In Re: name of the consultant// name of the accused
Opinion
14 June 2024
To:
Prof. Emile Zitzke
Wits Law Clinic
From:
2951261
Introduction:
1. The consultant is … [give brief details about the client, gender, age, major in school if any,
where they reside and if they work]
Material facts:
2. The material facts appear in the brief.
Nature of the brief:
3. A legal opinion is sough on
3.1. Whether the consultant can lay a prima facie case of defamation against the accused.
3.2. Whether the accused can rely on any applicable defences
3.3. Whether the consultant in correct in his/her assessment that the most suitable remedy of
damages is to make the accused pay
3.4. Whether a juristic person can claim general damages to a prima facie case of defamation.
Applicable legal principles and application to the facts
Common law defamation
4. Defamation at common law is defined as the wrongful and intentional publication of
defamatory material about the plaintiff
5. The court in Khumalo v Holomisa laid down the requirements needed for a prima facie case
of defamation to be established [Khumalo]
5.1. Publication
5.2. About the plaintiff
5.3. Defamatory effect
5.4. Wrongfulness
5.5. Intent
6. To establish a prima facie case of defamation, the victim must only prove publication, about
the plaintiff, and defamatory effect [Khumalo].
7. When a prima facie case of defamation is established, the elements of wrongful and intent,
which are presumed are rebutted by the recognized defences [Khumalo].
8. The three elements of publication will now be discussed in turn.
First element: publication
, 9. In the court Le Roux v Dey, the court defined publication as “the communication or making of
defamatory material about the plaintiff in various forms” [Le Roux]
10. The law applies in this matter as follows;
10.1. as appropriate
10.2. as appropriate
10.3. as appropriate
11. Thus, mini conclusion
Second element: about the plaintiff
12. This element consists of two inquires, the first inquiry is whether the victim is capable of
being defamed, and the second inquiry is whether the victim is identifiable from the
publication.
13. Regarding the first inquiry, the general rule is that all natural persons are capable of being
defamed
14. Regarding the second inquiry, a victim is identifiable from a publication when
14.1. the publication specifically refers to the victim by name
14.2. a reasonable person would identify the victim from the context and surrounding
circumstances of the publication
15. The law applies in this matter as follows:
15.1. as appropriate
15.2. as appropriate
15.3. as appropriate
16. Thus, mini conclusion
Third element: defamatory effect
17. This element consists of two steps; the first step is to establish the meaning of the
publication, and the second step is to establish whether the publication harmed the
reputation of the victim.
18. Regarding the first step, the following legal principles must be considered:
18.1. we employ the objective standard of the reasonable observer
18.2. a publication can have a primary and/or a secondary meaning
18.3. a primary meaning in a publication refers to the ordinary grammatical content of the
publication inclusive of its context and insinuations.
18.4. a secondary meaning, which is also known as the innuendo, involves content that
would only be understood by a specific segment of society with a specific knowledge to the
content.
19. Regarding the second step, the following legal principles must be considered:
19.1. The basic test is whether, it is likely that the content has the effect of lowering the
esteem/good name of the victim according to the standard of the reasonable observer
19.2. The following are indicative of a defamatory effect:
19.2.1. when the victim is depicted as being dishonest, immoral or otherwise involved in
dishonorable conduct.
19.2.2. when the victim is likely exposed to hatred, contempt, or ridicule
19.2.3. when the victim is depicted as foolish, absurd, or ridiculous
19.2.4. when the victim is belittled or humiliated
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through EFT, credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying this summary from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller nyakallomoeng. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy this summary for R109,33. You're not tied to anything after your purchase.
