About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2011
>>
[2011] ZACC 4
|

|

Le Roux and Others v Dey (CCT 45/10) [2011] ZACC 4; 2011 (3) SA 274 (CC) ; 2011 (6) BCLR 577 (CC) (8 March 2011)

Links to summary

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 45/10
[2011] ZACC 4
In the matter between:
HENDRICK PIETER LE ROUX
….............................................................
First
Applicant
BURGERT CHRISTIAAN GILDENHUYS
….......................................
Second
Applicant
REINARDT JANSE VAN RENSBURG
…................................................
Third
Applicant
and
LOUIS DEY
…...................................................................................................
Respondent
with
FREEDOM OF EXPRESSION INSTITUTE
…..................................
First
Amicus Curiae
and
RESTORATIVE JUSTICE CENTRE
….........................................
Second Amicus
Curiae
Heard on : 26 August 2010
Decided on : 8 March 2011
JUDGMENT
INDEX
Paragraph number
Judgment of the Court
1
Order 10
Judgment of Yacoob J (Skweyiya J concurring)
Introduction 11
Factual background 12
Determining the issues 21
Should leave to appeal be granted? 30
Defamation: the interpretive approach 36
Context and construction 40
Construing constitutionally 44
Consequences of application of constitutional requirements 51
Construing the image 55
Dignity 70
Application to lead further evidence 80
Judgment of Brand AJ (Ngcobo CJ, Moseneke DCJ, Khampepe J,
Mogoeng J and Nkabinde J concurring)
Introduction 82
The applicable legal principles 84
Has defamation been established? 93
Wrongfulness 120
Animus iniuriandi
129
Dignity claim 138
Quantum and costs 150
Judgment of Froneman J and Cameron J
Introduction 153
Defamation claim 158
Dignity claim 174
Development of the Roman Dutch common law 195
Costs 204
Order 206
Judgment of Skweyiya J
207
********************
THE
COURT:
Introduction
This
is an application for leave to appeal against a decision of the
Supreme Court of Appeal, in which that Court upheld an
award of
damages to the respondent, Dr Dey. This arose from the publication
by the applicants, then schoolchildren, of a computer-created
image
in which the face of Dr Dey, then a deputy principal of the school,
was super-imposed alongside that of the school principal
on an
image of two naked men sitting in a sexually suggestive posture.
Further details were occluded by the super-imposition
of the school
crest over the genital areas of the two men. The Supreme Court of
Appeal affirmed the judgment of the North Gauteng
Division of the
High Court, Pretoria (High Court) that the publication of this
image defamed Dr Dey, and confirmed the award
of R45 000 in
damages to him.
This
Court, in the judgments that follow, grants leave to appeal,
upholds the appeal, and sets aside the award of R45 000.
In
its stead, this Court grants Dr Dey R25 000. The High Court
costs award the Supreme Court of Appeal granted Dr Dey
is left
intact. However, this Court sets aside the costs award the Supreme
Court of Appeal granted in Dr Dey’s favour,
and substitutes
no order as to costs in that Court. There is also no order as to
costs in this Court. The applicants are, in
addition, ordered to
tender an unconditional apology to him for the injury they caused
him.
Five
members of the Court concur in the judgment of Brand AJ, which
constitutes the judgment of the Court. In this judgment
of the
Court we indicate the further common areas of principle and the
factual findings on which all the members of the Court
agree.
Dr
Dey instituted action for recompense on the basis of two claims –
one based on defamation and the other on the injury
to his
feelings. The High Court upheld both claims, and granted a
composite award of R45 000 in damages. But the Supreme
Court
of Appeal held that to uphold both claims entailed an impermissible
accumulation of actions. The majority of that Court
upheld the
defamation claim, and found accordingly that the additional claim
based on affront to dignity was ill-founded and
required no further
consideration. The Supreme Court of Appeal nevertheless confirmed
the amount the trial court awarded. One
member of the Supreme Court
of Appeal found that Dr Dey had not been defamed, but that his
dignity claim, and so too the amount
of damages, should be upheld.
Six
members of this Court, in a judgment by Brand AJ in which Ngcobo
CJ, Moseneke DCJ, Khampepe J, Mogoeng J and Nkabinde J
concur,
affirm the finding of the majority of the Supreme Court of Appeal
that the image was defamatory of Dr Dey. They further
conclude that
if the defamation claim had not prevailed the image was in any
event an injury to Dr Dey’s feelings.
The
joint judgment by Froneman J and Cameron J concludes that Dr Dey
was not defamed, but that his feelings were actionably
injured.
Yacoob J concludes that Dr Dey’s claim should have failed
entirely. Skweyiya J concurs with Yacoob J, and sets
out his
reasons in a separate judgment.
All
members of the Court agree with the factual exposition contained in
the judgment of Yacoob J (paras 11 to 20), with his
exposition of
the issues (paras 21 to 28), with his reasoning and conclusion
regarding the grant of leave to appeal (paras
30 to 35), and with
his decision and reasoning regarding the application to lead
further evidence (para 80).
Save
for Yacoob J and Skweyiya J, who do not reach these issues, all
members of the Court further endorse the exposition regarding
the
applicable legal principles of the law of defamation in the
judgment of Brand AJ (paras 84 to 91) and in the judgment of

Froneman J and Cameron J (paras 154 to 157 and 168 to 173). Save
for Yacoob J and Skweyiya J, all members of the Court also
agree
with the exposition in the judgment of Brand AJ regarding
wrongfulness (paras 120 to 128) and
animus iniuriandi
(paras
129 to 137).
All
members of the Court in addition endorse the exposition in the
judgment of Froneman J and Cameron J about apology (paras
195 to
203) and, save for Mogoeng J, regarding expression about
constitutionally protected groups (paras 181 to 189). In addition,

all members of Court, barring Yacoob J and Skweyiya J, concur in
the order contained in the judgment of Froneman J and Cameron
J,
which is also set out immediately below.
The
following order is granted:
The
application to lead further evidence is dismissed.
The
orders granted in the High Court and Supreme Court of Appeal are
both set aside and replaced with the following:
The
defendants are ordered, jointly and severally, to pay the
plaintiff R25 000 as compensation.
In
addition, the defendants are ordered to tender an unconditional
apology to the plaintiff for the injury they caused him.
The
defendants are ordered, jointly and severally, to pay the
plaintiff’s costs in the High Court.
There
is no order as to costs in this Court and in the Supreme Court of
Appeal.
YACOOB J:
Introduction
This
application for leave to appeal is about the determination of
liability of children for defamation or for injured feelings
in the
light of the values and certain of the fundamental rights enshrined
in our Constitution. The three applicants want to
challenge the
correctness of a judgment of the Supreme Court of Appeal holding
them liable for damages in the sum of R45 000
and costs, consequent
upon a finding that they had wrongfully and intentionally published
defamatory material concerning the
respondent.
1
The Supreme Court of Appeal confirmed the award of damages by the
High Court but increased the scale of the High Court’s
costs
award from that of the Magistrates’ Court to that of the High
Court.
2
I will refer to the first applicant as Mr Le Roux, the second
applicant as Mr Gildenhuys and the third applicant as Mr Janse
van
Rensburg. The respondent will be referred to as Dr Dey.
Factual
background
The
publication of the alleged defamatory material took place during
February/March 2006 at a high school in Pretoria which
had more
than 2000 learners. Dr Dey was at that time the deputy principal of
the school having served in that capacity for
11 years. The
applicants were all learners at the school: Mr Le Roux was about
15½ years old while Messrs Gildenhuys
and Janse van Rensburg
were about 17 years old.
The
defamatory material complained of is an image. It is not disputed
that the image
3
was created by Mr Le Roux in the following way. At home one Sunday,
Mr Le Roux was surfing the internet and, while on the website
of
his school, saw pictures of the principal and that of Dr Dey. These
pictures brought to mind an audio visual programme he
had seen
called
South Park
in which the head of a boy was, presumably
electronically, placed on the body of a gay bodybuilder by another
boy. It was then
that he thought that the transposition of the
heads and faces of the school principal and that of Dr Dey on to
gay bodybuilders
might result in an enjoyable spectacle.
He
went to a site apparently dedicated to gay bodybuilders and there
found a picture of two men naked and sitting next to each
other in
sexually suggestive and intimate circumstances. They sat close with
the right leg of one over the left leg of the
other and with their
hands evocatively in the region of their genitals. Mr Le Roux
attached the head and face of Dr Dey to
one of these bodies and the
head and face of the principal to the other. Although the evidence
is not clear on this, it seems
probable from an examination of the
image that at least part of the heads and faces that represented
the image were first removed.
It is clear from the image though, as
pointed out by the judge in the High Court, that the heads and
faces on the image before
manipulation had not been completely cut
out. Mr Le Roux then took the school badge from the school website
and placed one
on each of the bodies on the image so as to obscure
the hands and genitals. It took him much less than five minutes to
perform
this exercise.
Apparently
satisfied and amused by his own handiwork, Mr Le Roux felt the need
to share his achievement with a close friend
and sent it to his
friend’s cellphone using the same computer. He went to church
later that day and met that friend who,
in his presence, sent the
image to the cellphone of another learner at the school. When he
saw this happen, he implored his
friend to desist from distributing
the image to anyone else, emphasising that the image should be, as
it were, for his eyes
only. Mr Le Roux understandably became
concerned about the consequences of the wide circulation of the
image and in particular,
the possible response of the authorities
at the school, more especially the responses of the principal and
Dr Dey, when they
came to know of the production and circulation of
the image. Any schoolchild of that age would have foreseen trouble
upon the
discovery of that image. He had clearly done something
wrong as far as school discipline was concerned.
We
do not know whether Mr Le Roux’s friend further published the
image despite Mr Le Roux’s entreaties not to do
so. But it
comes as no surprise that the image was circulated by cellphone
amongst many of the schoolchildren against Mr Le
Roux’s
wishes.
Some
days later, Mr Gildenhuys, who had received a copy of the image on
his cellphone, thought it would be a good idea to print
and take it
along with him to school for the purpose of showing it to others
there. He printed the image which was 14cm broad
and 12cm high on
the top half of an A4 piece of paper. The image was in colour and
slightly bigger than a postcard. He took
the printout to school the
next day and showed it to several other learners. One of them
suggested that the printout be placed
on the school noticeboard. Mr
Janse van Rensburg agreed to perform this task. I might mention
that he had earlier shown that
image on his cellphone to an
educator at the school who laughed at it. Messrs Gildenhuys and
Janse van Rensburg went together
to a noticeboard controlled by
learners which advertised social events at school. Mr Janse van
Rensburg placed the printout
on the board. It remained there for
half an hour.
The
school authorities disciplined the three applicants for this
conduct. The three applicants admitted what they had done.
Their
punishment was, in effect, that they were prohibited from assuming
leadership positions at the school or from wearing
honorary colours
for the rest of that year. In addition they had to undergo
detention at school for three hours for each of
five consecutive
Fridays.
The
three applicants were charged criminally at the instance of Dr Dey.
These charges were resolved through a diversion process
in terms of
the Criminal Procedure Act.
4
They had to clean cages at a local zoo as community service.
The
second and third applicants’ apology to the principal of the
school was accepted. Dr Dey however refused to entertain
discussion
of the apology apparently because he had legal advice to the effect
that he should not discuss the issue with any
of the three
applicants.
Determining
the issues
In
determining the issues, I set out in broad outline the conclusions
of the Courts below as well as the bases upon which these

