INTRODUCTION

Freedom of expression is one of the cornerstones of our constitutional democracy. It allows us to speak out, criticise, debate, and hold power to account. In an age dominated by social media, this right feels more accessible than ever; everyone has a platform, and everyone has a voice. But, freedom of expression is not absolute.

Where expression unlawfully infringes upon the reputational interests of another, the law provides recourse. This article considers the balance between these competing rights, with reference to Flentov and Another v Koelma and Another 2025 JDR 4589 (WCC).¹

FREEDOM OF EXPRESSION V DIGNITY

The Constitution of the Republic of South Africa 1996 (“the Constitution”) protects both the right to freedom of expression² and the right to dignity.³ These rights are equally important, but they can, and often do, come into conflict. Section 36 of the Constitution permits the limitation of rights where such limitation is reasonable and justifiable in an open and democratic society. When expression and dignity conflict, courts are accordingly required to undertake a balancing exercise between the competing rights, having regard to the nature, extent, and purpose of the limitation of each right in the particular circumstances.⁴

This balancing exercise becomes especially important in online spaces, where harmful statements can spread like wildfire and cause everlasting damage.

A common misconception is that posts on online platforms are informal and are therefore less serious in nature. Contrary to this, our courts have consistently held that social media posts constitute publication for the purposes of defamation law, even where the content is shared with a small group.

WHAT IS DEFAMATION

Defamation is regarded as the “intentional infringement of another’s right to his good name, or, more comprehensively, the wrongful, intentional publication of words or behaviour concerning another which has the tendency to undermine his status, good name or reputation”.⁵

For a defamation claim to succeed, the applicant bears the onus of proving, on a balance of probabilities, the wrongful, intentional publication of a statement that unlawfully harms his or her reputation.⁶

Courts assess defamation objectively. The question is not how the speaker intended the words to be understood, but how an ordinary, reasonable reader would interpret them. Courts can do this by examining the ordinary meaning of the words and then considering latent meanings.⁷

A respondent may raise several defences to a claim of defamation, for example:

(i) that the statement was true and in the public interest;
(ii) that it constituted fair comment or opinion; or
(iii) that the occasion was privileged.

Furthermore, following the decision in National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA), an additional defence of “reasonableness of publication” is available, which takes into account the nature, tone, and extent of the allegations, as well as the steps taken to verify the information.

CASE ANALYSIS

In Flentov,⁸ the Western Cape High Court was confronted with a pattern of sustained online attacks against the Applicants.

In this matter, the parties became acquainted in June 2020 after joining a Facebook group administered by the First Respondent.

A few months later, the First Respondent posted something about another individual, which prompted the First Applicant to message the First Respondent and indicate that the post amounted to harassment.

Around February 2022, the First Respondent began posting defamatory statements about the First Applicant’s mother, which continued for some time.⁹

In January 2023, the First Respondent escalated her conduct by publishing degrading posts about the Second Applicant. These posts falsely accused the Second Applicant of being a drug addict, portrayed her as dangerous, and attacked her mental health.¹⁰

During January 2024, the First Applicant published an article on the Facebook group highlighting the dangers of failing to oppose an application for an interim protection order. The article arose from a situation where the First Respondent had the Second Applicant arrested under the provisions of the Protection from Harassment Act 17 of 2011, allegedly for violating an interim protection order obtained by the First Respondent.¹¹

Between June to August 2025, the First Respondent continued to post scandalous posts about the Applicants, accusing them of unethical business practices, dishonesty, bullying, and other forms of misconduct. These allegations were later expanded upon when the First Respondent wrote and published a book in which the same statements were repeated and elaborated upon.¹²

During urgent proceedings brought in August 2025, the Court found that the statements were defamatory and caused significant harm to the Applicants’ reputations. The Court held that the Applicants’ right to dignity outweighed the Respondent’s right to freedom of expression, particularly because the injury was undeniable and ongoing. The Applicants’ reputations were tarnished, and they suffered financial harm as a result.¹³

WHAT IS CONTEMPT OF COURT

Contempt of Court occurs when a person deliberately and in bad faith disobeys a Court Order. To establish contempt, three elements must be present: a valid Court Order must exist; the person must have knowledge of the Order; and there must be non-compliance with its terms. Once non-compliance is established, Courts will generally infer wilfulness and bad faith unless the person can provide a genuine and reasonable explanation for their conduct.¹⁴

In this matter, the First Respondent was found to be in contempt of court. Following service of the rule nisi upon her, the First Respondent posted the interim order on her social media pages together with photographs of the Second Applicant, continued to publish scandalous content, and failed to remove the defamatory material as directed. She further advertised her book for sale on Amazon after the website hosting it had been taken down by the Second Respondent in compliance with the order.

As a result, the Court declared her to be in contempt of court, imposed a fine of R5 000.00, and ordered her to pay punitive legal costs on the scale as between attorney and client, reflecting the Court’s strong disapproval of her conduct.¹⁵

CONCLUSION

Strong feelings, personal convictions, or a belief that one is “telling the truth” are not, on their own, legal defences. Responsible expression requires an awareness of both the right to expression and dignity. In a digital world where words travel fast and consequences linger, this balance matters more than ever. Exercising free speech responsibly is not a limitation on democracy; it is a safeguard of it.

If you are uncertain about the legal implications of publishing allegations, or if you are facing reputational harm, obtaining proper legal advice early can make all the difference.