REDDELL V MINING SAND

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 67/21
In the matter between:
CHRISTINE REDDELL First Applicant
TRACEY DAVIES Second Applicant
DAVINE CLOETE Third Applicant
MZAMO DLAMINI Fourth Applicant
CORMAC CULLINAN Fifth Applicant
JOHN GERARD INGRAM CLARKE Sixth Applicant
and
MINERAL SANDS RESOURCES (PTY) LIMITED First Respondent
MINERAL COMMODITIES LIMITED Second Respondent
ZAMILE QUNYA Third Respondent
MARK VICTOR CARUSO Fourth Respondent
Neutral citation: Reddell and Others v Mineral Sands Resources (Pty) Ltd and
Others [2022] ZACC 38
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,

Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ
Judgments: Majiedt J (majority): [1] to [152]

Unterhalter AJ (dissenting): [153] to [210]
Heard on: 17 February 2022
Decided on: 14 November 2022
Summary: Defamation — constitutionality of awarding general damages to

trading corporations — partially unconstitutional — public
discourse on issues of public interest
Section 16 of the Constitution — section 10 of the Constitution —

common law right to reputation
ORDER
On direct appeal from the High Court of South Africa, Western Cape Division,
Cape Town:
1. Leave to appeal directly to this Court is granted.

2. The appeal is upheld to the extent that it is declared that, save for where
the speech forms part of public discourse on issues of public interest, and
at the discretion of the court, trading corporations can claim general
damages for defamation.
JUDGMENT
MAJIEDT J (Madlanga J, Mathopo J, Mhlantla J, Mlambo AJ, Theron J and Tshiqi J

concurring):
2
MAJIEDT J
Introduction
“The preoccupation of [the] law of defamation with damages has been a crippling
experience over the centuries. The damages remedy is not only singularly inept for
dealing with, but actually exacerbates, the tension between protection of reputation and
freedom of expression, both equally important values in a civilised and democratic
community. A defamed plaintiff has a legitimate claim to vindication in order to restore
his damaged reputation, but a settlement for, or even an award of damages, is hardly
the most efficient way to obtain that objective.”1
[1] There is much debate generally around damages awards as solace for injured
feelings, particularly in respect of defamation.2 This case is about a narrower issue,
whether a trading corporation3 ought to be able to sue for general damages in a
defamation suit and, if so, whether it ought to be able to do so without having to allege
or prove—
(a) the falsity of the impugned statement;

(b) the wilfulness of the false statement; and
(c) that it suffered any patrimonial loss.
[2] As will appear, the case condensed even further at the hearing. The only issue
before us is the alternative claim that, in the event that a trading corporation has
remedies in defamation available without pleading the aforementioned requirements,
those remedies do not include a claim for general damages. A related issue is the claim
that, to the extent that the common law was not consonant with this contention, it is
unconstitutional and falls to be developed in terms of sections 8(2) and 39(2) of
the Constitution.
1
Fleming “Retraction and Reply: Alternative Remedies for Defamation” (1978) 12 University of British Columbia
Law Review 15 at 15.
2
Compare, for example the lament in the minority judgment in Le Roux v Dey (Freedom of Expression Institute
and Restorative Justice Centre as Amici Curiae) [2011] ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577
(CC) at paras 197-8. The New South Wales Law Commission, in a report published in 1995, which was referred
to by Willis J in Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W) at para 26, remarked
that “[a] legal system which effectively promotes damages as the sole remedy in defamation is remedially crude”.
3
During the hearing, and in the parties’ written submissions, various terms were used to refer to what I refer to in
this judgment as a “trading corporation”. One such term is “for-profit company”. In this judgment, I will
predominantly use the term “trading corporation”.
3
MAJIEDT J
[3] This case originates from three defamation suits instituted by the present
respondents – Australian mining companies – and some of their executives, as plaintiffs
in the High Court of South Africa, Western Cape Division, Cape Town (High Court).
The defendants in the suits are the present applicants and are environmental lawyers
and activists. For ease of reference, the parties will be referred to as they are in
this Court, although the context may sometimes require reference to them as they were
in the High Court.4 The parties may, from time to time, also be referred to as
“the mining companies” or “the mining executives” (plaintiffs/respondents) and
“the environmentalists” (defendants/applicants).
[4] The three defamation actions emanated from various allegedly defamatory
statements made by the environmentalists. The claims in the actions total in excess of
R14 000 000. In response to the defamation actions, the defendants raised two
special pleas in each of the actions that elicited exceptions from the plaintiffs. This
matter concerns the second set of exceptions that became known as the “corporate
defamation defence special plea”.5 In essence, that exception entails a contention by
the plaintiffs that the corporate defamation special plea of the defendants did not give
rise to any defence in our law. This case does not deal with the mining executives’
personal rights as natural persons to sue for general damages for the alleged defamatory
statements, but with the defamation claims of the mining companies (hence the
distinction between “the mining companies” and “the mining executives” in the
nomenclature).
[5] The High Court heard the two exceptions together.6 It upheld the
mining companies’ exception to the corporate defamation special plea on the basis that
4
Although there are three separate cases with different case numbers in the High Court, only one judgment was
delivered in respect of all of them; and there is only one application in this Court. The applicants and respondents
are therefore numbered differently in this Court and the High Court.
5
The first set of exceptions concern the so-called “SLAPP” (Strategic Litigation Against Public Participation)
special plea. Those exceptions are the subject of a related case in this Court, Mineral Sands Resources (Pty) Ltd
and Others v Reddell and Others CCT 66/21.
6
Mineral Sands Resources (Pty) Ltd v Reddell and Two Related Cases 2021 (4) SA 268 (WCC).
4
MAJIEDT J
the Court was bound by the precedent of the Supreme Court of Appeal in SA Taxi,
where it was decided that a trading corporation can sue for general damages for
defamation.7 This application for leave to appeal directly to this Court, thus bypassing
the Supreme Court of Appeal, is based on the fact that only this Court can overrule the
decision in SA Taxi.
Background
[6] The plaintiffs are engaged in extensive mining operations in the exploration and
development of major mineral sands projects in South Africa, namely the
Tormin Mineral Sands Project and the Xolobeni Mineral Sands Project. There appears
to be fierce community opposition to these mining activities and the defendants are
apparently at the forefront of that opposition. In the course of this opposition,
the defendants are alleged to have made statements which are defamatory of the
plaintiffs.
[7] The first to third applicants made the alleged defamatory statements as presenters
of a lecture series at the University of Cape Town, concerning the respondents’
Tormin mining project, entitled “Mining the Wild and West Coast: ‘Development’ at
what cost?”. The alleged defamatory statements concern claims of the duplicitous and
unlawful nature of the mining operations which were said to be ravaging the
environment. The claims against them total R1 250 000.
[8] The fourth and fifth applicants participated in a radio interview in which the
present fourth respondent (the second plaintiff in the High Court) was also a participant.
The interview was posted on the radio station’s website. The fourth and fifth applicants
discussed the mining activities, expressed certain contentious opinions and trenchantly
criticised the plaintiffs’ mining operations. They were sued for a total of R3 000 000.
7
Media 24 Ltd v SA Taxi Securitisation (Pty) Ltd [2011] ZASCA 117; 2011 (5) SA 329 (SCA).
5
MAJIEDT J
[9] Lastly, in respect of the sixth applicant, the alleged defamatory statements
appeared in: two e-books8 published by him; several of his radio interviews; video clips
posted by him on YouTube; numerous emails that he had written; and a number of his
interviews published on various social media platforms online. He also participated in
a panel discussion relating to mining and mineral regulation issues, on a television
programme known as 50/50; posted an article on an online journalism platform called
Medium, entitled “Behind the Irony Curtain: Blood Diamond, Xolobeni and the Real
Story of MRC”;9 and engaged in general advocacy around environmental issues. In the
end, the plaintiffs instituted 27 defamation claims against him totalling R10 000 000.
[10] The plaintiffs sought damages for the alleged defamation, alternatively, public
apologies. The defendants’ corporate defamation defence special plea was that a trading
corporation has no remedy available to it in relation to defamation without alleging and
proving that the defamatory statements concerned—
(a) are false;

(b) were made wilfully; and
(c) caused it to suffer patrimonial loss.
[11] Secondly, and in the alternative, the defendants pleaded that in the event that a
trading corporation had remedies in defamation available without pleading falsity,
wilfulness and patrimonial loss, those remedies do not include a claim for general
damages. Lastly, it was pleaded that to the extent that the common law was not
consonant with these two contentions, it is unconstitutional and falls to be developed in
terms of sections 8(2) and 39(2) of the Constitution. As stated, the plaintiffs excepted
successfully to this second set of special pleas, on the basis that no defence of this type
exists in South African law.
8
An e-book is a book publication made available in digital form. The first e-book, is Clarke The Promise of
Justice (2013), and the second is Clarke Survivor: Wild Coast – Before and Beyond ‘The Shore Break’ (2015).
9
Clarke “Behind the Irony Curtain: Blood Diamond, Xolobeni and the Real Story of MRC” Medium
(25 March 2018), available at https://johngiclarke.medium.com/behind-the-irony-curtain-blood-diamond-
xolobeni-and-the-real-story-of-mrc-6a626c9c2913.
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MAJIEDT J
Parties’ submissions
The applicants’ principal submissions
[12] On jurisdiction and leave to appeal, the applicants submit that when a substantive
exception is upheld, it is always appealable where prospects of success are established.
They contend that, if leave to appeal is not granted, the High Court’s order upholding
the second set of exceptions will stand and the plaintiffs will be allowed to proceed with
their substantial claims in general damages without pleading or proving falsity,
wilfulness or patrimonial loss. Since the Supreme Court of Appeal has already spoken
on this matter in SA Taxi, it would be bound by its own decision if direct leave to appeal
is refused and the matter is referred to that Court. The applicants contend that the matter
transcends the parties’ narrow interests and is plainly of considerable importance, not
only to the parties, but also to the broader public. They submit that leave to appeal
ought therefore to be granted.
[13] On the merits, the applicants contend that if the common law allows trading
corporations to succeed in a defamation claim for general damages without meeting
these requirements, it is unconstitutional. This is because, so they argue, allowing
defamation claims for general damages imposes significant restrictions on the right to
freedom of expression in the Constitution. This is constitutionally permissible in the
case of plaintiffs who are natural persons, since they are the bearers of the constitutional
right to human dignity and the principles of defamation law strike an “appropriate
balance” between the competing constitutional rights to human dignity and freedom of
expression. But not so with trading corporations that sue for defamation.
The applicants submit that they are not bearers of the constitutional right to human
dignity. Furthermore, the interest of trading corporations in their reputation is not
personal, but purely financial. In those circumstances, the Constitution demands that if
a trading corporation is entitled to sue for general damages for defamation at all, it must
be held to the same demanding requirements as when it sues for the delict of injurious
7
MAJIEDT J
falsehood.10 As a result, the applicants contend that the trading corporation must allege
and prove that the statements are false, that the false statements were made wilfully and
that the false statements caused patrimonial loss.
[14] According to the applicants, the majority in SA Taxi was wrong in upholding a
claim for general damages by a trading corporation, as that claim does not meet the
principles outlined. Thus, insofar as the common law in terms of SA Taxi equates the
position of trading corporations with that of natural persons, it is unconstitutional.
This Court should thus overrule SA Taxi. In the event that this Court concludes that
SA Taxi was correctly decided, the common law must be developed, in accordance with
sections 8(3) and 39(2) of the Constitution, in order to address this violation of the right
to freedom of expression. Restricting trading corporations to claims for injurious
falsehoods would be a more appropriate balance, different to the law of defamation as
it applies to natural persons. The requirements that a trading corporation prove falsity
of the statement, wilfulness and that it had suffered patrimonial loss, achieves this
balance.
[15] The applicants contend further that the majority in SA Taxi erred in its finding
that treating trading corporations differently to natural persons would violate
section 9(1) of the Constitution. The differences between trading corporations and
natural persons not only permit, but require, different treatment in the law of
defamation. Juristic persons are not bearers of the right to human dignity and thus
cannot lay claim to constitutional protection on the basis of the right to human dignity
under section 10 of the Constitution.11
10
Citing Geary & Son v Gove 1964 (1) SA 434 (A) at 441D, the applicants submit that the elements of a claim
for injurious falsehood are: the defendant has made a false representation; the defendant knew the representation
to be false; the plaintiff has lost or will lose customers as a result of the false representation; and that the defendant
intended, by the false representation, to cause the plaintiff that loss.
11
Section 10, headed “Human dignity”, provides that “[e]veryone has inherent dignity and the right to have their
dignity respected and protected”.
8
MAJIEDT J
[16] They contend further that when one considers the nature of the right to dignity
and the nature of trading corporations, it is abundantly clear that they cannot be the
bearers of the right to human dignity. A trading corporation only has a financial interest
in its reputation, that is, goodwill (its capacity to attract customers and make a profit).
If its reputation is damaged, the damage ordinarily diminishes its capacity to attract
customers and make profit. A trading corporation has no feelings that can be injured.12
Thus, there are no competing constitutional rights at stake here and the principles
enunciated in Khumalo,13 where there was a weighing up of the competing rights to
human dignity and freedom of expression, do not find application. Thus, contend
the applicants, the majority judgment in SA Taxi was wrongly decided and that decision
ought to be overruled.
[17] The applicants further argue that the common law rules in respect of claims for
general damages for defamation by trading corporations are unconstitutional. They
submit that a justification analysis in terms of section 36(1) of the Constitution
demonstrates that the limitation of the section 16 right to freedom of expression is
unjustified and that the common law must be developed. The common law can be
developed in one of two ways, according to the applicants. First, by providing that in
any claim of any sort for defamation by a trading corporation, it must allege and prove
falsity, wilfulness and patrimonial loss. Second, and in the alternative, it could be
developed to provide that where a trading corporation does not allege and prove falsity,
wilfulness and patrimonial loss, it is precluded from claiming general damages. Finally,
with reference to various international and comparative law sources, the applicants
contend that various other democratic societies have recognised the need to limit trading
corporations’ ability to sue for defamation and that legal commentators largely support
these restrictions.
12
In this regard, the applicants cite the dissenting judgments of Lord Hoffmann and Baroness Hale in Jameel
(Mohamed) v Wall Street Journal Europe Sprl [2006] UKHL 44; [2007] 1 AC 359 (Jameel).
13
Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC).
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MAJIEDT J
The respondents’ principal submissions
[18] The respondents accept that the application raises constitutional issues, but
contend that those issues have already been determined and, therefore, do not require
the attention of this Court. The respondents, thus, contend that the appeal bears no
reasonable prospects of success and, as a result, it is not in the interests of justice to
grant leave. The respondents argue that the debates which the applicants seek to raise
were, to a large extent, comprehensively dealt with by the Supreme Court of Appeal in
SA Taxi and, on that authority, the appeal bears no prospects of success.
[19] In respect of the merits, according to the respondents, the cumulative impact of
both special pleas before this Court must be considered. If the defendants succeed in
defending both their special pleas, then businesses operating as juristic persons in
South Africa will be faced with three challenging hurdles which will inhibit business
enterprise and discourage foreign and local investment in this country. These hurdles
are: first, proof of an absence of ulterior or improper motive in suing for defamation
(this relates to the so-called “SLAPP” defence special plea in CCT 66/21); second,
proof that the defamatory statement is false and that it was made wilfully, that is, with
the intent to defame;14 and third, and possibly the most difficult requirement, proof that
the defamatory statement caused financial loss. The last of these is said to potentially
be the most difficult, because an injury to the reputation of a trading company will not
always be measurable in terms of lost profits.15
[20] The respondents caution that there are four troubling features of the drastic
reforms to the common law proposed by the applicants. First, there has been a marked
14
This, according to the respondents, is a difficult requirement as it is quite cumbersome for the target of
defamation to show that the perpetrator thereof (the defendant) is lying. Since it is the defendant who published
the statement, she is in the best position to show that what she published is true. They cite Khumalo id at para 38
where it was held:
“In not requiring a plaintiff to establish falsity, but in leaving the allegation and proof of falsity
to a defendant to a defamation charge, the common law chooses to let the risk lie on defendants.
After all, it is by definition the defendant who published the statement and thereby caused the
harm to the plaintiff.”
15
The respondents cite SA Taxi above n 7 at para 40.2.
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MAJIEDT J
increase in the irresponsible spreading of fake news through social media platforms,
which has become one of the most significant threats to democracy and the search for
truth in open societies. The respondents therefore argue that, if it is made virtually
impossible for trading corporations to sue for defamation in such circumstances, it will
become far too easy for conveyors of conspiracy theories and other fake news to harm
our democracy and undermine an important object of the protection of freedom of
expression, which is the pursuit of truth.
[21] Second, the respondents contend that the applicants’ approach draws no
distinction between for-profit and not for-profit companies. It would be severely
detrimental to the latter to apply this approach to them, as any damage to their reputation
could be devastating. Third, the respondents submit that there is no evidence that claims
for general damages by trading corporations have proliferated in recent times. Trading
corporations face additional obstacles - their claim is restricted to an injury to reputation
(fama). That reputation must first be established, it must then be shown that it is likely
that the statement will harm their reputation, and it must be shown that it is more
probable than not that harm will occur, and not a mere tendency or propensity to harm.
Fourth, and finally, as far as the alleged need to plead and prove falsity is concerned,
the respondents submit that this issue was comprehensively addressed by this Court
in Khumalo. In that case it was held that the defence of reasonable publication,
developed by the Supreme Court of Appeal in Bogoshi,16 saved the common law from
invalidity and resulted in an appropriate balance between the interests of a plaintiff and
a media defendant in defamation cases. The extension of that defence to non-media
defendants would address the concerns raised by the applicants in the present matter.
That is the development of the common law for which the applicants should instead be
advocating for, and not the drastic reforms now being espoused.
[22] The respondents also point out certain anomalies in the applicants’ case. They
say that those anomalies arise because the applicant’s case – that it is an unjustifiable
16
National Media Ltd v Bogoshi [1998] ZASCA 84; 1998 (4) SA 1196 (SCA).
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MAJIEDT J
limitation of the right to freedom of expression to equate the right of trading

corporations to sue for general damages for defamation to that of natural persons – rests
on two faulty pillars. The first is that a narrowly defined human dignity is the only basis
on which the limitation of freedom of expression inherent in the law of defamation can
be justified. That is not so – reputation (fama, as distinct from dignitas) justifies such
a limitation as well. Reputation finds a constitutional home in the wider approach to
human dignity adopted by this Court, contend the respondents.17 Trading corporations
have a right to their reputation, worthy of constitutional protection even though they do
not have dignitas, that is narrow dignity in the sense of self-worth.
[23] The second faulty pillar is that the applicants contend that the interest a trading
corporation has in its reputation can always be vindicated by an action for special
damages. This is not so, submit the respondents, because the value of a trading
corporation’s reputation for its profits may be intangible. It is not easily quantifiable.
To restrict corporations who wish to vindicate their reputations to instances where they
can prove financial loss will, in some instances, deprive them of a remedy altogether.
The alleged differences between trading corporations and natural persons, for which the
applicants contend, do not justify the drastic developments which they advocate, and
they fail to strike an appropriate balance between the competing rights at stake here.
[24] The respondents submit that there is a long line of cases in which our courts
established that there is no difference between the defamation claims made by natural
and juristic persons, from the obiter dictum in Fichardt,18 to the rationes decidendi in
Dhlomo19 and SA Taxi.20 Strong reliance is placed on the majority judgment in SA Taxi,
penned by Brand JA, a matter to be presently discussed in some detail.21 In any event,
17
They rely on Khumalo above n 13 at para 13 and Le Roux above n 2 at para 138.
18
G A Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1 at 5-6.
19
Dhlomo N.O. v Natal Newspapers (Pty) Ltd 1989 (1) SA 945 (A).
20
SA Taxi above n 7.
21
The respondents submit that academic opinion is also supportive of the majority judgment, citing Loubser and
Midgley (eds) The Law of Delict in South Africa (Oxford University Press Southern Africa, Cape Town 2010)
and Neethling et al Neethling on Personality Rights (LexisNexis Butterworths, Durban 2019).
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MAJIEDT J
contend the respondents, the references in SA Taxi as to the requirements of the

