S v Hoho (493/05) [2008] ZASCA 98; [2009] 1 All SA 103 (SCA) ; 2009 (1) SACR 276 (SCA) (17 September 2008)

S v Hoho (493/05) [2008] ZASCA 98; [2009] 1 All SA 103 (SCA) ; 2009 (1) SACR 276 (SCA) (17 September 2008)

The Supreme Court of Appeal held that criminal defamation has not been abrogated by disuse in South African law. The absence of reported convictions does not amount to tacit repeal, as prosecutions may occur in lower courts and the legislature has continued to recognise the crime. The court found that criminal defamation is not inconsistent with the Constitution. While freedom of expression is a foundational right, it is not absolute and must be balanced against the right to human dignity and reputation. The requirements for criminal defamation are more onerous than those for civil defamation, as the state must prove unlawfulness and intention beyond reasonable doubt. The existence of a...

Citation
[2008] ZASCA 98
Parties
Appellant: Luzuko Kerr Hoho; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
17 September 2008
Case Number
493/05
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence in the High Court, Bisho
Outcome
Appeal dismissed; conviction and sentence confirmed.
Judges
Streicher, Heher, Mlambo, Cachalia, Kgomo
Legal Topics
Criminal Defamation, Constitutionality of Criminal Defamation, Freedom of Expression, Human Dignity, Onus of Proof, Abrogation by Disuse
Criminal Law Constitutional Law Criminal Defamation Constitutionality of Criminal Defamation Freedom of Expression Human Dignity Onus of Proof Abrogation by Disuse

Case Brief

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Parties

Luzuko Kerr Hoho

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Conviction and Sentence in the High Court, Bisho

Legal Issues

  1. 1 Whether the crime of criminal defamation still exists in South African law.
  2. 2 Whether criminal defamation is consistent with the Constitution, specifically the right to freedom of expression.
  3. 3 Whether seriousness is an element of criminal defamation.

Ratio Decidendi

The Supreme Court of Appeal held that criminal defamation has not been abrogated by disuse in South African law. The absence of reported convictions does not amount to tacit repeal, as prosecutions may occur in lower courts and the legislature has continued to recognise the crime. The court found that criminal defamation is not inconsistent with the Constitution. While freedom of expression is a foundational right, it is not absolute and must be balanced against the right to human dignity and reputation. The requirements for criminal defamation are more onerous than those for civil defamation, as the state must prove unlawfulness and intention beyond reasonable doubt. The existence of a...

Court Disposition

Appeal dismissed; conviction and sentence confirmed.

Orders

  • The appeal is dismissed.
  • The conviction and sentence imposed by the High Court, Bisho, are confirmed.