This is a challenging requirement and much debated. It would seem that the courts will sometimes go beyond intention and find that negligence or at least recklessness is adequate, IF it is done in such a manner that it can be deduced that the defendant acted with disregard (to the possibility that the statement may imply the plaintiff) and should have been aware of the possibility, he may be found guilty.
The test on this case is subjective i.e. the defendant (publisher or person who utters of the vexed words or statement) must realize the impact on the plaintiff’s reputation. If the plaintiff argues that is was a mistake or an honest belief that it was justified, this may be a defence (I will deal with this later).
Over and above the impact the defendant must have known that what he/she was doing was wrongful or unlawful (I will deal with this later). The courts have held that the plaintiff must know that the representation is false and that ‘the Plaintiff will or has lost customers’ (Media 24 v SA Taxi Association – SCA 2011).
The court may well find that intention is implied/inevitable as was done in the case of le Roux v Dey (CC 2011) i.e.
‘A defendant who foresaw the possibility that his attempt at humour might be defamatory of the plaintiff, but nonetheless proceeds with the attempt will have animus iniuriandi or intent in the form of dolus eventualis.”
Likewise in the case of Herholdt v Will (South Gauteng High Court 2013) it was held that the comments on social media were not justified and in fact motivated by malice & thus clearly intentional.
The following commentary (www.nolo.com) places the required intention in context (BUT bear in mind that an opinion can be defamatory: it would depend on how you couch it & who you share it with, especially on social media):
“I think that Joe is a jerk,” is an opinion. It’s not a polite opinion, but it is an opinion nonetheless. But “Joe stole $1,000 from his employer” is a statement of fact. If that statement isn’t true, it is defamatory. That is a false statement that clearly can cause injury to Joe. It could get him fired.
This article was written by tourism specialist Advocate Louis Nel, also known as Louis–the–Lawyer.
This article is intended to provide a brief overview of legal matters pertaining to captioned matter and is not intended as legal advice. As every situation depends on its own facts and circumstances, only professional advice should be relied on. Please contact Adv. Louis Nel at firstname.lastname@example.org or on +27 83 679 4556 for further advice.