conclusions are challenged by the applicants.
Dr
Dey caused summons to be issued out of the High Court claiming
R600 000. Half of this was claimed for an injury to his

dignity and the other half for an injury to his good name and
reputation.
In
so far as the defamation claim was concerned, the particulars of
claim alleged that the image had been published by the three

applicants and that it was per se defamatory. It was claimed in the
alternative that the picture would have reasonably been
understood
to mean that Dr Dey masturbated either in public or in the presence
of another person, was prone to indecent exposure,
was of low moral
character, was in a homosexual relationship with the other person
depicted and was homosexual. The three applicants,
in their plea,
again admitted their role in the publication but disputed that the
photograph was defamatory. The unlawfulness
of the publication was
also denied. The three applicants pleaded further that they had not
known that their conduct was unlawful
and that they had intended
the publication as a joke.
Both
the High Court and the majority of the Supreme Court of Appeal
held, in relation to the defamation claim, that:
the
image was defamatory of Dr Dey;
the
three applicants had not established, as they were required in law
to do, that they did not intend to defame Dr Dey;
the
applicants were aware of the wrongfulness of their actions; and
damages
in the sum of R45 000 should be awarded.
5
The
claim based on dignity was made on the basis that the image was
insulting to Dr Dey and that his sense of self-worth had
been
offended. All these allegations were denied. The High Court held
that:
the
conduct complained of was wrongful in the objective sense;
Dr
Dey’s feelings had in fact been injured;
the
applicants had failed to establish the absence of an intention to
injure; and
took
the insult to dignity into account in determining the award of
R45 000.
The
minority in the Supreme Court of Appeal dismissed the defamation
claim but concluded that Dr Dey was entitled to damages because
he
was subjectively wounded in his feelings.
The
applicants disputed the correctness of all the findings of the High
Court and the Supreme Court of Appeal. Dr Dey gave each
finding his
support. The majority in the Supreme Court of Appeal, having found
that the claim was defamatory, held that it
would not be
appropriate to consider the dignity claim because this would amount
to a duplication of causes of action. It was
common cause before
this Court that it would amount to a duplication of causes of
action to consider both the claims, and that
the dignity claim
would call for investigation only if the defamation claim were to
be found wanting by this Court.
The
following issues arise:
in
relation to the defamation claim, the correctness of the findings
of the Supreme Court of Appeal and the High Court listed
in
paragraph 24 and
in
relation to the claim based on injury to Dr Dey’s
self-worth, the correctness of the findings of the High Court and

the approach of the minority described in paragraph 25.
But
all the issues need not be considered. A finding that the Supreme
Court of Appeal was wrong in relation to any one of the
first three
issues relevant to defamation will result in that claim falling
away; a conclusion that the minority in the Supreme
Court of Appeal
was wrong on any of the first three matters that were held to have
been proven in the dignity enquiry will
result in the dismissal of
that claim.
The
applicants’ argument was underpinned by certain
constitutional elements which, according to their submission, had

relevance to the case. They emphasised in particular the right to
freedom of expression. The applicants were joined in their
effort
to highlight the constitutional dimensions of the case by the two
amici curiae who were admitted by this Court. The
Freedom of
Expression Institute was the first amicus. The Institute, not
unexpectedly, stresses the rights of children to freedom
of
expression and, in particular, to satirical expression. The
submission is that these rights should be taken into account
in the
process of balancing these rights against the right to dignity. The
Restorative Justice Centre was admitted as the second
amicus. The
Centre elaborated on the importance of engagement as a dispute
resolution mechanism in matters of this kind. This
Court is very
grateful to both the amici for their thorough and useful arguments.
Should
leave to appeal be granted?
Leave
will be granted only if the case raises a constitutional matter or
an issue connected with a decision on a constitutional
matter
6
and if it is in the interests of justice
7
to grant leave. I think that the answer to both questions is yes. I
deal first with the jurisdictional issue and then with
the
interests of justice.
Defamation
is aimed at compensating the victim for any publication that
injures the plaintiff in his good name and reputation.
Its focus is
the protection of the constitutional rights to dignity
8
and privacy
9
of any person.
10
The High Court was correct in concluding that, in assessing whether
the publication is defamatory a reasonable observer would
look at
it through the prism of the Constitution and in relation to its
values. This means that a court too must do the same.
A
constitutional matter includes any issue involving the
interpretation, protection or enforcement of the Constitution.
11
When a court assesses whether a publication is defamatory through
the prism of the Constitution, it is concerned with the
interpretation, protection and enforcement of the Constitution. In
this case the process involves the balancing of the rights
to
dignity and privacy on the one hand, with freedom of expression,
12
and the rights of children
13
on the other.
The
determination of questions relating to intention as well as those
concerned with the meaning and determination of the awareness
of
the wrongfulness of the publication must, in my view, also be
decided with an acute appreciation for, and responsiveness
to the
rights of children in the Constitution. As far as the quantum of
damages is concerned, I would refer to the
Dikoko
14
case in which Moseneke DCJ speaking for the majority said:
“
The
extent of sentimental damages for defamation has implications for
the properly mediated connection between dignity and free

expression. It is plainly so that overly excessive amounts of
damages will deter free speech and foster intolerance to it. As
it
is often said, robust awards will have a ‘chilling effect’
on free expression, which is the lifeblood of an open
and democratic
society cherished by our Constitution. On the other hand, as
Smalberger JA observed in
Van
der Berg v Coopers and Lybrand Trust (Pty) Ltd and Others
‘a person whose dignity has unlawfully been impugned deserves
appropriate financial recompence to assuage his or her wounded

feelings’. I therefore think there is a very strong argument
to be made that the assessment of damages in a defamation
suit is a
constitutional matter and I will assume in favour of the applicant
that it is. However, . . . it is not necessary to
finally decide the
issue in this case.”
15
(Footnote omitted.)
Mokgoro
J came to the conclusion that the issue of quantum of damages did
indeed raise a constitutional matter.
16
The time has now come to decide that the “strong argument”
referred to by the Deputy Chief Justice should be accepted
as
correct. And there are more powerful reasons for damages being
regarded as a constitutional matter in this case than in
the case
of
Dikoko
. This is because the rights of children were not
implicated there. In the course of an analysis on the reach of
section 28
in the
Phaswane
17
case this Court said that “courts are required to apply the
principle of best interests by considering how the child’s

rights and interests are, or will be, affected by their
decisions.”
18
This must include decisions on the quantum of damages to be
awarded. I would hold that the issue of damages in a defamation