Aquilian action and those relating to the claim for injurious falsehood are entirely
irrelevant in this matter.
[25] The respondents point out that the minority judgment of Nugent JA in SA Taxi
is no authority for the contention that a trading corporation should plead and prove the
falsity and wilfulness of a defamatory statement in a defamation claim. It relates only
to the remedy of general damages. They assert that the majority decision is unassailable
and that the applicants’ proposition to have additional obligations imposed on trading
corporations or to have their remedies limited in the manner that the applicants propose
(in a manner akin to the lex Aquilia or the delict of injurious falsehood), is inconsistent
with our law. International and comparative law support that majority judgment.22 The
corporate defamation special plea is, therefore, excipiable as the High Court correctly
held pursuant to the binding authority of SA Taxi. In order for the applicants to succeed,
this Court will have to adopt the developments of the common law for which they
contend. As to the proposed development of the common law, the respondents reiterate
that the majority in SA Taxi was correct in rejecting the drastic development23 proposed
by the applicants and the United Kingdom judgments in Steel and Morris and Jameel
confirm this.
Jurisdiction and leave to appeal
[26] For leave to appeal to be granted in this Court, an applicant must meet two
requirements. First, the matter must fall within the jurisdiction of this Court in that it
22
They refer to Steel and Morris v United Kingdom [2005] ECHR 103 and Jameel above n 12.
23
The respondents submit that the Supreme Court of Appeal majority in SA Taxi above n 7, rejected the proposed
development that:
“[F]or-profit companies should plead and prove patrimonial loss (special damages) in
defamation action or whether they should (as a less drastic alternative) be precluded from
claiming general damages (and restricted to other remedies, such as a claim for an apology).”
They then state that:
“The same development was also rejected by the majority of the (then) House of Lords in Jameel
(Mohamed) v Wall Street Journal Europe Sprl [2007] 1 AC 359 (HL) which was found not to
violate the European Convention for the Protection of Human Rights and Fundamental
Freedoms in Steel and Morris v United Kingdom (2005) 41 EHRR 403.”
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raises a constitutional issue or an arguable point of law of general public importance;

and second, the interests of justice must warrant that leave to appeal be granted.
[27] This Court’s constitutional jurisdiction is plainly engaged. The matter concerns
the balance to be struck between the right to freedom of expression in section 16 of
the Constitution24 and a trading corporation’s right to its reputation. A defamation
action implicates these two rights. As will be more fully explicated, the one is a
constitutional right, freedom of expression, and the other emanates from the
common law, that is the right to reputation. Where the law renders defamation
actionable and compensable, it plainly entails a limitation to freedom of expression.25
In addition, the application raises important issues as to the development of the
common law in accordance with sections 8(3) and 39(2) of the Constitution. The
applicants seek the development of the common law to disallow trading corporations
an action in defamation for general damages so as to promote the right of freedom of
expression. This development entails, in the first place, restricting trading corporations
to an action for defamation only in instances where it meets the requirements for
injurious falsehood. In the alternative, the development entails preventing trading
corporations from ever receiving general damages for defamation.
24
Section 16 reads:
“(1) Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.”
25
Khumalo above n 13 at para 33 and Dikoko v Mokhatla [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1)
BCLR 1 (CC) at para 90.
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MAJIEDT J
[28] Furthermore, the questions posed in this application raise arguable points of law
of general public importance, particularly considering the two divergent judgments in
SA Taxi as to the appropriateness of awarding general damages to trading corporations
in defamation cases. Additionally, the ancillary question of the applicability of the right
to human dignity to trading corporations bears consideration. I am also satisfied that
the application bears reasonable prospects of success and that the importance and nature
of the issues raised demonstrates that the matter transcends the narrow interests of the
parties. Therefore, the constitutional and general jurisdiction of this Court is engaged.
[29] But should leave to appeal directly to this Court be granted? Direct appeals to
this Court are permitted only in exceptional instances. As stated, the Supreme Court of
Appeal has already, in SA Taxi, decided the central issue in this case. That Court would
be bound by its own decision if direct leave to appeal were refused and the matter were
to be referred to it. While the Supreme Court of Appeal may, by virtue of the doctrine
of precedent, reverse its SA Taxi decision, the matter would, in all likelihood, end up in
this Court. Since we have the benefit of the views already expressed in SA Taxi, the
interests of justice require that this Court finally determine the matter.
[30] As indicated above, the matter is plainly of considerable importance both to the
parties in the matter and to the broader public. This is so because awarding general
damages to trading corporations for defamation may potentially shackle public
participation, particularly in environmental matters, where meaningful public
participation is required. That is indisputably a matter of general public importance. In
Khumalo this Court granted leave to appeal directly to it. In granting leave, this Court
held that:
“The extent to which the Constitution requires a development of the law of defamation
is a question which has been frequently asked. The issue was raised but not answered
in an early decision of this Court, Du Plessis and Others v De Klerk and Another 1996
(3) SA 850 (CC) (1996 (5) BCLR 658) and has been considered in a considerable
number of High Court judgments since. It is also a matter which has received the
attention of the Supreme Court of Appeal in National Media Ltd v Bogoshi and has also
15
MAJIEDT J
troubled courts in many other jurisdictions. In all these circumstances, therefore, it

seems that it would be in the interests of justice for this Court to consider the appeal.
The application for leave to appeal is therefore granted.”26
[31] While Khumalo settled the position as regards the intersection between the law
of defamation and the constitutional right to freedom of speech insofar as it relates to
plaintiffs that are natural persons, the position in respect of plaintiffs that are trading
corporations remains contested, particularly in light of the divergent decisions in
SA Taxi. These considerations strongly support the grant of direct access to this Court.
[32] The next question concerns appealability. In Zweni, the Supreme Court of
Appeal held that decisions that can be appealed must have the following three attributes:
they must be final in effect and not susceptible of alteration by the court of first instance;
they must be definitive of the rights of the parties; and they must have the effect of
disposing of a substantial portion of the relief claimed.27 However, where an exception
is not upheld, an appeal will not lie because it does not meet the criteria enumerated in
Zweni.28 Previously, the Supreme Court of Appeal has pertinently declined to
reconsider the question of the appealability of decisions dismissing exceptions.29 But
when a substantive exception is upheld as is the case here, this is usually appealable
where prospects of success are established.30 As stated, there are reasonable prospects
of success here. This set of exceptions plainly raise questions concerning the
constitutional validity of the common law of defamation, as was the case in Khumalo.
Therefore, in considering and then dismissing the applicants’ contentions, the
High Court was clearly concerned with a constitutional matter and its order constitutes
a decision on such a matter as contemplated by rule 19 of the Rules of this Court.31
Leave to appeal directly to this Court ought therefore to be granted.
26
Khumalo id at para 16.
27
Zweni v Minister of Law and Order [1992] ZASCA 197; 1993 (1) SA 523 (A) at 532I-533A.
28
Id at 536A-C.
29
Minister of Safety and Security v Hamilton [2001] ZASCA 22; 2001 (3) SA 50 (SCA) at 53E.
30
Khumalo above n 13.
31
Rule 19(2) provides:
16
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Preliminary remarks on the applicants’ case
[33] At the hearing, the applicants’ case took an unexpected turn which significantly
altered the course of the matter and considerably narrowed the issues. It will be recalled
that the applicants initially contended that the common law enabling for-profit
companies to sue for general damages without alleging and proving falsity, wilfulness
and patrimonial loss unjustifiably limits a defendant’s right to freedom of expression.
This position was abandoned at the hearing and the applicants only persisted with their
alternative claim on the constitutionality of awarding general damages to trading
corporations in defamation cases.
[34] The applicants no longer pursue their further special plea because they conceded
that a trading corporation may pursue a defamation action in the ordinary way and seek
remedies other than general damages. This means that the applicants no longer contend
that a trading corporation must plead that the defamatory statements were false, made
wilfully and caused patrimonial loss. They also appear to accept that a trading
corporation has a reputation to defend and that its reputation is not simply commercial
goodwill which, if sullied, requires the trading corporation to sue under the
actio legis Aquiliae for patrimonial loss. Thus, they appear to accept that a trading
corporation may defend its reputation by suing in the ordinary way for defamation and
seek declaratory relief and also an apology.
[35] It is necessary to interpose briefly to discuss the applicants’ now abandoned

submission that trading corporations should be restricted to a claim for injurious
falsehood (sometimes referred to as untrue disparagement) to protect their reputation.
In this way, so the applicants contended, a more appropriate balance is struck between
“A litigant who is aggrieved by the decision of a court and who wishes to appeal against it
directly to the Court on a constitutional matter shall, within 15 days of the order against which
the appeal is sought to be brought and after giving notice to the other party or parties concerned,
lodge with the Registrar an application for leave to appeal: Provided that where the President
has refused leave to appeal the period prescribed in this rule shall run from the date of the order
refusing leave.”
17
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the interests of natural persons and trading corporations in respect of defamation. This
contention self-evidently fell flat when the applicants abandoned their initial submission
that trading corporations must prove falsity, wilfulness, and patrimonial loss. But there
is, in any event, a serious difficulty with that approach.
[36] Injurious falsehood is concerned with lost customers and patrimonial loss. As
the respondents point out, that type of claim forms part of the delict of unlawful
competition, which is not what this case is about. One of that delict’s principal features
is that it consists of non-defamatory statements.32 In practice, its most important
appearance is in the form of passing off.33 Injurious falsehood is an inappropriate
remedy for harm to a trading corporation’s reputation. Nothing more needs therefore
to be said about this. Personality infringement and loss that is not patrimonial in nature
can conceivably exist without injured feelings, an aspect to be considered next.
[37] In light of the above, this Court thus only has to answer the question of the
constitutionality of awarding general damages to trading corporations in defamation
cases. In addressing the issues before this Court, the following matters will be
discussed. First, I will set out the present state of our common law of defamation.
Second, the constitutionality of awarding general damages to trading corporations in
defamation cases will be assessed. In light of the fact that the allegation is that this
practice infringes section 16 of the Constitution, a determination will be made on
whether there is a limitation and, if there is, a section 36 analysis will be conducted to
determine whether the limitation is reasonable and justifiable in an open and democratic
society. Under that rubric, I will also discuss the applicability of the right to dignity of
trading corporations. This discussion is particularly important because dignity plays a
central role in this case. Additionally, it is important because this Court has repeatedly
grounded our law of defamation solely on a plaintiff’s dignity, the right to self-worth, a
32
McKerron The Law of Delict 7 ed (Juta & Co Ltd, Cape Town 1971) at 213.
33
Id at 214.
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good name and reputation.34 Third, I will consider comparative and international law,
whereafter I will provide my conclusion.
The state of our common law of defamation
[38] The intentional infringement of personality rights, such as the right to a good
name and reputation, is addressed in our law by the actio iniuriarum. In Dikoko,
this Court expressed it thus:
“The law of defamation is based on the actio injuriarum, a flexible Roman-law remedy
which afforded the right to claim damages to a person whose personality rights had
been impaired by another. The action is designed to afford personal satisfaction for an
impairment of a personality right and became a general remedy for any vexatious
violation of a person’s right to his dignity and reputation.”35
[39] This Court has consistently applied the common law of defamation.36 In
Khumalo this Court held that:
“At common law, the elements of the delict of defamation are:
(a) the wrongful and

(b) intentional
(c) publication of
(d) a defamatory statement
(e) concerning the plaintiff.
It is not an element of the delict in common law that the statement be false. Once a
plaintiff establishes that a defendant has published a defamatory statement concerning
the plaintiff, it is presumed that the publication was both unlawful and intentional. A
defendant wishing to avoid liability for defamation must then raise a defence which
rebuts unlawfulness or intention. Although not a closed list, the most commonly raised
defences to rebut unlawfulness are that the publication was true and in the public
34
See, amongst others, Le Roux above n 2 at para 138; Khumalo above n 13 at para 28; and Dikoko above n 25 at
para 92.
35
Dikoko id at para 62.
36
Id; Le Roux above n 2.
19
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benefit; that the publication constituted fair comment and that the publication was made
on a privileged occasion. Most recently, a fourth defence rebutting unlawfulness was
adopted by the Supreme Court of Appeal in National Media Ltd and Others v
Bogoshi.”37
[40] The Court noted that “[t]his fourth defence for rebutting unlawfulness, therefore,
allows media defendants to establish that the publication of a defamatory statement,
albeit false, was nevertheless reasonable in all the circumstances”.38 In our law that
defence is not available to non-media defendants.39 Khumalo concerned the
constitutionality of our common law of defamation as it applied to natural person
plaintiffs and media defendants. The Court was required to answer the question
whether—
“to the extent that the law of defamation does not require a plaintiff in a defamation
action to plead that the defamatory statement is false in any circumstances, the law
limits unjustifiably the right to freedom of expression as enshrined in section 16 of
the Constitution.”40
[41] In that case, Mr Bantubonke Holomisa, a well-known South African politician,

and the leader of a political party, sued the publishers of the Sunday World for
defamation for an article published in that newspaper. In the article it was stated,
amongst other things, that Mr Holomisa was involved with a gang of bank robbers and
that he was under police investigation for this involvement.
[42] This Court held that there can be “no doubt” that the law of defamation limits
section 16 of the Constitution.41 The Court, mindful that there were two competing
constitutional rights involved in the case, namely the right to dignity (enjoyed by the
37
Khumalo above n 13 at para 18. This position was confirmed in Le Roux id at para 84-5.
38
Khumalo id at para 19.
39
Id at para 19. The Court unequivocally states that the defence is available to media defendants.
40
Id at para 4.
41
Id at para 33.
20
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defamed politician) and the right to freedom of expression (held by the media
company), stated that:
“When considering the constitutionality of the law of defamation, therefore, we need

to ask whether an appropriate balance is struck between the protection of freedom of
expression on the one hand, and the value of human dignity on the other.”42
[43] This Court answered the question before it – that is whether the burden and
difficulty of proving truth or falsity made the common law of defamation
unconstitutional, as far as media defendants are concerned – holding:
“At the heart of the constitutional dispute lies the difficulty of establishing the truth or
falsehood of defamatory statements. Burdening either plaintiffs or defendants with the
onus of proving a statement to be true or false, in circumstances where proof one way
or the other is impossible, therefore results in a zero-sum game. Either plaintiffs will
benefit from the difficulties of proof, as happened previously under common law rules;
or defendants will win, as the applicants propose. Such a zero-sum result, in
whomsoever’s favour, fits uneasily with the need to establish an appropriate
constitutional balance between freedom of expression and human dignity.
Were the Supreme Court of Appeal not to have developed the defence of reasonable
publication in Bogoshi’s case, a proper application of constitutional principle would
have indeed required the development of our common law to avoid this result.”43
[44] It is therefore plain that this Court adopted the view that the law of defamation
as it applied to media defendants, absent the reasonable publication defence developed
in Bogoshi, was unconstitutional on account of the burden and difficulty (sometimes
impossibility) of having to prove truth or falsity. It is further clear that this Court
considered the unconstitutionality to have been remedied or cured by the reasonable
publication defence developed in Bogoshi. As stated above, the reasonable publication
defence only applies to media defendants. But here we are dealing with defamation
42
Id at para 28.
43
Id at paras 42-3.
21
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cases instituted by juristic persons, more particularly trading corporations, against

non-media defendants.
[45] In Le Roux, this Court outlined the defences available to a non-media defendant
in a defamation action:
“[T]he plaintiff does not have to establish every one of these elements in order to
succeed. All the plaintiff has to prove at the outset is the publication of defamatory
matter concerning himself or herself. Once the plaintiff has accomplished this, it is
presumed that the statement was both wrongful and intentional. A defendant wishing
to avoid liability for defamation must then raise a defence which excludes either
wrongfulness or intent. Until recently there was doubt as to the exact nature of the
onus. But it is now settled that the onus on the defendant to rebut one or the other
presumption is not only a duty to adduce evidence, but a full onus, that is, it must be
discharged on a preponderance of probabilities. A bare denial by the defendant will
therefore not be enough. Facts must be pleaded and proved that will be sufficient to
establish the defence.”44
[46] The applicants no longer take issue with the constitutionality of the law of
defamation as it applies to trading corporations. As stated, at the hearing they
abandoned their original contention that the common law enabling trading corporations
to sue for general damages without alleging and proving falsity, wilfulness and
patrimonial loss unjustifiably limits a defendant’s right to freedom of expression. What
remains of their challenge is a consideration of the constitutionality of awarding general
damages to trading corporations in defamation cases.
The current position of trading corporations in our common law of defamation
[47] The common law distinguished reputation (fama) and self-worth (dignitas) as
separate personality rights deserving of protection. That protection was afforded
through the actio iniuriarum applied in actions for defamation. This much is
44
Le Roux above n 2 at para 85.
22
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uncontentious.45 In SA Taxi, the Supreme Court of Appeal affirmed that at

