Fresh from his acquittal on charges of sexually molesting a minor, singer Jurie Els is taking aim at media. News24 reports that Els has “requested … police to investigate a charge of defamation against” singer Sonja Heroldt and the newspaper Sondag about remarks she allegedly made after his acquittal. And this is only the begining, Els warned: “I’m also going to drag several other people to court. I want to send a message that people should think before they speak.”
Of course, Els has every right to take legal action to protect his interests. But asking the police to investigate a “charge of defamation”? Defamation is first and foremost a delict, or unlawful act, which gives rise to civil liability. That means a person who has been defamed would seek satisfaction by sueing the defamer for damages. Although criminal defmation is recognised in South African law, prosecutions are exceedingly rare, with only two reported cases since 1953. Because criminal sanctions are much more drastic than an award of damages, the requirements for succeeding in a criminal prosecution are more onerous than in a civil matter. As a judge pointed out in South Africa’s most recent case of criminal defamation, it is much more difficult to secure a conviction on a charge of defamation than it is to succeed in a civil claim for defamation. For example, in a civil action for defamation, the plaintiff merely has to prove that the defamatory words were published; the onus then shifts to the defendant to show that the publication was justifiable, or lawful. In a criminal case, the state has the onus of proving both publication and unlawfulness. Furthermore, the state would have to prove both elements beyond reasonable doubt; in a civil matter, the theshold of proof is much lower, on balance of probabilities.
So why is Els going the route of criminal defamation rather than suing Heroldt and others in the civil courts? One reason could be that a civil action would be protratced and potentially very expensive, while a criminal prosecution would cost Els nothing. But is it right to tie up the resources of state in a personal campaign for vindication, as Els seems to have embarked on? I doubt any of these cases will ever make it to the criminal courts, and I think Els knows it too. It is probably an intimidatory tactic more than anything else.