South Africa Defamation Laws: Civil Claims Since the 2024 Repeal

Defamation in South Africa is a civil wrong, a delict under the common law, and since 3 April 2024 it is no longer also a crime. The Judicial Matters Amendment Act 15 of 2023 repealed the common law crime of defamation while expressly leaving civil liability untouched. Reputation is protected through a damages claim, not a prosecution.

Quick Answer: Criminal Defamation No Longer Exists

Defamation in South Africa is now a civil matter only. Section 34(1) of the Judicial Matters Amendment Act 15 of 2023 provides that "the common law relating to the crime of defamation is hereby repealed." That section commenced, along with the rest of the Act other than one unrelated provision, on 3 April 2024. Section 34(2) states plainly that the repeal "does not affect civil liability in terms of the common law based on defamation," so a person who has been defamed still sues for damages in the civil courts. The Supreme Court of Appeal had earlier confirmed, in S v Hoho [2008] ZASCA 98, that the crime was constitutionally valid; Parliament's 2023 Act has since removed the crime that ruling upheld. The separate crime of crimen injuria, covered below, was not affected.

The 2024 Repeal: What Changed and When

For most of South Africa's history, a common law crime of defamation existed alongside the civil claim, and the Supreme Court of Appeal confirmed its constitutional validity in S v Hoho, holding that "our crime of defamation is not inconsistent with the Constitution" and dismissing the appeal. Various stakeholders, including press freedom advocates, had argued that a criminal offence for defamation had a chilling effect on journalism and public debate.

Parliament responded through the Judicial Matters Amendment Act 15 of 2023, gazetted 3 April 2024. Section 34(1) repeals the common law crime outright. Section 35(2) of the same Act singles out only one unrelated section for delayed commencement by proclamation, meaning section 34 took effect immediately on gazettal, on 3 April 2024, with no further step required. The official government news agency confirmed the change was driven by concerns about the effect of the crime on journalists, and noted expressly that "the crime of crimen injuria and civil remedies for defamation, however, continue to be applicable."

Civil Defamation: What a Claimant Must Prove

The Constitutional Court in Khumalo and Others v Holomisa [2002] ZACC 12 described civil defamation as the wrongful and intentional publication of a defamatory statement concerning the plaintiff. A claimant must prove, on a balance of probabilities, that the statement was published to at least one third party, that it was defamatory, meaning it tended to lower the claimant in the estimation of right thinking members of society, and that it referred to the claimant. Once those elements are shown, the law presumes the publication was both wrongful and intentional, and the burden shifts to the defendant to raise a defence that rebuts that presumption. Defamation can arise from writing, broadcast, online posts, or spoken words, and a statement can defame by innuendo as well as expressly.

Defences to a Civil Defamation Claim

Truth on its own is not a complete defence. A defendant relying on truth must also show the publication was for the public benefit, so a true but purely private and damaging disclosure can still be actionable.

Remedies and Damages

A successful claimant can obtain damages for injury to reputation and dignity and any proven financial loss, with no statutory cap, assessed according to the seriousness of the statement, the extent of publication, and the conduct of the parties. A court may also grant an interdict restraining further publication or compelling removal of the material, which is common in social media disputes, or order an apology, retraction or correction. South African courts have generally treated damages as vindicating reputation rather than punishing the defendant, which tends to keep awards more conservative than in some other jurisdictions.

Crimen Injuria: The Separate, Untouched Crime

Crimen injuria is a distinct crime from defamation and was not part of the 2024 repeal. Where defamation protects reputation, crimen injuria protects a person's dignity more broadly, for example through seriously insulting, humiliating or degrading conduct directed at them. In Momberg v S [2019] ZAGPJHC 183, the appellant was convicted on four counts of crimen injuria, taken as one for sentencing purposes, and sentenced to three years' imprisonment, one year of which was suspended for three years on condition she was not convicted of crimen injuria committed during the suspension. Her application for leave to appeal the conviction and sentence was granted and then dismissed on appeal, so the conviction and the three year, one year suspended sentence stand as recorded in that judgment. Reports describing the sentence as two years understate the imprisonment actually imposed; the judgment itself records three years, with one year suspended.

Time Limit to Sue

A defamation claim is a debt for the purposes of the Prescription Act 68 of 1969, and the general prescription period is three years, usually running from the date of publication. Different notice requirements can apply to a claim against an organ of state, so a claimant in that position should check those timing rules separately.

Online and Social Media Defamation

The ordinary law of defamation applies in full online. South African courts have treated a defamatory Facebook post, tweet or WhatsApp message as a publication like any other, and have granted interdicts ordering removal of offending posts as well as damages awards. A person who shares or repeats a defamatory statement can also be treated as a publisher. The Electronic Communications and Transactions Act 25 of 2002 provides a notice and takedown framework that can limit the liability of an internet service provider in some circumstances, but it does not shield the original author of the statement.

How a Defamation Claim Is Brought

A civil defamation claim is brought in the High Court or, depending on the amount claimed and the relief sought, the Magistrate's Court. Proceedings typically begin with a letter of demand seeking an apology, retraction, and sometimes payment, followed by summons if the matter is not resolved. Where the priority is to stop ongoing harm rather than recover money, a claimant can apply for an urgent interdict to have the material removed.

For other South African legal topics, from labour law to data privacy and traffic fines, see our South Africa Laws hub.

This guide is general legal information, not legal advice. For advice on your own situation, consult an attorney, or contact Legal Aid South Africa (0800 110 110) if you cannot afford one.