The government or an organ of state is incapable of being defamed, and therefore not entitled to interdict publication of any material it perceives to be defamatory. The state should not use the courts as a means to muzzle or stifle the freedom of its citizens to criticise government, no matter how harsh it may be perceived to be.

This principle is illustrated by Minister of Police and Others v Silvermoon Investments. The Department of Public Works concluded a lease agreement with the respondent company for structures to be occupied by the SAPS. A few years later, a dispute arose between the parties regarding arrear rental, and as a result the respondent tried to evict the SAPS from its premises. After unsuccessful attempts to evict the SAPS and secure payment of arrear rental, the indignant respondent erected a billboard containing disparaging remarks against the department and SAPS. This prompted the government to launch an urgent application for the removal of the billboard. The government alleged that the words in the billboard were both false and defamatory.

The government asked the court to make an order interdicting and restricting the respondent from publishing any false or defamatory information about the department. The court rejected the government’s argument relying on defamation and dismissed the application with costs.

The court found that it is settled law that the government is incapable of being defamed. The government cannot suffer injury by the publication of defamatory statements as to the manner in which one of its activities is carried on. Its reputation is a far more robust and universal thing which is invulnerable to attacks of this nature.

The government or an organ of state may, still have a claim for damages where the publication of false information results in patrimonial (financial) loss. For example, if false information about SARS results in the loss of revenue, SARS may be entitled to a claim for damages against the publisher (or distributor) of the false information.