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The publication of the list drew mixed reactions, with some supporting the publication of the list and others calling it defamatory. In South African law the wrong of defamation is committed whenever anyone publishes a defamatory statement about another living person.
“Defamatory” refers to any allegation that would tend to lower the plaintiff’s – in this case the 11 men’s – standing in the eyes of “right-thinking people”.
The standard of proof – “on the balance of probabilities” – is lower than that applied in criminal cases – “beyond reasonable doubt” – and could potentially be satisfied by victims’ testimony. This protects statements made by someone who is under a moral or legal duty to make them or has an interest in making them to someone else who has an interest in hearing them or a duty to do so.
A typical example is reporting a crime to the police.
It sparked a hashtag, #RUReference List, that trended for days.
In 2015/16, there were 259,165 drug-related offences recorded by the police, a decrease of 2.9%.
This means that 471.1 crimes were recorded for every 100,000 people in the country, down from 492.9 in 2014/15.
Clearly, the liability for defamation is potentially very wide, a scope that reflects the law’s investment in human dignity and reputation in particular.
The allegation that someone is a rapist is undoubtedly defamatory in law.