SOME NOTES ON CRIMEN INJURIA AND DEFAMATION as applied in SA

November 17, 2010 in Uncategorized

Dearly Beloved,

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.” [1] Although difficult to precisely define, the crime is used in the prosecution of certain instances of road rage [2], stalking [1], racially offensive language [3] , emotional or psychological abuse [4] and sexual offences against children.[5]

Defamation

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………

 

Defamatory remarks 

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.

39 responses to SOME NOTES ON CRIMEN INJURIA AND DEFAMATION as applied in SA

  1. A very sick person turned up at a state hospital unfortunately he had to wait because the computer system was running slow. He suffered a heart attack and died. It was later established that the system was jammed by bloggers on the hospital system rushing to get their contributions posted.

  2. Interesting. Tell the SAPS. Not interested myself. Not interested in further interaction with you. I will not, however, be blocking your comments, as I would like to preserve “evidence”. Thankyou for your visit. These comments are now subject to investigation.

  3. I am sorry to read about the agony in your blogging life.

    I am stressed out of my mind, so I won’t have the time to read to the bottom of all of this – but good luck.
    Take care!

  4. The minister of health recently asked for more funds. People were dying because funds dried up. Someone suggested that he streamlines the administration of hospitals, ensure staff are efffectively deployed thus freeing up funds to treat more sick people.

    The minister would not hear of that. Apparently blogging in office hours is an extremely effective productivity enhancer, besides the aquisition of legal knowledge in state time can be termed “skill enhancement” and is far more valuable that dying patients trying to suck state coffers dry.

  5. Not agony really. Just a severe pain in the arse which leads to some anger. But it is under control.

  6. Very thin ice. Stop NOW.

  7. Legal consultation at my expense (thanks for causing that wastage) and in my own time, you arrogant man.

  8. I really do not get your antagonism. What has it got to do with you when/where/why somebody blogs? Seeing that you do your blogging during the day I assume you do it at work – that is if you are not some looser unemployed guy, or retired jelous old man, oh, or are you self-employed, albeit unsuccessfully or else you would not have time for this kak.

  9. The poor man can’t help it. He sits at home and draws a disability pension. Seems rather bitter, and obviously bored shitless, shame.

  10. Sorry, but would you mind if I clarify two issues. Firstly, to determine defamation, the reasonable man test is applied to determine whether such statement was calulated to undermine your status, good name or reputation (and not whether it actually did so). Actual undermining would however increase damages.

    Secondly, the intention of the person making the statement has become irrelevant (Harms’ judgment in Le Roux ao v. Dey 2010(4) SA 210 SCA). So whether he knew it was defamation or whether he intended to undermine is of no concern.

  11. Thankyou for those details. I have already made my reports to the relevant people, and assume that their interpretation of the user’s words in his posts and comments is reasonably accurate. Obviously intention is a difficult one to prove, but in cases where the remarks are continuous and repeated ad infifnitum, there is little doubt that the intention is to harm. I am therefore proceeding on that assumption. I am now deleting his carefully worded remarks that do not deomnstrate this, but will retain others. This on the recommendation of SAPS and my attorney. If this works, the gentleman in question may just be my ticket to a wealthy retirement.

  12. Theres no need to prove his intention anymore. Intention is determined objectively (reasonable man). I read his remarks on other posts and they are, objectively speaking, intended to undermine.

    Damages…hmmm, very wide publication, so probably in the region of R 80 000.00. But is easier in High Court, so rather go for R 120 000.00. Happy spending…

  13. My attorney and I agree. There is ample ground. I have already raised the matter with the police. I am allowing a day or so leeway before proceeding, just to see if he will actually desist from his truly unpleasant and unwarranted nonsense, as I do not want to ruin the finances of a man dependent on a fixed pension, but if needs must, his stark and continued harassment is now beyond the pale.

