Compromise solutions

As far as the theoretical basis of the delict of iniuria is concerned, the pendulum has therefore swung between the two extremes: from dolus to strict liability and back again to dolus.

Would it not have been sensible to arrest it somewhere in the middle and base liability (as under the Aquilian action) on negligence? This suggestion has indeed been made repeatedly,^[5641] but it has so far failed to gain decisive judicial support."^[5642] The courts, in turn, have in the meantime settled for a different kind of compromise solution: while generally emphasizing the requirement of animus iniuriandi, they have made a very significant exception in the case of defamatory reports by the newspapers, by radio and by television. The dictates of public policy, according to Rumpff CJ,^[5643] require the protection of the ordinary citizen against the powerful media with their potential for injuring his reputation in a situation where it may be difficult to pinpoint animus iniuriandi; and in order to provide this protection the principle of strict liability has therefore, at least partially, been retained.

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