The key question in SKJ v PJ was whether an allegation that a person committed adultery can constitute actionable defamation in the light of the recent decisions in both our highest courts that adultery is no longer an iniuria between spouses and that the so-called innocent spouse can no longer institute the actio iniuriarum against the adulterous third party.
In this case the second defendant (PH) instituted a counter-claim for defamation against the plaintiff (SKJ), based on SKJ’s allegations that PH had committed adultery with the plaintiff’s wife (PJ). From the discussion of the different elements of defamation it is clear that, in contrast with Masipa J’s finding, there was indeed publication by SKJ to his mother and PH’s wife, but that the publications were not wrongful because they took place during privileged occasions.
The question as to the defamatory nature of a statement is determined objectively, in accordance with the reasonable person test, and the matter of whether a plaintiff’s good name was indeed factually infringed, is, contrary to the judge’s view, irrelevant. Judge Masipa’s opinion that allegations of adultery cannot be defamatory because an action for adultery is no longer recognised in our law is subject to criticism. The fact that adultery is no longer wrongful for the purposes of the actio iniuriarum does not mean that it is condoned from a legal or moral perspective. It only means that the adulterers, notwithstanding moral blameworthiness, are not liable for the adultery. Allegations of adultery still put a person’s moral character and lifestyle in a bad light, are therefore defamatory in nature, prima facie wrongful, and should in principle still found a defamation action.
As far as animus iniuriandi or intent is concerned, the court held that intent was not proved by PH in his defamation action. There was, however, no onus on him to prove intent, as the publication of defamatory words create a presumption of intent, which had to be rebutted by SKJ. In this case, intent was probably absent due to lack of consciousness of wrongfulness as SKJ believed that he was entitled to reveal his suspicion of adultery to the two persons involved.
In the final analysis we agree with the result that the claim for defamation should have been dismissed.
Keywords: adultery; animus iniuriandi; boni mores; defamation; delict; dignity; divorce; enticement; good name; grounds of justification; intent; iniuria; privilege; reasonable person; reputation; truth and public benefit; wrongfulness
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