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.

The case emanated from a defamation lawsuit lodged by Bantu Holomisa, a prominent national politician, in the Transvaal High Court.

As precedent for imposing such an obligation on the plaintiff, the appellants cited the United States Supreme Court in New York Times Co. v Sullivan, which established the actual malice standard.

In any case, in matters invoking the public interest, the appellants contended that existing defamation law – and its low bar for claims – imposed an unjustifiable limitation on the right to freedom of expression, which was guaranteed in section 16 of the Constitution.

Somewhat unusually, the appellants sought to apply the section 16 constitutional right to a private dispute between two non-state parties, which would ordinarily be governed by the common law.

In this regard, O'Regan found: In this case, the applicants are members of the media who are expressly identified as bearers of constitutional rights to freedom of expression.

To succeed, the applicants need to show that the balance struck by the common law, in excluding from the elements of the delict a requirement that the defamatory statement published be false, an appropriate balance has been struck between the freedom of expression, on the one hand, and the value of human dignity on the other.In response to such argument, the applicants had contended that plaintiffs could not assert a strong constitutional interest in protecting their reputations against the publication of truthful statements – that is, per O'Regan, "no person can argue a legitimate constitutional interest in maintaining a reputation based on a false foundation".

Stu Woolman said that, in endorsing Ngcobo's approach, the court had "flatly contradicted itself"; likewise, he criticised the Masiya v Director of Public Prosecutions judgment (in which O'Regan joined) for choosing "to ignore" the precedent of Khumalo.