President repeals law on criminal defamation
The common law relating to the crime of defamation has been repealed after President Cyril Ramaphosa assented to the Judicial Matters Amendment Act of 2023.
The presidency said international and local stakeholders and interested parties had expressed concern about the alarming effect of such offences on journalists and had advocated for their abolition.
The presidency, however, said the law relating to crimen injuria and civil remedies for defamation continued to apply.
One of the most notable convictions for criminal defamation was that of Cecil Motsepe, a senior journalist at Sowetan newspaper in 2013.
He was found guilty of criminal defamation and sentenced to a fine of R10,000 or 10 months’ imprisonment wholly suspended for five years.
Motsepe had written an article in 2009 dealing with two sentences imposed in the Meyerton magistrate’s court on a black man and a white woman for the same offence.
In the article, it was incorrectly alleged the magistrate had imposed a heavier sentence on the black man.
Motsepe’s conviction was set aside by the high court in Pretoria in 2014 because there was no evidence presented by the state that Motsepe knew the facts in the article were wrong.
In a judgment by the Supreme Court of Appeal in the case of Hoho v The State in 2009, the court said intentional publication required proof that the accused knew he was acting unlawfully or that he knew he might possibly be acting unlawfully.
HATE CRIMES
Despite setting aside Motsepe’s conviction, the high court ruled against a number of prominent organisations dealing with freedom of the media and freedom of expression that were calling for the decriminalisation of defamation.
The Free Speech Union of SA welcomed the repeal of criminal defamation. It said this was a recognition that free speech and expression should be limited as little as possible.
However, it expressed concern because the Prevention and Combating of Hate Crimes and Hate Speech Bill provides for the criminalisation of what was deemed hate speech.
The Free Speech Union of SA said it feared the bill, as Institute of Race Relations head of policy Anthea Jeffery had said, “will expose people to arrest, prosecution and punishment simply for engaging in comment or debate on issues vital to democracy and prosperity”.
The organisation asked whether retention of the crime of defamation was considered unnecessary by the government because the hate speech bill would serve the same purposes.
It said all that needed to happen for this draft legislation to become law was for Ramaphosa to sign it into law. A conviction for hate speech can carry the penalty of a fine and/or up to five years’ imprisonment.
“We therefore persist in our demand that the hate speech bill is unconstitutional and should be withdrawn.”