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[2007] ZASCA 30
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Dendy v University of the Witwatersrand (597/05) [2007] ZASCA 30; [2007] 3 All SA 1 (SCA); 2007 (8) BCLR 910 (SCA); 2007 (5) SA 382 (SCA); (2007) 28 ILJ 2215 (SCA) (28 March 2007)
Links to summary
REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number: 597/05
Reportable
In
the matter between:
MERVYN
DENDY APPELLANT
and
UNIVERSITY
OF THE
WITWATERSRAND
FIRST RESPONDENT
NEIL
GARROD SECOND RESPONDENT
ANDREW
ST QUINTIN SKEEN THIRD RESPONDENT
CORAM
:
SCOTT, FARLAM, VAN HEERDEN, JAFTA et
PONNAN
JJA
HEARD
:
12 MARCH 2007
DELIVERED
:
28 MARCH 2007
SUMMARY:
Constitution
– Delict –
Injuria
–
Alleged
violation of plaintiff’s constitutional right to dignity –
conduct complained of not such as to violate dignity
of reasonable
person – unnecessary to develop common law in terms of s 39 (2)
of Constitution.
Neutral
citation: This judgment may be referred to as
Dendy
v University of the Witwatersrand
[2007]
SCA 30 (RSA).
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
[1] This is an appeal
from a judgment of Boruchowitz J, sitting in the Johannesburg High
Court, in which exceptions to two claims
brought by the appellant
against the first respondent, the University of the Witwatersrand,
were upheld. The judgment of the court
a
quo
has
been reported: see
Dendy
v University of the Witwatersrand and Others
[2005] ZAGPHC 39
;
2005
(5) SA 357
(W).
[2] The claims against
which the exceptions were successfully taken concern alleged injuries
to the appellant’s right to dignity
in terms of s 10 of the
Constitution, and/or at common law. The first claim was said to have
arisen from the manner in which the
appellant’s application for
appointment to a chair of law at the university was dealt with, in
that, so it was alleged, various
procedural irregularities took
place. The appellant contended that these irregularities constituted
a violation of certain of his
rights as entrenched in the Bill of
Rights contained in chapter 2 of the Constitution. Details of the
alleged violation are set out
in paragraphs 2.12 and 2.13 of the
appellant’s particulars of claim, which are quoted
in
extenso
in
para 8 of the judgment of the court
a
quo.
The
second claim concerned an alleged failure by the university or its
agents to furnish the appellant with the reasons that his application
for a chair of law was unsuccessful and with a copy of the minutes of
the meeting of the committee which considered his application.
This
failure, so it was contended, also constituted a wrongful violation
of certain of the appellant’s constitutional rights.
Details of
this alleged violation are set out in paragraph 3.24 of the
appellant’s particulars of claim, which is quoted in
para 51 of
the judgment of the court
a
quo.
In
both claims it was alleged that as a result of conduct complained of
the appellant ‘felt insulted and humiliated . . . and
a
reasonable person in the position of the [appellant] would have felt
so insulted and humiliated.’
[3] Exception was taken
to both claims on the ground that the facts pleaded in support of the
claims were insufficient to disclose
a cause of action, not
reasonably capable of injuring the appellant’s dignity or
causing him insult or humiliation and not
sufficient to justify a
remedy in damages.
[4] The court
a
quo,
in
a careful and comprehensive judgment, rejected the appellant’s
submission that the common law had to be developed in terms
of s
39(2) of the Constitution because it failed to promote the spirit,
purport and objects of the Bill of Rights.
