A hybrid law of defamation
But strict liability of the press is not the only strand from the English common law that remains woven into the fabric of the modern South African law of defamation. What has emerged, over the years, is a truly hybrid system that has emancipated itself from its Roman-Dutch and English roots and has, instead, acquired a distinctive flavour of its own.
Essentially, it is still the civilian actio iniuriarum that forms the basis of the law of defamation, and the gist of it[5644] is, as a rule, the animus iniuriandi. Courts and legal writers have for some time toyed with the idea of a distinction, in principle, between libel and slander,[5645] [5646] but their view has failed to make an impact. Truth alone is not a defence in South African law; as in Roman-Dutch law, the additional requirement of the public benefit must be satisfied.2311 On the other hand, however, English case law and writers continue to be cited by the South African courts.[5647] The test for determining what constitutes defamatory matter[5648] and the defence of fair comment[5649] are English in origin, and so is the element of "publication" required for the modern South African version of iniuria.[5650] Many details relating to the stereotyped or crystallized defences have been taken over from English law,[5651] together with the term "privilege" or "privileged occasion"[5652] and the distinction between an absolute and a qualified (or provisional) privilege.[5653] The further systematic division into defences rebutting the inference of unlawfulness (justification grounds) and those relating to the element of fault (that is: excluding the presence of animus iniuriandi)[5654] is, however, of civilian (though not specifically Roman- Dutch)[5655] [5656] provenance.4.
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