In a recent Free State High Court case, Itumele Bus Lines (Pty) Ltd t/a Interstate Bus Lines v Transport and Allied Workers Union of South Africa and Others [2008] ZALC 207, a self-proclaimed “public transport activist” has been ordered to remove certain defamatory publications from his social media.

The Respondent, Mr Msabe, made various public posts about the Applicant, a local bus company called Itumele Bus Line t/a Interstate, alleging, among other things, that the bus company had instituted unlawful tariff increases and that an accident in November 2022 was the result of the specific bus having worn tires. The Respondent even stated that the bus company was responsible for “murdering commuters”. The Respondent continued to post the defamatory statements even after the Applicant served the interdict application on him.

Defamation is the publication of false information that wrongfully and intentionally harms the reputation, good name or dignity of a person or a juristic entity.

In order to prove defamation, it needs to be established that:

  1. there has been an unlawful or wrongful publication;
  2. the publisher had the intent to defame the other party, and
  3. the defamatory statements were published and concerned such party.

Once it is established that a publication is defamatory, the onus shifts to the party who made the publication to justify the publication on the basis that the statement is the truth and that it is in the public interest for it to be published.

The Applicant argued that the statements were false. On the other hand, the Respondent did not argue that the statements were true, but rather relied on the statements being in the public interest and that he had the Constitutional Right of freedom of expression.

There are several grounds to justify the publication of defamatory statements, one of the grounds being that the statements are true and in the public’s interest. The party that made prima facie defamatory statements bears the onus to prove this and that it is in the public interest for it to be published. Believing that one pursues a worthy cause in the public’s interest does not justify publishing false statements about another party.

The Court in this case considered the justification for defamatory statements and held that the statements made by the Respondent could not be justified as the Respondent did not once aver that the statements were true and further, that false statements cannot be held to be in the public interest.

The High Court found that the statements were defamatory in nature and interdicted the Respondent from posting, spreading, publishing or making known to the public, or any of the bus company’s clients, any comments or information aimed at defaming or damaging the bus company’s reputation on any social media applications, any newspaper or magazine, or on the internet in general.

The Court also interestingly held the view that forcing a party to publish an apology through a court order does not serve any purpose and creates a further opportunity to bring awareness to the very statements the Applicant is trying to have removed.

Once it has been established that a publisher’s statements are defamatory, the defamed party is entitled to relief which includes a final interdict to take the defamatory posts down and/or prevent the publisher from making further false statements in future. The publisher can also face paying monetary damages.

While we all have the right to exercise our Constitutional Right to freedom of speech and it might appear acceptable to voice our frustrations on social media, it is important for us to exercise this right responsibly and with cognizance that the South African law on defamation of character extends to content published on social media too.

For further assistance and/or advice regarding defamation on social media, please do not hesitate to engage with our team of attorneys who will happily assist.