[5] The learned judge
held (at para 27) that the common law position applicable to this
case had been authoritatively laid down by
Melius de Villiers in
The
Roman and Roman Dutch Law of Injuries
(1899)
p 27 in a passage which was approved by the Transvaal Supreme Court
in 1908 (
Rex
v Umfaan
1908
TS 62
at 66) and by this court on a number of occasions, culminating
in
Delange
v Costa
1989
(2) SA 857
(A) at 860I-861A. The passage in question reads as
follows:
‘
(T)here are three essential
requisites to establish an action of injury. They are as follows:-
I. An intention on the part of the
offender to produce the effect of his act;
II. An overt act which the person
doing it is not legally competent to do; and which at the same time
is
III. An aggression upon the right of
another, by which aggression the other is aggrieved and which
constitutes an impairment of the
person, dignity or reputation of the
other.”
[6] The judge continued
(at para 28):
‘
Prior to
Delange
there was judicial
controversy as to whether injury to dignity must be tested
subjectively or objectively. Compare
Walker
v Van Wezel
[1940 WLD 66
at
71] and
Jackson v SA
National Institute for Crime Prevention and Rehabilitation of
Offenders
[1976 (3) SA 1
(A) at 12]
.
In
Delange
the
Court recognized the need for objective limits to be placed on the
action for injury to dignity in order to keep it within manageable
proportions. It accepted that an entirely subjective test of dignity
had the potential for opening the floodgates to successful actions
by
hypersensitive persons who felt insulted by statements or conduct
which would not insult a person of ordinary sensibilities. And
so it
fashioned what is in effect a hybrid test, one that is both
subjective and objective in nature. To be considered a wrongful
infringement of dignity, the objectionable behaviour must be
insulting from both a subjective and objective point of view, that
is,
not only must the plaintiff feel subjectively insulted but the
behaviour, seen objectively, must also be of an insulting nature.
In
the assessment of the latter, the legal convictions of the community
(boni mores)
or
the notional understanding and reaction of a person of ordinary
intelligence and sensibilities are of importance [Neethling’s
Law of Personality
at
194-5]. In
Delange
Smalberger JA summarized
the position as follows [at 862A-G]:
“
(B)ecause proof that the
subjective feelings of an individual have been wounded, and his
dignitas
thereby
impaired, is necessary before an action for damages for
injuria
can succeed, the concept of
dignitas
is
a subjective one. But before that stage is reached it is necessary to
establish that there was a wrongful act. Unless there was
such an act
intention becomes irrelevant as does the question whether
subjectively the aggrieved person’s dignity was impaired.
I do
not understand the judgment of Jansen JA to suggest that all that is
required for a successful action for damages for
injuria
are words uttered
animo
injuriandi
towards another
which offend such person’s subjective sensitivities, and in
that sense impair his
dignitas.
It this were so it could
lead to the courts being inundated with a multiplicity of trivial
actions by hypersensitive persons. (See
Burchell 1977
SALJ
at 7-8; Neethling
Persoonlikheidsreg
2
nd
ed at 193.) According to
Melius
de Villiers op cit
at 37,
‘
(so) long as an act is
outwardly lawful it cannot be an injury, with whatever intention or
motive it may have been committed. Even
when a person entertaining an
injurious intention believes an act which he commits to be injurious
when it really is not such, his
intention will not affect the
character of the act.’
Likewise the character of the act
cannot alter because it is subjectively perceived to be injurious by
the person affected thereby.
In determining whether or not the act
complained of is wrongful the Court applies the criterion of
reasonableness – the “algemene
redelikheidsmaatstaf”
(Marais v Richard en ‘n
Ander
1981 (1) SA 1157
(A)
at 1168C). This is an objective test. It requires the conduct
complained of to be tested against the prevailing norms of society
(ie the current values and thinking of the community) in order to
determine whether such conduct can be classified as wrongful. To
address the words to another which might wound his self-esteem but
which are not, objectively determined, insulting (and therefore
wrongful) cannot give rise to an action for
injuria.
(Walker v Van Wezel (supra)
at
68.)
’
[7] The learned judge
held (at para 29) that the legal position as laid down by this court
in
Delange
v Costa
was
consistent with the Constitution and needed no adaptation to bring it
into harmony therewith.