common law, a trading corporation has a right to the protection of its reputation.46 In
that regard, there was unanimity between the majority and minority judgments. 47
[48] The conceptual basis of the right accorded to juristic persons is the acceptance
that there are aspects of reputation enjoyed by juristic persons that do not equate to the
patrimonial value of goodwill.48 Thus, the protectable interests of trading corporations
extend beyond mere goodwill. A trading corporation is a social entity that enjoys a
reputation among many stakeholders that has a value that is not reducible to reputation
as a profit-making asset. Corporate reputation is arguably of little less importance than
individual reputation, as it is not only vital for the health and prosperity of both large
and small businesses, but also for the communities within which they operate.
[49] Large corporations play a vital role in communities and in the affairs of the
economy and politics. Large corporations are, for example, often well regarded by
employees, present, past and prospective. Large, influential corporations are often
national champions and contribute to national identity, and sometimes even pride as
symbols of national success. And they may sometimes be held in high esteem for the
role they play as partners in national social projects. None of this is directly connected
to patrimonial gain or loss. The need to protect their reputation thus extends beyond
self-interest.
[50] This right to a good name has not always been consistently recognised in our
law. In a line of cases, the view was taken that juristic persons have no personality
45
See, for example, Khumalo above n 13 at para 27.
46
SA Taxi above n 7 at para 30.
47
Id at para 65, Nugent JA states that “[w]e agree that a trading corporation has a protectable interest in its
reputation, and we agree that it is entitled to redress once the elements of unlawful defamation have been
established in the ordinary way”.
48
There are some who argue for a denial to a trading corporation of “any right to reputation, and generally any
non-patrimonial (personality) rights, since they are incapable of suffering any loss if these are violated”. See
Descheemaeker “Three Keys to Defamation: Media 24 in a Comparative Perspective” (2013) 130 SALJ 435
at 437.
23
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rights, including the right to a good name.49 For this reason, it was held that juristic
persons could not sue for defamation.50 But there were, conversely, also cases that held
that a trading corporation could sue, if the impugned statement was calculated to injure
it in its business reputation or to have an adverse effect on its trade or business.51
[51] Then came Dhlomo.52 There, the Appellate Division decided that a trading
corporation should be entitled to sue for defamation and it pertinently approved of the
obiter dictum to this effect, some 70 years before, in Fichardt.53 With respect to the
requirement of proof of injury to business reputation or proof of adverse effect on its
trade or business, the Court held:
49
See, amongst others, Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 (4) SA 376 (T) at 384.
This finding was confirmed, in part, by the Appellate Division in Universiteit van Pretoria v Tommie Meyer Films
(Edms) Bpk 1979 (1) SA 441 (A) at 453-4.
50
Church of Scientology in SA (Incorporated Association not for gain) v Reader’s Digest Association SA (Pty)
Ltd 1980 (4) SA 313 (C) at 317 and Ahmadiyya Anjuman Ishaati-Islamlahore (South Africa) v Muslim Judicial
Council (Cape) 1983 (4) SA 855 (C) at 865.
51
Fichardt above n 18; Goodall v Hoogendoorn Ltd 1926 AD 11; Gold Reef City Theme Park (Pty) Ltd; Akani
Egoli (Pty) Ltd v Electronic Media Network Ltd 2011 (3) SA 208 (GSJ) at 220; and SA Taxi above n 7 at para 7.
McKerron above n 32 at 182 states that:
“A trading corporation, being in law a person distinct from its members and having therefore a
reputation of its own to maintain, can sue for a defamatory statement which affects it in its trade,
property or reputation.”
52
Dhlomo above n 19.
53
Id at 952, Rabie ACJ held that:
“The aforesaid statements of the law by Innes CJ and Solomon JA [in Fichardt’s case] were . . .
strictly speaking not necessary for the decision of that case. . . . It is clear at the same time,
however, that those statements were made as reflecting settled law. Innes CJ, as pointed out
above, stated: ‘That the remedy by way of action for libel is open to a trading company admits
of no doubt’, and Solomon JA, as has also been shown above, regarded it as settled law that a
trading corporation could sue for defamation. In the Spoorbond case supra decided thirty years
after Fichardt’s case, Watermeyer CJ, without discussing the matter, accepted the law to be that
a trading corporation can sue for defamation. I appreciate that it may be said that the recognition
of the right of a trading corporation to sue for defamation involves an extension of the principles
of Roman and Roman-Dutch law which dealt with the right of action only in relation to natural
persons, but, having considered all this, and having taken account of South African academic
writings in textbooks and legal journals pro and contra the idea that a trading corporation should
have the right to sue for defamation, I have come to the conclusion that it would be unrealistic
not to hold that the law as stated by this Court in Fichardt’s case more than seventy years ago
has become the law of South Africa. I accordingly so hold.”
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“It would be wrong . . . to demand of a corporation which claims for an injury done to
its reputation that it should provide proof of actual loss suffered by it, when no such
loss is required of a natural person who sues for an injury done to his reputation.”54
[52] Dhlomo was followed by Caxton.55 In that case, the respondents, also trading
corporations, sued for both general and special damages for alleged defamation. There,
the right to sue for general damages, even though these were trading corporations was
uncontentious on the basis of the precedent established in Dhlomo. This was, of course,
confirmed by the majority in SA Taxi. Before undertaking an analysis of the judgments
in SA Taxi, it is necessary to have regard to human dignity and the source of a trading
corporation’s reputation rights.
The source of a trading corporation’s reputation rights
[53] This Court in National Coalition I,56 with reference to Hugo,57 acknowledged
that:
“Dignity is a difficult concept to capture in precise terms. At its least, it is clear that
the constitutional protection of dignity requires us to acknowledge the value and worth
of all individuals as members of our society.”58
[54] Early on in its jurisprudence, this Court in Makwanyane,59 emphasised the

importance of dignity in our Constitution, given our lamentable history:
54
Id at 953. See further Herbal Zone (Pty) Ltd v Infitech Technologies (Pty) Ltd [2017] ZASCA 8; [2017] 2 All
SA 347 (SCA) at para 36.
55
Caxton Ltd v Reeva Forman (Pty) Ltd [1990] ZASCA 47; 1990 (3) SA 547 (A).
56
National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15; 1999 (1) SA 6 (CC);
1998 (12) BCLR 1517 (CC).
57
President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708
(CC), which referred to Egan v Canada (1995) 29 CRR (2d) 79 at 106, wherein it was held: “This Court has
recognised that inherent human dignity is at the heart of individual rights in a free and democratic society”.
58
National Coalition I above n 56 at para 28. See also more recently, Qwelane v South African Human Rights
Commission [2021] ZACC 22; 2021 (6) SA 579 (CC); 2022 (2) BCLR 129 (CC) at para 66.
59
S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
25
MAJIEDT J
“The importance of dignity as a founding value of the new Constitution cannot be

overemphasised. Recognising a right to dignity is an acknowledgement of the intrinsic
worth of human beings: human beings are entitled to be treated as worthy of respect
and concern. . . . Respect for the dignity of all human beings is particularly important
in South Africa. For apartheid was a denial of a common humanity. Black people were
refused respect and dignity and thereby the dignity of all South Africans was
diminished. The new Constitution rejects this past and affirms the equal worth of all
South Africans. Thus recognition and protection of human dignity is the touchstone of
the new political order and is fundamental to the new Constitution.”60
(Emphasis added.)
[55] More recently in Freedom of Religion,61 this Court underscored the importance
of the right to human dignity:
“There is a history and context to the right to human dignity in our country. As a result,
this right occupies a special place in the architectural design of our Constitution, and
for good reason. As Cameron J correctly points out, the role and stressed importance
of dignity in our Constitution aim ‘to repair indignity, to renounce humiliation and
degradation, and to vest full moral citizenship to those who were denied it in the past’.
Unsurprisingly because not only is dignity one of the foundational values of our
democratic state, it is also one of the entrenched fundamental rights.”62
[56] And in Khumalo, this Court said:
“The value of human dignity in our Constitution is not only concerned with an
individual’s sense of self-worth, but constitutes an affirmation of the worth of human
beings in our society. It includes the intrinsic worth of human beings shared by all
60
Id at paras 328-9. See also Dawood v Minister of Home Affairs; Shalabi and Another v Minister of Home
Affairs; Thomas v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) at
para 35:
“The value of dignity in our Constitutional framework cannot . . . be doubted. The Constitution
asserts dignity to contradict our past in which human dignity for black South Africans was
routinely and cruelly denied. It asserts it too to inform the future, to invest in our democracy
respect for the intrinsic worth of all human beings.”
61
Freedom of Religion South Africa v Minister of Justice and Constitutional Development [2019] ZACC 34; 2020
(1) SA 1 (CC); 2019 (11) BCLR 1321 (CC).
62
Id at para 45.
26
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people as well as the individual reputation of each person built upon his or her own
individual achievements. The value of human dignity in our Constitution therefore
values both the personal sense of self-worth as well as the public’s estimation of the
worth or value of an individual.”63
[57] Having set out the content and importance of the right to dignity, the question
becomes who can bear this right, more specifically, whether juristic persons can bear
this right.
[58] In answering the above question, the first inquiry should be whether the nature
of the right permits of application to a juristic person. To this end, we must establish
the content of the right. As the applicants correctly assert, there are numerous facets to
human dignity which simply cannot be of application to trading corporations:
(a) Human dignity includes the ability to develop one’s “humanness” and
unique talents.64
(b) Human dignity includes the ability to enter relationships of defining
significance.65
(c) Human dignity “comprises the deeply personal understanding we have of
ourselves, our worth as individuals and our worth in our material and
social context”.66
(d) The right to human dignity protects us against degrading and invasive
stigmatisation of our consensual sexual conduct.67
(e) Ubuntu, “an idea based on deep respect for the humanity of another”, is
the core foundation for the constitutional right to dignity.68
63
Khumalo above n 13 at para 27.
64
Ferreira v Levin N.O.; Vryenhoek v Powell N.O. [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 at
para 49.
65
Dawood above n 60 at para 37.
66
Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development [2013] ZACC 35;
2014 (2) SA 168 (CC); 2013(12) BCLR 1429 (CC) at para 52.
67
Id at para 55.
68
Dikoko above n 25 at para 68.
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(f) Recently, this Court held that human dignity entails certain living
conditions.69
[59] It bears emphasis that a clear distinction must be drawn between the broader
concept of personhood that is exclusive to humans and the contrasting notion of
corporate identity. Human dignity resides and is given expression to within the former,
whereas the latter is historically and legally structured outside of the notion of
personhood. Care must be taken to keep those identities apart in order not to diminish
or dilute what it means to be a person. While humans form corporations, they do so to
enjoy the benefit of a legal person that is separate from the identity of natural persons.
[60] Provisions in the Bill of Rights must be understood contextually and

purposively.70 This includes an analysis of the history of the provision and the reason
for its adoption.71 The purpose of the right to dignity is, by its very nature,
“human-centric”. Its introduction into the Bill of Rights was intended to cure a situation
in which human beings were not treated as worthy of respect and concern. It was not
introduced to ensure that companies are treated as entities worthy of respect. A
company was not meant to have “intrinsic self-worth”, as this Court has repeatedly
referred to the essence of human dignity.
[61] A company’s right to be treated equally is protected elsewhere – amongst others,

by section 9 and section 8(4), but certainly not by section 10 of the Constitution. As a
result, it is not mere formalism to rely on the fact that the section 10 right is headed
“human dignity”. Understood purposively, the right is intended to protect human
beings. And this purposive understanding is buttressed by the important aspect of
textual context – that the right is headed “human dignity”. The fact that a company’s
right to equality is protected in, amongst others, section 8(4) of the Constitution, does
69
Mtolo v Lombard [2021] ZACC 39; 2022 (9) BCLR 1148 (CC) at para 42. See also Daniels v Scribante [2017]
ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) at para 31.
70
Soobramoney v Minister of Health (KwaZulu-Natal) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR
1696 at para 16.
71
Id.
28
MAJIEDT J
not lead to the extension of the provisions of section 10 to juristic persons, including
companies. For, as the Certification Judgment makes plain:
“[S]ome rights are not appropriate to enjoyment by juristic persons, [and] the text of
section 8(4) specifically recognises this. The text also recognises that the nature of a
juristic person may be taken into account by a court in determining whether a particular
right is available to such person or not.”72
[62] That the right to dignity is undergirded, in part, by a protection of reputational

interests does not mean that because companies have reputational interests, they have a
right to dignity. Instead, dignity protects human beings’ reputational interests, because
protection of those interests is necessary to ensure that a specific purpose is realised –
that human beings are treated as worthy of respect and concern. 73 The position in
respect of corporations is self-evidently quite different. They do not possess these traits
of natural personhood. The nature of their right to a good name and reputation must
necessarily be distinguished from that of a natural person. Put differently, the mere fact
that an entity has an interest which is protected by a certain right does not mean that the
entity enjoys that right.
72
Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of
South Africa, 1996 [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) at para 57.
73
As long ago as 1899, de Villiers, in The Roman and Roman-Dutch Law of Injuries (Nabu Press, 2012),
recognised at 24-5 that—
“[b]y a person’s reputation is here meant that character for moral or social worth to which he is
entitled amongst his fellow-men; by dignity that valued and serene condition in his social or
individual life which is violated when he is, either publicly or privately, subjected by another to
offensive and degrading treatment, or when he is exposed to ill-will, ridicule, disesteem or
contempt. . . . It must be clearly understood . . . that in an action of injury such as we have to
do with in the present title, compensation is not sought for patrimonial or material loss, that is
to say, loss to or in respect of property, business or prospective gains caused to one person
through the act of another. The interests that are impaired by an injury are purely ethical; and
the reparation claimed in the action is on account of that pain of mind which is naturally felt by
anyone who has been the object of vexatious personal aggression on the part of another, or who
has been humiliated by becoming the object of that feeling of repulsion which is naturally
entertained by others towards a person who bears an evil reputation or is otherwise obnoxious,
or of that disrespect which is evidenced by exposing another to contempt, ridicule, dislike,
disfavour or disesteem.”
Nothing has changed with regard to this lucid exposition of the nature of a person’s right to a good name and
reputation.
29
MAJIEDT J
[63] It is quite legitimate to argue that a human being’s reputational interests are in
need of a more demanding form of protection than a company’s, for example, and that
this protection is therefore to be moored in a constitutional right. Conversely, it is fair
to reason that a company’s reputational interest is sufficiently protected by the
common law, and therefore does not enjoy the protection of a constitutional guarantee.
In short, section 8(4) does not require that companies are afforded a section 10 right
simply because they enjoy an interest which that right protects. In my view, the purpose
of the right described above points in the opposite direction.
[64] In Hyundai,74 a case upon which much reliance was placed by the majority in
SA Taxi, this Court held:
“The protection of the right to privacy may be claimed by any person. . . . Neither
counsel addressed argument on the question of whether there was any difference
between the privacy rights of natural persons and juristic persons. But what is clear is
that the right to privacy is applicable, where appropriate, to a juristic person. . . .
Juristic persons are not the bearers of human dignity. Their privacy rights, therefore,
can never be as intense as those of human beings. However, this does not mean that
juristic persons are not protected by the right to privacy.”75 (Emphasis added.)
[65] This Court in Hyundai referred to section 8(4) of the Constitution, which
provides that a “juristic person is entitled to the rights in the Bill of Rights to the extent
required by the nature of the rights and the nature of that juristic person”. This
qualification in section 8(4) was explained in the Certification Judgment:
“[M]any ‘universally accepted fundamental rights’ will be fully recognised only if

afforded to juristic persons as well as natural persons. For example, freedom of speech,
to be given proper effect, must be afforded to the media, which are often owned or
controlled by juristic persons. While it is true that some rights are not appropriate to
enjoyment by juristic persons, the text of section 8(4) specifically recognises this. The
74
Investigating Director: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai
Motor Distributors (Pty) Ltd v Smit N.O. [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC).
75
Id at para 17-8.
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text also recognises that the nature of a juristic person may be taken into account by a
court in determining whether a particular right is available to such person or not.”76
[66] Hyundai was concerned with the right to privacy. While this Court did link that
right and the right to dignity (referencing Bernstein77 in that regard), it pertinently held
that “[j]uristic persons are not the bearers of human dignity”.78 This was confirmed by
this Court in Tulip Diamonds.79 Plainly then, the law in this regard has been
emphatically settled by this Court in Hyundai and Tulip Diamonds. Self-evidently,
human dignity is a personal value and right, bearing on the intrinsic self-worth of all
human beings.80 The assessment whether a juristic person bears a constitutional right
to dignity in terms of section 10 entails an enquiry into the nature of the right and the
nature of the juristic person. For the reasons already stated, on both these bases the
answer to that enquiry must emphatically be in the negative. This Court has
authoritatively said so not once, but twice that the nature of the right to dignity is such
that it cannot apply to juristic persons. This settled law must be accorded the requisite
jurisprudential recognition.
[67] In Gcaba, this Court cautioned:
“A highest court of appeal – and this Court in particular – has to be especially cautious
as far as adherence to or deviation from its own previous decisions is concerned. It is
the upper guardian of the letter, spirit and values of the Constitution. The Constitution
is the supreme law and has had a major impact on the entire South African legal order –
as it was intended to do. But it is young; so is the legislation following from it. As a
jurisprudence develops, understanding may increase and interpretations may change.
At the same time though, a single source of consistent, authoritative and binding
decisions is essential for the development of a stable constitutional jurisprudence and
76
Certification Judgment above n 72 at para 57.
77
Bernstein v Bester N.N.O. [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC).
78
Hyundai above n 74 at para 18 (emphasis added).
79
Tulip Diamonds FZE v Minister of Justice and Constitutional Development [2013] ZACC 19; 2013 (2) SACR
443 (CC); 2013 (10) BCLR 1180 (CC) at para 35.
80
Compare to Dawood above n 60 at para 35.
31
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for the effective protection of fundamental rights. This Court must not easily and
without coherent and compelling reason deviate from its own previous decisions, or be
seen to have done so. One exceptional instance where this principle may be invoked
is when this Court’s earlier decisions have given rise to controversy or uncertainty,
leading to conflicting decisions in the lower courts.”81
[68] I have had the pleasure of reading the judgment penned by my Brother,
Unterhalter AJ (second judgment). The second judgment evades the thrust of this
Court’s definitive judgments in Hyundai and Tulip Diamonds because there is no need
to “make a dispositive interpretation on this score”.82 The import of those two cases is
no trifling matter. They provide much of the rationale why trading corporations do not
enjoy the right to general damages. Having established that a trading corporation’s right
to reputation is not sourced in section 10 of the Constitution, I proceed to an analysis of
the judgments in SA Taxi.
The judgments in SA Taxi
Majority judgment of Brand JA
[69] As stated, the High Court regarded itself bound by the Supreme Court of Appeal
precedent in SA Taxi and, understandably, the mining companies place heavy reliance
on the majority judgment. SA Taxi was the first occasion where the Supreme Court of
Appeal and, before it, the Appellate Division, was required to pertinently rule as a
triable issue in the case, what kind of loss is occasioned when a trading corporation sues
for defamation. Neither Fichardt, Spoorbond, Dhlomo, nor Caxton decided this point.
SA Taxi was the first case to do so. It broke new ground in our defamation law as it
relates to trading corporations’ right to sue for general damages.
[70] That case concerned a defamation action instituted by SA Taxi, a finance

company that provides financial assistance to purchasers and lessees of taxis. The
81
Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) at
para 62.
82
Second judgment at [159].
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first defendant, Media 24, published a newspaper, City Press, which was distributed
countrywide in South Africa. The second defendant is the editor of that newspaper.
The action emanated from an article which was published in City Press in June 2008
under the title “Taxi owners taken for a ride by finance body”. SA Taxi claimed
amounts for general as well as special damages (for lost profits). After its exception
was dismissed, Media 24 filed a special plea that challenged SA Taxi’s right to obtain
either general or special damages under the law of defamation. Media 24 contended
that for general damages SA Taxi had no claim at all in defamation, while its claim for
special damages was not available under the actio iniuriarum, from which the action
for defamation derives, but only under the actio legis Aquilia.
[71] After a comprehensive analysis of case law and legal principles, the majority
found it unnecessary to arrive at a final decision as to whether the requirements of a
claim for special damages resulting from defamation should mirror the requirements of
injurious falsehood. In respect of general damages, Brand JA, writing for the majority,
correctly pointed out that in our law, the defamation action originates from the actio
iniuriarum, which was a claim for wounded feelings and not for patrimonial loss. 83 It
was meant to compensate a plaintiff by compelling an intentional wrongdoer to pay a
private penalty to the plaintiff.84 Brand JA referred to the obiter dictum of Innes CJ in
Fichardt, to which I have alluded, and the separate dictum of Solomon JA in that case,
also made obiter. Further reference was made to a later obiter dictum in Spoorbond85
and the uncertainty that prevailed, precisely because even though these were decisions
of the highest court in the land at that time, they were non-binding obiter dicta. Thus,
although the Appellate Division had in these cases expressed strong views that general
damages are available to trading corporations in defamation actions for injury to their
reputation, they did not set precedent. Unsurprisingly, in numerous subsequent cases
83
84
See Visser “Genoegdoening in die deliktereg” (1988) 51 Tydskrif vir Hedendaagse Romeins-Hollandse Reg
468 at 486.
85
Die Spoorbond v South African Railways; Van Heerden v South African Railways 1946 AD 999. There, equally
firm views were expressed by Watermeyer CJ and Schreiner JA in favour of general damages being available to
trading corporations in defamation claims, but again, these were made as obiter. Interestingly, in Spoorbond at
1011, Schreiner JA acknowledged that a corporation has “no feelings to outrage or offend”.
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there were findings both for and against this view (some of these cases have been
mentioned). That uncertainty was settled by the Appellate Division in Dhlomo.86
[72] With reference to a number of decisions of Provincial Divisions, the