case does raise a constitutional issue, particularly in this case.
I
come to the same conclusion where the dignity claim is concerned.
The determination of the degree of injury to feelings, in
other
words, when the harm reaches a point at which it becomes wrongful
and therefore compensable, must be assessed not only
in terms of
the views of the community but also in accordance with the values
of the Constitution. The rights to dignity and
privacy are likewise
to be balanced in relation to the right to freedom of expression
and children’s rights in assessment
of wrongfulness in the
dignity claim. And finally, as in the case of defamation, an award
of damages that is too high will
have a chilling effect on freedom
of expression and adversely impact on the rights and interests of
children, while an award
that is too low will not have the effect
of protecting dignity to the extent mandated by our Constitution.
The dignity claim
too entails constitutional issues.
This
case involves important issues concerning the interpretation and
evaluation of material published by schoolchildren in
the context
of conditions at the school concerning a person in authority at the
school. The determination of these issues would
help in defining
how far children should be allowed to go or, in other words, how
offensive and damaging their conduct must
be at schools, in the
context of this case, before their actions give rise to successful
civil proceedings in a court of law
at the instance of a person in
authority at the school. To the best of my knowledge we have never
had a case of this kind in
our courts before. What is certain
though is that this Court has never determined like issues. I would
have thought that the
granting of leave to appeal would be in the
interests of justice on these grounds alone. However I add that, as
will appear
from this judgment as well as the judgments of my
colleagues Cameron J and Froneman J and of my colleague Brand AJ,
there are
prospects of success in relation to whether the image is
defamatory, whether the conduct of the three applicants impinged
sufficiently
upon the dignity of Dr Dey and in relation to the
quantum of damages to be awarded as well as the relevance of an
apology to
the quantum of damages.
Defamation: the interpretive approach
It
will become necessary to discuss the issues concerning the
intention as well as the awareness of the wrongfulness of the

publication only if the publication is defamatory in the first
place. I therefore address this issue first.
The
approaches of the Supreme Court of Appeal and the High Court were
similar. I start by pointing to those aspects of these
approaches
on which I agree without qualification.
I
have no difficulty with the approach of the Supreme Court of Appeal
which is consistent with the approach of the High Court
reflected
in the following passage:
“
It is
well established that the determination of whether a publication is
defamatory and therefore prima facie wrongful involves
a two-stage
inquiry. (I use the word ‘publication’ to include a
pictorial representation such as a photograph.) The
first is to
determine the meaning of the publication as a matter of
interpretation and the second whether that meaning is defamatory.”
19
(Footnote omitted.)
Nor
am I (save to the extent that I qualify my position in relation to
context and constitutional construction in the sections
that follow
immediately) troubled by the approach, again similar to the High
Court, effectively and accessibly articulated
by the Supreme Court
of Appeal concerning the way in which the meaning of the image is
to be ascertained:
“
To
answer the first question a court has to determine the natural and
ordinary meaning of the publication: how would a reasonable
person
of ordinary intelligence have understood it? The test is objective.
In determining its meaning the court must take account
not only of
what the publication expressly conveys, but also of what it implies,
ie what a reasonable person may infer from it.
The implied meaning
is not the same as innuendo, which relates to a secondary or unusual
defamatory meaning that flows from knowledge
of special
circumstances. Meaning is usually conveyed by words, but a picture
may also convey a message, sometimes even stronger
than words.”
20
(Footnotes omitted.)
Context
and construction
It
follows from my reservation in the previous paragraph that I need
to say more about context. The Supreme Court of Appeal,
the High
Court and the other judgments written in this case recognise the
importance of context in one way or another. The
Supreme Court of
Appeal accepted that the reasonable observer must be contextualised
and that regard must be had to the nature
of the audience. It also
accepted that regard must be had to the person who was allegedly
defamed but expressed itself against
the proposition that the image
must be assessed taking into account that it had been produced by
children. The final matter
to which attention must be drawn is that
the Supreme Court of Appeal made no distinction between the
relevance of context in
determining the objective meaning of the
image, and its relevance to the decision whether the publication
was defamatory on
the meaning ascribed to it.
The
High Court’s approach was somewhat different. Unlike the
Supreme Court of Appeal, it acknowledged the fact that

schoolchildren had produced the image was also relevant to context.
But the approach of the High Court may have been narrower
than that
of the Supreme Court of Appeal in another respect concerning
context. I have already said that the Supreme Court
of Appeal made
context applicable to both the interpretation of the image and the
evaluation of its purpose and effect. The
High Court, on the other
hand, made no reference to context in that section of the judgment
concerned with the interpretation
of the image, but referred to it
only in the section concerned with determining whether, on its
interpretation the image was
defamatory. Two questions therefore
arise. The first is whether context is relevant only to
interpretation, only to the determination
whether the statement is
defamatory or to both. The second issue that arises is the precise
scope of the circumstances that
can be taken into account as part
of the context.
In
my view both questions are correctly answered in the following
passage in the
Torch Printing
case:
21
“
It
was contended that in construing the alleged defamatory statements
the Court should have regard to all the circumstances in
which they
were published. In
Johnson
v. Rand Daily Mails Ltd.
(1928,
A.D. 190
at p. 204) WESSELS, J.A., quoted with approval the remarks
of Lord SELBORNE in
Capital
& Counties Bank v. Henty
(7 A.C. at p. 745):
‘
The
test according to the authorities is whether under the circumstances
in which the writing was published, reasonable men to
whom the
publication was made would be likely to understand it in a libellous
sense.’
Gatley (8th Ed., p. 21) points
out that:
‘
the
meaning of particular words frequently depends on the circumstances
in which they were published. There are no words, however
serious on
the face of them, which may not be explained away by evidence that
in the actual circumstances they were not understood
in a defamatory
sense but in a way of jest or in a secondary and innocent meaning’
and also:
‘
Not
only does the meaning depend on the circumstances in which the words
were published; it also depends on the state of public
opinion at
the time.’
Lord BLACKBURN in
Capital &
Counties Bank v. Henty
(
supra
at p. 771) expressed the
same view:
‘
The
manner of publication and the things relative to which the words
were published and which the person knew or ought to have
known
would influence those to whom it was published in putting a meaning
on the words are all material in determining whether
the writing is
calculated to convey a libellous imputation. There are no words so
plain that they may not be published with reference
to such
circumstances and to such persons.’
(See also
Brill v. Madeley
(1937, T.P.D. 106
at p. 109).)
‘
The
circumstances in which the writing was published’ do not seem
to me to be capable of exact definition. Each case must
be decided
on its own facts. The alleged defamatory words must not be
considered as it were
in
vacuo
but as part and parcel of the whole. Thus the manner in which words
are spoken—the
prima
facie
complimentary statement that a person is ‘an honest attorney’
may, because of the manner in which it is uttered,
be grossly
defamatory. In the same way an interjection at a meeting to consider
a school feeding scheme that an opponent is a
murderer might well,
because of the circumstances and in spite of its defamatory meaning,
be held to have been used in a non-defamatory
sense. What then, in
this case, are ‘the circumstances’ which must be looked
at in order to determine whether the
statements complained of were
capable of being understood in a libellous sense by reasonable men?
In my opinion regard must be
had to all the facts which would be
known to the readers of
The
Torch
.”
22
I
agree with the substance of the sentiments expressed except to
point out that in modern society the concept of “reasonable

men” would not be apposite in the application of the test. It
is crucial to take into account all the relevant circumstances
for
the purposes both of interpreting the image and for deciding
whether its impact is defamatory. Indeed, in my view, any

construction of the image without taking into account all the
relevant circumstances would be futile in the sense that the

construction arrived at in a vacuum would be as likely to be wrong
as to be right. As far as the second question is concerned,
it
seems clear that all the relevant circumstances must be taken into
account, that it is not possible to determine in advance
what the
circumstances would be, that each case depends on its own facts and
that the test would be whether a reasonable person
would take a
particular circumstance into account.
Construing
constitutionally
I
elaborate briefly on the constitutional imperatives that are
relevant to an interpretation of the image. I have already

indicated that the relevant rights are those of dignity and privacy
on the one hand, and freedom of expression and the rights
of
children on the other.
The
importance of the rights to dignity and privacy can never be
overstated. It is fundamental to our existence as human beings.
But
it must be pointed out that:
“
With
us the right to freedom of expression cannot be said automatically
to trump the right to human dignity. The right to dignity
is at
least as worthy of protection as the right to freedom of expression.
How these two rights are to be balanced, in principle
and in any
particular set of circumstances, is not a question that can or
should be addressed here. What is clear though and
must be stated,
is that freedom of expression does not enjoy superior status in our
law.”
23
(Footnote omitted.)
But
it must be remembered that some attacks on human dignity are more
serious than others: the violation of dignity in the context
of the
violation of other constitutional rights would ordinarily be
regarded as more serious than otherwise. Two examples will
suffice.
The violation of human dignity in the context of unfair
discrimination on any of the grounds listed in the Constitution
24
would be unarguably egregious. So would the violation of these
rights in the context of an unlawful intrusion into one’s

home in the process of a criminal investigation involving the
seizure of documents, the wrongful arrest and detention of the