[8] Applying the law as
laid down in
Delange’s
case he
held (at para 32) that the only ‘overt’ act complained of
was the decision not to appoint the appellant to a chair
of law and
said that there was
‘
nothing inherent in the
decision not to appoint the [appellant] which could conceivably be
characterised as being of an offensive
or insulting character.
Objectively considered the defects of a procedural nature about which
he complains cannot be characterised
as offensive or insulting when
tested against the objective criterion of reasonableness. Moreover
the decision in question was
“
outwardly
lawful”
.’
[9] The learned judge
also held (at para 33) that the appellant’s argument overlooked
the principle affirmed in
Delange
that
only conduct that is offensive or insulting can form the basis of an
action for
injuria.
He held
(at para 34) that, while the constitutional violations alleged may be
wrongful, the conduct upon which they were premised
was not of an
overt character.
[10] The judge also
upheld a contention advanced before him by counsel for the university
to the effect that the plaintiff was not
entitled to bring an action
for damages to obtain redress for the violations of which he
complained because he had had at his disposal
the remedy of review.
He said (at para 35):
‘
The conduct of the Selection
Committee, if proved, would have been reviewable under the common law
and the Constitution [footnote
omitted]. The setting aside of the
decision of the Selection Committee would, in my view, have
constituted sufficient vindication
of the rights that had been
infringed, and would in large measure have assuaged the plaintiff’s
wounded feelings.’
[11] His reasons for
upholding the exception to Claim B are set out in paras 49 to 59 of
his judgment. He held (at para 54) that the
only ‘overt act’
complained of was the refusal to furnish the appellant with the
reasons for his non-appointment and
copies of the minutes. This
refusal was not of an offensive or insulting character and an
application of the principles in
Delange
thus
led on this claim also to the upholding of the exception. Here also
he held (at para 56) that another reason for upholding the
exception
was the fact that there were effective alternative remedies at the
appellant’s disposal, with the result that he
had no right of
action in damages by reason of the violation complained of.
[12] The appellant
advanced a number of wide-ranging arguments in his submissions before
this court, most of which he had advanced
before the court
a
quo
and
which are summarized in its judgment.
[13] Among the arguments
advanced was the contention that the reliance by the court
a
quo
on
the fact that the decision of the selection committee was ‘outwardly
lawful’ and not offensive or insulting was incorrect.
He
submitted in this regard that this doctrine of the common law, which
was affirmed in
Delange’s
case,
required development and modification in terms of s 39(2) of the
Constitution to bring it in line with the increased importance
accorded under the Constitution to human dignity. He also contended
that the court
a
quo
had
erred in holding that the remedy in damages was not available to him
and that he should instead have instituted review proceedings
in
respect of Claims A and B or, in the case of Claim B, brought an
application for access to the reasons for the committee’s
decision under ss 32(1) and 33(2) of the Constitution. In this regard
he pointed out that Boruchowitz J (at para 45 of his judgment)
had
said that ‘[a] successful review or the grant of interdictory
relief obliging [the university] to furnish reasons would
go a long
way to assuage his wounded feelings and at the same time serve to
vindicate the infringement of his fundamental rights.’
In this
regard he submitted that, even if the decision of the selection
committee were set aside on review and the university ordered
to give
him the reasons and the minutes, this would not have the effect of
erasing the hurt, humiliation and insult suffered when
the violations
took place.
[14] I am satisfied that
the two claims under consideration cannot succeed for a reason which
renders it unnecessary to consider the
correctness of these
submissions. I shall assume (without deciding) that these submissions
are correct.
[15] Although as pointed
out by the Constitutional Court (in
National
Coalition for Gay and Lesbian Equality v Minister of Justice
1999
(1) SA 6
(CC) at para 28) - ‘(d)ignity is a difficult concept
to capture in precise terms’
1
,
it is clear, as was pointed out by the court
a
quo
(at
para 14 of its judgment) that ‘(f)or present purposes . . .
there is little difference between the right to dignity as it
is
comprehended under the Constitution and its common-law counterpart.’