Appellate Division and the Supreme Court of Appeal, Brand JA continued and
observed that—
“it has consistently been accepted by our courts, including this court [the Supreme
Court of Appeal], that corporations, both trading and non-trading, have a right to their
good name and reputation which is protected by the usual remedies afforded under our
law of defamation, including a claim for damages.”87
[73] Dealing seriatim with the three principal bases of Media 24’s attack against what
Brand JA regarded as “powerful authority”, the Judge rejected the first two (first, that
as far as trading corporations are concerned, the decisions by the
Supreme Court of Appeal were either obiter or based on assumptions as to the legal
position and second, that they were all wrongly decided). Nothing further need be said
about these two grounds. For present purposes, the findings in respect of the third
ground of attack, that the extension of the common law of defamation to trading
corporations is unconstitutional, is of cardinal importance. It is therefore necessary to
refer in some detail to the majority’s key findings.
[74] The challenge against the constitutionality of placing trading corporations in the
same position as natural persons in respect of general damages awards in defamation
actions was dismissed by the majority:
“Though these are obviously forceful arguments [by Media 24], I am left unpersuaded
that the recognition of a corporation’s claim for general damages in defamation
constitutes an unjustified limitation to freedom of expression. As to the argument based
on the thesis that the reputation of a corporation is not protected by the Constitution, I
86
Dhlomo above n 19.
87
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am not convinced that the premise is well founded. Section 8(4) of the Constitution
provides that ‘a juristic person is entitled to the rights in the Bill of Rights to the extent
required by the nature of the rights and the nature of that juristic person’. Subject to
these qualifications, juristic persons therefore also possess personality rights, which are
protected as fundamental rights.”88 (Emphasis added.)
[75] The majority examined the concept of dignity in our constitutional landscape and
concluded:
“[Dignity] has a wide meaning which covers a number of different values. So, for
example, it protects both the right to reputation and the right to a sense of self-worth.
Under our common law, on the other hand, ‘dignity’ has a narrower meaning. It is
confined to the feeling of self-worth.”
[76] In the latter regard, it cited Khumalo89 and Le Roux.90 It added that—
“[i]t is plain therefore that the protection of ‘dignity’ in section 10 is not confined to
‘dignity’ in the narrower – common law – sense but that it also extends to other
personality rights, and that at least some of these can be possessed by corporations, for
example the right to privacy.”91
[77] The obiter dictum in Financial Mail92 is cited in support of the finding that “[o]ur
common law recognises the personality right of a non-natural person to privacy” – this
is said to be by way of inferential reasoning from that obiter dictum.93 And it was
88
Id at para 43. Reference was made to Neethling “n Vergelyking Tussen die Individuele en Korporatiewe
Persoonlikheidsreg op Identiteit” (2011) Tydskrif vir die Suid-Afrikaanse Reg 62. The title of the article, loosely
translated, is “A comparison between the individual and corporate personality right to identity”.
89
90
91
92
Financial Mail (Pty) Ltd v Sage Holdings Ltd [1993] ZASCA 3; 1993 (2) SA 451 (A).
93
SA Taxi above n 7 at para 45. The passage from Financial Mail reads:
“This Court has held that a trading corporation can sue for damages in respect of a defamation
which injures its good name and business reputation; and that it may recover such damages
without having to prove actual loss . . . . In addition, a corporation so defamed may also claim
damages to compensate it or any actual loss sustained by it by reason of the defamation . . . .
These developments in the law of defamation are not directly pertinent to the issues in the
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MAJIEDT J
pointed out that this Court in Hyundai had confirmed that right to privacy in respect of
juristic persons.94
[78] On the authority of these cited passages in Financial Mail and particularly
Hyundai, the majority held:
“In the light of this historical development it will be anomalous if the corporations’
right to reputation which, through inferential reasoning, gave rise to the
acknowledgement of its right to privacy, would be held not to enjoy the same
constitutional protection as its right to privacy. In the present context, I can see no
conceptual difference between the corporations’ right to privacy, on the one hand, and
its right to reputation, on the other. Both privacy and reputation fall outside the ambit
of the narrow meaning of ‘human dignity’ which a corporation cannot have. At the
same time, they are both included in the wider meaning of ‘dignity’, protected by
section 10 of the Constitution.”95
[79] And, finally, the majority reached the conclusion that:
“But even if the reputation of a corporation is not protected by the Constitution, it by

no means follows that its reputation is not protected by the law of defamation. Though
freedom of expression is fundamental to our democratic society, it is not of paramount
value . . . . Nor does it enjoy superior status in our law . . . . Accordingly, limitations of
the right to freedom of expression have been admitted in the past for purposes not
grounded on fundamental rights . . . . For the reasons I have given, I believe that the
reputation of a corporation is worthy of protection. Moreover, I believe that the
common law rule protecting that reputation is in turn recognised by section 39(3) of
the Constitution. In Khumalo the Constitutional Court considered our common law of
defamation and concluded that it strikes a proper balance between the protection of the
present case, but I refer to them to indicate that as a matter of general policy, the Courts have,
in the sphere of personality rights, tended to equate the respective positions of natural and
artificial (or legal) persons where it is possible and appropriate for this to be done. In the sphere
of defamation this can be done.” (Emphasis added.)
94
Hyundai above n 74. The dictum of Langa DP at paras 17 and 18 was cited.
95
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MAJIEDT J
right to freedom of expression, on the one hand, and the right to reputation, on the
other. As I see it this also applies to the reputation of corporations.”96
[80] The majority found fortification for its findings in the decisions of Steel and
Morris97 and Jameel.98 The ultimate conclusion of the majority that there is nothing
constitutionally objectionable about awarding general damages will be dealt with
presently. Before discussing the minority judgment of Nugent JA, I record the instances
of and reasons for my respectful disagreement with the reasoning in the SA Taxi
majority judgment. Some of these have already been mentioned, but they are repeated
for emphasis. It is convenient to follow the sequence of the findings by the majority as
outlined above.
[81] First, there is the invocation of section 8(4) of the Constitution as support of its
finding that a trading corporation has a right to dignity. That reliance is misplaced for
at least two reasons:
(a) It overlooks the crucial qualification that juristic persons’ entitlement to

the rights in the Bill of Rights is limited to “the extent required by the
nature of the rights and the nature of that juristic person”. As stated, the
Certification Judgment emphasised this qualification. And it bears
repetition that trading corporations can by their very nature not lay claim
to the deeply personal right to human dignity contained in section 10 of
the Constitution – they have no feelings and intrinsic self-worth like
human beings have, which can be assuaged. The myriad facets of human
dignity simply cannot apply to trading corporations as juristic persons.
(b) Furthermore, the majority asserted that “subject to these qualifications,

juristic persons therefore also possess personality rights, which are
protected as fundamental rights”.99 In the context of the majority
96
Id at paras 48 and 49.
97
Steel and Morris above n 22.
98
Jameel above n 12.
99
SA Taxi above n 7 at para 43 (emphasis added).
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judgment as a whole, although reference is made to “fundamental rights”,

what is meant is plainly only the right to human dignity in section 10.
But, for the reasons stated, that cannot be the case. The protectable right
of juristic persons, more particularly for present purposes trading
corporations, to good name and reputation is founded not in the section
10 right to human dignity, but in the uncontroversial common law right
to its reputation (fama, as opposed to dignitas) and arguably in the
equality rights under section 9 and 8(4) of the Constitution.
[82] The second area of my disagreement concerns the view of the majority that—
“the protection of ‘dignity’ in section 10 is not confined to ‘dignity’ in the narrower –

common law – sense but that it also extends to other personality rights, and that at least
some of these can be possessed by corporations, as for example the right to privacy.”100
It will be recalled that in respect of the former aspect, the dictum in Le Roux101 was
relied upon. And in respect of the latter aspect, the dictum of Corbett CJ in
Financial Mail is invoked for support.
[83] Again, there are four conceptual difficulties with this approach. First, the
reliance on Le Roux is misplaced. The distinction finds no application in respect of a
trading corporation, since they simply do not have either wide or narrow dignity under
section 10 of the Constitution. Le Roux concerned the dignity of a natural person,
Dr Dey, the then deputy headmaster of the school which the applicants attended at that
time. Dignity, under section 10, thus occupied a central role in the adjudication of his
100
101
Le Roux above n 2 at para 138. This Court drew a distinction between wide and narrow dignity:
“In terms of our Constitution, the concept of dignity has a wide meaning which covers a number
of different values. So, for example, it protects both the individual’s right to reputation and his
or her right to a sense of self-worth. But under our common law ‘dignity’ has a narrower
meaning. It is confined to the person’s feeling of self-worth. While reputation concerns itself
with the respect of others enjoyed by an individual, dignity relates to the individual’s
self-respect. In the present context the term is used in the common law sense. It is therefore
used to the exclusion and in fact, in contradistinction to reputation, which is protected by the
law of defamation.”
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claims for injury to his dignity and defamation.102 Not so here – no section 10 right to
human dignity is available to a trading corporation. Moreover, as stated, in Hyundai
and Tulip Diamonds, this Court drew no such distinction and unequivocally held that a
juristic person bears no right to human dignity.
[84] The second conceptual difficulty is that, as alluded to, the dictum of Corbett CJ
in Financial Mail was a non-binding obiter dictum. It was a general observation in
passing about what courts have permitted in the past in respect of general damages for
defamation of juristic persons. Here, as in SA Taxi, the pertinent question is whether,
under our constitutional dispensation, our courts should allow such a claim.
[85] The third point of disagreement is the majority’s equating the right to privacy to
the right to dignity, by referencing Hyundai. It is uncontentious that juristic persons
have a right to privacy. But that cannot be summarily equated to the right to dignity.
They are two entirely different concepts, as this Court made clear in Hyundai – juristic
persons have the right to privacy, but they do not bear the right to dignity. This Court
did not base its finding regarding the right to privacy with reference to a right to
reputation or dignity. It was solely focused on the “the possibility of grave violations
of privacy in our society, with serious implications for the conduct of affairs . . . .
[leading] to grave disruptions and would undermine the very fabric of our democratic
state”.103
[86] Lastly, I disagree with the majority’s finding that “[t]hough freedom of
expression is fundamental to our democratic society, it is not of paramount value . . . .
Nor does it enjoy superior status in our law”.104 That finding is untenable. It is based
on a fundamental misconception that the Court in SA Taxi was faced with two
competing fundamental rights that is, the section 16 right to freedom of expression and
the section 10 right to human dignity, but I have already explained why the fundamental
102
En passant, it is noted that members of this Court held divergent views on the merits of the two claims.
103
Hyundai above n 74 at para 18.
104
SA Taxi above n 7 para 48.
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right to dignity does not find application. I reiterate that I accept that another
fundamental right, the right to equality, may well be applicable.
[87] In sum, the majority judgment in SA Taxi is wrong in its reasoning that
undergirds the finding that a trading corporation has a claim for general damages in
defamation, based on the constitutional right to dignity. I unreservedly accept that a
trading corporation has a right at common law to its good name and reputation and that
right is enforceable through a common law claim for defamation. And, as I see it, there
can be no legitimate objection to such a claim also being recognised constitutionally,
particularly in view of the equality protection contained in the provisions of
sections 8(4) and 9 of the Constitution. More about that later. Where I part ways with
the majority reasoning in SA Taxi is, for the reasons advanced, its finding that a trading
corporation has a defamation claim based on the constitutional right to dignity. The
second leg of that finding, the question whether the remedies available to it includes a
claim for general damages, will be considered presently.
Minority judgment of Nugent JA
[88] In his minority judgment, Nugent JA reasoned thus:
“Damages in our law are meant to compensate for loss. Humans suffer loss from
defamation because humans experience feeling, and they experience feeling because
they are alive. They experience the feeling of pleasure and they experience the feeling
of pain. A human experiences the feeling of joy and the feeling of grief. And amongst
the desires of humans is to enjoy the feeling that comes with a dignified life. That
desired feeling waxes when they are held in esteem and it wanes when they are not.
The loss that is compensated for when a human is defamed is the diminution in the
desired feeling that comes with living a dignified human life. What is compensated for
is harm to feelings.
Juristic persons do not experience feeling because they exist but they are not alive.
They are capable of possessing property, and engaging in property transactions,
because the law is capable of giving them that capacity, but the law has no capacity to
bring them to life. They are not capable of sustaining human loss from defamation
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because that is unique to human beings. If a trading corporation sustains loss from
defamation it must necessarily be loss of a different kind.”105
[89] Nugent JA differed from the majority judgment only on the remedy of general
damages, primarily by reason of the fact that to award such damages to a trading
corporation would be punitive in nature and not compensatory. He agreed with the
majority, though, that a trading corporation has a claim for defamation that is not barred
by the Constitution. Nugent JA held that:
“[G]eneral damages to a trading corporation are inherently punitive, and thus not
permitted by our law, from which it must follow that to award general damages to a
trading corporation is also an unjustified intrusion upon the right of free
expression.”106
That is the issue which bears discussion next.
Ought a trading corporation to be awarded general damages for defamation?
[90] Prior to engaging with the question whether awarding general damages to trading
corporations in defamation cases is constitutional, we must first determine whether they
have a right to claim general damages.
[91] It is well established in our law that damages in respect of natural persons to
vindicate reputation and good name is compensatory. Thus, this Court held in Fose:
“Past awards of general damages in cases of defamation, injuria and the like coming
before our courts have sometimes taken into account a strong disapproval of the
defendant's conduct which was judicially felt. That has always been done, however,
on the footing that such behaviour was considered to have aggravated the actionable
harm suffered, and consequently to have increased the compensation payable for it.
Claims for damages not purporting to provide a cent of compensation, but with the
105
SA Taxi above n 7 at paras 79-80.
106
Id at para 65.
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different object of producing some punitive or exemplary result, have never on the
other hand been authoritatively recognised in modern South African law.”107
This authoritative statement of the law still holds true.
[92] The central question in respect of the compensation of harm in respect of the
infringement of a trading corporation’s reputation is whether it can suffer harm other
than patrimonial loss in such instances. Insofar as patrimonial loss is concerned, there
was uncertainty in our law as to whether damages for patrimonial loss flowing from a
defamatory statement should be claimed with the Aquilian action or the actio
iniuriarum.108 The question, left open in Caxton, was answered in SA Taxi where the
Supreme Court of Appeal held that the appropriate action is the actio legis Aquiliae.
Insofar as injury to personality is concerned, the remedy is the actio iniuriarum. That
remedy is mainly directed at providing personal (psychological) satisfaction to a
plaintiff by compelling the defendant to pay a certain amount of money
as solatium (solace) to a plaintiff. It is a remedy for injured feelings. Compensation by
way of providing some or other equivalent for the impaired personality interest does not
feature.109
[93] There is a strongly held view that since a juristic person, as a legal construct,
cannot experience the personal suffering which normally results from the infringement
of a personality interest, it does not have personality rights.110 But there is an equally
strong view, one to which I subscribe, that juristic persons can lay claim to personality
rights because they can objectively suffer personality harm without experiencing
107
Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) at
para 80.
108
Caxton above n 55.
109
Neethling, Potgieter and Visser Law of Delict 6 ed (LexisNexis, Durban 2010) at 250-1.
110
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subjective injured feelings.111 Thus, a juristic person such as a trading corporation has
a legitimate interest in the protection of its reputation.
[94] The objection to affording a juristic person personality rights, which is premised
on the notion that it does not experience wounded feelings, appears to be based on a
misconception. In this regard it is necessary to revert briefly to a consideration of the
actio iniuriarum and its origins. In his Edict, Ulpian provided the classical subdivision
of the Roman delict of iniuria – it could be inflicted upon the corpus (body), fama
(reputation) or dignitas (dignity).112 This exposition was adopted and developed further
in Roman-Dutch law, primarily by Voet. It is the fundamental division of our law of
delict. This Ulpianic distinction is of considerable importance in considering why,
despite not being able to experience “wounded feelings”, a trading corporation as a
juristic person and abstract legal entity could possibly have recourse to a claim for
personality infringement (harm to its reputation) and a claim for general damages.
[95] That distinction not only subdivides the injury in respect of a civil wrong into
these three categories, but it also importantly separated the internal interest of the
claimant which is protected by a solace award (solatium) as the redress for hurt feelings,
from the external interest. In respect of the latter, injured feelings play no role.
Descheemaeker points out that:
“Emotional tranquility – the interest protected through the redress of wounded

feelings – does not stand on a par with the likes of corpus, dignitas and fama. Rather,
it is their reverse side: it is through the violation of their reputation, dignity or body that
plaintiffs will – ordinarily – be wounded in their feelings. They thus operate on a
separate, and parallel, level.” 113
111
Neethling “Personality Rights: A Comparative Overview” (2005) 38 The Comparative and International
Journal of Southern Africa 210 at 244-5.
112
47.10.1.2 (Ulpian, Edict at 56):
“Every contumely is inflicted on the person or relates to one’s dignity or involves disgrace: it is
to the person when someone is struck; it pertains to dignity when a lady’s companion is led
astray; and to disgrace when an attempt is made on a person’s chastity.” (Watson’s translation)
113
Descheemaeker above n 48 at 438.
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[96] Thus viewed, the objection to affording juristic persons personality rights and a
possible claim for general damages falls flat. What matters in this perspective is the
juristic person’s objective external interest, its right to reputation and a good name. The
argument that simply because it has no wounded feelings and it cannot suffer
non-patrimonial loss, then becomes untenable. I am prepared to accept that a trading
corporation can suffer non-patrimonial harm in an infringement of its right to reputation.
That means that in principle, it may be entitled to sue for general damages for that harm.
There is strong support for the development of the common law of defamation to do
away with general damages in defamation claims.114 Thus, in Le Roux, Cameron J and
Froneman J bemoaned the fact that—
“[t]he present position in our Roman-Dutch common law is that the only remedy
available to a person who has suffered an infringement of a personality right is a claim
for damages. One cannot sue for an apology and courts have been unable to order that
an apology be made or published, even where it is the most effective method of
restoring dignity. A person who is genuinely contrite about infringing another’s right
cannot raise an immediate apology and retraction as a defence to a claim for damages.
At best it may influence the amount of damages awarded. This is an unacceptable state
of affairs, illustrated by what happened in this case.”115
[97] What bears consideration next is whether a claim for general damages for
defamation by a trading corporation passes constitutional muster. It bears mentioning
that, under the present rubric, the discussion centred around the question whether, a
trading corporation ought to be awarded general damages for defamation, it having been
established that a trading corporation has a defamation claim available to it, both at
common law and constitutionally. That is the premise being tested for constitutionality
next. It does not concern the question whether a trading corporation has a right at
114
Neethling and Potgieter “Defamation of a Corporation: Aquilian Action for Patrimonial (Special) Damages
and Actio Injuriarum for Non-Patrimonial (General) Damages” (2012) 75 Tydskrif vir Hedendaagse Romeins-
Hollandse Reg 304 at 310-1.
115
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common law and under the Constitution to claim for reputational damage in respect of
harm that is non-patrimonial. I have already accepted that it has that right.
[98] Before that discussion, it is necessary first to say something briefly about the
position of unincorporated entities being eligible for general damages. The second
judgment asserts that what it calls the “presumptive exclusion” of non-trading
corporations: leads to anomalies, gives rise to arbitrariness, and infringes on the right to
equal protection and benefit of the law in section 9(1) of the Constitution.116 But that
is not the approach that I take. I unhesitatingly accept that to distinguish between
different types of entities in respect of the awarding of general damages would be
arbitrary and would implicate section 9 of the Constitution. That is precisely why the
test I propose stands on two legs, namely: (a) the nature of the entity (that is, not a
natural person); and (b) the nature of the speech. While the question in this matter was
posed by the applicants in the context of trading corporations (or for-profit companies),
I emphasise that my judgment concerns all corporate entities, incorporated or not, both
trading and non-trading, for-profit and not. It includes unincorporated businesses,
non-profit organisations (NPOs) as well as political parties. The only distinction I draw
in this judgment is between natural persons and corporate entities.
[99] It is also necessary to dispel the notion in the second judgment that an NPO has
no claim for patrimonial damages. It can obviously claim for lost donations where there
is proof that its goodwill was lost due to the harm caused by defamatory speech. An
NPO does not suffer undue hardship as contended in the second judgment. And while
an NPO, like any other non-trading corporation, also has the right to a good name and
reputation, they are not automatically beyond reproach simply because they do not make
profits.
116
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Constitutionality of awarding general damages to trading corporations: section 36

