mr Budlender who presented the argument of the
amici curiae in respect of this issue submitted that there must have been,
since these cases were decided, many instances of defamation in respect of
which convictions could have been secured and that the absence of reported
convictions indicated that the South African community no longer
considered defamation to be a crime.

[9] The doctrine that law may be abrogated by disuse is well established
in our law.4 The basis of the doctrine is the tacit repeal ‘through disuse by
silent consent of the whole community’.5 It is therefore necessary to
consider whether it can be said that the South African community tacitly
consented that defamation should no longer constitute a criminal offence.

[10] The problem with Mr Budlender’s submission based on the absence
of reported convictions for a long period of time, is that it is unlikely that
prosecutions would, in the absence of special circumstances, have been
instituted in the high courts. Regional courts have at all relevant times had
jurisdiction to impose substantial periods of imprisonment. At the moment
they may impose sentences of up to 15 years’ imprisonment.6 In these
circumstances, if there were prosecutions for defamation, they are more
likely to have been instituted in the lower courts and the judgments of the
lower courts are not reported in the law reports. The absence of reported

3 Section 1 of the Pre-Union Statute Law Revision Act 43 of 1977.
4 Green v Fitzgerald and others 1914 AD 88 at 111; R v Chipo 1953 (4) SA 573 (A) at 578-579; and R v
Sibiya 1955 (4) SA 247 (A) at 265D-F.
5 Green v Fitzgerald supra at 110; and LTA Engineering  Co Ltd v Seacat Investments (Pty) Ltd 1974 (1)
SA 747 (A) at 771G-H.
6 Section 92(1) of the Magistrates’ Courts Act 32 of 1944.

convictions in the law reports can therefore not be taken as evidence of
tacit consent that defamation should no longer constitute a criminal
offence.

[11] In any event, although there have not been reported convictions for
defamation since Revill there have been reported prosecutions. See in this
regard S v Gibson 1979 (4) SA 115 (D & CLD) at 140G-151A, S v Bresler
and another 2002 (4) SA 524 (C); and S v Moila 2006 (1) SA 330 (T). In
Moila and Bresler it was not necessary for the court to consider the
defamation charge as the charge was in the alternative to a contempt of
court charge, which the court found to have been proved. In Gibson the
court did consider the defamation charge and acquitted the accused. The
basis of the doctrine of abrogation being a supposed tacit repeal ‘through
disuse by silent consent of the whole community’, not only convictions but
also prosecutions are relevant in determining whether there had been such a
tacit repeal. See in this regard Green v Fitzgerald7 where the fact that there
had been no criminal prosecutions for adultery for 85 years was a factor
that weighed with the court in finding that adultery as a crime had been
abrogated by disuse. Unsuccessful prosecutions can, however, be no more
than a factor to be taken into account. The unsuccessful attempt to secure a
conviction for defamation by a prosecutor, who may be uncertain as to
whether the crime still exists or who may not even have considered the
question, can hardly constitute conclusive proof of the attitude of the
community.

[12] A more reliable indication of the attitude of the community is to be
found in the fact that the then Minister of Internal Affairs, in August 1982,
requested the South African Law Commission ‘to investigate the possibility

7 Above at 112.

of extending criminal defamation to include the publication of untruths
concerning a person in public, and group defamation’. The request arose
out of a recommendation by a Parliamentary Select Committee in respect
of a proposal by a Cabinet Committee that the Electoral Act 45 of 1979 be
amended to make the publication of false or defamatory allegations about
an election candidate punishable.8 The Parliamentary Select Committee
would seem not to have considered criminal defamation to have been
abrogated by disuse. The Commission reported that it investigated the
matter and that more than 60 persons and bodies responded to a
questionnaire prepared by it. The investigation did not, however, reveal any
need for the proposed amendment of the law and the opinion poll showed a
substantial majority feeling against it.9 It thus recommended ‘that the legal
position regarding criminal defamation be left unchanged’.10 Of even more
importance to the present enquiry is the fact that notwithstanding the
investigation there is no suggestion in the report that criminal defamation
had by 1982 been abrogated by disuse.

[13] Notwithstanding the Law Commission’s report, the extension of the
crime of criminal defamation was subsequently introduced by the
Legislature in terms of the Electoral Act 73 of 1998. Schedule 2 of that Act
contains an Electoral Code of Conduct which provides in para 9(1)(b)
thereof that no registered party or candidate may publish 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. In terms of s 94 of that Act no person or party
bound by the Code may contravene a provision of the Code and in terms of
s 97 such a contravention constitutes an offence.

