"The  accused is found guilty as charged on counts 1,2,3 and 4". That is the verdict in the criminal proceedings in the matter State vs Katleho Jaqueline Phamotse ("the accused") case number 3/2534/2019 (“Phamotse matter”). The judgment was handed down on 19 September 2023 by the Randburg Magistrate Court.

Yes, you can be found guilty of a crime and actually go to jail for tweeting what you like. The accused in the matter went on Twitter (Now called X) and twitted false information about former Miss South Africa Basetsana Khumalo and her husband, former Vodacom executive Mr Romeo Khumalo who were the complainants in the matter. Not only did she tweet, but she also authored a book titled "I TWEET WHAT I LIKE SO SUE ME".

Well, she was sued. Not in the traditional sense as we commonly know it, where in you get sued in the civil court for defamation of character which results in a damages claim and you are ordered to pay money. The State took matters a little further and charged the accused with "Criminal Defamation". That was count 3 of the charges in the aforementioned case. A new concept for many, but one that has been part of our law for many years. The last reported conviction of such a crime being in 1953 in the matter of R v MacDonald[1].

The court at paragraph 4 of the judgment in the Phamotse matter recorded the Criminal Defamation charge as count 3 and it read as follows:

“In respect of count 3 (Criminal Defamation) it is alleged that:

"In that about 22 February 2019 and at or near Sandton in the District of Johannesburg North the accused unlawfully and intentionally published and authored a book titled “I TWEET WHAT I LIKE SO SUE ME” that referred to case number 507/2018 that related to her case against Julia Basetsana Khumalo which tended to and did injure her reputation. "

The Honourable court stated that "Criminal Defamation consists in the unlawful and intentional publication of matter concerning another which tends to injure another's reputation".

The Supreme Court of Appeal of South Africa in the matter of Luzuko Kerr Hoho (Appellant) v The State (Respondent) case number (493/05)[2] has affirmed that Criminal Defamation had not been abrogated by disuse and that it was consonant with the Constitution.

We've seen a robust development of the law and new precedents being set by the courts. In the famous Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others[3], the constitutional court sentenced former President Zuma to 15 months direct imprisonment. That is a deviation from the usual 30 days suspended sentence in contempt of court matters, especially in civil contempt proceedings. The minority in the matter had favoured a suspended sentence. The order shocked many lawyers.

This trend appears to be continuing and you may find yourself guilty of an old crime if you TWEET what you like. We await to see what sentence the accused will receive.

Accordingly, one should be very careful of what they TWEET. Not only can you expose yourself to a delictual claim for money, but you can also be convicted of a crime. The implications of a conviction if you are a director of a company as an example, may mean you may no longer be legible to hold that position. You will literally have a criminal record against your name.

In the case under discussion, the accused was also found guilty of contempt of court. It would be interesting to see if she is sentenced to 15 months’ imprisonment for contempt of court as was the precedent set in former President Zuma’s case or a different set of rules would apply. It would be even more interesting what the sentence for Criminal Defamation will be. Of course, the ruling may still be appealed.

We leave you with this, TWEET at your own peril.

Written by Karabo Motshwane, Director and Lebogang Jonas, Candidate Attorney; Rams Attorneys