As a point of departure, South African law of Delict recognises patrimonial and non-patrimonial loss/damages or harm which one can suffer. Patrimonial loss/damages refers to a monetary value which is claimed and usually goes hand in hand with non-patrimonial loss/damages. Non-patrimonial loss/damages specifically recognises three types of personality interests namely: corpus or bodily integrity, fama which refers to a person’s good name and dignitas or dignity. Defamation specifically infringes on the personality right or fama as well as a person’s dignity (dignitas), or a person’s right to their good name.

In addition to the requirements for delictual liability, namely, conduct, unlawfulness, fault, damages and causation. There are several more specific requirements one would have to prove to succeed with a claim for defamation. These were set out by our courts in the case Le Roux v Dey CCT 45/10 [2011] ZACC4 (hereinafter “Dey case”), namely:

  • wrongful;
  • intentional;
  • publication;
  • of a defamatory statement;
  • concerning (Plaintiff/Applicant) a person.

From the court’s definition above, it is clear that there must be positive conduct in the form of a publication, which was directed at the victim (Plaintiff), fault in the form of intention and wrongfulness. These elements will be briefly outlined below.
Conduct is simple as it only requires an act. However, it should be noted that the conduct must be in the form of a publication, which is seen by two or more people. Our courts have taken a wide stance with the scope of publication, in that it can refer to any form of communication, whether it be oral, written or otherwise as set out in Paragraph 94 of the Dey case. Further, this publication must have the factual effect of diminishing or harming the persons/victim’s reputation. This is determined objectively by the so-called reasonable person test, in which the court asks whether a reasonable person would have objectively found the publication to be defamatory. Finally, the court held that, although such conduct is normally in the form of a positive act, it can also be negative, for example by way of an omission.