8 South African Law Commission Annual Report 1983 p 15.
9 Op cit p 16.
10 Loc cit.

[14] I have not been able to find and we have not been referred to any
suggestion by an academic or anybody else, before this case, that criminal
defamation has been abrogated by disuse. The text books on criminal law
that I consulted contain a section dealing with the crime without any
suggestion that it has been abrogated by disuse.11 Even more telling is the
fact that it is not suggested by those academics who are in favour of the
abolition of the crime. They would, because of that attitude, certainly have
raised the possibility that the crime had been abrogated, had they
considered that to be a possibility.12

[15] In the light of the foregoing it cannot be said that criminal
defamation has been repealed as a crime by silent consent of the whole
community.

IS THE CRIMINALISATION OF DEFAMATION CONSONANT WITH
THE CONSTITUTION?
[16] Criminal defamation is defined by JRL Milton as the unlawful and
intentional publication of matter concerning another which tends to injure
his reputation.13 But he then says that although not authoritatively decided,
criminal defamation should be restricted to serious cases.14 The inclusion of
the additional requirement that the injury to reputation should be serious is
supported by CR Snyman15 but not by John van der Berg (although he is in

11 JRL Milton South African Criminal Law and Procedure Vol ll Common-Law Crimes  3 ed p 520-535;
and CR Snyman Criminal Law 5 ed p 475-477; and Jonathan Burchell Principles of Criminal Law 3 ed
p 741.
12 JRL Milton loc cit; CR Snyman loc cit; Jonathan M Burchell The Law of Defamation in South Africa
p 332-333; and John van der Berg ‘Should There be a Crime of Defamation’   (1989) 106 SALJ p 276.
13 JRL Milton op cit 520. See also Jonathan Burchell Principles of Criminal Law 3 ed p 741.
14 JRL Milton op cit 531.
15 CR Snyman op cit 477.

favour of the abolition of the crime)16 and F F W van Oosten.17

[17] I referred above to the statement by Innes CJ in R v Harrison and
Dryburgh that ‘the practice has been to confine criminal proceedings to
serious and aggravated cases’. It is implicit in this statement that Innes CJ
did not consider seriousness to be an element of criminal defamation. In
R v Fuleza 1951 (1) SA 519 (A) the court had to determine whether
slander, or injuria verbis, was a crime in the Colony of the Cape of Good
Hope as at 10 June 1891. Van den Heever JA examined the Roman Dutch
authorities, referred to Voet 47.10.15 who says ‘all injuries, whether grave
or slight, may be prosecuted criminally’18 and concluded, in relation to the
question whether gravity was an element of the offence of criminal
defamation, that ‘it is abundantly clear therefore that the apparent conflict
between the Roman-Dutch authorities relates to procedure and policy in
regard to prosecution not to the elements of the offence’.19 In respect of
Van Leeuwen (Romeinse Hollandse Reg, 4.37.1 in fin) who ‘avers that a
criminal prosecution does not lie in respect of oral defamation “unless it is
an uncommon defamatory statement which affects the commonwealth
because of its results”’ Van den Heever JA said:
‘The distinction, if it relates to the definition of the offence and not to policy in regard
to its prosecution, seems to me arbitrary, variable and uncertain. It is as incapable of
practical application as the Byzantine degrees of culpa, descriptions of which read well,
but which no one has been able to apply to practical affairs and which have now
generally been discarded.’20

[18] The other members of the bench in Fuleza were Hoexter JA and
Fagan JA. Hoexter JA found it unnecessary to express a view as to whether

16 John van der Berg ‘Is gravity really an element of crimen injuria and criminal defamation in our
law?’(1988) THRHR 54 p 72.
17 FFW van Oosten ‘Seriousness, Defamation and Criminal Liability’ (1978) 95 SALJ p 505.
18 At 525G-H.
19 At 526E-F.
20 At 525E-G.

the gravity of the defamation was an element of the offence.21 Fagan JA,
having stated that he wished to guard himself against a finding which could
encourage prosecutions for less serious cases of slander, accepted the
statement by Innes CJ ‘that the practice has been to confine criminal
proceedings to serious and aggravated cases’. But he left open the question
‘whether this limitation is merely a matter of policy depending on the
decision of the public prosecutor in each individual case in which a
complaint is lodged with him, or whether the practice has in the course of
time hardened into a legal rule which should also be applied by a court
trying the criminal charge’. He conceded that it may be difficult to draw a
line, for the purpose of applying this limitation as a legal principle, between
cases that are serious and those that are not.22 It follows that he agreed with
Van Heerden JA that the apparent conflict between the Roman-Dutch
authorities relates to procedure and policy in regard to prosecution not to
the elements of the offence.

