Repealing Legal Barriers: A Triumph for Freedom of Expression in South Africa

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The recent repeal of the crime of criminal defamation in South Africa marks a significant victory for press freedom, and the right to freedom of expression. This significant development, enacted through the Judicial Matters Amendment Act No. 15 of 2023, dismantled a considerable obstacle to the constitutional right to freedom of expression, which subjected journalists and social activists to the threat of criminal charges, fines, and imprisonment.

The specific language of the repeal, as outlined in the Judicial Matters Amendment Act, is as follows:

"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 (1) The common law relating to the crime of defamation is hereby repealed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."

The history of defamation in South Africa traces its roots in tort law, which encompasses both libel (written statements) and slander (oral or spoken statements). Broadly defined as a false statement that tarnishes or damages a person's reputation, criminal defamation has long been a contentious issue, specifically within the context of South Africa’s constitutional dispensation, which requires the balancing of the right to freedom of expression with the protection of an individual’s reputation and dignity.

Defamation, as re-stated by the Supreme Court of Appeal in S v Hoho 2009 (1) SACR 279 SCA, is the unlawful and intentional publication of matter concerning another which tends to injure their reputation. 

In the past, these laws were applied in a manner which stifled journalistic freedom and hindered investigative reporting. The law in itself was a remnant of a bygone era when restrictions on speech were deemed necessary for maintaining social order and safeguarding public institutions. The criminalisation of defamation in this manner, within the context of a democracy, was clearly at odds with the spirit and intention of South Africa’s Constitution.

For decades, criminal defamation laws have been weaponized to silence journalists, activists, and dissenting voices, which posed a significant threat to free speech and open dialogue. The repeal has been a longstanding demand of journalists and human rights bodies in South Africa, who have argued that such laws are antithetical to the principles of democracy and freedom of expression as enshrined in the Constitution. Anton Harber, Executive Director of the Campaign for Free Expression (CFE), hailed the repeal as a "small but significant victory for democracy and free expression, that removes a weapon that is most often used to stifle criticism and open discussion."

Previous legal battles have challenged the constitutionality of criminal defamation laws, highlighting the need for a careful balance between protecting reputation and safeguarding freedom of expression. In 2013, Cecil Motsepe, a senior journalist of the Sowetan newspaper, faced the chilling reality of criminal defamation when he was found guilty and sentenced for writing an article criticizing a magistrate. The Magistrates’ Court convicted Motsepe and sentenced him to a fine of R 10,000.00 or 10 months’ imprisonment wholly suspended on certain conditions for a period of five years. While the conviction was later overturned by the High Court on the basis that the State had failed to establish an intention to defame, Motsepe's case illustrated the professional risks journalists faced prior to the repeal.

The abolition of the common law crime of defamation signifies a departure from this legacy of legal suppression and reflects a broader commitment to protecting freedom of expression. The repeal should therefore be welcomed. However, amidst this positivity, there remains a concern regarding the potential implications of other legislative measures, such as the Prevention and Combating of Hate Crimes and Hate Speech Bill [B9B-2018].

The Free Speech Union of South Africa (FSU SA) has expressed apprehension that the Hate Speech Bill could undermine the gains made by repealing criminal defamation laws. Dr. Anthea Jeffery, Institute of Race Relations Head of Policy Research, warns that the bill could expose individuals to arrest, prosecution and punishment simply for engaging in comment or debate on issues vital to democracy and prosperity.

It is crucial to recognize that the repeal does not render journalists immune to accountability for defamatory content. Our country’s legal framework still provides civil remedies to address defamation, ensuring that journalistic freedom is balanced in a responsible manner. These civil remedies are sufficient in adequately striking this balance, without subjecting those who exercise their right to freedom of expression to criminal sanction.

Overall, the repeal represents a triumph for democracy in South Africa. It also underscores the country's commitment to upholding constitutional values and protecting the rights of all citizens to engage in robust debate and dialogue without fear of reprisal. As South Africa continues its journey towards greater freedom and equality, the abolition of criminal defamation laws stands as a beacon of hope for all those who value free speech and democratic principles.

By Thando Manentsa, partner & Natasha Bekker, Candidate Attorney