  14. If I did not know you better, I would have come away from reading the accusations, with the impression that you are defrauding your employer. It is totally out of order to make comments like that on a public forum.
    I am finding LD distasteful of late with the nasty personal attacks that are on the rise. This has put me off bothering to do proper posts.

  15. And now it has come to this… FFS!

  16. As I said to Zandberg…. I have had enough and if the gentleman persists it will only be to my benefit, as I am already planning what to do with his money.

  17. I understand. You have been in the crosshairs many a time.

  18. And it simply not fun anymore.

  19. I agree, it can’t be fun to ridicule a guy on his blog when he bites back…bad news, a bit like a guy shooting a robber standing over his bed with a knife

  20. Geanann. Please desist now. Please note the remarks regarding redress. Your persistent harassment is noted. Comments are filed with date and time before I delete them. I am now fast losing patience. I have never done anything to harm you and yet you persist in this absurd mission of yours. This is my last polite entreaty.

  21. Doesn’t the block user icon work?

  22. It does. However, firstly it has always been a point of honour to me never to say anything by which I do not stand. I believe that within the bounds of reason, I should be able to face the music I cause. Secondly though, in this instance now it is in my interests to ensure that his defamatory comments and posts remain available for perusal, for litigation purposes. So now I selectively delete as he comments, as at this stage much of it is just plain wiseguy vitriol and not of much use legally. The goose is already cooked though, and my stated period of grace for him to start behaving like a decent human being will extend for a day or two. major nuisance as he keeps popping up with some inane childish riposte, requiring that I set aside work (that I do whilst typing etc) and see what the unfortunate person has to say.

  23. so its been this bloke posting as theuglytruth, and crap-something, and darksyde?

  24. definitely the crap-something, The others are just suspicions. There is no doubt about the one though. He gave himself away. Not a problem. Apparently the cops are able to determine what IP-address he posts from as geanann, and from that can establish what aliases have been used from that PC. It is only under the ID of geanann that he has made overtly (uncontestable) defamatory statements. The other IDs will just support intent, but as another commentator points out, it is not required to prove intent. His statements are sufficient.

  25. No it is not…that is the figment of DV’s immagination.

    What I said I said under my own name.

    Interesting to note the story on the wastage of health service money on Politics web
    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=211449&sn=Detail&pid=71616

  26. We’ll see what SAPS find out, shall we.

    Now go away please.

  27. I fully agree. There is absolutely nothing wrong when a man goes to work in the morning, blog all day and then go home in the afternoon. After all, the taxpayers who pay his salary has plenty to spread around and besides why spend more and more money on sick people. Employ more bloggers. That is real efficiency.

  28. Thanks. Another one in the bag. Hou so aan. My toekoms is reeds verseker, maar wie weet, as jy hard werk sal ek nog meer uit jou kry. Los af ASSEBLIEF.

  29. :-)

    Good for you.

  30. Yaah, you right, shame!

  31. I am sorry that you have been pushed so far DV
    BUT if pressing charges against this troll acts as a deterrent to the rest maybe LD could revert to the happy space it once was.

  32. Healthy debate is one thing, but the increase in personal attacks on respected bloggers is something else.

  33. As I wrote on Colonialists post – the increase in personal attacks on LD has put me off doing posts.

  34. Just my personal opinion, but I do not believe that geanann is darksyde, or any other tag for that matter.

    Pity it’s come to this, daaivark. I enjoyed the perspective I got from reading the occasional political “jousts” between the two of you. :-(

  35. Not fair.

  36. Those aspersions were eventually cast after days and weeks of your constant defamation, with me becoming increasingly enraged at your personal attacks. This conversation is now over.

  37. Indeed it is. It is beyond my understanding.

  38. My ‘not fair’ comment was in response to Geanann’s comment about sick kids not getting treatment because of the blogging time, which has since been deleted.

  39. I realise. Thanks for that. I deleted the stuff. I have a record of it, and do not need to expose other people to it anymore.

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