[19] In R v MacDonald23 the accused had been convicted of defamation
and sentenced to a fine of ₤10. On appeal the court did not consider the
defamation in question to be an aggravated defamation but concluded that
the weight of modern authority precluded it from deciding that a court had
a discretion as to whether to convict according to the seriousness of the
offence.24

[20] Milton submits that the Roman-Dutch (and the pre-1951 South
African) position is sufficiently equivocal for our courts to decide this
matter on considerations of policy without worrying about problems of

21 At 529F-G.
22 At 532E-G.
23 1953 (1) SA 107 (T).
24 At 110G-H.

desuetude.25 According to him a third group of Roman-Dutch jurists
‘actually qualifies the definition of criminal defamation by requiring “an
extraordinary case of defamation, affecting the common weal in its
results”’.26 Burchell, on the other hand, agrees with Van den Heever JA
that the Roman-Dutch writers fall into two groups, the one holding that the
criminal remedy lay whether the injury was serious or slight and the other,
apparently accepting that view, holding that for policy reasons only serious
cases should be prosecuted. According to him Van Leeuwen and Van der
Keessel, who, according to Milton fell into the third group, would ‘appear
to be commenting on the fact that prosecutors do not prosecute for slight,
as opposed to serious, injuries’.27 According to Van der Berg the correct
interpretation of the Roman-Dutch authors ‘seems to be that non-serious
iniuriae were regarded as crimes, but were, as a matter of policy,
infrequently prosecuted.28 Van Oosten rejects seriousness as a requirement
for criminal defamation and states that the view that it is a requirement
leads to uncertainties, anomalies, inconsistencies and confusion in regard to
criminal liability.29

[21] In the light of these authorities I am not persuaded that the
authoritative analysis of the law by Van den Heever JA in Fuleza is wrong
and that a degree of seriousness was an element of the crime of defamation
in Roman-Dutch law or that it is an element of criminal defamation in our
law. I am also not aware of any evidence that the practice of confining
criminal proceedings for defamation to serious and aggravated cases has
hardened into a legal rule, being the possibility mooted by Fagan JA in
Fuleza. In the case of a common assault seriousness is not an element of

25 JRL Milton op cit p 531.
26 Op cit p 529.
27 Jonathan M Burchell The Law of Defamation in South Africa p 326.
28 Van der Berg ‘Is gravity really an element of crimen injuria and criminal defamation in our law?’
(1988) THRHR 54 p 59.
29 FFW van Oosten op cit  p 507-508 and 512-513.

the offence (that is not to say that the de minimis rule does not apply in
cases where the offence is so trivial that a court should not take notice
thereof).30 I can see no reason why the position should be different in the
case of an injury to a personality right such as a person’s reputation.

[22] It would seem to be accepted that seriousness is a requirement for the
crime of crimen injuria31 but it is not clear what the test for seriousness is.
In this regard I agree with Thirion J that ‘[t]he test requiring the injuria to
be “serious”, in so far as it can be called a test at all, is so nebulous as to
lead to arbitrariness in its application’. There is in my view no reason to
extend this requirement, accepting that it is a requirement in the case of
crimen injuria, to criminal defamation. There has been no suggestion that
the courts’ valuable time has unduly been taken up by serious criminal
defamation cases, let alone non-serious ones. Should the prosecuting
authority oblige and prosecute for non-serious defamation, which seems to
me to be highly unlikely, the fact that the defamation is not serious would
be reflected in the sentence. In trivial cases it may be found that the de
minimis rule applies.

[23] I, therefore, conclude that the crime of defamation consists of the
unlawful and intentional publication of matter concerning another which
tends to injure his reputation.