person concerned and the unlawful destruction of that person’s
private property. Another factor which, in my view, has
relevance
to the intrusive character of the violation of the right to dignity
would be the power relations between the person
who committed the
allegedly wrongful conduct in question and the person who was the
target of the injury. I would regard the
violation of the dignity
of a relatively powerless and vulnerable person by a powerful,
strong person in authority as more
serious than the allegedly
wrongful conduct involved here. A factor in the balancing process
therefore is the nature of the
violation of the rights to dignity
and privacy. We must also bear in mind that the right to dignity is
not that of Dr Dey alone
in this case. At least equally important
is the right to dignity of children, for section 28 “protects
the dignity of
the child and advances the child’s equal worth
and freedom”.
25
The
importance of the right to freedom of expression has been
repeatedly emphasised by our courts. I need address the topic
only
briefly.
“
Freedom
of expression, especially when gauged in conjunction with its
accompanying fundamental freedoms, is of the utmost importance
in
the kind of open and democratic society the Constitution has set as
our aspirational norm. Having regard to our recent past
of thought
control, censorship and enforced conformity to governmental
theories, freedom of expression — the free and open
exchange
of ideas — is no less important than it is in the United
States of America. It could actually be contended with
much force
that the public interest in the open market-place of ideas is all
the more important to us in this country because
our democracy is
not yet firmly established and must feel its way. Therefore we
should be particularly astute to outlaw any form
of thought control,
however respectably dressed.”
26
Freedom
of expression is one of a web of mutually supporting rights in the
Constitution.
“
It is
closely related to freedom of religion, belief and opinion (section
15), the right to dignity (section 10), as well as the
right to
freedom of association (section 18), the right to vote and to stand
for public office (section 19) and the right to
assembly (section
17). These rights taken together protect the rights of individuals
not only individually to form and express
opinions, of whatever
nature, but to establish associations and groups of like-minded
people to foster and propagate such opinions.
The rights implicitly
recognise the importance, both for a democratic society and for
individuals personally, of the ability
to form and express opinions,
whether individually or collectively,
even
where those views are controversial.
”
27
(My underlining.)
Finally,
we must always bear in mind that:
“
Freedom
of expression lies at the heart of a democracy. It is valuable for
many reasons, including its instrumental function as
a guarantor of
democracy, its implicit recognition and protection of the moral
agency of individuals in our society and its facilitation
of the
search for truth by individuals and society generally. The
Constitution recognises that individuals in our society need
to be
able to hear, form and express opinions and views freely on a wide
range of matters.”
28
(Footnotes omitted.)
The
rights of children are vital to this enquiry. Section 28 of the
Constitution provides:
“
(1)
Every child has the right—
(a) to a name and a nationality
from birth;
(b) to family care or parental
care, or to appropriate alternative care when removed from the
family environment;
(c) to basic nutrition,
shelter, basic health care services and social services;
(d) to be protected from
maltreatment, neglect, abuse or degradation;
(e) to be protected from
exploitative labour practices;
(f) not to be required or
permitted to perform work or provide services that—
(i) are inappropriate for a
person of that child’s age; or
(ii) place at risk the child’s
well-being, education, physical or mental health or spiritual, moral
or social development;
(g) not to be detained except
as a measure of last resort, in which case, in addition to the
rights a child enjoys under sections
12 and 35, the child may be
detained only for the shortest appropriate period of time, and has
the right to be—
(i) kept separately from
detained persons over the age of 18 years; and
(ii) treated in a manner, and
kept in conditions, that take account of the child’s age;
(h) to have a legal
practitioner assigned to the child by the state, and at state
expense, in civil proceedings affecting the
child, if substantial
injustice would otherwise result; and
(i) not to be used directly in
armed conflict, and to be protected in times of armed conflict.
(2) A child’s best
interests are of paramount importance in every matter concerning the
child.
(3) In this section ‘child’
means a person under the age of 18 years.”
As I
said earlier it was emphasised in an analysis of the reach of the
right to free expression in the
Phaswane
29
case that dignity and equal worth must receive appropriate
protection.
30
The
Phaswane
case in addition:
emphasised
that the best interests of the child being paramount does not mean
that they are absolute;
31
held
that section 28 “imposes an obligation on all those who make
decisions concerning a child to ensure that the best
interests of
the child enjoy paramount importance in their decisions. Section
28(2) provides a benchmark for the treatment
and protection of
children”;
32
laid
down that courts (and I would suggest reasonable observers) are
obliged to give consideration to the effect of their
decisions on
the rights and interests of children;
33
reiterated
the approach in
S v M
34
that statutes must be interpreted in a manner which favours
protecting and advancing the interests of children;
35
and
quoted
with approval the principles from certain international
guidelines
36
to the effect that a child has the right to be shielded from any
form of hardship, abuse or neglect including physical,
psychological, mental and emotional abuse.
37
In
the
Centre for Child Law
38
case and in the context of the need for the best interests of the
child to be paramount in sentencing, this Court held as follows:
Section
28 protects children against undue exercise of authority.
39
There is no reason why the authority should not be that of a
school.
Children’s
rights constitute a real restraint on Parliament and an
enforceable precept determining how officials and
judicial
officers should treat children.
40
There is no reason why reasonable observers should not have the
same duty when they interpret the image or any publication
by
children alleged to be defamatory.
There
are important reasons for distinguishing between adults and
children:
“
The
Constitution draws this sharp distinction between children and
adults not out of sentimental considerations, but for practical

reasons relating to children’s greater physical and
psychological vulnerability. Children’s bodies are generally

frailer, and their ability to make choices generally more
constricted, than those of adults. They are less able to protect

themselves, more needful of protection, and less resourceful in
self-maintenance than adults.
These considerations take acute
effect when society imposes criminal responsibility and passes
sentence on child offenders. Not
only are children less physically
and psychologically mature than adults: they are more vulnerable to
influence and pressure
from others. And, most vitally, they are
generally more capable of rehabilitation than adults.
These are the premises on which
the Constitution requires the courts and Parliament to differentiate
child offenders from adults.
We distinguish them because we
recognise that children’s crimes may stem from immature
judgment, from as yet unformed character,
from youthful
vulnerability to error, to impulse, and to influence. We recognise
that exacting full moral accountability for
a misdeed might be too
harsh because they are not yet adults. Hence we afford children some
leeway of hope and possibility.”
41
Consequences
of application of constitutional requirements
These
constitutional imperatives have an important consequence for the
way in which a court should proceed if it finds that
there is more
than one reasonable interpretation of the image, one that renders
an image or publication defamatory and the
other not. The approach
authoritatively applied by courts today when there are competing
interpretations is that which originated
in the
Channing
42
case and quoted with approval by the Appellate Division in the
Demmers
43
case:
“
The
enquiry relates to the manner in which the article would have been
understood by those readers of it whose reactions are relevant
to
the action and who are sometimes referred to as the ‘ordinary
readers’. If, upon a preponderance of probabilities,
it is
found that to those readers the article bore a defamatory meaning,
then (subject to any defences which may be established),
the
plaintiff succeeds, even though there is room for a non defamatory
interpretation: if not, the plaintiff fails (see
Gluckman
v Holford
1940 TPD 336).”
44
This
approach was expressed as follows by the same Court in the
SA
Associated Newspapers
45
case:
“
If at
the end of the trial the statement is found to be equally capable of
an innocent and of a defamatory meaning, the maxim,
semper
in dubiis benigniora praeferenda est
is applied, and a plaintiff will fail to discharge the onus. It is
unreasonable where there are a number of good meanings that
the only
bad one should be seized upon to give a defamatory meaning to the
statement.”
46
This
means that, when there is room for a reasonable alternative
interpretation that renders an image innocent that interpretation

can be accepted by a court and the plaintiff will fail only if the
innocent interpretation is as probable as the defamatory

interpretation. It follows that if an action is instituted against
a child publisher (like in this case) a construction favourable
to
that child cannot prevail if it is less probable than the
interpretation against the child even if the construction in favour

of the child is reasonable. The child will be found liable for the
publication of an image which could reasonably and without
strain
be construed in favour of that child. On present authority
therefore, the interpretation in favour of the child will
not
assist if the defamatory interpretation is one that is more
probable than not, even if the child-friendly interpretation
is
reasonable in all the circumstances. A child will therefore be
liable, assuming all the other requirements are present,
for the
publication of an image which is reasonably capable of an innocent
interpretation without strain if the defamatory
interpretation is
more probable. Can this approach be justified in our constitutional
order?
I
think not. Children who are held liable for defamation for the
publication of images which can reasonably be interpreted in
their
favour merely because the defamatory meaning is probable do not
receive adequate protection. The child’s vulnerability
and
weakness are not sufficiently catered for in that approach. A
change is necessary to afford children adequate protection
and is
therefore constitutionally mandated. In my view, the rule applied
by this Court when two reasonable constructions of
legislation are
available, the one constitutional the other not, points us in the
right direction. It will be remembered that
in these circumstances,
a court would prefer the reasonable interpretation of the
legislation that preserves its constitutionality.
47
This principle protects both the Constitution and Parliament.
It
can however be appropriately adjusted to provide meaningful
protection to vulnerable children consistently with the
Constitution.
The rule on legislative interpretation may be
rephrased to meet our circumstances in the following way. If there
are two reasonable
interpretations of an image made by a child, one
which renders the image defamatory and another which does not have
that consequence,
courts should prefer that interpretation which
does not hold the child liable provided that the construction is
not strained.
Construing
the image
Two
conclusions of the Supreme Court of Appeal are relevant to context
before describing the contextual circumstances the reasonable

observer will take into account. That Court erred when it rejected
the two propositions “that the defendants were schoolchildren

and that the reasonable person would have taken that into account
in assessing the meaning of the [image]”.
48
The Court’s doubt about whether the reasonable observer
interpreting the picture was expressed in the following terms