analysis
[100] For the reasons that follow, I hold that the availability of general damages to a
trading corporation for harm to its reputation infringes the section 16 right to freedom
of speech, specifically in relation to speech which is of public importance or which
requires public debate and participation. Put differently, this limitation analysis must
be conducted in light of (a) the nature of the plaintiff and (b) the nature of the speech
concerned.
Is there a limitation of the right entrenched in section 16 of the Constitution?
[101] Generally, awards of general damages for defamation, particularly in substantial

amounts, tend to have a chilling effect on free speech.117 Self-evidently, if a juristic
person such as a trading corporation suffers harm by way of patrimonial loss as a result
of defamatory remarks and such patrimonial loss can be proved, it has a valid claim.
That much is uncontentious – I did not understand the environmentalists to contend to
the contrary. The bone of contention here is the constitutionality of non-patrimonial
damages. There is an important difference between these two types of damages, one
that is pertinent in the context of this case for the central question presently under
consideration. The severe limitation of the right to freedom of expression, specifically
in debates that are of public importance, by awards of general damages is a breach of
that right. Is this breach justifiable in terms of section 36 of the Constitution?118 What
bears consideration next are the factors outlined in section 36.
117
Dikoko above n 25 at para 92; The Citizen 1978 (Pty) Ltd v McBride [2011] ZACC 11; 2011 (4) SA 191 (CC);
2011 (8) BCLR 816 (CC) at para 132.
118
Section 36 of the Constitution reads:
“(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
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Justification analysis
The nature of the right
[102] The nature and importance of the right to freedom of expression is trite. Ronald
Dworkin identified two categories into which the various defences to free speech can
be classified.119 First, instrumental arguments defend free speech because of what it
can do for us: free speech is important “not because people have an intrinsic moral right
to say what they wish, but because allowing them to do so will produce good effects for
the rest of us”.120 Second, the constitutive conception of free speech sees it as valuable
because expression is an important part of what it means to be human:
“[F]reedom of speech is valuable, not just in virtue of the consequences it has, but
because it is an essential and ‘constitutive’ feature of a just political society that
government treat all its adult members . . . as responsible moral agents. That
requirement has two dimensions. First, morally responsible people insist on making
up their own minds about what is good or bad in life or in politics, or what is true and
false in matters of justice or faith. . . . We retain our dignity, as individuals, only by
insisting that no one – no official and no majority – has the right to withhold an opinion
from us of the ground that we are not fit to hear and consider it.”121
[103] Further, the right to freedom of expression commands an important place in our
constitutional landscape. It is a right which lies at the core of our constitutional
democracy, “not only because it is an “essential and constitutive feature” of our open
democratic society, but also for its transformative potential”.122 In Qwelane, this Court
articulated that “[t]he right to freedom of expression, as enshrined in section 16(1) of
(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights.”
119
Summarised in Currie and De Waal The Bill of Rights Handbook 6 ed (Juta & Co Ltd, Cape Town 2013) at 339.
120
Dworkin Freedom’s Law (Harvard University Press, Cambridge 1996) at 200.
121
Id.
122
Economic Freedom Fighters v Minister of Justice and Correctional Services [2020] ZACC 25; 2021 (2) SA 1
(CC); 2021 (2) BCLR 118 (CC) at para 95.
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the Constitution, is the benchmark for a vibrant and animated constitutional democracy
like ours”.123 And in Democratic Alliance, it held:
“This Court has already spoken lavishly about this right. The Constitution recognises
that people in our society must be able to hear, form and express opinions freely. For
freedom of expression is the cornerstone of democracy. It is valuable both for its
intrinsic importance and because it is instrumentally useful. It is useful in protecting
democracy, by informing citizens, encouraging debate and enabling folly and
misgovernance to be exposed. It also helps the search for truth by both individuals and
society generally. If society represses views, it considers unacceptable, they may never
be exposed as wrong. Open debate enhances truth-finding and enables us to scrutinise
political argument and deliberate social values.
What is more, being able to speak freely recognises and protects ‘the moral agency of
individuals in our society’. We are entitled to speak out not just to be good citizens,
but to fulfil our capacity to be individually human.”124
The importance of the purpose of the limitation
[104] The purpose of the limitation, being the award of general damages, is to restore
a plaintiff’s reputation and/or dignity (depending on the nature of the plaintiff) that has
been harmed by the defamatory speech. This limitation is important to the extent that
it attempts to strike a balance between a defendant’s right to freedom of expression and
protecting a plaintiff’s right to its reputation and/or dignity. However, the scale is
tipped, as is the case here, where the nature of the speech is such that it is of public
importance and the plaintiff is a trading corporation whose reputation rights are not
sourced in the Constitution and are, at best, only enjoyed objectively. In such an
instance, the importance of the limitation shrinks dramatically. Conversely, where the
plaintiff is a natural person whose dignity and reputation rights are sourced in section 10
of the Constitution and/or where the speech concerned is not part of a debate of public
importance, the importance of the limitation increases.
123
Qwelane above n 58 at para 67.
124
Democratic Alliance v African National Congress [2015] ZACC 1; 2015 (2) SA 232 (CC); 2015 (3) BCLR
298 (CC) at paras 122-3.
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[105] This Court has distinguished between “core values” of freedom of expression
and “expression of little value which is found at the periphery of the right”.125 The latter
type of expression receives less protection in that limitation on such forms of expression
is relatively easily justified, compared to expression at the core.126 Thus, certain speech
is more valuable than others and worthy of higher protection – this has a bearing on the
exception made here in respect of general damages where the speech falls within an
important public debate. For example, political expression is at the core of the right.127
Public participation created by activists regarding environmental compliance, or a lack
thereof, by large mining companies which has a negative effect on the communities
surrounding the mines and South Africa generally, would similarly be at the core of the
right and warrant a high standard of protection.
The nature and extent of the limitation
[106] As stated at the outset of this analysis, awards of general damages for
defamation, particularly in substantial amounts, tend to have a chilling effect on free
speech. General damages, in contrast to alternative remedies like patrimonial damages,
undoubtedly constitute a severe limitation on the right to freedom of expression. This
Court has recognised the chilling effect of general damages. In Dikoko, Moseneke DCJ
observed:
“The extent of sentimental damages for defamation has implications for the properly
mediated connection between dignity and free expression. It is plainly so that overly
excessive amounts of damages will deter free speech and foster intolerance to it. As it
is often said, robust awards will have a ‘chilling effect’ on free expression, which is the
lifeblood of an open and democratic society cherished by our Constitution.”128
125
De Reuck v Director of Public Prosecutions, Witwatersrand Local Division [2003] ZACC 19; 2004 (1) SA
406 (CC); 2003 (12) BCLR 1333 (CC) at para 59.
126
Currie and De Waal above n 119 at 341.
127
Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public Prosecutions [2008] ZACC 14; 2009
(1) SA 141 (CC); 2009 (3) BCLR 309 (CC) at para 52.
128
Dikoko above n 25 at para 92.
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[107] The allegations made in this case starkly remind us of the potential chilling effect
an award of general damages may have on the right to freedom of expression.
Axiomatically, the larger the corporation, the more extensive the potential loss of
(future) profits, which would constitute general damages. And, of course, it would be
far higher than the quantum in a general damages award in respect of a natural person.
It is uncontentious, as I see it, that the respondents are large trading corporations. They
appear to mine on an extensive scale. The applicants are natural persons, activists in
the environmental field. The amount of damages sued for is not insubstantial, in excess
of R14 000 000. As stated, our environmental legislation places a high premium on
public participation. And environmental issues are increasingly coming to the forefront
of general public discourse.
Absence of a rational connection between purpose and limitation
[108] Our law has consistently justified general damages with respect to the dignity of
a plaintiff as a means to assuage their sense of self-worth. For the reasons advanced,
trading corporations have no section 10 right to human dignity. I have already
concluded that a trading corporation has, at best, an objectively enjoyed common law
right to reputation. In light of the fact that general damages cannot be justified on this
basis, there is no compelling justification for their limitation on the right to freedom of
expression in an instance such as this.
[109] There is only a very nebulous connection between a general damages defamation
suit and protecting a trading corporation’s bottom line. The current legal position is
that general damages claims do not concern patrimonial loss and loss is not an element
of the delict of defamation. As stated, general damages awarded in defamation are
aimed at assuaging harm done to a natural person’s dignity, not compensating for
patrimonial loss129 and it cannot legitimately and effectively be utilised to compensate
a trading corporation for patrimonial loss suffered due to defamation.
129
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Availability of less restrictive means
[110] There are in any event less restrictive means available to achieve the vindication
of a trading corporation’s reputation where the speech is of the nature that it is
considered important for public participation, as opposed to the unjustified drastic
restriction of the right to freedom of expression that an unqualified award for general
damages entails. These less restrictive means include: an interdict, a declarator, a
retraction, or an apology.
[111] Plainly, in this instance two important rights require to be weighed up against
each other – the common law right to reputation and good name, protected by the
Constitution’s equality provisions, and the constitutional right to freedom of expression.
The finding that an unqualified award of general damages to a trading corporation for a
defamation claim is unconstitutional does not mean that such awards will never pass
constitutional muster. Having recognised a trading corporation’s protectable interest in
its good name and reputation, leads to the question whether general damages in certain
circumscribed instances can bear consideration. This is because general damages are
not confined to awarding some compensation for hurt feelings which a trading
corporation cannot suffer. They are instead a monetary recognition that there is harm
to reputation that does not always reflect in patrimonial loss.
[112] An important consideration here is the context within which the alleged
defamation took place. That alleged defamation concerns engagements over important
issues of public debate, here alleged environmental harm caused by mining. Public
discourse about matters that affect all or many of us and are of grave public concern,
such as damage to the environment, must be encouraged and not stifled in a vibrant
democracy like ours.130 As this Court held in Democratic Alliance, the Constitution
130
Compare The Citizen 1978 (Pty) Ltd v McBride above n 117 at para 141; Khumalo above n 13 at para 141; and
Qwelane above n 58 at para 67.
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“recognizes that people in our society must be able to hear, form and express opinions
freely. For freedom of expression is the cornerstone of democracy”.131
[113] Generally, some relief by way of general damages must be available as

recompense for non-patrimonial harm to juristic persons caused by defamatory
statements. The way to achieve this is to distinguish between speech which forms part
of public discourse on issues of public interest, and that which does not.
[114] As such, the awarding of general damages must have regard to whether the
defamation forms part of public discourse on issues of public interest. This is a pertinent
factor that must bear consideration. Where the defamatory statements are made in the
course of such public discourse on issues of legitimate public interest, general damages
may not be considered. Where the defamation does not form part of the
abovementioned public discourse, the extent of general damages would axiomatically
be determined on a fact-based approach from case to case. Imposing this qualification
for the awarding of general damages would afford courts a discretion to weigh up the
many different factual circumstances in which defamatory speech arises. Gratuitous
defamation of a private corporation upon a matter of no public interest should generally
justify compensation for non-patrimonial harm. Conversely, where there are issues of
public interest the award is not warranted because of the potential of suppressing
important public debate in matters of public interest. Self-evidently, a court exercising
a discretion in these instances would do so judicially, with a weighing up of all relevant
facts and factors.
[115] The second judgment expresses criticism about the approach adopted here to
accept “the constitutional validity of damages for patrimonial loss, but not for general
damages”. It says:
“Indeed, the first judgment holds that general damages, in contrast to alternative
remedies, such as damages for patrimonial loss, constitute a severe limitation on the
131
Democratic Alliance above n 124.
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right to freedom of expression. . . . And so the first judgment leaves unexplained why
general damages have harmful effects upon free speech that damages for patrimonial
loss do not.”132
[116] The first and obvious point to make is that this case does not concern the
constitutional validity of damages for patrimonial loss. The reason for refraining from
making any pronouncement on that aspect is that damages for patrimonial loss were not
the subject of the challenge before this Court.
[117] It is doubtful, in any event, that it is fair to draw the contrast between patrimonial
and general damages, as the second judgment seeks to do. While both these remedies
entail the payment of a sum of money, there are important differences between them:
(a) First, damages for patrimonial loss are claimed by way of the actio legis
Aquiliae and general damages are claimed via the actio iniuriarum.
(b) Second, the purpose of the actio legis Aquiliae is different to that of the
actio iniuriarum.
(c) Thirdly, it follows then that there is a marked difference between the
purpose of damages for patrimonial loss to that of general damages. The
first restores quantifiable patrimonial loss, whereas the other assuages
dignity and hurt feelings or other protectable, non-patrimonial
reputational interests that an entity may have.
[118] There is no precedent to my knowledge, nor has any been proffered by the
second judgment, that a section 36 analysis of the availability of less restrictive means
includes an enquiry into the constitutionality of such less restrictive means. It has never
been our law that an analysis has to be conducted under section 36 into the constitutional
compliance of available remedies that constitute less restrictive means. I am not aware
of any judgment to this effect, particularly of this Court, where there has ever been a
132
See the second judgment at [175] and [177].
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section 36 analysis to test whether the proposed less restrictive means were
constitutionally compliant.
[119] A conspectus of the judgments of this Court reveals that its approach in
determining whether a proposed alternative remedy constitutes less restrictive means,
is simply to demonstrate—
(a) the extent of the limitation imposed by the proposed less restrictive
alternative;
(b) that the extent of the limitation imposed by the less restrictive alternative
is less than the one sought; and
(c) that it has not been demonstrated that the remedy sought would be
materially more effective at achieving the object of the limitation than the
alternative remedy would.
[120] The seminal decision of this Court in Makwanyane,133 where the constitutionality
of the death penalty was in issue, serves as a good example. In concluding that the
death sentence was unconstitutional, this Court considered whether there were any less
restrictive means available to achieve the objects pursued by the death sentence. This
Court considered life imprisonment to be such a less restrictive alternative. A reading
of the judgment reveals that, in finding life imprisonment to be a less restrictive
alternative, this Court did not make a pronouncement on the constitutionality of life
imprisonment.134 This Court simply enquired into whether—
(a) prima facie,135 life imprisonment was capable of achieving the

constitutionally permissible objectives pursued via the death sentence;
(b) the limitation imposed by life imprisonment is less than that imposed by
the death sentence; and
133
Makwanyane above n 59.
134
Such a pronouncement cannot be found in the main and in the concurring judgments. Instead, Ackermann J at
para 170, in his concurring judgment, states that he “appreciate[s] the concern of not wishing to anticipate the
issue as to whether life imprisonment, however executed and administered, is constitutional or not”.
135
I say “prima facie” because it does not appear that there was a robust enquiry into whether and how life
imprisonment is capable of achieving the purposes pursued via the death penalty.
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(c) those defending the death sentence “[had not shown] that the death
sentence would be materially more effective to deter or prevent murder
than the alternative sentence of life imprisonment would [do]”.136
[121] In sum, a court has to do no more than what this Court has done in Makwanayane
as far as the less restrictive means enquiry is concerned. A further, related ground of
criticism in the second judgment is that “the ultimate remedy of a declarator or interdict,
as opposed to an award of general damages, makes very little practical difference to the
calculation of a person as to whether to publish or not”.137
[122] In raising this drawbridge, the second judgment makes what appears to me to be
a self-defeating assertion as it immediately leads to the question: if it is indeed the very
threat of a defamation lawsuit that deters the publication of false speech, what then
would be the purpose of general damages? If, as the second judgment finds, they are
not punitive (which I accept), do not assuage reputational harm any better than a public
apology and are not a true deterrent against publishing false information; then they
really serve no purpose and their infringement of freedom of expression cannot be
justified on any ground in terms of section 36. In any event, the costs of defending any
litigation will, I imagine, exceed the awards of damages by some margin. The threat of
litigation is thus serious, weighty, and will be considered carefully by prudent
individuals (and imprudent ones will not be swayed by it in any event).
136
Makwanyane above n 59 at para 146. And at para 133 this Court stated:
“It has been argued before this Court that one of the purposes of such punishment is to protect
the life and hence the dignity of innocent members of the public, and if it in fact does so, the
punishment will not negate the constitutional norm. On this analysis it would, however, have
to be shown that the punishment serves its intended purpose. This would involve a
consideration of the deterrent and preventative effects of the punishment and whether they add
anything to the alternative of life imprisonment. If they do not, they cannot be said to serve a
life protecting purpose.”
137
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[123] Notably, a similar line of reasoning was advanced by Skweyiya J in his

dissenting judgment in Dikoko.138 That case concerned the immunity from liability for
defamation claims of municipal councillors. There, Skweyiya J held:
“It may well be that it is not so much the eventual outcome of a court case but
rather the possibility of being taken to court in the first place which operates as
a deterrent. Much research has been conducted into this idea in the context of
sentencing, particularly with regards to the efficacy of the death penalty as a
deterrent. The research indicates that it is not so much the sentence which deters
potential criminal perpetrators but the possibility of getting caught. Just as
deterrence in the criminal law context stems from the possibility of getting
caught, rather than the range of possible sentences which may be imposed, so
in the civil context, any ‘chilling effect’ derives most of its potency from the
fact that a person who goes beyond the accepted boundaries of expression may
be sued for defamation.”139 (Emphasis added.)
[124] There is plainly some similarity between this minority approach in Dikoko and
the reasoning in the second judgment here. It cannot be gainsaid that the threat of
litigation constitutes a deterrent to the exercise of free speech. But it does not follow
that, because the threat of getting caught for committing a crime constitutes a greater
deterrent than the punishment, by parity of reasoning the threat of litigation constitutes
a greater deterrent than the damages award or the threat thereof. This is a typical
argument by analogy. Such arguments are only valid to the extent that the two things
being compared are substantially similar. In this case, in order to be valid one would
have to demonstrate that the incentives and disincentives for committing crime are the
same or substantially similar to those for committing an act of defamation. It seems to
me that the incentive and disincentive of the two are markedly different and thus the
argument by analogy does not bear scrutiny.
138
Dikoko above n 25.
139
Id at para 144.
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[125] In any event, the hypothesis postulated here is precisely that – mere conjecture.
Absent any evidence evincing the effect of the threat of litigation constituting a greater
deterrent to freedom of expression than any remedy that a court can award following a
successful defamation claim, there is no basis for the proposition advanced in the second
judgment. In that regard, the approach of this Court in Makwanyane commends itself
to me. There, the Attorney-General had conceded that there is no proof that the death
sentence is in fact a greater deterrent than life imprisonment because, the
Attorney-general said, it was “a proposition that is not capable of proof, because one
never knows about those who have been deterred; we know only about those who have
not been deterred, and who have committed terrible crimes”. This Court in response
held that, while the Attorney-General’s observation was “no doubt true, the fact that
there [was] no proof that the death sentence [was] a greater deterrent than imprisonment
[did] not necessarily mean that the requirements of section 33 [of the Interim
Constitution] cannot be met”.140
[126] As I see it, once it is accepted, as demonstrated earlier and as other courts have
accepted on a number of occasions, that general damages limit the right to freedom of
expression and that the limitation cannot be justified in terms of section 36 of
the Constitution, the limitation imposed by the threat of litigation itself, irrespective of
its degree, matters little. Absent any proof (as opposed to conjecture) that damages for
patrimonial loss constitute a greater deterrent to the exercise of free speech than general
damages, I expressly refrain from expressing an opinion on which remedy is the greater
deterrent, as discussed by this Court in Makwanyane.141 I prefer to confine myself to
the challenge before this Court, and no more. That is the approach adopted in
Makwanyane that, as I have said, commends itself to me.
[127] There is a further self-destructive implication in the second judgment’s