[24] In regard to the element of unlawfulness it has long been recognized
that if defamatory matter is true and published for the public benefit, or
constitutes fair comment or is published on a privileged occasion, the
publication is not unlawful. But those are not the only circumstances that

30 S v Kgogong 1980 (3) SA 600 (A) 603G-604A; and S v A and another 1993 (1) SACR 600 (A) at
607 d-f.
31 S v Bugwandeen 1987 (1) SA 787 (N) at 794D-796E; John van der Berg ‘Is gravity really an element of
crimen iniuria and criminal defamation  in our law?’(1988) THRHR p 54.

would render the publication of defamatory matter lawful. In National
Media Ltd and others v Bogoshi 1998 (4) SA 1196 (SCA) this court had to
consider whether the publication by the press of false defamatory
statements may in appropriate circumstances be lawful. In his judgment,
with which all the members of the court agreed, Hefer JA said that the three
mentioned defences do not constitute a numerus clausus of defences and
added:32
‘In our law the lawfulness of a harmful act or omission is determined by the application
of a general criterion of reasonableness based on considerations of fairness, morality,
policy and the Court’s perception of the legal convictions of the community.’
Hefer JA then, after having referred to the competing rights, namely the
right to reputation and the right to freedom of expression, the way in which
these two interests have been weighed in this country in the past and the
way the matter has been resolved elsewhere, concluded ‘that the
publication in the press of false defamatory allegations of fact will not be
regarded as unlawful if, upon a consideration of all the circumstances of the
case, it is found to have been reasonable to publish the particular facts in
the particular way and at the particular time’.33

[25] In Q v Shaw 3 EDC 323 at 328 the court held that the onus in respect
of a plea of justification rests on the accused. That statement does not,
however, accord with the fundamental principle of our common law that
the State has to prove all the elements of an offence. The common law
recognised only two exceptions to that general principle namely where an
accused raised a defence of insanity and where a statute created an
exception (R v Ndhlovu 1945 AD 369 at 380-381 and 386-387). In the
absence of any statutory exception the fundamental principle applies in the

32 At 1204D-E.
33 At 1212G-H.

case of criminal defamation.34 This fundamental principle of the common
law has now been entrenched in s 35(3)(h) of the Constitution which
provides that every accused person has a right to a fair trial, which includes
the right to be presumed innocent, to remain silent and not to testify during
the proceedings.35

[26] It follows that the state must prove the unlawful and intentional
publication of defamatory matter. Intentional publication also requires
proof that the accused knew that he was acting unlawfully or that he knew
that he might possibly be acting unlawfully.36 As in any other criminal case
the degree of proof required is proof beyond reasonable doubt.37 It does not
follow that the state has to negative merely hypothetical possible
defences.38 It would be necessary, for example, for an accused, whose
defence is that the alleged defamatory allegations were true and made for
the public benefit, to plead that defence as is required by s 107 of the Act.
Precisely what circumstances would require the state to negative other
defences will depend on the particular circumstances and will be left for
decision when the need to do so arises.

[27] Having determined the elements of the crime of defamation and that
those elements are to be proved by the state beyond reasonable doubt I
shall now proceed to deal with the question whether the crime is consonant
with the Constitution.

[28] In terms of s 16 of the Constitution everyone has the freedom to
receive and impart information. The section reads:

34 See Worme and another v Commissioner of Police of Grenada [2004] UKPC 8 para 24 where the Privy
Council came to the same conclusion.
35 S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) para 15.
36 S v De Blom 1977 (3) SA 513 (A); S v Hlomza 1987 (1) SA 25 (A) at 31H-32G; and see Maisel v Van
Naeren 1960 (4) SA 836 (C) at 840 in respect of the requirement of animus injuriandi in the civil context.
37 R v Ndhlovu 1945 AD 369 at 386-387.
38 Op cit at 381; see also S v De Blom above at 532E-H.

‘(1)
Everyone has the right to freedom of expression, which includes –
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
(2)
The right in subsection (1) does not extend to –
(a)
propaganda for war;
(b)
incitement of imminent violence; or
(c)
advocacy of hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.’

[29] The importance of the right to freedom of expression has often been
stressed by our courts.39 Suppression of available information and of ideas
can only be detrimental to the decision-making process of individuals,
corporations and governments. It may lead to the wrong government being
elected, the wrong policies being adopted, the wrong people being
appointed, corruption, dishonesty and incompetence not being exposed,
wrong investments being made and a multitude of other undesirable
consequences. It is for this reason that it has been said ‘that freedom of
expression constitutes one of the essential foundations of a democratic
society and is one of the basic conditions for its progress and the
development of man’.40 Although false information will not benefit a
society, democratic or otherwise, the right to freedom of expression is not
restricted to correct or truthful information because errors are bound to be
made from time to time and to suppress the publication of erroneous
statements on pain of penalty would of necessity have a stifling effect on
the free flow of information.41 But the freedom of expression is not