“[t]he picture was created and distributed anonymously. Its
origin down the line would not have been known since it was
in the
nature of a chain letter. An addressee may or may not have
suspected that children were behind it all, but there was
no reason
for them to have accepted that as a fact.”
49
I disagree. The image was circulated amongst children at the school
and was seen on the school noticeboard. It was a clumsy
effort at
manipulation. In the circumstances it is highly improbable that any
reasonable person with knowledge of the surrounding
circumstances
would have thought that the image had been produced by an adult
schoolteacher, an adult member of the staff at
the school or a
parent of one of the children. A reasonable observer would have had
little doubt that the image was a child
creation.
The
contention that the reasonable person would have taken the fact
that the image was a child creation into account in assessing
the
meaning of the image was rejected: “I have some difficulty in
appreciating how the identity of the alleged defamer
can determine
the objective meaning of a publication.”
50
I do not share the difficulty of the majority of the Supreme Court
of Appeal. Taken to its logical conclusion, the position
endorsed
by the Supreme Court of Appeal would mean that, if we knew that the
source of the publication (either as creator or
circulator) was a
woman involved in a bitter divorce dispute with her husband, it
would be impermissible for a court to refer
to that source. I would
have no difficulty with the proposition that, like in the example
given, judicial officers who ignore
the source of the publication
in a defamation case do so at their peril and buy the prospect of
being wrong. Indeed I agree
fully with the sentiments expressed by
my colleagues Cameron and Froneman JJ when they say:
“
The
fact is that, in the school context, the likely childish origins of
the image would, without doubt have played a role in,
if not
determined, the likely viewer’s assessment and understanding
of the image.”
51
Against
this background the circumstances that the reasonable observer
would take into account must be described. I set them
out below.
The
image was obviously made by a child on a computer using material
from websites.
Section
28 of the Constitution would require Ms Reasonable Observer to
understand that the applicants had the right to be
cared for at
the school;
52
to be protected from maltreatment, neglect, abuse or degradation;
53
and that the best interests of the children are paramount in all
matters concerning them.
54
The
factors relating to children are that:
they
are vulnerable, immature, and in the process of development both
emotionally and intellectually;
children
are often prone to giving confused messages particularly in
non-verbal communication; have regular access to computers,
enjoy
experimenting with them, would find the creation of images to be
exciting and entertaining however inappropriate,
crass or inept
the product might be;
children
often react, sometimes unreasonably, but spontaneously and
without thought to the exercise of authority at any
institution;
as
found by the High Court, truths that would be taken into account
by the reasonable observer were that children traditionally
poke
fun at teachers and that their jokes are sometimes bland or
tasteless and not always regarded as funny by adults;
children
like to show off their talents and that an image that children
would regard as amusing and exciting might be crass
and bland to
adults;
expression,
even unreasonable reaction to authority, is often vital to the
development of society, and even more important
for children; and
the
Constitution requires the freedom of speech of children to be
afforded appropriate protection, to the full extent that
this
contributes to their best interests.
The
reasonable observer would also try to strike an appropriate
balance between defamation and privacy concerns on the one
hand
and freedom of expression and children’s rights on the other
hand.
The
reasonable observer would also recognise that over-sensitive
reaction to the conduct of immature children by people in

authority at institutions at which the children are, would result
in the diminution of sensitivity to the needs and requirements
of
children. In this sense the lack of sensitivity might be
counter-productive.
The
image represented and related to the school only, as indicated by
the use of the school badge. It follows that the image
referred to
the principal and Dr Dey in their professional work capacities
only and was not concerned with their person.
They were in the
picture because of their position of authority.
This
judgment has already endorsed the approach that the process of
determining whether an image is defamatory involves two
phases: the
first being an assessment of the meaning of the image, or the
message it conveys; the second essentially concerns
determining the
effect of that message, in other words finding out whether the
message will have a defamatory impact. The difference
between the
two phases must be kept in mind. Otherwise there is the
possibility, particularly when an image (as distinct from
words) is
evaluated, that the impact of the message could be confused with
its meaning or message. The High Court did keep
the two enquiries
separate on the face of it but as I will try to show later, there
is some doubt about whether the conclusion
that the image
associates Dr Dey with the bodies in the photograph is the message
conveyed by the picture or whether it is
the statement of its
defamatory effect. The Supreme Court of Appeal, while acknowledging
the distinction between the two phases,
began its enquiry by
answering the interpretation question and referred to the
conclusion of the High Court on that issue.
Nevertheless the
Supreme Court of Appeal came to no express conclusion on the
interpretation issue but simply concluded that
the image had a
defamatory impact. It seems that the Supreme Court of Appeal by
necessary implication endorsed the conclusion
of the High Court on
the meaning of the image.
The
High Court’s reasoning on the interpretation of the image may
be summarised as follows. The image would convey to
the reasonable
observer that the men depicted on it were engaged in sexual
activity. The precise nature of that activity would
not be apparent
because of the position of the school badge but the position of the
school badge makes it clear that the men
who sat wide-legged were
naked. The High Court found further that because the image
contained a photo of the two men it conveys
to the reasonable
observer a complete impression of men with low, seedy values and of
indecent sexuality. It concluded that
although it is clear at first
glance that the image does not represent photos of the principal or
of Dr Dey, the reasonable
observer would conclude that the image
associates Dr Dey with the men on the photo in one or other way and
therefore also with
their conduct. In short the High Court’s
conclusion was that the placing of the heads of Dr Dey and the
principal on
the bodies of men with low, seedy morals and of
indecent sexuality who are engaged in sexual activity somehow
associates Dr
Dey with that conduct and that morality in the eyes
of the reasonable observer. The Supreme Court of Appeal endorsed
this finding
in all material respects.
I
have some difficulty with this approach. In the first place much of
the determination of the message describes the image.
The basic
difference between the determination of the meaning of words and
the meaning of an image is in my view that the words
do not have to
be described but the image does. There is however a fundamental
distinction between describing the image on
the one hand and
determining its meaning on the other. And the processes should be
kept separate. The first step would be to
describe the image. The
second step would be to decipher the message that the image conveys
in words and this is different
from describing the effect of the
message.
I
have grave doubts that the image would convey to the reasonable
observer that the men depicted in it were engaged in sexual

activity. What the image does show is that the men in the
photograph that was used to create the image had been engaged in

sexual activity in that photograph. What it also shows is that the
heads of two men were put onto the bodies of two other men
who had
been engaged in sexual activity before the heads were transposed.
It is quite impossible for one man with the head
of the third and
the second man with the head of the fourth to engage in any sexual
activity.
The
finding that the reasonable observer would think that the fact that
the naked men allowed themselves to be photographed
while engaged
in sexual activity shows them to be possessed of low, seedy values
and of indecent sexuality is also incorrect.
On the assumption that
the remark applies to the men who were in the photograph before
their heads and faces had been coarsely
substituted, I would
suggest that most reasonable observers in South Africa in 2006
would bear in mind the possibility that
the photograph had been
taken by someone without their knowledge. The reasonable observer
would also know that it is possible,
and in fact easy, for people
to take photographs of themselves. On the assumption that they had
photographed themselves, they
were homosexual people engaged in
perfectly legitimate homosexual activity. The photo would have
shown nothing more, nothing
less.
I
turn next to the conclusion that the reasonable observer would
conclude that the image associates Dr Dey with the men in the

photograph in one or other way and therefore also with their
conduct. Firstly the word “associated” is of wide

import and the words “in some or other way” makes
things even more complicated. In any event, the only finding
in
relation to interpretation is that the image associated Dr Dey with
these men. Take away the assumption that they allowed
themselves to
be photographed and there is nothing left. The explanation by the
High Court about the effect of the school badge
is also wanting.
The school badge could not have been put there for the purpose of
demonstrating that the men were naked. I
now proceed to give
meaning to the image which has already been fully described. In any
event, this is a description of the
effect of the picture rather
than its message.
The
reasonable observer would think the following:
“
The
image does not say that Dr Dey or the principal have the habit of
engaging in sexual activity with each other or that
either of them
were of low morals. This is because the pictures are not of the
two men but they are pictures with different
heads and bodies. Is
it probable that the image says that the principal and Dr Dey are
in fact frauds in that they pretend
to be highly moral and upright
people who pride themselves in their heterosexuality but are in
reality homosexual people
who have a homosexual relationship with
each other. I believe not. This is because I find it difficult to
imagine children
at a school wanting to convey this. It is highly
improbable to me that they would want to spread deliberate lies
about the
principal and Dr Dey. In any event, if they wanted to do
so there were better ways available to them. I do not think the

