Judgment No CCZ 2/14 13
Const. Application No CCZ 78/12
was perfectly consonant with the new South African Constitution. The offence was
reasonably required to protect personal reputations and did not go further than was
necessary to accomplish that objective. It was not too drastic a limitation on the right to
freedom of association.
In an article written by Vinayak Bhardwaj and Ben Winks, in the Mail &
Guardian of 1 to 7 November 2013, commenting on the decision in Hoho’s case, the vital
differences between criminal and civil liability are commendably highlighted. I take the
liberty to quote extensively from this article and to associate myself with the propositions
articulated therein:
“Civil law exists to provide relief and restitution when one person harms
or threatens to harm another’s private interests. Criminal law exists to ensure
retribution and protection of the public, by detaining offenders and deterring
others from offending.
For assault, imposing imprisonment or supervision is essential to protect
the victims and the public at large. For damaging speech, however, the civil law is
as effective, if not more so, in providing the public with proportionate protection
from offenders.
Crucially, freedom of expression is constitutionally enshrined and
encouraged, as the lifeblood of democracy. The freedom to wield fists and
firearms enjoys no similar status in our supreme law. Thus the analogy between
assault and defamation breaks down. It is an unreliable guide to finding an
appropriate balance between the rights to dignity and free speech.
It is also disputable that civil and criminal defamation impose equivalent
limitations, and that the harsher consequences of criminal liability are neatly
offset by the heavier burden of proof. There are important differences in practice
and in principle. First, a prosecution targets the journalist rather than the journal.
A civil suit is aimed primarily at the defendant with the deepest pockets,
Furthermore, while civil liability may be discharged within days, through
payment or some other performance, criminal liability endures long after the
sentence has been served, or even if the sentence has been suspended. Criminal
liability is permanent and pervasive. It brands the accused with a mark so deep
and indelible, it can be expunged only by presidential pardon. It stains every
sphere of that person’s life. He becomes a criminal, and must disclose that every
time he applies for a job, a visa or even a bank account.
Select target paragraph3
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