assertion. It is this. Accepting for the moment that, as the second judgment would have
140
Makwanyane above n 59 at para 127.
141
Id.
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it, the threat of litigation itself constitutes a greater deterrent than any available remedy,
that proposition appears to fortify my view that awarding general damages to trading
corporations is unconstitutional. This is so for the following reason. If it is accepted
that: (a) general damages do indeed limit the right to freedom of expression; and (b) the
threat of litigation constitutes a greater deterrent to the exercise of free speech, then it
must follow that the limitation imposed by general damages would further increase the
extent to which the right to freedom of expression is limited. In that event, if the
cumulative extent of the limitation imposed by both the threat of litigation and general
damages is constitutionally unacceptable, it seems to me that general damages, and not
the threat of litigation itself, is the one that must yield to conduce to an overall limitation
that is constitutionally acceptable.
[128] Then, the second judgment observes that false speech seldom has any value (if
at all). My colleague states that “[s]uch speech counts for little in the recognition that
is due to freedom of expression”.142 That is fair comment, but this Court has already
provided some insight in respect of this question. In Islamic Unity, this Court in
endorsing the view of the European Court of Human Rights in Handyside,143 pointed
out that section 16 is “applicable not only to ‘information’ or ‘ideas’ that are favourably
received or regarded as inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb.”144 The point was reiterated in De Reuck.145 In Islamic Unity,
this Court outlined the purview of that section:
“Section 16 is in two parts. Subsection (1) is concerned with expression that is

protected under the Constitution. It is clear that any limitation of this category of
expression must satisfy the requirements of the limitations clause to be constitutionally
valid. Subsection (2) deals with expression that is specifically excluded from the
protection of the right. . . . Where the state extends the scope of regulation beyond
142
143
Handyside v the United Kingdom [1976] ECHR 5.
144
Islamic Unity Convention v Independent Broadcasting Authority and Others [2002] ZACC 3; 2002 (4) SA 294
(CC); 2002 (5) BCLR 433 (CC) at para 26.
145
De Reuck above n 125 at para 49. See also Qwelane above n 58 at para 73.
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expression envisaged in section 16(2), it encroaches on the terrain of protected

expression and can do so only if such regulation meets the justification criteria in
section 36(1) of the Constitution.”146 (Emphasis added.)
[129] Thus, where speech does not fall under section 16(2), the limitation imposed
must pass constitutional muster, irrespective of whether the limitation relates to
defamatory speech. This means that if both the threat of litigation and the remedy
impose a limitation on free speech, both must pass constitutional muster. Remedies
cannot escape scrutiny simply because they follow after a finding that speech is
defamatory. It bears emphasis that the question to be asked here is: prior to any
individual making any type of utterance, whether known or suspected to be defamatory,
does the prospect of being mulcted in damages deter the free exercise of free speech?
The enquiry is not whether, after speech has been found to be defamatory by a court,
the prospect of being mulcted in damages limits the right to freedom of expression.
[130] The second judgment opines that there is no reason why the threat of general
damages by a trading corporation should hold some risk to free speech that other
plaintiffs do not.147 That opinion does not bear scrutiny. The point is not that general
damages by a trading corporation are a greater risk to free speech than other plaintiffs,
but rather that they cannot be justified like they can with natural persons who have hurt
feelings, dignity and self-worth as expounded earlier.
[131] Before concluding on this point, I must discuss the argument made by the second
judgment that awards for general damages are historically modest and therefore do not
pose an unjustifiable threat to freedom of expression.148 All that needs to be said in this
regard is that this reaffirms the point that if the awards are modest they do very little
then to assuage reputational damage. This begs the question, if general damages awards
are so modest, then what purpose do they serve and why would a public apology or
146
147
148
Second judgement at [175] and [177].
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retraction not be sufficient? As such, general damages go no further in restoring the

rights of an unlawfully defamed entity than a public apology or retraction. One could
argue that general damages may be even less effective at restoring an entity’s reputation
if the award of general damages is not published in the media, or ordered together with
a public apology or retraction which makes the unlawful defamation known to the
public.
[132] In sum, the limitation is unjustified and, absent the qualification proposed, does
not bear constitutional scrutiny in terms of section 36. In imposing this qualification,
we would be giving recognition to the value of free speech on matters of public
discourse of genuine public interest, without doing so via a blanket exclusion of general
damages to trading corporations. It is a less restrictive means of vindicating a juristic
person’s reputation. That brings me to a final aspect for consideration, international
and comparative law.
International and comparative law
[133] As is explained in the minority judgment in SA Taxi, comparable jurisdictions

have in recent years legislatively introduced innovative remedies aimed at expeditiously
repairing damaged reputation.149
[134] Libel as a tort has long been recognised in England. The seminal case of
South Hetton150 led the way regarding whether a juristic person may sue for general
damages for defamation. There, the Court of Appeal held that an action of libel will lie
at the suit of an incorporated trading company in respect of a libel calculated to injure
its reputation in the way of its business, without proof of special damages. 151 The
newspaper in that case had published an article strongly critical of the way in which the
plaintiff, a colliery owner, housed its workers, and the company had not pleaded or
See SA Taxi above n 7 at paras 67-70, where mention is made of England’s Defamation Act 1996, Ireland’s
149
Defamation Act 2009, New South Wales’ Defamation Act 2005 and New Zealand’s Defamation Act 1992.
150
South Hetton Coal Company Limited v North-Eastern News Association Limited [1894] 1 QB 133.
151
Id at 138.
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proved any actual damage. It was argued for the publisher that a corporation could have
no personal character, and that the article had not related to the business of the company.
The Court of Appeal unanimously rejected this argument. Lord Esher MR held the law
of libel to be one and the same for all plaintiffs, be they an individual or a corporation.152
Lopes and Kay LJJ concurred, with the latter adding that—
“a trading corporation may sue for libel calculated to injure them in respect of their
business, and may do so without any proof of damage general or special. Of course if
there be no such evidence the damages given will probably be small.”153
[135] In Lewis, Lord Reid pointed out that a company cannot be injured in its feelings
but only in its pocket.154 Derbyshire County Council155 concerned the entitlement of a
local authority, not a trading corporation, to sue in libel. In the court of first instance,
Morland J’s conclusion that the local council could sue was largely premised on the
South Hetton decision. On appeal, counsel for the newspaper sought to distinguish
South Hetton on the ground of the colliery company’s trading character and counsel for
the local authority relied on it. No member of the Court of Appeal questioned the
decision. Balcombe LJ not only accepted South Hetton as binding for what it decided,
but also expressed his agreement with it. In the House of Lords, counsel for the local
authority cited South Hetton. Counsel for the newspaper did not criticise it, but
distinguished it as applicable to a company with a business reputation which a local
authority did not have. In his opinion, with which the other members of the House
agreed, Lord Keith cited South Hetton at some length, and also Gillian,156 in which a
152
Id Lord Esher MR held:
“[I]n every action of libel, whether the statement complained of is, or is not, a libel, depends on
the same question – viz., whether the jury are of opinion that what has been published with
regard to the plaintiff would tend in the minds of people of ordinary sense to bring the plaintiff
into contempt, hatred, or ridicule, or to injure his character. The question is really the same by
whomsoever the action is brought – whether by a person, a firm, or a company.”
153
Id at 148.
154
Lewis v Daily Telegraph Ltd [1964] AC 234 at 262 where the Court held that “[i]ts reputation can be injured
by libel, but that injury must sound in money. The injury need not necessarily be confined to loss on income. Its
goodwill may be injured”.
155
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534.
156
National Union of General and Municipal Workers v Gillian [1946] KB 81.
61
MAJIEDT J
non-trading corporation (a trade union) had been assimilated to a trading corporation.

Despite finding that under English common law a local authority does not have the right
to maintain an action of damages for defamation, Lord Keith nonetheless held:
“The authorities cited above clearly establish that a trading corporation is entitled to
sue in respect of defamatory matters which can be seen as having a tendency to damage
it in the way of its business. Examples are those that go to credit such as might deter
banks from lending to it, or to the conditions experienced by its employees, which
might impede the recruitment of the best qualified workers, or make people reluctant
to deal with it. The South Hetton Coal Company case would appear to be an instance
of the latter kind, and not, as suggested by Browne J., an authority for the view that a
trading corporation can sue for something that does not affect it adversely in the way
of its business.”157
[136] In Shevill,158 decided some three years later by a differently constituted

Committee of the House of Lords, one of the plaintiffs was a trading corporation and
the presumption of damage in libel cases was treated as part of English substantive law.
In sum then, under current English law a trading company with a trading reputation may
recover general damages without pleading or proving special damage if the publication
complained of tends to damage it in the way of its business.
[137] Then there are the two cases of Steel and Morris and Jameel. In Steel and
Morris, the European Court of Human Rights found that the award of damages to a
trading corporation will not necessarily infringe the protection of free speech in
Article 10 of the European Convention on Human Rights.159 That case was decided in
157
South Hetton above n 150 at 547.
158
Shevill v Presse Alliance SA [1995] EUECJ C-68/93 at para 94.
159
Article 10 reads:
“1. Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference by
public authority and regardless of frontiers.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may
be subject to such formalities, conditions, restrictions or penalties as are prescribed by
law and are necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others,
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MAJIEDT J
accordance with the “margin of appreciation” principle. The facts were briefly these.
The defendants had published a pamphlet containing various defamatory statements
about McDonald’s, a multi-national for-profit company. McDonald’s sued the
defendants for defamation and won in the English courts. The defendants approached
the European Court of Human Rights and argued (amongst others) that the English
common law disproportionally interfered with their Article 10 right to free speech.
[138] The Court refused to find that companies should, “in principle”, be deprived of
a right to defend themselves against defamatory allegations. It held that there is an
interest in protecting “the commercial success and viability of companies, for the benefit
of shareholders and employees, but also for the wider economic good”.160 Therefore,
the Court concluded that the United Kingdom “enjoys a margin of appreciation as to
the means it provides under domestic law to enable a company to challenge the truth,
and limit the damage, of allegations which risk harming its reputation”.161
[139] The doctrine of margin of appreciation applies when the European Court for
Human Rights is asked to adjudicate on value judgments made by European states.162
The doctrine is self-evidently wholly inapplicable to constitutional litigation before this
Court. The Court in Morris and Steel went on to find that the defendants’ right to
freedom of expression had been violated. One of the reasons was that the damages
awarded against the defendants were disproportionate. The plaintiffs, despite being
large and powerful corporations, were not in accordance with the principles of English
law required to, and did not, establish that they had in fact suffered any financial loss
as a result of the impugned publication.163
for preventing the disclosure of information received in confidence, or for maintaining

the authority and impartiality of the judiciary.”
160
Steel and Morris above n 22 at para 94 (emphasis added).
161
Id at para 94.
162
Id at para 87.
163
Id at para 96.
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MAJIEDT J
[140] Jameel concerned a defamation claim against the appellant, the publisher of
The Wall Street Journal Europe, described in the majority judgment of Lord Bingham
as “a respected, influential and unsensational newspaper”.164 It was sued by the
respondents, who were prominent Saudi Arabian businessmen, for defamation pursuant
to an article, headed “Saudi Officials Monitor Certain Bank Accounts” with a smaller
sub-heading “Focus Is on Those With Potential Terrorist Ties” published by the
appellant in the The Wall Street Journal Europe. One of the main issues was whether
a trading corporation is entitled to sue and recover damages without pleading or proving
special damages.
[141] The House of Lords split three-two. Lords Bingham, Hope and Scott all held
that trading corporations should be able to sue for general damages. Lord Bingham
provided a detailed overview of English law, including the leading cases of South
Hetton, Lewis and Derbyshire County Council. He considered the newspaper’s
argument that a domestic rule entitling a trading corporation to sue in libel when it can
prove no financial loss is an unreasonable restraint on the right to publish protected by
Article 10 of the European Convention on Human Rights. That argument was rejected
on three principal grounds, including that the question had already authoritatively been
decided in Steel and Morris.165 He also rejected the argument of a possible chilling
effect that a claim by a company may have.166
[142] Importantly, in assessing whether corporations with a commercial reputation

ought to be afforded redress for unjustified injury to reputation, Lord Bingham opined:
“There are of course many defamatory things which can be said about individuals (for
example, about their sexual proclivities) which could not be said about corporations.
But it is not at all hard to think of statements seriously injurious to the general
commercial reputation of trading and charitable corporations: that an arms company
has routinely bribed officials of foreign governments to secure contracts; that an oil
164
Jameel above n 12 at 369.
165
Id at para 20.
166
Id at para 21.
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MAJIEDT J
company has wilfully and unnecessarily damaged the environment; that an

international humanitarian agency has wrongfully succumbed to government pressure;
that a retailer has knowingly exploited child labour; and so on. The leading figures in
such corporations may be understood to be personally implicated, but not, in my
opinion, necessarily so.”167
[143] Lord Bingham rejected the notion that a corporation ought to be restricted to
suing only where it can prove financial loss:
“First, the good name of a company, as that of an individual, is a thing of value. A

damaging libel may lower its standing in the eyes of the public and even its own staff,
make people less ready to deal with it, less willing or less proud to work for it. If this
were not so, corporations would not go to the lengths they do to protect and burnish
their corporate images. I find nothing repugnant in the notion that this is a value which
the law should protect. Nor do I think it an adequate answer that the corporation can
itself seek to answer the defamatory statement by press release or public statement,
since protestations of innocence by the impugned party necessarily carry less weight
with the public than the prompt issue of proceedings which culminate in a favourable
verdict by judge or jury. Secondly, I do not accept that a publication, if truly damaging
to a corporation’s commercial reputation, will result in provable financial loss, since
the more prompt and public a company’s issue of proceedings, and the more diligent
its pursuit of a claim, the less the chance that financial loss will actually accrue.”168
[144] Lord Hope made the point that while a corporation does not have feelings that
can be injured, “[t]rade is its business, and it is injury to its reputation in regard to its
trade that is of the essence in its case”.169 All that is required, is that a trading
corporation must show that it is liable to be damaged in a way that affects its business
as a trading company.170 And Lord Scott agreed that there is no reason of principle why
167
Id at para 25.
168
Id at para 26.
169
Id at para 95
170
Id at para 95.
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MAJIEDT J
the long-standing rule of law enabling a company to pursue a remedy in a defamation

action without the need to allege or prove actual damage should be changed.171
[145] Lord Hoffman and Lady Hale held the opposite view. Baroness Hale
commences her minority speech by stating the trite principle that “[t]he tort of
defamation exists to protect, not the person or the pocket, but the reputation of the
person defamed”.172 She pointed out that:
“[T]he authority for the proposition that a company is in the same position as an
individual is the Court of Appeal decision in South Hetton Coal Company Limited v
North-Eastern News Association Limited [1894] 1 QB 133. This House is therefore
free to overrule it, although of course it would only disturb an authority of such long-
standing if there were good reason, in modern circumstances, to do so. Among those
modern circumstances is the importance now attached in all developed democracies to
freedom of expression, especially on matters of political interest.”173
[146] Baroness Hale urged that the Court should scrutinise the impact of general
damages awards for trading corporations in defamation claims “with some care to see
whether it may have a disproportionately chilling effect upon freedom of speech”.174 In
concurring with Baroness Hale, Lord Hoffmann stated:
“In the case of an individual, his reputation is a part of his personality, the ‘immortal
part’ of himself and it is right that he should be entitled to vindicate his reputation and
receive compensation for a slur upon it without proof of financial loss. But a
commercial company has no soul and its reputation is no more than a commercial asset,
something attached to its trading name which brings in customers. I see no reason why
the rule which requires proof of damage to commercial assets in other torts, such as
malicious falsehood, should not also apply to defamation.”175
171
Id at para 125.
172
Id at para 152.
173
Id at paras 152-3.
174
Id at para 154.
175
Id at para 91.
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MAJIEDT J
[147] For the reasons expounded, I am not persuaded by the minority’s reasoning in
Jameel. In any event, Baroness Hale’s opinion does not support the applicants’ case.
All that she held is that a plaintiff should be obliged to show a likelihood of financial
loss, not actual financial loss, in order to succeed with an action of defamation. 176 She
also did not seek to saddle corporate plaintiffs with the onus of proving falsity and
intent, as the applicants initially contended, an argument which they have now
abandoned.
[148] Likewise, the United Kingdom Defamation Act 2013, does not assist the
applicants. A trading corporation is not required to plead and prove special damages.
In order to claim general damages, a plaintiff is required to plead and prove actual or
likely serious harm.
[149] Trading corporations are permitted to sue for general damages for defamation in
various other jurisdictions, albeit often in restricted form. For example:
(a) In England, it is required that a trading corporation suffers financial loss

due to defamation. It cannot sue for general damages. Courts have
required that such companies adduce evidence as to financial loss to
succeed in defamation suits.
(b) In New Zealand, section 6 of the Defamation Act 1992 allows a body
corporate to bring a claim for defamation where the defamatory
publication has caused, or is likely to cause, the body corporate a
pecuniary loss.
(c) In Australia, various defamation reforms have totally removed the right
to sue for defamation from companies with 10 or more employees. Where
a company has fewer than 10 employees, it must still prove that the
publication has caused, or is likely to cause, serious harm to the
company’s reputation and serious financial loss.
176
Id at para 157.
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MAJIEDT J
(d) In Germany, a company may not be awarded damages for non-pecuniary

loss according to section 253(1) of the German Civil Code.
(e) In Canada, juristic persons can sue for general damages for defamation.
Modest awards for general damages are the norm for corporate plaintiffs
in the absence of proof of actual loss.
(f) In the United States of America, public figures must prove actual malice
on the part of the defendant to be successful in corporate libel claims.
Conclusion
[150] I hold that an unqualified award of general damages to a trading corporation in

respect of harm to its reputation limits the right to freedom of speech. A trading
corporation has no hurt “human” feelings to assuage, to provide solace by way of an
amount for general damages. In this regard, it does not have a right to dignity and
cannot lay claim to the rights in section 10 of the Constitution. Instead, it has a common
law right to its good name and reputation, protected by the Constitution’s equality
provisions, and can enforce that right by a claim for general damages under the
qualification outlined, namely, excluding, in a court’s discretion, in cases of public
discourse in public interest debates. The underlying rationale for this is that it bears
recognition that a trading corporation has a personality right to protect its reputation and
good name. This extends beyond mere goodwill. Subject to this qualification, general
damages are a competent remedy for the unlawful defamation of a trading corporation.
Absent this qualification, a claim for general damages for defamation poses an
unjustifiable limitation on freedom of expression.
Costs
[151] Both parties have attained some measure of success. There should consequently
be no order as to costs, as both are private parties engaged in this litigation.
Order
[152] The following order is issued:
68
MAJIEDT J / UNTERHALTER AJ
1. Leave to appeal directly to this Court is granted.