image reflects reality or purports to say what the true position
is. Nor do I think that the children wish to peddle lies as
the
truth. In any event I say to myself that the children at the
school would know when they crafted the image that no other
person
at the school would even begin to believe that the principal and
Dr Dey engaged in any immoral conduct at all.
I
must remember that this image was made and distributed by children
who are learners at the school and that the children
are conveying
something they feel. I know that most children are vulnerable,
weak, find it difficult to express their feelings
and often find
communication difficult. I also know that children these days
enjoy playing with computers and engage in many
activities which
they should not engage in unsupervised. I also know that the child
took these pictures from two different
websites and put them
together.
So
what were they expressing their feelings about in the image? The
first question I ask myself is whether they were expressing
their
feelings about the men whose heads had been replaced and who had
been engaged in intimate sexual activity, about the
principal and
Dr Dey personally, or about the exercise of authority and
maintenance of discipline at the school. There is
little chance
that they wanted to attack people personally. I know that children
react to authority in strange ways. My friend
tells me that this
is a challenge to authority. I managed to persuade him that this
is too weak a response to be categorised
as a challenge. It is no
more than a reaction. It is a crude reaction, an immature
reaction, a reaction perfectly consistent
with the vulnerability
of a child. I am reasonably sure that all children in the school
who were sympathetic to this reaction
to authority would have
found the picture funny.
The
presence of the school badge is vital. It is a strong indicator
that the image expresses children’s feelings about
the
exercise of authority at the school. The identity of the person
who exercised that authority would have been immaterial
to the
children. It is the exercise of authority which was the target.”
At
the very least, it is a reasonable construction of the image that
young children dissatisfied with the way in which authority
was
being exercised at the school were expressing their dissatisfaction
and reacting to the exercise of authority in the image.
I think
that to expect children to be able to express their reaction to
authority in a capable, sophisticated, respectful way
is to expect
too much of them. Unconsidered and emotional responses to the
exercise of authority, even by adults, are not uncommon.
The image
and its circulation demonstrate the immaturity of the children
responsible and that they were unable to consider
the consequences
of their actions. I do not think that any reasonable observer will
lose sight of the distinction between an
effort to criticise the
person or an effort to criticise the institution or the exercise of
authority within it. The focus
here was the exercise of authority.
The
next question which arises is whether on the meaning that I have
attributed to the image it is defamatory. It is at this
stage of
the enquiry that the balance to be achieved between the rights to
dignity and privacy on the one hand and the right
to freedom of
expression and children’s rights become relevant. Children
ordinarily express their frustrations, their
impatience and how
they feel. It is counter-productive to stop this because those in
authority at school ought to know what
the learners in their
schools think and feel. The nature of the expression with which we
are concerned is integrally part of
the process of their
development and the process of their education. Indeed if behaviour
of this kind produces a court action
with huge damages, it will
have a chilling and negative and undesirable impact on their
growth, development and education.
This is not to say that
disciplinary procedures at the school for conduct of this kind are
not appropriate. It is indeed the
appropriate route to counteract
this kind of misconduct at schools. The image represents a
legitimate and understandable expression
of feeling by a learner at
a school in relation to the exercise of authority there and cannot
be defamatory. The image certainly
does provoke and agitate. It is
critical of the way in which authority is exercised and discipline
is maintained at the school.
The
High Court accepted the evidence of an educational psychologist
that children traditionally poke fun at teachers, that their
jokes
are sometimes tasteless or bland and not always funny, represent
truths of which the reasonable person is conscious and
which that
person will take into account when looking at adolescent behaviour.
But the Court did not agree fully with the opinion
of this expert
that the conduct of the applicants should be adjudged more
leniently because it is not in the interest of the
community that
courts are unnecessarily burdened with cases concerning the conduct
of schoolchildren which must, ideally be
addressed and finalised at
the school itself. The Court emphasised that there are serious
disciplinary problems in our schools
and that the reasonable
observer would take this into account and consider that the
over-emphasis of children’s rights
at the expense of teachers
obliges the reasonable observer of adolescent behaviour in the
school to be less lenient. The Court
opined that this approach on
the part of the reasonable observer was needed because respect for
teachers according to the evidence
was necessary in order to convey
to the children those values essential to their successful
adulthood.
I
cannot agree fully with this approach. School discipline has little
to do with court actions for defamation. The reasonable
observer
would consider that an over-emphasis on the rights of a good name
and reputation of a deputy principal in relation
to the rights of
powerless children will be counter-productive and will be harmful
to the interests of children.
In
the circumstances it is not necessary to investigate the issues of
intention and awareness of unlawfulness. The defamation
claim had
to fail.
Dignity
I
have already found that the image, properly interpreted, does not
constitute an attack on the person of Dr Dey. It was an
attack on
authority and the exercise of discipline at the school. To succeed
on a claim based on an affront to dignity, the
act must be
wrongful. The test is objective. The conduct of the applicants must
be “tested against the prevailing norms
of society” to
determine whether it is wrongful.
55
I
would suggest that the appropriate test is whether a reasonable
deputy principal of a large school, of 11 years experience,
would
be hurt by the publication. In making this determination, I must
test the conduct of Dr Dey against what the prevailing
norms of
society would require of him. The reasonable deputy principal
would, of course, be motivated by the values of the
Constitution.
In my view a reasonable deputy principal of 11 years experience
today would understand that children need to
express their
feelings. A person in this situation would know that the image was
no more than an expression of the feelings
of children. It was no
more than a reaction to authority; a reaction that was crude but
not unexpected. The reasonable deputy
principal would have ensured
that disciplinary proceedings were instituted against the children
and would have excruciated
over the steps that could be taken to
ensure that he understood why and how this had happened and planned
appropriate remedial
measures. Yet Dr Dey was admittedly seriously
injured in his feelings and seemed preoccupied with his own injured
feelings.
This response is not reasonable. A reasonable deputy
principal is a sensible person who is neither unsensitive nor more
highly
sensitive than usual. This fictional person would
instinctively achieve the appropriate balance between his own
sensitivity
or sensitivity about himself, on the one hand, and a
sensitivity towards and understanding of how children are. In my
view,
Dr Dey reacted to the image in a way that did not
appropriately reflect this balance. He was, in comparison with the
reasonable
deputy school principal, somewhat more sensitive than he
should have been and somewhat less sensitive than he should have
been
towards the children. In the circumstances I hold that the
reasonable deputy principal would not have been as upset as Dr Dey

was.
Before
our Constitution came into effect, the right to freedom of
expression was frequently violated in our country. Indeed,
as I
have shown elsewhere in the judgment, thought control was the order
of the day and there would not have been the same
need in a claim
based on dignity to balance the right of freedom of expression with
the right to dignity. That balance must
mean that there are
circumstances in which the right to dignity will be outweighed by
the right to freedom of expression.
56
It would be going too far if freedom of expression were to be
curbed to such an extent that the slightest injury to feelings

would be actionable.
I
would commend the rule that people claiming damages consequent upon
attacks on their dignity will succeed only if, in all
the
circumstances of the case, the injury is sufficiently serious to
limit freedom of expression or any other right in the
Constitution.
Each case must depend on its own circumstances, and courts must
ensure that they effect the appropriate balance.
In this case, even
if Dr Dey was hurt to some extent, I do not think that the extent
of the hurt justifies a claim for damages
in all the circumstances
for several reasons. The expression was essentially that of a child
in the process of growth and development
in reaction to the
exercise of authority at the school. The expression did not amount
to an attack on Dr Dey’s sense
of equal self-worth nor was
the expression so serious that it impacted on any of Dr Dey’s
other rights in the Constitution.
Most importantly, the expression
was by a relatively powerless child in relation to the exercise of
authority by a more powerful
older man. The reasonable deputy
principal would probably not have instituted the proceedings.
The
fact that Dr Dey was somewhat more sensitive than the ordinary
reasonable deputy principal is borne out by the record. During
his
evidence, given at the trial two and a half years after the
publication had taken place,
57
he became so emotional on six occasions that the fact was noted on
the record by the transcriber. Indeed, the Court had to
adjourn for
some time on one of these six occasions.
In
my view, the fact that Dr Dey instituted action against these
children taken together with the way in which the proceedings
were
conducted is a further demonstration of lack of the required
sensitivity towards children in the circumstances. Dr Dey
claimed
R600 000. This was almost 14 times the amount in fact awarded. Dr
Dey was awarded 7.5% of his claim by the High Court,
an award which
was confirmed by the Supreme Court of Appeal. This Court has
reduced the claim even further. The size of the
claim, large by any
standards, indicates that there was something punitive about this
action. I have already said that a reasonable
deputy principal
would probably not have instituted the action; a reasonable deputy
principal would never have claimed R600
000.
I do
not think it is ordinarily appropriate for civil claims to be
brought to court to punish children, especially where, like
in this
case, criminal proceedings and school disciplinary processes are
available and have been used. The service of the summons
on the
children would probably have been far more painful to them than the
publication of the image should have been to Dr
Dey.
The
upshot of all this is that the conduct of the three applicants was
not wrongful. I disagree with the reasoning and conclusion
of the
minority in the Supreme Court of Appeal. It is again not necessary
for me to go into the question of intention.
I
would therefore hold that the image is neither defamatory of nor
injurious to Dr Dey’s dignity. Wrongfulness has not
been
established in relation to both claims. It is accordingly
unnecessary for me to consider the quantum of damages or the

