Defamation and Online Harassment Laws in South Africa

Defamation in South Africa comes from the common law, based on the actio injuriarum (a remedy with Roman-law roots developed by the courts), rather than from a dedicated statute. The civil claim requires a wrongful and intentional publication of a defamatory statement about the claimant. In 2002 the Constitutional Court held that the common law, as developed by the courts, strikes a constitutionally acceptable balance between reputation (human dignity) and freedom of expression.

Sources1Khumalo and Others v Holomisa [2002] ZACC 12, paras. 17-18 and 43-452S v Hoho [2008] ZASCA 98, para. 31

Defamation is no longer a crime in South Africa. Section 34 of the Judicial Matters Amendment Act 15 of 2023, in force since it was published on 3 April 2024, repealed the common law on the crime of defamation and states that civil liability for defamation is not affected. This ended the offence that the Supreme Court of Appeal had upheld as constitutional in S v Hoho (2008).

Sources3Judicial Matters Amendment Act 15 of 2023, ss. 34-35 (Government Gazette 50430, 3 April 2024)4Department of Justice and Constitutional Development, Fact sheet: Judicial Matters Amendment Act 15 of 20232S v Hoho [2008] ZASCA 98 (earlier ruling upholding the offence)

South Africa has no special limitation period for defamation. A damages claim is a debt that generally falls under the Prescription Act's three-year period for any debt not covered by another period, unless another Act of Parliament provides otherwise. The period starts when the claimant knows, or by taking reasonable care could have known, who is responsible and the facts behind the claim.

Source5Prescription Act 68 of 1969, ss. 11(d) and 12(3)

South African law does not use the US 'per se' categories, but a similar rule applies to every civil defamation claim. Once the claimant proves that the defendant published a defamatory statement about them, the publication is presumed to be wrongful and intentional, and falsity is not something the claimant has to prove. The defendant then carries the burden of proving a defense.

Sources1Khumalo and Others v Holomisa [2002] ZACC 12, paras. 18 and 442S v Hoho [2008] ZASCA 98, para. 33

There is no anti-SLAPP statute. In 2022 the Constitutional Court accepted that a SLAPP-type defense can be raised under the common-law doctrine of abuse of process. In that case, the defendants would have to prove that the defamation suit is an abuse of process, is not brought to vindicate a right, uses litigation to silence them through financial or other harm, and materially threatens freedom of expression.

Source6Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others [2022] ZACC 37, para. 96

The most common defenses are that the statement was true and its publication was for the public benefit, that it was fair comment, and that it was made on a privileged occasion. Since National Media v Bogoshi (1998), a media defendant that published false statements can also avoid liability by showing that publication was reasonable in all the circumstances, but media defendants must also show they were not negligent. The Constitutional Court has declined to require claimants, including politicians, to prove that a statement was false; the balance with free speech is struck through these defenses.

Sources1Khumalo and Others v Holomisa [2002] ZACC 12, paras. 3, 18-20 and 43-452S v Hoho [2008] ZASCA 98, paras. 24 and 33

The Protection from Harassment Act lets a person ask a court for a protection order against someone who unreasonably follows, watches or pursues them, or who communicates with them by electronic or other means, where the person knows or ought to know this causes or may cause mental, psychological, physical or economic harm. Breaching a protection order is a crime punishable by a fine or up to five years in prison.

Source7Protection from Harassment Act 17 of 2011, ss. 1 ('harassment', 'harm'), 2, 9-10 and 18(1)

Harassment by email, messages or other electronic communication is covered by the Protection from Harassment Act. If the sender is unknown, the court can direct an electronic communications service provider to give it details that may identify them. Separately, the Cybercrimes Act makes it a crime to send or post a data message that incites violence or property damage, or that threatens a person or group with violence or property damage.

Sources7Protection from Harassment Act 17 of 2011, ss. 1 and 48Cybercrimes Act 19 of 2020, ss. 14-15

It is a crime to unlawfully and intentionally share an intimate image of a person through an electronic communications service without their consent, including real or simulated images, punishable by a fine, up to three years in prison, or both. The Act also provides for court orders requiring removal of such content while a criminal case is pending, but that part (Part VI of Chapter 2) was excluded when most of the Act took effect on 1 December 2021.

Sources8Cybercrimes Act 19 of 2020, ss. 16, 19(7) and 209Proclamation R42, Government Gazette 45562 (30 November 2021), commencement of certain sections of the Cybercrimes Act