2. The appeal is upheld to the extent that it is declared that, save for where
the speech forms part of public discourse on issues of public interest, and
at the discretion of the court, trading corporations can claim general
damages for defamation.
UNTERHALTER AJ (Kollapen J concurring):
[153] I have had the pleasure of reading the judgment of my brother, Majiedt J
(first judgment). The first judgment provides a full exposition of the following
propositions. First, a juristic person has no right to human dignity, and hence no right
to the protection afforded by section 10 of the Constitution. Second, a
trading corporation, at common law, has a right to the protection of its reputation. To
impugn the reputation of a trading corporation may cause loss of goodwill. But the
harm it suffers may extend beyond patrimonial loss. A trading corporation thus enjoys
an action under the actio iniuriarum. Third, a trading corporation that suffers harm to
its reputation may claim general damages. However, such a claim is not unqualified in
that if the defamatory speech forms part of public discourse on issues of legitimate
public interest, then a trial court has a discretion to exclude an award of general
damages. This qualification is required because an award of general damages to a
trading corporation that has been defamed would otherwise impermissibly limit the
right to freedom of expression guaranteed by section 16 of the Constitution, and cannot
be justified under section 36 of the Constitution.
[154] Since there are many aspects of the first judgment with which I am in agreement,
I commence by setting these out. First, a trading corporation has a right to protect its
reputation. The reputational harm done to a trading corporation is not reducible to its
goodwill and, as a result, a trading corporation enjoys an action under the
actio iniuriarum to protect its reputation. Second, and for reasons I shall offer, a
trading corporation is not precluded from claiming general damages under the
actio iniuriarum. This is so because general damages are not confined to recompense
69
UNTERHALTER AJ
for hurt feelings, which only a natural person, and not a trading corporation, may suffer.
General damages are compensatory and not punitive, and may therefore be awarded to
a trading corporation.
[155] On a number of matters, regrettably, I am unable to agree with the first judgment.
I commence with the issue raised in this case as to the claim of a trading corporation to
the constitutional right of dignity.
[156] I entertain some doubt that the right conferred by section 10 of the Constitution
cannot be enjoyed by a trading corporation. The injunction of section 8(4) of the
Constitution is that a juristic person is entitled to the rights in the Bill of Rights to the
extent required by the nature of the rights and the nature of the juristic person.
Section 10 of the Constitution is headed “[h]uman dignity”. But the right of everyone
to have their dignity respected and protected is not confined to a narrow conception of
dignity, that is to say, the idea of dignity as a person’s sense of self-worth. Dignity also
embraces a person’s reputation. That is the regard with which others hold a person. We
do not, in general, give a parsimonious reading to the scope of the rights entrenched in
the Bill of Rights. On the contrary.
[157] It follows that the right to dignity in section 10 includes the right to reputation.
The question then is this: who can enjoy the right? Section 10 answers this question:
everyone, it tells us. Whether a trading corporation falls within the class of everyone,
depends upon an application of section 8(4) of the Constitution. There is little question
that a juristic person is capable of enjoying a reputation, and if, as seems
uncontroversial, the content of section 10 extends to dignity in the sense of reputation,
then there seems little reason why the nature of the right should not be of application to
a juristic person. The requirements of section 8(4) are satisfied. On this reasoning,
everyone includes a trading corporation.
[158] The textual obstacle to this interpretation is the heading of

section 10 – “[h]uman dignity”. That can be understood to mean that everyone in
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UNTERHALTER AJ
section 10 references natural persons as legal subjects and excludes juristic persons.
That would be to interpret section 10 as an exception to the general application of
section 8(4), an interpretation of some difficulty. The heading can also be understood
to mean that the conceptions of dignity ordinarily attributable to humans is what
section 10 protects. Whether those conceptions of dignity give rise to any entitlement
by a juristic person is a question determined by section 8(4). And since dignity in
section 10 embraces reputation, and a trading corporation has a reputation to protect,
there is no reason to withhold the entitlement of a juristic person to protect its reputation
under section 10.
[159] I recognise that Hyundai177 says that juristic persons are not the bearers of
human dignity, and Tulip Diamonds178 followed suit. This may have appeared
axiomatic, but as the analysis offered above indicates, there are interpretative questions
that entail some greater nuance. However, for reasons that will become clear, I do not
need to make a dispositive interpretation on this score. For even if a trading corporation
is not entitled to the protection of its reputation under section 10, the trading corporation
does enjoy a common law right to protect its reputation. The first judgment also
supports this proposition.
[160] After the decisions of the Appellate Division in Dhlomo and Caxton, it was made
clear that, at common law, a trading corporation can sue for defamation for an injury to
its reputation. Thus, a trading corporation has a common law right to the protection of
its reputation. This much is uncontroversial. What has occasioned more difficulty is
whether a trading corporation should enjoy the remedy of damages for non-patrimonial
loss in respect of an actionable defamation.
[161] On this point, the Supreme Court of Appeal in SA Taxi was divided. Brand JA,
writing for the majority, held that damages for defamation, at least in the modern law,
177
Hyundai above n 74 at para 18.
178
Tulip Diamonds above n 79.
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UNTERHALTER AJ
need not be based on giving solace for injured feelings. Non-patrimonial damages, even
in the absence of proof of hurt feelings, may be awarded for the harm done to a person’s
reputation. So, even though a trading corporation has no feelings to hurt, it does have
a reputation that may suffer from a defamation in ways that do not amount to lost profits
or a diminution of its goodwill. Non-patrimonial damages compensates for that
harm.179
[162] Nugent JA in SA Taxi held a different position. That difference is narrow, though
important, and its proper demarcation warrants restatement. Nugent JA affirmed the
prior holdings of the appeal court that a trading corporation has an interest in its
reputation that is deserving of legal protection and it is entitled to redress in an action
for damages. As he framed the matter:
“I see no reason why a trading corporation should not have the right to insist that others
must not damage its good name unless they show legal justification for doing so, and
that it is entitled to a legal remedy when that occurs.”180
The point of difference was this: what should that legal remedy be?
[163] Nugent JA considered an award of non-patrimonial damages to a defamed

trading corporation to be a punitive award. The trading corporation has no feelings to
assuage. Damages are for compensation not punishment and, if we cannot identify what
is being compensated by an award of non-patrimonial damages, the law should rather
look to other remedies. The Constitution does not permit of punishment without the
safeguards of criminal proceedings.181 An award of non-patrimonial damages can
therefore not be a justified intrusion upon freedom of expression. Other remedies would
serve to vindicate the reputational interests of a trading corporation. These remedies
179
180
Id at para 78.
181
Fose above n 107 at para 70.
72
UNTERHALTER AJ
are an interdict, declaratory relief, and the publication of a retraction or a correction,

with or without an apology.
[164] What divided the appeal court in SA Taxi was this: the majority held that
non-patrimonial damages could be awarded to a trading corporation that has suffered
an actionable defamation, and that to do so entailed no unjustified limitation of the
constitutional right to freedom of expression.182 The minority found an award of
patrimonial damages, in these circumstances, to be punitive damages and
constitutionally objectionable for this reason.183
[165] The first judgment favours the position taken by the majority in SA Taxi that, in
principle, at common law, the infringement of a trading corporation’s right to its
reputation entitled it to sue for general damages for the non-patrimonial harm suffered
by it.184
[166] I too agree that the award of general damages to a trading corporation is not
excluded, contrary to Nugent JA’s holding in SA Taxi. The premise of Nugent JA’s
judgment is that because a trading corporation has no feelings that may be hurt, the only
basis for an award of general damages to a trading corporation is absent. And hence,
such an award is not compensatory but punitive.
[167] That premise, in my view, only holds good if no basis can be found that would
permit of the conclusion that an award of general damages to a trading corporation for
defamation is compensatory. Nugent JA considered there to be none. That, however,
is not so. It is uncontroversial that, whatever else they may do, general damages offer
compensation for hurt feelings. They do so, not because such feelings permit of any
metric for the quantification of that harm; they plainly do not. General damages for
hurt feelings is solace in the form of money. A monetary award compensates only in
182
183
Id at para 105.
184
Id at para 92.
73
UNTERHALTER AJ
the sense that it is recognition of the hurt inflicted. The award is not restitutionary. The
hurt, once inflicted, cannot be taken away. But a court can mark what has been done
by a monetary award. It is solace. It is restorative in that it recognises the harm and
requires that money be paid. In this sense it is compensatory.
[168] If that is so of hurt feelings, why is an award of damages not apt to compensate
for harm to the reputation of a trading entity that does not amount to patrimonial loss?
There are aspects of reputation that are of great importance to a trading corporation but
are not reflected as goodwill, nor as a quantifiable asset of the firm. It is the firm’s
social capital. It does not appear in the firm’s accounts. But it is nevertheless of value,
seen most clearly when it is harmed and, sometimes, when that harm leads to ruination.
The firm that loses public trust, or is no longer well regarded by employees, or is treated
with suspicion by suppliers, is diminished, even if the harm that it suffers by reason of
an unlawful defamation cannot be fully quantified as lost profits.
[169] Why then should this harm be any less compensable by way of general damages
than the harm arising from hurt feelings? The harm is real. It flows from the
reputational diminishment that the defamation inflicts. Like hurt feelings, the award
cannot put back what has been taken from the firm in this dimension. But it is
restorative. It marks the best a court can do to recognise this harm. And if it is thought
that a monetary award is a modest form of recognition, it is rather more so than a mere
declaration of illegality. A monetary award may be an imperfect form of compensation
for this type of harm, but it is no less so than in the case of general damages for hurt
feelings.
[170] In my view, the common law has recognised that general damages are a
competent remedy for the unlawful defamation of a trading corporation. Its
compensatory function has no more or less utility than its recognition in the case of the
hurt feelings suffered by a natural person as a result of a defamation. Such damages are
not punitive. Once this is so, the holding of Nugent JA cannot prevail.
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UNTERHALTER AJ
[171] What then is the constitutional infirmity that afflicts the recognition at
common law of the trading corporation’s remedy of general damages for an actionable
defamation? The first judgment finds that affliction in the following way. First, an
award of general damages to a trading corporation, unlike an award of damages for
patrimonial loss, has a chilling effect on free speech and, hence, is a severe limitation
of the right of freedom of expression.185 Second, a consideration of the factors in
section 36 of the Constitution does not justify that infringement without a qualification
of the entitlement of the trading corporation to general damages.186 Freedom of
expression commands an important place in our constitutional landscape: it is the
lifeblood of a vibrant democracy and a wellspring of moral agency. 187 A
trading corporation’s right to reputation is not sourced in the Constitution. It is a lesser
right and, hence, compensation for its infringement carries less weight as a basis to
justify the chilling effect that an award of general damages has upon a prized
constitutional right.188 Furthermore, speech that takes place by way of public debate on
matters of importance engages the very core of the right to freedom of expression and,
thus, a constraint on this species of expression requires greater justification.189 Large
trading corporations may command greater awards of general damages, and thus pose
a greater danger to freedom of expression.190 Finally, less restrictive remedies are
available to the trading corporation: an interdict, a declarator, a retraction or an
apology.191
[172] These considerations lead the first judgment to the conclusion that, in a case
where the trading corporation has been unlawfully defamed and claims
general damages, the court has a discretion to exercise as to whether to award
185
See [101] of the first judgment.
186
Id at [132].
187
Id at [102] and [106].
188
Id at [104].
189
Id at [105].
190
Id at [107].
191
Id at [110].
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UNTERHALTER AJ
general damages. Where the defamatory speech forms part of public discourse on
issues of legitimate debate, a court would incline against an award of general damages.
The gratuitous defamation of a trading corporation, engaging no issue of public interest,
would count strongly in favour of making an award. By recourse to this Solomonic
judicial discretion, a proper balance is struck between freedom of expression and the
reputational interests of the trading corporation.
[173] There is a seductive attraction that attaches to the resolution of hard questions of
law by recourse to discretionary judgments that take account of conflicting values so as
to avoid their conceptual resolution. With no small measure of regret, it is an attraction
to be resisted.
[174] I commence with a consideration of the first judgment’s diagnosis of the

constitutional infirmity that attaches to an award of general damages to a
trading corporation that has been unlawfully defamed.
[175] If, at common law, reputational harm may be compensated by an award of

general damages, why does this pose some special, unjustifiable risk to freedom of
expression at the instance of trading corporations that other remedies sought by
trading corporations do not? Given the scale of commercial operations undertaken by
some trading corporations, it is logical to conclude that it is the claims of
trading corporations to compensation for patrimonial loss that would pose the greatest
threat to plaintiffs who would exercise their rights to free speech. This is so because a
trading corporation’s loss of profits, caused by the unlawful defamation, may be
sizeable and quantifiable. The first judgment finds, on the contrary, that general
damages are likely to be greater, and hence pose a greater threat to freedom of speech.
That is not so. At common law, awards of general damages in defamation cases for
non-patrimonial harm have been modest, reflecting the recognition by the courts that
the basis of such awards is somewhat impressionistic, and hence caution is warranted.
Yet the first judgment grants the constitutional validity of damages for patrimonial loss,
but not for general damages. Indeed, the first judgment holds that general damages, in
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UNTERHALTER AJ
contrast to alternative remedies, such as damages for patrimonial loss, constitute a

severe limitation on the right to freedom of expression.192
[176] The first judgment considers a trading corporation to enjoy a valid claim to
damages for patrimonial loss caused by defamatory speech but holds that awards of
general damages made to trading corporations have a chilling effect on free speech.193
This is said to reflect an important difference in the two types of damages. The
first judgment explains that the larger the corporation, the greater its potential loss of
future profits that would constitute general damages and hence the chilling effect of an
award of such damages.194
[177] Our law, in my respectful view, reflects the very opposite of this position. It is
damages awarded to trading corporations for patrimonial loss that may be sizeable
because of the commercial scale of the enterprise, the loss of profits that may result, and
the ability to quantify such loss. Awards of general damages to trading corporations
are generally modest, reflecting the different compensatory basis, as I have explained,
of such awards. The particular harm to free speech that arises from the award of general
damages to a defamed trading corporation is not explained by the enhanced threat such
damages pose, in contrast to an award of damages for patrimonial loss. Quite the
reverse is true. And so the first judgment leaves unexplained why general damages
have harmful effects upon free speech that damages for patrimonial loss do not.
[178] The first judgment goes on to explain that the constitutional validity of damages
for patrimonial loss is not an issue with which this case is concerned.195 And, in any
event, there are important differences between patrimonial and general damages.196 The
first judgment observes that they are remedies that arise from different actions, having
192
193
Id at [101] and [106].
194
Id at [107].
195
Id at [116].
196
Id at [101] and [117].
77
UNTERHALTER AJ
distinctive remedial purposes. That is indeed so. But it is not clear how these
differences explain why it is that general damages awarded to a defamed
trading corporation pose some special danger to free speech that damages for
patrimonial loss do not. And while the constitutional validity of damages for
patrimonial loss is not directly in issue, the first judgment draws a distinction between
the two types of damages to justify its conclusion as to the risk of special harm to free
speech resulting from awards of general damages to trading corporations. This ground
of justification, in my view, cannot be made out.
[179] The first judgment endorses the proposition that the consideration of the
availability of less restrictive means in a section 36 analysis does not entail an enquiry
into the constitutionality of the less restrictive means.197 I have altogether less
confidence that this proposition can hold good, formulated in a manner so unqualified.
I have some doubt that this Court in Makwanyane would have raised no constitutional
query if serial torture had been proposed as a less restrictive means of punishment than
the death sentence. However, the proposition relied upon in the first judgment need not
be resolved because it fails to advance the enquiry. The other remedies available to a
defamed trading corporation that the first judgment considers unobjectionable are not
shown to be less restrictive means to achieve the same purpose as an award of general
damages. The first judgment, as I have endeavoured to show, has not provided any
basis, for example, to suppose that damages awarded for patrimonial loss to a
trading corporation are less restrictive of free speech. Quite the contrary seems
probable. Nor indeed are the other remedies available to a defamed trading corporation
less restrictive means to achieve the same purpose. Each of these remedies has a distinct
remedial purpose.
[180] It is also not evident why the award of non-patrimonial damages at the instance
of a trading corporation poses a distinct and special danger to freedom of speech. Why
does a wealthy individual with a thin skin and deep pockets not constitute an equal or
197
See [118] – [119] of the first judgment.
78
UNTERHALTER AJ
greater danger? The distinction that the first judgment would appear to rely upon is the
claim that a natural person has the right to dignity in section 10 of the Constitution. But
that is simply a reason why the risk of harm to freedom of speech has to be more readily
tolerated. It is not a reason to suppose that general damages claimed by natural persons
are any less inimical to freedom of speech than such a claim made by a
trading corporation. All depends upon the contingent features of a particular plaintiff
and not whether the plaintiff is a trading corporation.
[181] If, as I understand the first judgment, a trading corporation will remain entitled
to other remedies at common law to seek redress for an unlawful defamation, and these
remedies are beyond constitutional reproach, it is hard to see why that is so, but
general damages are constitutionally suspect. The threat of litigation by a
trading corporation is the source of the constraint on a defendant in deciding whether to
publish a defamatory statement. The ultimate remedy of a declarator or interdict, as
opposed to an award of general damages, makes very little practical difference to the
calculation of a person as to whether to publish or not. The remedy of disproportionate
significance is a claim for patrimonial loss, but that is considered by the first judgment
to be constitutionally benign.
[182] The first judgment considers these observations to be self-defeating on the basis
that if general damages pose no greater deterrent to defamatory speech than any other
remedy, then such damages serve no purpose and cannot be justified in terms of
section 36. This is unavailing. It fails to distinguish purpose and effect. The award of
general damages to a trading corporation has an entirely legitimate purpose the
compensation of non-pecuniary loss by reason of reputational harm. That is plainly a
matter to be weighed in terms of section 36(1)(b) and (d) of the Constitution, as to the
importance of the purpose of compensation by way of general damages. The effect of
an award of general damages upon free speech is a different matter.
[183] The first judgment holds that general damages sought by a trading corporation
pose some special danger to freedom of speech that other remedies do not. That danger
79
UNTERHALTER AJ
does not arise, as I have pointed out, from any distinctive deterrence of defamatory
speech to which general damages give rise. But it does not follow that an award of
general damages to a defamed trading corporation is therefore gratuitous, and for this
reason constitutionally objectionable, as the first judgment posits. Our law provides
remedies for civil wrongs primarily to right these wrongs. That means, to make good,
as best the law can, the harm done to, and reasonably apprehended by, the person
harmed. There is agreement that an award of general damages to a defamed
trading corporation is compensation for its reputational harm. Such an award is in no
sense gratuitous. A consequence of such an award or the threat of such an award is that
it may deter defamatory speech. Such an effect may warrant consideration in an
analysis under section 36. The effect may be modest or indistinguishable from the
effects caused by other remedies. But this does not mean that an award of general
damages is pointless.
[184] The first judgment engages my observation that the threat of litigation may do
much of the work to deter defamatory speech, rather than the remedy that is ultimately
given by the courts. The first judgment queries the empirical basis of this observation.
It goes on to say that since general damages have been demonstrated to limit freedom
of expression and cannot be justified, “the limitation imposed by the threat of litigation
itself, irrespective of its degree, matters little”.198 The threat of litigation is simply, on
this view, an additional danger to freedom of speech, that is to say, in addition to the
danger posed by an award of general damages.
[185] This engagement is a distraction. The issue is not what evidence best confirms
what it is that deters free speech, whether it be the threat of litigation or its resulting
remedy. The issue is rather what is it about an award of general damages to a defamed
trading corporation that poses a distinctive danger to freedom of speech that other
remedies do not. The first judgment does not and cannot demonstrate this danger, and
hence cannot justify why general damages sought by a trading corporation warrant
198
80
UNTERHALTER AJ
constitutional condemnation when other remedies are constitutionally permissible. This