argument of the Restorative Justice Centre concerning the necessity
for engagement in these circumstances.
I
would add that the finding that Dr Dey was somewhat more sensitive
than the reasonable deputy principal by no means represents
a
criticism of him personally. It is a fact of life that we find in
all professions, people with sensitivities that differ
from those
of the reasonable standard and it is that standard that I am
obliged to employ in this case.
Application to lead further evidence
As a
result of a discussion between the members of the Bench and
counsel, and after we heard argument in the case, some kind
of
effort was made by the three applicants to apologise. The
applicants sought to put this evidence before the Court in an

effort to demonstrate that an apology had been given. Dr Dey was of
the view that the apology was not good enough. In light
of the
conclusion to which I and other members of the Court have come on
the merits, the application to lead further evidence
falls to be
dismissed.
I
would therefore grant leave to appeal, uphold the appeal and set
aside the decisions of the High Court and the Supreme Court
of
Appeal.
Skweyiya
J concurs in the judgment of Yacoob J.
BRAND AJ:
Introduction
I
have had the benefit of reading the judgment of my colleague,
Yacoob J, as well as the joint judgment of my colleagues Froneman
J
and Cameron J (the joint judgment). I share the appreciation
expressed in the joint judgment for the clear exposition by
Yacoob
J of the facts, the history and the issues to be determined. As
will appear from what follows, we are in broad agreement
on these
aspects and any possible differences between us relate to no more
than matters of inference, nuance and emphasis.
Under the heading
“[c]onstruing constitutionally”, Yacoob J sets out the
constitutional considerations that he
regards as relevant to a
proper determination of the issues in this case. I agree that these
considerations are not irrelevant.
However, where I differ is on
the role these considerations should play and how they impact on
the outcome of this case.
Lastly, I agree with Yacoob J that the application for leave to
appeal should be granted. As will presently emerge, I also
agree
with the joint judgment on various issues pertaining to quantum and
costs. I believe, however, that the trial court
58
and the Supreme Court of Appeal
59
were right in finding that Dr Dey had been defamed. In so far as my
colleagues hold otherwise, I am therefore constrained to
disagree.
The
applicable legal principles
I must confess that I found the arguments raised in this matter
somewhat confusing. What assisted in the improvement of my
own
understanding was a return to the basic principles of the law of
defamation. At the risk of stating the obvious, I therefore
propose
to start from there. In
Khumalo and Others v Holomisa
60
this Court stated that the elements of defamation are:
“
(a)
the wrongful
61
and
(b) intentional
(c) publication of
(d) a defamatory statement
(e) concerning the plaintiff.”
(Footnote added.)
Yet the plaintiff does not have to establish every one of these
elements in order to succeed. All the plaintiff has to prove
at the
outset is the publication of defamatory matter concerning himself
or herself. Once the plaintiff has accomplished this,
it is
presumed that the statement was both wrongful and intentional. A
defendant wishing to avoid liability for defamation
must then raise
a defence which excludes either wrongfulness or intent.
62
Until recently there was doubt as to the exact nature of the onus.
63
But it is now settled that the onus on the defendant to rebut one
or the other presumption is not only a duty to adduce evidence,
but
a full onus, that is, it must be discharged on a preponderance of
probabilities.
64
A bare denial by the defendant will therefore not be enough. Facts
must be pleaded and proved that will be sufficient to establish
the
defence.
65
“
Publication” means the
communication or making known to at least one person other than the
plaintiff. It may take many
forms. Apart from the obvious forms of
speech or print, the injurious information can also be published
through photographs,
sketches, cartoons or caricatures.
66
Statements
may have primary and secondary meanings. The primary meaning is the
ordinary meaning given to the statement in its
context by a
reasonable person. The secondary meaning is a meaning other than
the ordinary meaning, also referred to as an
innuendo, derived from
special circumstances which can be attributed to the statement only
by someone having knowledge of the
special circumstances.
67
A plaintiff seeking to rely on an innuendo must plead the special
circumstances from which the statement derives its secondary

meaning. But an innuendo must not be confused with an implied
meaning of the statement which is regarded as part of its primary

or ordinary meaning.
68
To add to the confusion that sometimes arises from all this,
plaintiffs often wish to point out the sting of a statement which

is alleged to be defamatory per se. The particular defamatory
meaning contended for is then emphasised by a paraphrase of the

statement which is referred to as a “quasi-innuendo”.
“Quasi” because it is not a proper innuendo or

secondary meaning. Background circumstances need not be pleaded.
The disadvantage of relying on a quasi-innuendo, as opposed
to the
contention that the publication is defamatory per se, is that the
plaintiff is bound by the selection of meanings pleaded.
69
In this regard reference was made with approval in
Demmers v
Wyllie and Others
70
to the following statement in
HRH King Zwelithini of Kwa Zulu v
Mervis and Another
:
71
“
[O]nce
a plaintiff has selected the meanings of the offending words upon
which he relies, he is bound by that selection and, if
he should
fail to establish that the words bore or bear such meaning or
meanings, he cannot then fall back on any other defamatory
meaning
or meanings which he contends that the words bear per se, unless he
has pleaded the selected meanings as an alternative
to a general
allegation that the words are defamatory per se.”
Where the plaintiff is content to rely on the proposition that the
published statement is defamatory per se, a two-stage enquiry
is
brought to bear. The first is to establish the ordinary meaning of
the statement. The second is whether that meaning is
defamatory.
72
In establishing the ordinary meaning, the court is not concerned
with the meaning which the maker of the statement intended
to
convey. Nor is it concerned with the meaning given to it by the
persons to whom it was published, whether or not they believed
it
to be true, or whether or not they then thought less of the
plaintiff.
73
The test to be applied is an objective one. In accordance with this
objective test the criterion is what meaning the reasonable
reader
of ordinary intelligence would attribute to the statement. In
applying this test it is accepted that the reasonable
reader would
understand the statement in its context and that he or she would
have had regard not only to what is expressly
stated but also to
what is implied.
74
The reasonable reader or observer is thus a legal construct of an
individual utilised by the court to establish meaning. Because
the
test is objective, a court may not hear evidence of the sense in
which the statement was understood by the actual reader
or observer
of the statement or publication in question.
75
At
the second stage, that is whether the meaning thus established is
defamatory, our courts accept that a statement is defamatory
of a
plaintiff if it is likely to injure the good esteem in which he or
she is held by the reasonable or average person to
whom it had been
published.
76
In the present context this succinct exposition attracts three
annotations:
(a) Because we are employing the legal construct of the
“reasonable”, “average” or “ordinary”

person, the question is whether the statement was “calculated
[in the sense of likelihood] to expose a person to hatred,
contempt
or ridicule”.
77
Evidence of whether the actual observer actually thought less of the
plaintiff is therefore not admissible.
78
The test is whether it is more likely, that it is more probable than
not, that the statement will harm the plaintiff. The view
of
Neethling
79
that a mere tendency or propensity – as opposed to a
likelihood – of harm would suffice, does not appear to be

supported by any authority in our law.
(b) If it is found that the statement is ambiguous in the sense that
it can bear one meaning which is defamatory and others which
are
not, the courts apply the normal standard of proof in civil cases,
that is, a preponderance of probabilities. If the defamatory
meaning
is more probable than the other, the defamatory nature of the
statement has been established as a fact.
80
If, on the other hand, the non-defamatory meaning is more probable,
or where the probabilities are even, the plaintiff has failed
to
rebut the onus which he or she bears. Consequently it is accepted as
a fact that the statement is not defamatory. Or, as stated
somewhat
more succinctly in
Channing v South African Financial Gazette
Ltd. and Others
:
81
“
If,
upon a preponderance of probabilities, it is found that to those
[ordinary] readers the article bore a defamatory meaning,
then
(subject to any defences which may be established), the plaintiff
succeeds, even though there is room for a non-defamatory

interpretation: if not, the plaintiff fails.”
(c) Examples of defamatory statements that normally spring to mind
are those attributing to the plaintiff that he or she has
been
guilty of dishonest, immoral or otherwise dishonourable conduct.
82
But defamation is not limited to statements of this kind.
83
It also includes statements which are likely to humiliate or
belittle the plaintiff; which tend to make him or her look foolish,

ridiculous or absurd; and which expose the plaintiff to contempt or
ridicule that renders the plaintiff less worthy of respect
by his or
her peers.
84
Everyday experience demonstrates that a caricature or cartoon can be
more devastating to the image of the victim than, say, an
accusation
of dishonesty.
Against
this background I now turn to the crucial question in this case:
did Dr Dey establish that he had been defamed by the
manipulated
picture?
Has
defamation been established?
What
appears to be incontrovertible is that the picture communicated a
statement. To the meaning of that statement I shall soon
return.
But, whatever the content of that statement, it was clearly
communicated by wide publication of the picture at the
school.
Equally obvious to my way of thinking is that the statement
concerned Dr Dey and the principal of the school. Though
the bodies
depicted plainly did not belong to them, the faces clearly did.
In
his particulars of claim Dr Dey contended that the manipulated
picture was per se defamatory. Alternatively he pleaded, in
the
form of a quasi-innuendo, that the picture would be reasonably
understood to mean, inter alia, that he was a homosexual
person or
that he was in a homosexual relationship. Despite these
allegations, the majority of the Supreme Court of Appeal
endorsed
the following factual findings by the High Court:
85
“
The
publication raises questions about the plaintiff’s sexuality
and sexual orientation, he [the learned judge
a
quo
]
said. It ridicules the plaintiff’s moral values and
disrespects his person. However, the sexual orientation itself, he