39 National Media Ltd and others v Bogoshi 1998 (4) SA 1196 (SCA) 1207I-1208G; Khumalo and others
v Holomisa 2002 (5) SA 401 (CC) para 21-25; and Mthembi-Mahanyele v Mail & Guardian Ltd and
another 2004 (6) SA 329 (SCA) para 65.
40 Bogoshi at 1208.
41 Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 616I-J; and National Media Ltd and others
v Bogoshi at 1210G-I.

unlimited. Although it is fundamental to our democratic society it is not a
paramount value. It must be construed in the context of other values such
as the value of human dignity.42

[30] Human dignity is stated in s 1 of the Constitution to be a
foundational value of our democratic state and s 10 of the Constitution
provides:
‘Everyone has inherent dignity and the right to have their dignity respected and
protected.’
‘The value of human dignity in our Constitution . . . values both the
personal sense of self-worth as well as the public’s estimation of the worth
or value of an individual’43 ie an individual’s reputation. In regard to the
importance of protecting an individual’s reputation Lord Nicholls of
Birkenhead said in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at
201:
‘Reputation is an integral and important part of the dignity of the individual. It also
forms the basis of many decisions in a democratic society which are fundamental to its
well-being: whom to employ or work for, whom to promote, whom to do business with
or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a
reputation can be damaged for ever, especially if there is no opportunity to vindicate
one’s reputation. When this happens, society as well as the individual is the loser. For it
should not be supposed that protection of reputation is a matter of importance only to
the affected individual and his family. Protection of reputation is conducive to the
public good. It is in the public interest that the reputation of public figures should not be
debased falsely. In the political field, in order to make an informed choice, the
electorate needs to be able to identify the good as well as the bad.’

[31] The law of defamation, both criminal and civil, is designed to protect
the reputation of people. In doing so it clearly limits the right to freedom of
expression. Such limitation can be consistent with the Constitution only if

42 Khumalo and others v Holomisa para 25.
43 Op cit at para 27.

it can be said that ‘an appropriate balance is struck between the protection
of freedom of expression on the one hand, and the value of human dignity
on the other’.44 In Khumalo that was held to be the case in so far as the civil
remedy for defamation is concerned.

[32] In regard to criminal defamation Burchell45 poses the question
whether a criminal sanction for defamatory words is too drastic a means of
regulating free speech, especially when there is a relatively well developed
civil-law remedy. Snyman46 submits that our law will be no poorer if the
crime is abolished. He bases his submission on the small number of
prosecutions and the existence of a civil remedy. Milton47 thinks that there
is a strong and persuasive case for the decriminalisation of defamation and
Van der Berg,48 referring to the frequency of prosecutions, the limited
redress which a victim may achieve through a criminal prosecution, the
existence of a civil remedy and trends in other jurisdictions, says that the
need for the crime of defamation has become highly suspect.

[33] A criminal sanction is indeed a more drastic remedy than the civil
remedy but that disparity is counterbalanced by the fact that the
requirements for succeeding in a criminal defamation matter are much
more onerous than in a civil matter. In a civil action for defamation
unlawfulness and animus injuriandi are presumed once the publication of
defamatory material is admitted or proved49 and the onus is on the
defendant to prove whatever he relies upon in justification.50 In the case of
criminal defamation not only is there no presumption of unlawfulness or
animus injuriandi, the state has to prove both elements and has to do so

44 Op cit para 28.
45 Jonathan M Burchell The Law of Defamation in South Africa p 325.
46 CR Snyman Criminal Law 5 ed p 476.
47 JRL Milton op cit p 520.
48 John van der Berg ‘Should there be a Crime of Defamation’, (1989) 106 SALJ p 290.
49 National Media Ltd and others v Bogoshi at 1202G-H.
50 Op cit 1218D-F.

beyond reasonable doubt. Media defendants in a civil action have to go
even further than proving absence of animus injuriandi - they have to prove
absence of negligence;51 whereas in a criminal matter they would escape
liability if the state cannot prove that they knew that they were acting
unlawfully or that their actions might be unlawful. It is therefore
substantially more difficult to secure a conviction on a charge of
defamation than it is to succeed in a civil claim for defamation and
although a criminal conviction and the sanction arising therefrom may be
more severe than an order to pay damages the limitation of the right to
freedom of expression is, in my view, not. In any event to expose a person
to a criminal conviction if it is proved beyond reasonable doubt, not only
that he acted unlawfully, ie without justification, but also that he knew that
he was acting unlawfully in my view constitutes a reasonable and not too
drastic a limitation on the right to freedom of expression.