That is because what the appellant is claiming is an
award of damages
to assuage his wounded feelings arising from the insult and
humiliation he suffered as a result of the procedural
irregularities
of which he complains and the refusal to give him the reasons for the
committee’s decision and the minutes of
its meeting.
[16] Although, as I have
said, the appellant submitted that part of the
ratio
of the
Delange
decision
is no longer good law, he accepted as still valid the double
requirement recognised in
Delange
that
the conduct complained of must not only be insulting from a
subjective point of view but must also be insulting when viewed
objectively.
That is why he pleaded that a reasonable person in his
position would have felt insulted and humiliated by the conduct of
one or
more of the members of the selection committee and of those
officials of the university who refused to give him the reasons for
the
committee’s decision and the minutes.
[17] As this is an
exception the court has to accept the correctness of the facts
pleaded. This means, amongst other things, that
it must be accepted
that the appellant did feel insulted and humiliated as a result of
the conduct complained of in Claims A and
B. But this court is able,
at this stage already, to decide whether a reasonable person in the
appellant’s position would have
felt insulted and humiliated
thereby. The appellant emphasised in argument before us that his
claims were not based on his failure
to be appointed to a chair in
law, but rather on the manner in which the decision not to appoint
him was arrived at and the subsequent
refusal to give him the reasons
and minutes he asked for. I can understand that he must have been
disappointed and distressed when
he learnt that he had not been
appointed. But, as I have said, he does not claim damages because of
such feelings of disappointment
and distress, nor could he.
[18] The court must also
accept for the purposes of deciding the exception that the
irregularities complained of took place and that
at some stage the
appellant became aware of them. (He could not have felt insulted and
humiliated until he became aware of the irregularities.)
In my
opinion the reaction of a reasonable person in the position of the
appellant who became aware of the manner in which the decision
not to
appoint him had been arrived at and that that decision could
accordingly be set aside on review in consequence thereof would
not
have had feelings of insult and humiliation but rather feelings of
elation and relief. The same applies in relation to the refusal
of
the reasons and the minutes. A reasonable person in the position of
the appellant would have realised that the refusal was not
sustainable and that the university would, if taken to court, be
ordered to provide the reasons and minutes. Here again, the
reasonable
person’s reaction would not have been one of insult
and humiliation.
[19] As feelings of
insult and humiliation were
facta
probanda
on
both Claims A and B it follows, in my view, for the reasons I have
given that both claims fail to disclose a cause of action. It
follows
that the appeal must be dismissed with costs.
[20] The following order
is made:
The appeal is dismissed
with costs, including those occasioned by the employment of two
counsel.
……………
..
IG
FARLAM
JUDGE
OF APPEAL
CONCURRING
SCOTT
JA
VAN
HEERDEN JA
JAFTA
JA
PONNAN
JA
PONNAN JA
[21] I have had the
benefit of reading the judgment of my Brother Farlam with which I am
in agreement. A further aspect that I wish
to address and to which I
now turn, is the contention by the appellant that the court is
obliged by the Constitution to develop the
common law so as to give a
person in his position a claim for damages for breach of his
constitutionally entrenched rights. According
to the appellant, the
common law should be developed in order to render the
actio
injuriarum
available
to a natural person if the defendant wrongfully and intentionally
violates one or more of the plaintiff’s constitutionally
entrenched rights in such a manner as to cause the plaintiff to
suffer hurt, humiliation or insult in circumstances in which a
reasonable
person in the plaintiff’s position would likewise
feel hurt, humiliated or insulted. This development would then, so
the appellant
asserts, enable such a plaintiff to recover from the
defendant a solatium in the form of monetary compensation for the
hurt, humiliation
or insult thus suffered by him or her.
