CHAPTER 6: COMMON-LAW DIGNITY
As to the common law of damage to dignity: Identify, analyse and apply the
requirements for liability for dignity infringements as well as accompanying
defences and remedies (this week's focus is only on introducing the
requirements for liability).
- When we refer to dignity in this Chapter, we are generally referring to the external
dimension of dignity (reputation) and its internal dimension (self-esteem).
- Also, within these dimensions of dignity, we need to be cognisant of the fact that these
dimensions are recognised today as protectable dignity interests under the Constitution.
- With further reference to the doctrine of adjudicative subsidiarity, the protection of the
aforementioned dignity interests generally falls within the ambit of the common law as
addressed through the dignity delicts of defamation (i.e., the infringement of reputation)
and insult (i.e., the infringement of self-esteem).
…
A BRIEF HISTORY OF COMMON-LAW DIGNITY
…
THE COMMON-LAW STAGES OF ADJUDICATING DIGNITY INJURIES
- The adjudication of dignity injuries, in terms of common law, happens practically in three
substantive stages: namely,
(a) a prima facie stage,
(b) a justification stage and
(c) a remedy stage.
These three stages help us to break down a legal problem on common law dignity injuries
into smaller and manageable bits. Thus, these three stages also serve as mental guidelines
to organise and structure our thoughts on common law dignity injuries which consist of
voluminous amounts of information. Furthermore, these stages may also be useful when
your answer questions for assessment purposes. Depending on what is being expected from
,you for assessment purposes, consider a question on common law dignity injuries in these
three stages and do not conflate them with each other.
(a) In the prima fact stage, we are essentially tasked to determine whether the
requirements for a specific dignity delict have been met to establish a prima facie
case (a case based on first impressions) of common law dignity injury. The onus to
establish a prima facie case rests on the victim who is suing the alleged wrongdoer
because the one who alleges must prove. In more simplistic terms, the victim is
required to only prove certain elements or requirements of a dignity delict to establish
a prima facie case. When a prima facie case is established, certain elements or
requirements are rebuttably presumed (meaning that the victim does not have to
prove these). As we will see, the requirements for establishing a prima facie case
with the attendant rebuttable presumptions for defamation and insult will be different.
Be that as it may, the alleged wrongdoer must then “justify” their conduct, and thus
rebut the presumptions which lead us to the next stage of the inquiry.
(b) In the justification stage, we are essentially tasked to determine if any defences are
available to the alleged wrongdoer to rebut an existing prima face case of common
law dignity injury. Therefore, at the prima face stage, when establishing the
applicable elements, you should not simultaneously argue defences, as these only
become applicable when the relevant requirements have been satisfied. There are
generally defences excluding wrongfulness or intent. Therefore, you need to know
and understand …
(c) …
A PRIMA FACIE CASE OF DEFAMATION
Reputation and the Delict of Defamation
Establishing a Prima Face Case of Defamation
, - The readings in this sub-section will guide you through the elements of a defamation
case and, more specifically, when is a prima facie case of defamation established and
what are the rebuttable presumptions that are created as a result?
Khumalo v Holomisa 2002 (5) SA 401 (CC)
- This case tells a story of Bantu Holomisa, a former leader of a South African opposition
political party, who sued the Sunday World newspaper after the newspaper published an
article stating that Holomisa was under police investigation for his involvement with a
gang of bank robbers.
- Khumalo, the editor of the newspaper, argued that Holomisa had not denied the truth of
the article in his particulars of claim and that, as the information was in the public
interest, he had therefore not disclosed a cause of action.
- Khumalo said that the onus should be on a plaintiff to establish that the statement in
question is false when the statement is made in the public interest, or it concerns the
fitness of a public official to hold office.
- The practical effect of this would be that if Holomisa was forced to include an averment in
his claim that the statements made in the newspaper were false, he would then have to
prove this in the defamation trial.
- Accordingly, the Court dealt with the issue of whether falsity is an element of defamation
and set out the elements of a defamation action, including which elements must be
proven to establish a prima facie case of defamation.
Para 18: the definitional elements of a defamation action and when a prima
facie case of defamation is established.
At common law, the elements of the delict of defamation are –
(a) the wrongful and
(b) intentional
(c) publication of
(d) a defamatory statement
(e) concerning the plaintiff.
