## Facts

- A *Sunday World* article stated that Bantu Holomisa, a prominent politician and party leader, was involved with a gang of bank robbers and was under police investigation.
- Holomisa sued the newspaper publisher entities and responsible editors for defamation in the Transvaal High Court.
- Under South African common law, once publication of a defamatory statement concerning the plaintiff is shown, unlawfulness and intention are presumed; defendants must raise defenses such as truth and public benefit or, for media, reasonable publication.
- Holomisa’s pleading alleged defamation and wrongfulness but did not expressly allege that the statements were false.
- The defendants filed an exception, arguing the pleading disclosed no cause of action because, for speech on matters of public interest concerning political fitness, the Constitution required the plaintiff to allege and prove falsity.
- The High Court dismissed the exception and granted leave for direct appeal to the Constitutional Court.

## Issues

1. Whether the Constitution requires development of the common law of defamation so that, at least for publications about public officials on matters of public interest, the plaintiff must allege and prove falsity as an element of the claim.
2. Whether Holomisa’s particulars of claim were excipiable for failing to allege falsity.

## Decision

- The Constitutional Court (O’Regan J, unanimous) dismissed the application for leave to appeal and upheld dismissal of the exception.
- The Court held that the existing defamation framework, including the media defense of reasonable publication, is consistent with constitutional rights to freedom of expression and dignity.
- The Court rejected a constitutional rule requiring defamation plaintiffs to plead and prove falsity, even for political speech on matters of public interest.
- Holomisa’s pleading disclosed a cause of action despite not expressly alleging falsity.

## Legal Principles

- In horizontal disputes, courts must assess and, where necessary, develop the common law in line with the Bill of Rights, guided by the constitutional duty to promote its spirit, purport, and objects.
- South African defamation law presumes unlawfulness and intention upon proof of publication of defamatory matter concerning the plaintiff; defendants bear the burden to establish a defense.
- Reputation protection is closely connected to the constitutional right to dignity; any reshaping of defamation law must account for both dignity and freedom of expression.
- The media may avoid liability through a reasonable publication defense, which can excuse liability where publication was reasonable even if the allegation is not proven true.
- The Constitution does not mandate importing a rule that shifts falsity to the plaintiff in public-official/public-interest defamation cases.

## Conclusion

The Court held that South African defamation law, as moderated by the reasonable publication defense, constitutionally balances freedom of expression and dignity, and it declined to require plaintiffs— including public officials—to plead and prove falsity as an element of defamation.


Khumalo v. Holomisa, 2002 (5) S. Afr. L.R. 401 (S. Afr. Const. Ct. 2002)