[22] That courts are
enjoined to develop the common law, if this is necessary, is beyond
dispute. That power derives from sections
8(3) and 173 of the
Constitution. Section 39(2) of the Constitution makes it plain that,
when a court embarks upon a course of developing
the common law, it
is obliged to ‘promote the spirit, purport and objects of the
Bill of Rights’ (
S
v Thebus
[2003] ZACC 12
;
2003
(6) SA 505
(CC) at para 25). This ensures that the common law will
evolve, within the framework of the Constitution, consistently with
the basic
norms of the legal order that it establishes
(
Pharmaceutical
Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa
[2000] ZACC 1
;
2000
(2) SA 674
(CC) at para 49). The Constitutional Court has already
cautioned against overzealous judicial reform. Thus, if the common
law is
to be developed, it must occur not only in a way that meets
the section 39(2) objectives, but also in a way most appropriate for
the development of the common law within its own paradigm (
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001
(4) SA 938
(CC) at para 55). (See also
City
of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd
[2007]
SCA 28 (RSA) para 20.)
[23] A court, faced with
such a task, is obliged to undertake a two-stage enquiry. First, it
should ask itself whether, given the
objectives of s 39(2), the
existing common law should be developed beyond existing precedent. If
the answer to that question is a
negative one, that should be the end
of the enquiry. If not, the next enquiry should be how the
development should occur and which
court should embark on that
exercise. (See
S
v Thebus
at
para 26.)
[24] An integral part of
the first enquiry, it seems to me, is to enquire in any given matter
whether the common law is deficient,
and, if so, in what respect. The
appellant is in essence a disgruntled applicant for promotion. He
complains of a range of procedural
irregularities in the assessment
of his candidacy, but not of the resultant decision. His further
complaint relates to the failure
of the University to furnish him
with reasons for his non-appointment or to supply him with copies of
the minutes of the meeting
at which the decision was taken. Those
complaints could have been vindicated respectively by the remedies of
review or a relatively
simple application to compel production of the
documentation and the reasons sought. Those remedies were available
to the appellant
and on his own version he was aware of them, yet he
chose to forego them. Instead he seeks to fashion a novel claim,
which he contends
is mandated by the court’s obligation to
develop the common law in terms of s 39(2) of the Constitution. It
bears noting that
the novelty is entirely self–created, the
appellant having consciously chosen to eschew a range of legal
remedies that have
traditionally served to vindicate the complaints
encountered here. Those remedies in one form or another were
available to the appellant
at all stages of the process. The common
law, which has not been shown to be wanting, was therefore broad
enough to provide the appropriate
relief in this case. The appellant
elected instead to saddle what has proven to be an unruly horse. It
therefore in this instance
could hardly be contended that the common
law was deficient. Much less, in any specific respect. It follows in
my view that the first
postulated enquiry must yield a negative
response. In any event, in his formulation of the development
contended for, the appellant
accepts that the alleged violation of a
plaintiff’s constitutionally entrenched rights must be hurtful,
humiliating or insulting
from both an objective and a subjective
standpoint. Like Farlam JA, I am of the view that the appellant fails
at the objective threshold.
He thus fails to bring himself within the
ambit of his own formulation of the development contended for. It
therefore follows that
this issue warrants no further consideration.
………………
..
V
M PONNAN
JUDGE
OF APPEAL
CONCURRING
:
VAN
HEERDEN JA
JAFTA
JA
1
See
also Stuart Woolman, ‘Dignity’ in Woolman
et
al Constitutional Law of South Africa
2
ed Original Service, paras 36.2 and 36.3; Johann Neethling, ‘Die
betekenis en beskerming van die eer,
dignitas
en menswaardigheid in gemeenregtelike
en grondwetlike sin’ in C Nagel (ed)
Gedenkbundel
vir JMT Labuschagne
85 and Gay Moon
and Robin Allen QC, ‘Dignity Discourse in Discrimination Law.
A Better Route to Equality?’
[2006]
EHRLR
610.