is not simply a failure of consistency. It is a pointer, as I shall endeavour to explain, to
the conclusion that the source of constitutional difficulty in this case is not to be found
at the level of remedy, but rather the substantive consideration of what defamatory
speech the Constitution may require a trading corporation to suffer in the interests of
public debate. That is to say, the true issue is not about remedy but about the right to a
substantive defence of public debate: the very terrain that the applicants declined to
pursue before us.
[186] The first judgment thus proceeds from the unsubstantiated premise that the claim
of a trading corporation to an award of general damages poses some special risk to
freedom of expression that its claim to other remedies does not. It further assumes, but
does not explain, that a trading corporation invariably poses a greater risk to freedom
of expression that natural persons do not.
[187] The holding of the first judgment also gives rise to considerable anomaly. The
legal form of a business is often a matter of convenience. There is a diversity of legal
forms in which commerce takes place: incorporated small businesses; unincorporated
but very large partnerships; incorporated professional partnerships; sole traders;
commercial trusts and large public listed companies. The reputational harm that is
visited upon a business by a defamatory statement is not determined by the legal form
in which the business is conducted. Yet the holding of the first judgment considers
there to be a constitutional principle that would incline against the award of general
damages to a trading corporation where the defendant engaged upon public discourse
for a legitimate purpose, but not to an unincorporated business.199 I shall refer to this
principle as the principle of presumptive exclusion. The principle of presumptive
exclusion would thus incline to deny a claim for general damages brought by a small
incorporated family business but not to an unincorporated firm of highly paid
management consultants. Indeed, the principle of presumptive exclusion, favoured by
199
81
UNTERHALTER AJ
the first judgment, gives rise to arbitrariness and, in no small measure, the principle fails
to accord to everyone the right to equal protection and benefit of the law, as section 9(1)
of the Constitution requires.
[188] It is difficult to discern whether the constitutional danger to freedom of speech

that the first judgment apprehends arises because the plaintiff is incorporated or because
the plaintiff is engaged upon commercial trade. If the latter, the law should require that
all whose businesses are defamed, no matter the size of the enterprise, incorporated or
not, would have their claims determined on a discretionary basis under the principle of
presumptive exclusion. The breadth of such a position is untenable. Why should a
small family business unlawfully defamed pose any such danger? If the issue is one of
incorporation, what then of incorporated non-trading entities? Would a not-for-profit
company that does charitable work and suffers reputational harm have no claim for
general damages? This would visit a substantial hardship given that it has no claim for
lost profits. Or would we allow a charitable trust that is similarly harmed to claim such
damages? These questions are not answered in the first judgment because it does not
ultimately explain under what compelling principle the claim of a trading corporation
to general damages holds some special risk for freedom of speech that other persons do
not.
[189] The first judgment recognises that to distinguish between different types of
entities in awarding general damages would be arbitrary but holds to the position that
there remains a defensible basis to treat natural persons differently from “all corporate
entities, incorporated or not, both trading and non-trading, for profit and not”.200 This
distinction is unclear. It would appear to bring under the principle of presumptive
exclusion natural persons who run businesses, but otherwise exclude natural persons
who do not. It would exclude natural persons who undertake charitable work, but
include a trust or not-for-profit company that does the same work. It treats donations
lost to a not-for-profit company as a species of goodwill diminution resulting in
200
82
UNTERHALTER AJ
patrimonial loss that could be claimed (a notion of no small conceptual difficulty), but
would render damage to the not-for-profit company’s other reputational interests
presumptively suspect. The distinction relied upon in the first judgment gives rise to
incurable anomaly.
[190] An award of general damages to a trading corporation is a remedy that a court

may only consider once it has determined that the trading corporation has been
unlawfully defamed. The defendant has thus failed to establish a defence, including
truth in the public interest. That does not necessarily mean that it is proven that the
defamation is false. However, in many cases the speech at issue will have little or no
claim to protection on the basis of freedom of speech. In Khumalo,201 this Court
observed that the publisher of false speech does not have a strong constitutional speech
interest in the publication of false material. Once that is so, there is no basis, a priori,
to rule that the unlawful defamation of a trading corporation presumptively excludes a
claim by it for general damages on the basis that this remedy infringes freedom of
expression. If the speech in issue does not substantially engage the speech interests that
freedom of expression protects, then an award of general damages is doing no
incremental harm to that freedom. That is so because the speech in question forms no
part, or scarcely any part, of the freedom that is constitutionally protected. We are
inevitably driven back to the difficult question that we were ultimately not asked to
answer, that is: when is defamatory speech that engages an important question of public
debate lawful? This is not an issue of remedy but of rights.
[191] The first judgment confirms the decisions of this Court, that section 16 does not
only protect information or ideas that are favourably regarded or innocuous. 202 That is
undoubtedly so. The first judgment considers that this jurisprudence entails adherence
to the proposition that a remedy cannot escape constitutional scrutiny on the basis that
the speech is defamatory.203 This proposition is an oversimplification. Where
201
202
203
Id at [130].
83
UNTERHALTER AJ
defamatory speech substantially fails to engage the speech interests that freedom of
expression protects, a category of speech that extends beyond speech identified in
section 16(2), the remedy of general damages can do no harm to that which is not
protectable. And hence there is no presumptive basis to hold that general damages
sought at the instance of a trading corporation in respect of all defamatory speech is
unconstitutional.
[192] The first judgment, in my view, does not establish a compelling basis to find that
the claim of a trading corporation, unlawfully defamed, to seek general damages is
presumptively constitutionally suspect.
[193] Nor, in my respectful view, does the limitation analysis undertaken in the
first judgment yield the unequivocal conclusions reached. The first judgment’s
limitation analysis rests heavily on the proposition that the right to freedom of
expression is a constitutional right that secures our democratic order and the moral value
of persons, whereas the common law right of a trading corporation to its reputation is a
lesser order of right. A remedy that harms freedom of speech, and redeems a lesser
right, is hard to justify. And, in particular, where freedom of speech is exercised to
engage public discourse on issues of legitimate debate, that is ever more so.
[194] The importance of freedom of speech as the bedrock of a flourishing democracy

cannot be doubted. But the ritual incantation of this proposition should not avoid
another truth. False speech (and sometimes also hateful speech) that harms another’s
reputation will often have little or no value. Such speech counts for little in the
recognition that is due to freedom of expression. It is sometimes not protected speech
to which a person may claim an unqualified right to freedom of expression.
[195] Freedom of speech must be understood not only in an idealised world where
virtuous citizens engage each other in public discourse to debate the issues of the day,
and where an error of falsity is a frailty of editorial oversight, an unguarded excess of
legitimate debate, or a needless exaggeration. The real world of speech today is
84
UNTERHALTER AJ
dominated by social media platforms. These platforms are used by billions of people.
Content is published to millions in an instant. The platforms assume little responsibility
for the content that is posted. They remove content or access in very limited
circumstances and they deny that they are media owners burdened with duties for the
material that appears on their sites. Social media platforms are at once the greatest
means by which freedom of speech may be exercised, and the greatest engine for falsity.
They enhance democratic participation and threaten its foundations.
[196] The law and the Constitution must thread its way through these contradictions.
That is a matter of no small difficulty.
[197] The law of defamation tests truth as a defence, and the failure of a defendant to
make out this defence may mean that not all defamation is assuredly false. But the
incidence of the onus at common law cannot avoid the larger point of principle that
many species of defamatory speech are false (and sometimes also hateful). They can
be extremely harmful to the reputation of persons, and it is difficult in these
circumstances to understand what freedom is being justifiably exercised in publishing
such speech. This is no less true when a trading corporation is defamed. In sum, it is
not the case that the publication of defamatory speech is invariably a legitimate exercise
of freedom of speech. In some instances, it is not.
[198] On the other hand, the right of persons to protect their reputation matters. That
is no less so for a trading corporation. As the first judgment makes plain, the reputation
of a trading corporation is not simply an asset that is used to generate profit.204
Trading corporations are firms of great diversity, from large and powerful companies
to small businesses that support a meagre income for a person or a family. Yet for all
their diversity, these firms cannot simply be reduced to their function of making private
profits. They have social responsibilities beyond this. The reputation of a
trading corporation is part of its social capital. This constitutes a valuable part of what
204
Id at [49].
85
UNTERHALTER AJ
a trading corporation requires to discharge its social responsibilities. In a world where

social media permits the exchange of information in a largely unregulated way to
millions of people in an instant, we should not want to discount the risk thus posed to
reputation and abdicate the law’s response. The right of a trading corporation to protect
its reputation matters, and the common law’s protection of that right must be carefully
weighed.
[199] Of course, between the polarities I have described of false, worthless speech and
the valuable reputational interests of trading corporations, there are many gradations.
So, for example, there is speech that turns out to be false but was published with
reasonable care in the public interest. There are claims to reputational protection from
scoundrels or corporations that engage in exploitative, wrongful or irresponsible
conduct and use the law of defamation to hide their misdeeds. There is speech which
may be controversial, even hurtful, that is the lifeblood of a free and democratic society
and should not be supressed. Navigating these differences is what the common law of
defamation has sought to do. Whether it has done so properly to balance the rights of
persons to reputation and freedom of speech under the discipline of the Constitution, is
a matter of the greatest importance.
[200] I recognise that the first judgment has drawn a particular line to demarcate where
the right of a trading corporation to its reputation by way of a claim for general damages
cannot justify a limitation of free speech. It holds that speech that engages public
discourse on issues of legitimate debate should presumptively be free of the burden of
liability to pay general damages to trading corporations defamed by that speech. 205 I
will call such speech “public speech”.
[201] This delineation runs into the following difficulties. As I have sought to explain,
the correct position is not determined by casting freedom of expression as a higher order
right. Its status as a constitutional right does not avoid the many complexities as to
205
86
UNTERHALTER AJ
when the right is engaged and how strongly it counts. Not all speech enjoys the same
protection, nor does it trump every claim of a trading corporation to the full protection
of its reputational rights.
[202] The first judgment implicitly recognises this, and hence its adoption of
public speech as the basis upon which a trading corporation may be required to forego
general damages. But the very concepts that constitute public speech fail to define
speech that may warrantably free those responsible for it from the claims of defamed
trading corporations seeking general damages. Public discourse is speech that takes
place in public. Social media is the town square writ large. It is pre-eminently the
platform of public discourse. Issues of legitimate debate is a concept of bountiful
elasticity. But a subject may be one of legitimate debate and yet what is said may be
false, even hateful, and reputationally ruinous. So, for example, if on social media
persons are posting about whether an election was fraudulently stolen, that is public
discourse on an issue of legitimate debate. Say a post appears that states that particular
trading corporations funded the campaign of the successful party using the proceeds of
child prostitution. The post is false. Is the author of the post free of liability to pay
general damages?
[203] The first judgment would say so, unless it is found that the falsity of the statement
removed it from constitutional protection. But if that is so, it is the falsity or truth of
the statement and its reputational repercussions that is doing the work to decide whether
to exclude the payment of general damages, and not the concept of public speech.
[204] This example illustrates the fundamental difficulty at the heart of the
first judgment. The issue to be determined is whether a trading corporation that has
been unlawfully defamed is entitled to general damages. But in deciding whether this
remedy is constitutionally permissible, the analysis must proceed from the fact that the
trading corporation has been unlawfully defamed.
87
UNTERHALTER AJ
[205] That gives rise to four interconnected difficulties that I have traversed. First, it
is inexplicable why general damages cause some special harm to freedom of speech that
other remedies enjoyed by the trading corporation do not. Second, there is no reason
why the threat of general damages by a trading corporation holds some risk to free
speech that other plaintiffs do not. Third, the right to freedom of speech must take
account of what speech is used, how it is used, and with what consequences. The right
does not have abstract primacy over reputational rights simply because it is a
constitutional right, and the right to reputation of a trading corporation is, according to
the first judgment, a mere common law right. If the unlawful defamation is a blatant
falsehood that does great reputational harm, the right to freedom of speech has no
primacy. Fourth, the presumption the first judgment crafts in favour of public speech
cannot do the constitutional work required of it, not only by reason of its vague
elasticity, but also because it cannot define the protection it would offer in the face of
falsehood of reputational consequence.
[206] For these reasons, I find no case has been made out to show that the claim of an
unlawfully defamed trading corporation to an award of general damages is
constitutionally excluded, whether presumptively or otherwise. I also do not consider
that even if such a case could have been made, the limitation analysis would fail to
justify the recognition of such a claim. There are many circumstances in which
unlawful defamatory speech is not speech warranting constitutional protection or at
least not protection of a kind that would immunise it from the claim of a defamed
trading corporation to general damages. That claim is specific. It seeks compensation
for a particular species of loss. There is no evident reason why a trading corporation
should forego that claim for compensation simply because other remedies are available
to it. The obligation to pay compensation arises from unlawful speech that has caused
reputational harm. The extent of the limitation upon speech that comes about by reason
of the liability to pay general damages is bounded by the starting premise that the speech
is unlawful. That is itself a justified limitation.
88
UNTERHALTER AJ
[207] I should add that I have much sympathy, indeed admiration, for the efforts of the
first judgment to find a via media so as to redeem the value of free speech in a free and
democratic society. Free speech is an essential right. Those who wish to pursue a cause
should be heard and their speech may be robust. The difficulty in this case is that the
applicants abandoned their defence on the grounds of legality, and left this Court to
decide upon the constitutionality of a particular remedy. That left the applicants having
to show that the trading corporation’s claim for general damages was unconstitutional
in the face of the inevitable premise that the applicants must be taken to have unlawfully
defamed the mining companies with everything that premise entails. A constitutional
challenge that would seek to expunge a compensatory remedy that makes good
reputational harm caused by an unlawful defamation, and then to single out
trading corporations alone for such expungement, is a bridge too far.
[208] However, there are issues of great importance that this case did not ultimately
need to resolve, but which will require consideration in a proper case. I reference the
analysis with which Khumalo ended. In Khumalo, this Court pointed out the following
constitutional difficulty: while a person cannot claim a strong constitutional interest in
protecting their reputation against the publication of truthful but damaging statements,
neither do publishers have a strong constitutional speech interest in the publication of
false material.206 Khumalo went on to observe that burdening either plaintiffs or
defendants with the onus of proving a statement to be true or false was a
“zero-sum game”207 which, in that matter, this Court was saved from having to resolve
because Bogoshi208 had introduced a defence of reasonable publication.
[209] Bogoshi could not have anticipated the revolution that ubiquitous social media
has wrought upon the world. Bogoshi looks back to a time when conventional media,
and in particular the press, was the principal means by which freedom of expression
was enjoyed on a large scale. That world has been overtaken. What may now be
206
207
Id.
208
Bogoshi above n 16 at 1212F-G.
89
UNTERHALTER AJ
considered the media, and to whom a defence of reasonable publication should apply
are matters of great importance. More generally, whether the constitutional right to
freedom of expression permits certain types of speech to be used, by certain actors, for
determined objects, even though that speech may be false and defamatory is a question
of legality that the applicants, as activists, may have raised, but ultimately did not
pursue. Their challenge was limited to the availability of a remedy, namely
general damages to trading corporations. That challenge must fail.
[210] In the result, I would dismiss the appeal with costs, including costs of two
counsel.
90
For the Applicants: G Budlender SC, S Budlender SC,
S Kazee and E Cohen instructed by
Webber Wentzel
For the Respondents: P Hodes SC, J de Waal SC and C Quinn

instructed by Kudo Law

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CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 67/21

In the matter between:

CHRISTINE REDDELL First Applicant

TRACEY DAVIES Second Applicant

DAVINE CLOETE Third Applicant

MZAMO DLAMINI Fourth Applicant

CORMAC CULLINAN Fifth Applicant

JOHN GERARD INGRAM CLARKE Sixth Applicant

MINERAL SANDS RESOURCES (PTY) LIMITED First Respondent

MINERAL COMMODITIES LIMITED Second Respondent

ZAMILE QUNYA Third Respondent

MARK VICTOR CARUSO Fourth Respondent

Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,

Judgments: Majiedt J (majority): [1] to [152]

Heard on: 17 February 2022

Decided on: 14 November 2022

Summary: Defamation — constitutionality of awarding general damages to

Section 16 of the Constitution — section 10 of the Constitution —

1. Leave to appeal directly to this Court is granted.

MAJIEDT J (Madlanga J, Mathopo J, Mhlantla J, Mlambo AJ, Theron J and Tshiqi J

(a) the falsity of the impugned statement;

(a) are false;

The applicants’ principal submissions

The respondents’ principal submissions

limitation of the right to freedom of expression to equate the right of trading

contend the respondents, the references in SA Taxi as to the requirements of the

Jurisdiction and leave to appeal

raises a constitutional issue or an arguable point of law of general public importance;

troubled courts in many other jurisdictions. In all these circumstances, therefore, it

Preliminary remarks on the applicants’ case

[35] It is necessary to interpose briefly to discuss the applicants’ now abandoned

The state of our common law of defamation

“At common law, the elements of the delict of defamation are:

(a) the wrongful and

[41] In that case, Mr Bantubonke Holomisa, a well-known South African politician,

“When considering the constitutionality of the law of defamation, therefore, we need

cases instituted by juristic persons, more particularly trading corporations, against

The current position of trading corporations in our common law of defamation

uncontentious.45 In SA Taxi, the Supreme Court of Appeal affirmed that at

The source of a trading corporation’s reputation rights

[54] Early on in its jurisprudence, this Court in Makwanyane,59 emphasised the

“The importance of dignity as a founding value of the new Constitution cannot be

[56] And in Khumalo, this Court said:

[60] Provisions in the Bill of Rights must be understood contextually and

[61] A company’s right to be treated equally is protected elsewhere – amongst others,

[62] That the right to dignity is undergirded, in part, by a protection of reputational

“[M]any ‘universally accepted fundamental rights’ will be fully recognised only if

[67] In Gcaba, this Court cautioned:

The judgments in SA Taxi

Majority judgment of Brand JA

[70] That case concerned a defamation action instituted by SA Taxi, a finance

[72] With reference to a number of decisions of Provincial Divisions, the

[79] And, finally, the majority reached the conclusion that:

“But even if the reputation of a corporation is not protected by the Constitution, it by

(a) It overlooks the crucial qualification that juristic persons’ entitlement to

(b) Furthermore, the majority asserted that “subject to these qualifications,

judgment as a whole, although reference is made to “fundamental rights”,