As to the common law of damage to dignity: Identify, analyse and apply the
requirements for liability for dignity infringements as well as accompanying
defences and remedies (this week's focus is only on introducing the
requirements for liability).
- When we refer to dignity in this Chapter, we are generally referring to the external
dimension of dignity (reputation) and its internal dimension (self-esteem).
- Also, within these dimensions of dignity, we need to be cognisant of the fact that these
dimensions are recognised today as protectable dignity interests under the Constitution.
- With further reference to the doctrine of adjudicative subsidiarity, the protection of the
aforementioned dignity interests generally falls within the ambit of the common law as
addressed through the dignity delicts of defamation (i.e., the infringement of reputation)
and insult (i.e., the infringement of self-esteem).
…
A BRIEF HISTORY OF COMMON-LAW DIGNITY
…
THE COMMON-LAW STAGES OF ADJUDICATING DIGNITY INJURIES
- The adjudication of dignity injuries, in terms of common law, happens practically in three
substantive stages: namely,
(a) a prima facie stage,
(b) a justification stage and
(c) a remedy stage.
These three stages help us to break down a legal problem on common law dignity injuries
into smaller and manageable bits. Thus, these three stages also serve as mental guidelines
to organise and structure our thoughts on common law dignity injuries which consist of
voluminous amounts of information. Furthermore, these stages may also be useful when
your answer questions for assessment purposes. Depending on what is being expected from
,you for assessment purposes, consider a question on common law dignity injuries in these
three stages and do not conflate them with each other.
(a) In the prima fact stage, we are essentially tasked to determine whether the
requirements for a specific dignity delict have been met to establish a prima facie
case (a case based on first impressions) of common law dignity injury. The onus to
establish a prima facie case rests on the victim who is suing the alleged wrongdoer
because the one who alleges must prove. In more simplistic terms, the victim is
required to only prove certain elements or requirements of a dignity delict to establish
a prima facie case. When a prima facie case is established, certain elements or
requirements are rebuttably presumed (meaning that the victim does not have to
prove these). As we will see, the requirements for establishing a prima facie case
with the attendant rebuttable presumptions for defamation and insult will be different.
Be that as it may, the alleged wrongdoer must then “justify” their conduct, and thus
rebut the presumptions which lead us to the next stage of the inquiry.
(b) In the justification stage, we are essentially tasked to determine if any defences are
available to the alleged wrongdoer to rebut an existing prima face case of common
law dignity injury. Therefore, at the prima face stage, when establishing the
applicable elements, you should not simultaneously argue defences, as these only
become applicable when the relevant requirements have been satisfied. There are
generally defences excluding wrongfulness or intent. Therefore, you need to know
and understand …
(c) …
A PRIMA FACIE CASE OF DEFAMATION
Reputation and the Delict of Defamation
Establishing a Prima Face Case of Defamation
, - The readings in this sub-section will guide you through the elements of a defamation
case and, more specifically, when is a prima facie case of defamation established and
what are the rebuttable presumptions that are created as a result?
Khumalo v Holomisa 2002 (5) SA 401 (CC)
- This case tells a story of Bantu Holomisa, a former leader of a South African opposition
political party, who sued the Sunday World newspaper after the newspaper published an
article stating that Holomisa was under police investigation for his involvement with a
gang of bank robbers.
- Khumalo, the editor of the newspaper, argued that Holomisa had not denied the truth of
the article in his particulars of claim and that, as the information was in the public
interest, he had therefore not disclosed a cause of action.
- Khumalo said that the onus should be on a plaintiff to establish that the statement in
question is false when the statement is made in the public interest, or it concerns the
fitness of a public official to hold office.
- The practical effect of this would be that if Holomisa was forced to include an averment in
his claim that the statements made in the newspaper were false, he would then have to
prove this in the defamation trial.
- Accordingly, the Court dealt with the issue of whether falsity is an element of defamation
and set out the elements of a defamation action, including which elements must be
proven to establish a prima facie case of defamation.
Para 18: the definitional elements of a defamation action and when a prima
facie case of defamation is established.
At common law, the elements of the delict of defamation are –
(a) the wrongful and
(b) intentional
(c) publication of
(d) a defamatory statement
(e) concerning the plaintiff.
