High Court of South Africa, Transvaal Provincial Division – Holomisa v Khumalo and Others 2002 (3) SA 38 (T)
Court membership
Judges sitting
Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O'Regan J, Sachs J, Du Plessis AJ, and Skweyiya AJ
Case opinions
The Constitution does not entail in any circumstances that the common law of delict must require a plaintiff in a defamation action to plead that the defamatory statement is false.
Decision by
O'Regan J (unanimous)
Khumalo and Others v Holomisa is a landmark decision in the South African law of delict. It was decided by the Constitutional Court of South Africa on 21 May 2002. Handing down judgment for a unanimous court, Justice Kate O'Regan held that the existing common law of defamation is consistent with the Bill of Rights. The case emanated from a challenge by members of the press, who argued, in the main, that falsity should be an element of the delict of defamation in suits brought by public officials. However, the court rejected this argument, finding that existing common law does not impose an undue limitation on freedom of expression.
In the law of defamation, Khumalo was significant for measuring the common law against the Constitution, for affirming the link between common-law personality rights and the constitutional right to dignity, and for upholding the reasonableness defence against defamation, which was developed by the Supreme Court of Appeal in National Media v Bogoshi. In constitutional law more broadly, the judgment was significant for its interpretation of section 8 of the Constitution and particularly of provisions on the application of the Bill of Rights to private persons and therefore to private disputes.
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