ABSTRACT
Recently, there has been renewed debate as to what is the proper moral object of our law of defamation. Our courts, led predominantly by the thorough treatment of the issue undertaken by Justices Froneman and Cameron in Le Roux v Dey, argue that the proper ‘gist’ of defamation law is an impairment to one’s reputation. This would seem uncontroversial to many as a matter of precedent. However, more recently some scholars have argued powerfully, relying on both the structure of the defamation claim and on well-respected common law authorities, that whilst reputation may be part of the story it provides an incomplete picture of the law’s proper object in defamation claims. Specifically, Anton Fagan argues that defamation has as its focus something much deeper than reputation and the social regard with which one is held. Instead, the defamation claim is geared towards addressing instances when one has been disrespected and the truth concerning their conduct or character is obscured. Despite Fagan’s criticisms being mostly correct, I argue that both sides of the argument are either wrong or incomplete in their analysis. This is because they miss the point that defamation is aimed at a particular kind of disrespect with a very distinct structure and logic – unjust contempt.
Moshikaro, Khomotso, Unjust Contempt as the ‘Gist’ of Defamation Law (August 12, 2022), Constitutional Court Review (12) 2022.
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