[34] The onerous requirements in the case of criminal defamation are
probably a reason for the paucity of prosecutions for defamation compared
to civil defamation actions. Another reason is probably the fact that, in civil
defamation actions, plaintiffs very seldom give evidence and thus avoid
being exposed to cross-examination. In criminal cases on the other hand the
complainant is not in control of the proceedings and would in most cases be
called to give evidence specifically in order to prove that the relevant
allegations are untrue.

[35] It does not follow that there is no need for the crime. Another reason
for the paucity of prosecutions may be the effectiveness of the remedy in
the sense that defamatory allegations are not published when it is known

51 Op cit 1215H-J.

that they could be proved beyond reasonable doubt, to be untrue.52 There
have been cases in the past where complainants required the state to
prosecute for defamation and there may well be such cases in the future. It
is true that there is a civil remedy available for defamation but there is also
a civil remedy available for common assault, yet nobody would suggest
that there is for that reason no need for the crime of common assault. There
is in my view no reason why the state should oblige and prosecute in the
case of a complaint in respect of an injury to a person’s physical integrity
but not in the case of a complaint in respect of an injury to reputation,
which may have more serious and lasting effects than a physical assault. In
any event, the need for the crime in addition to the civil remedy is proved
by the present case. The complainants in this case did not know who was
responsible for the publication of the defamatory allegations and had to
enrol the assistance of the police and the prosecuting authorities to prove
that it was the appellant.

[36] For these reasons I am of the view that our crime of defamation is
not inconsistent with the Constitution. Support for this finding is to be
found in Worme and another v Commissioner of Police of Grenada [2004]
UKPC 8 where the Privy Council had to decide whether the hindrance to
freedom of speech under s 10(1) of the Grenada Constitution constituted by
the statutory crime of intentional libel was reasonably justifiable in a
democratic society.53 It concluded that the offence was reasonably required
to protect people’s reputations and that it did not go further than was
necessary to accomplish that objective.54 In respect of the question whether
the crime is justifiable in a democratic society it held:55

52 Worme and another v Commissioner of Police of Grenada [2004] UKPC 8 at 455E-F para 42; and R v
Lucas [1998] SCR 439 para 55.
53 Para 41.
54 Para 42.
55 Para 43.

‘Of course, some democratic societies get along without it. But that simply shows that
its inclusion is not the hallmark of the criminal law of all such societies. In fact criminal
libel, in one form or another, is to be found in the law of many democratic societies,
such as England, Canada and Australia. It can accordingly be regarded as a justifiable
part of the law of the democratic society in Grenada.’

[37] For these reasons the appeal is dismissed.

__________________
P E STREICHER
JUDGE OF APPEAL

APPEARANCES:

For Appellant:
C Ploos van Amstel SC

P W Nel (Attorney)

Instructed by

The Justice Centre, King William’s Town

Bloemfontein Justice Centre, Bloemfontein

For Respondent:
M P Z Sotenjwa
Amici curiae
G J Marcus SC

S Budlender

Instructed by

The Director of Public Prosecutions, Bisho

The Director of Public Prosecutions,
Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
17 September 2008
Status:
Immediate

L K HOHO v THE STATE

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

* * *

The Supreme Court of Appeal (‘the SCA’) today dismissed an appeal by the
appellant against his conviction in the Bisho High Court on 22 charges of criminal
defamation.

The defamation charges related to defamatory allegations that had been made
against various people associated with the Legislature of the Eastern Cape as well
as against national ministers, in leaflets that had been distributed in the Eastern
Cape and elsewhere. At his trial the appellant denied that he was the author of the
leaflets but on appeal the only issue was whether defamation still constituted a

criminal offence in South Africa. It was submitted that the crime of defamation
had been abrogated by disuse and also that it was inconsistent with the
Constitution.

The SCA held that the basis of the doctrine that law may be abrogated by disuse is
the tacit repeal through disuse by silent consent of the whole community. No such
tacit repeal could be found to have taken place.

In regard to the question whether  the crime of defamation is consistent with the
Constitution the SCA held that the law of defamation is designed to protect the
reputation of people and that in doing so it limits the right to freedom of
expression. Such limitation can be consistent with the Constitution only if it can be
said that an appropriate balance is struck between the protection of freedom of
expression on the one hand and the value of human dignity on the other. 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
concluded that the criminalisation of defamation is not inconsistent with the
Constitution.