SOME NOTES ON CRIMEN INJURIA AND DEFAMATION as applied in SA
November 17, 2010 in Uncategorized
I am sure many of my faithful readers have been aware of some animosity displayed toward my honourable self by a certain contributor. I have tried to be placatory. I have tried to be rude. I have tried to ridicule. But the onslaught simply intensified, eventually having several different identities at work. So eventually yesterday I warned the individual that I will be considering my legal options. This I have done and I have both taken legal advice from my attorney and consulted the SAPS. Both have assured me that I have more than sufficient grounds for legal action. Furthermore, the SAPS have indicated to me that they have access to technology that will enable them to trace an IP address (in most cases) of a blogger quite easily. In my particular case, it will be even easier, as I am able to provide them with a name and the name of a hometown, at least.
I post this “warning” therefore, just to make people aware of the possibilty that SAPS will be monitoring my posts, comments on them, and also posts of the individual in question.
FURTHER, JUST FOR INTEREST, HERE ARE SOME NOTES ON THE TWO LEGAL ISSUES: (They are from a range of sources googled and as they are rather long and verbose, I have taken the liberty of editing them. The underlining is mine.)
Crimen injuria is a crime under South African common law, defined to be the act of “unlawfully, intentionally and seriously impairing the dignity of another.”  Although difficult to precisely define, the crime is used in the prosecution of certain instances of road rage , stalking , racially offensive language  , emotional or psychological abuse  and sexual offences against children.
Damaging someone’s reputation
…….. the law protects reputations and provides that the unjustified publication – oral and written – of anything damaging to a reputation may allow the injured person to claim damages.
ACTION FOR DAMAGES This action provides for financial compensation (damages) for any person whose reputation has been damaged – unless the person who published the defamatory remarks can justify having done so………
One of the most important questions to be decided is whether or not the words used were defamatory. Generally, a court faced with such a decision will ask itself whether a ‘reasonable, right-thinking man’, hearing or reading the words, would think any less of you as a result.
MEANING Only if the court is clear as to the meaning of the offending words can it decide whether or not they harmed your reputation. Furthermore, the meaning of the words must be determined in the context in which they were used……
… it is necessary to look at the circumstances in which they were uttered.
DAMAGE Once the meaning of the words has been determined, the next step is to decide if they actually damaged your reputation. The difficulty here is that what you may see as defamatory may not be seen as defamatory by the defendant or, indeed, by society as a whole. The courts therefore resort to the ‘reasonable man’ test……
In cases involving race and politics it is difficult to predict what the court’s decision will be although it must be accepted that racially-based slurs will be frowned upon. But in many of the run-of-the-mill cases it is possible to be more definite. Any suggestion that a person is a criminal or has committed a criminal offence is generally defamatory……
Any suggestion of immorality will generally be defamatory, as will a suggestion that the person in question is insane or suffers from a socially unacceptable disease. It is defamatory to suggest that a person is unfit for his or her profession or that a trader is insolvent or of dubious financial standing unless this has been proven.
Reference to the plaintiff
Obviously, to succeed in your action you would need to prove that the defamatory words were aimed at you directly. If you are mentioned by name, you won’t have a problem – but if the speaker or writer does not mention you specifically, you may encounter problems. A defendant cannot avoid liability by not directly naming a person but speaking in such a way that everyone knows who is being referred to…….
Publication of the defamation
Because the law of defamation exists to protect reputations, it follows that an action will succeed only if a third person heard the defamatory remarks in a broadcast or read them in a newspaper, magazine or in some other form.
Anyone can express the most insulting ideas about you, but as long as these are expressed to you alone, you cannot sue for defamation. You could, however, succeed with an action for injury to your dignity.