said, is of little moment because the ridicule would not have been
different if the other person had been a female member of
staff.”
In
this Court the applicants’ counsel contended that both courts
had erred in these findings. In support of this contention
they
advanced two arguments. Their first argument departed from the
premise that the core part of Dr Dey’s case remained,
at all
stages, that the picture was defamatory of him because it portrayed
him as being homosexual. Accordingly, so the argument
went, it was
not permissible for him to shift ground on this issue. The second
argument was that, as a matter of law, Dr Dey
was bound by the
selected meanings of the picture that he pleaded and that he could
not fall back on any other defamatory meaning.
As I
see it, these arguments miss the point that the main case advanced
in Dr Dey’s pleadings was that the picture was
defamatory per
se. The allegations of quasi-innuendos were pleaded in the
alternative. This is the type of pleading specifically
approved by
the authorities to which I have referred earlier.
86
As to his main case, which relies on a statement being defamatory
per se, it matters not how Dr Dey understood the picture
or what he
said in his pleadings or in his evidence. The primary or ordinary
meaning of the picture is something for the court
to decide. The
Supreme Court of Appeal can therefore not be faulted when it held
that the ordinary meaning of the picture,
express or implied, is
not a matter for evidence, because interpretation is an objective
issue.
87
I
therefore turn to the first phase in the two-stage enquiry, which
involves an investigation into the ordinary meaning of the
picture.
As we know, the question at this stage is what meaning the
reasonable observer would attribute to the picture in its
proper
context. As I see it, this raises two antecedent questions: (a)
what does the picture show, both expressly and by implication;
and
(b) what is the proper context in which it must be understood?
What
the picture explicitly shows is a frontal image of two men, both
naked, sitting very close together on a couch. Their legs
are wide
open and the leg of the one is resting across the leg of the other.
The hands of both are obviously in the region
of their own
genitals, but both the hands and the genitals are covered by an
image of the school crest. The position of the
hands behind the
crest is suggestive of sexual stimulation or some other sexual
activity. In short, the vision created is one
of two promiscuous
men who allowed themselves to be photographed in what can only be
described as a situation of sexual immorality,
which would be
embarrassing and disgraceful to the ordinary members of society.
The faces of the two men are electronically
cut out and replaced by
those of the school principal, on the one figure, and that of Dr
Dey, on the other. The manipulation
of the picture in this way is
obvious and crude. No reasonable person could ever think that the
bodies on which the faces are
pasted were actually those of the
principal and Dr Dey.
This
leads us to the context in which the picture would probably have
been understood. As a starting point we know that the
picture was
distributed and shown amongst the teachers and learners of a
particular school. As I have already pointed out in
describing the
picture, we know that the two faces are those of the school
principal and one of his deputies, Dr Dey, while
the crest in the
picture is that of the same school. What also appears from the
uncontroverted evidence at the trial is that
the school had about
2 000 learners and that Dr Dey was one of five deputy
principals who each had certain areas of special
responsibility.
Areas for which Dr Dey took special responsibility included
discipline at the school, motivating learners and
the conduct of
formal opening ceremonies at the beginning of every school week. In
sum, as Dr Dey testified, he was the symbol
of authority and
discipline at the school.
What
Dr Dey also testified was that in his experience of about 20 years
as a teacher and about 10 years as a deputy principal,
discipline
at a school could only be ensured through mutual respect between
teachers and learners. Once learners lose their
respect for a
teacher, so he testified, that teacher loses both credibility and
control. In consequence, so he said, it was
of cardinal importance
to him to nurture that mutual respect. None of this was disputed by
or on behalf of the applicants.
On the contrary, it accords with
their evidence that Dr Dey was a well-respected teacher at the
school. This, I believe, must
also be regarded as part of the
context. Another part of the context would be that the picture was
in all probability created
and published by learners at the school.
How
would the picture, in this context, be understood by the reasonable
observer? The nub of the High Court’s finding
in this regard
was that the reasonable observer would understand the picture to
associate the two teachers with the bodies
and their behaviour, and
this association would render Dr Dey (who is the only one of
concern) the object of ridicule and disrespect
for his person.
88
In the main, the majority of the Supreme Court of Appeal agreed
with these findings.
89
In
challenging the correctness of this evaluation by both courts, the
applicants made much of the fact that, since the picture
was an
obvious and crude manipulation, it would be equally plain to the
reasonable observer that the principal and Dr Dey were
not actually
the persons in the picture. In this light, so they contended, the
majority of the Supreme Court of Appeal had
failed to explain how
Dr Dey could be subjected to ridicule and disrespect by a picture
which clearly did not attribute any
conduct to him. For their
further contention that both courts erred in their evaluation of
the picture, the applicants relied
on the premise that the
reasonable observer would have recognised the picture as a joke or
a schoolboy prank. I propose to
deal with these contentions
separately.
As
to the first, I agree that it would be clear to the reasonable
observer that in reality Dr Dey was not one of the persons
in the
picture and that he did not, in reality, partake in whatever it is
that they were doing. But, at the same time, I share
the view of
the High Court, as endorsed by the majority of the Supreme Court of
Appeal, that the reasonable observer would
infer some association
between the two teachers, on the one hand, and the situation
described in the picture, on the other.
After all, their faces were
directly linked to the bodies. In my view that renders the picture
difficult to distinguish from
a caricature or a cartoon: in all
these cases it is obvious that the person identified is not an
actual depiction of that person,
but that there is some association
between that person and what the picture conveys.
What
the applicants’ contention therefore amounts to is that a
caricature or a cartoon can never be defamatory. But that
is not
our law. On the contrary, our courts have accepted, in principle,
that cartoons, caricatures and sketches may well be
defamatory.
90
Whether or not a particular cartoon or caricature is defamatory
will again depend on the outcome of the two-stage test. But

cartoons and caricatures are not excluded from the realm of
defamation merely because they are clearly not true depictions
of
the persons concerned.
So,
to recapitulate, the reasonable observer would, in my view,
understand the image or statement conveyed by the picture as

associating or connecting Dr Dey and the principal with the
indecent situation that the picture portrays.
That
takes us to the second step in the two-stage enquiry: should the
picture, thus understood, be regarded as defamatory of
Dr Dey? That
in turn, as we know, depends on the outcome of a further
investigation, to wit whether the message conveyed by
the picture
would probably undermine the esteem in which Dr Dey is held by
others. Or, stated in somewhat more plain language,
whether the
reasonable person would regard the picture as likely to undermine
the respect enjoyed by Dr Dey.
In
considering this question, the reasonable person would, in my view,
immediately wonder “why”? Why are the principal
and his
deputy, Dr Dey, associated with persons behaving in a lewd and
indecent way? Why are their faces not pasted on, say,
the bodies of
ballet dancers, or for that matter, coupled with some other comical
but innocuous situation? The answer to these
questions that, in my
view, instinctively springs to mind is this: the whole purpose and
effect of the association created
by the picture is to tarnish the
image of the two figures representing authority; to reduce that
authority by belittling them
and by rendering them the objects of
contempt and disrespect; and to subject these two figures of
authority to ridicule in
the eyes of the observers who would
predominantly be learners at the school. This means that the
average person would regard
the picture as defamatory of Dr Dey.
In
the main, I therefore agree with the evaluation of the picture by
the High Court and the majority of the Supreme Court of
Appeal,
albeit through a slightly different process of reasoning.
Significantly, the Freedom of Expression Institute (FXI)

interpreted the picture thus:
“
In
short, . . . the image was a clear attempt to subvert the central
figures of authority in the school by means of deploying
satirical
strategies, however inexpertly executed.”
And that:
“
The
evidence given at the hearing of this matter bears out the fact that
the respondent represented authority in the school and
that the
effect of the image upon other learners was one of shocked laughter.
If the Supreme Court of Appeal had properly considered
these factors
it would have reached the conclusion that the image went no further
than to subvert the central figures of authority
in the school by
turning the values which they represent rudely and clumsily on their
head.”
What
all this means in plain language, as I understood it, is exactly
the same as the conclusion I arrived at, namely, that
both the
purpose and the effect of the picture were to subvert the central
figures of authority in the school by belittling
them and by
subjecting them to ridicule. In so far as the argument may seek to
draw a distinction between Dr Dey as a person,
on the one hand, and
a figure of authority, on the other, it would, in the present
context, come across as a distinction without
a difference. The aim
might have been to destroy Dr Dey’s image as a figure of
authority but the net effect was to belittle
and humiliate him as a
person, to represent him as unworthy – or at least less
worthy – of respect by the learners
of the school, which is a
classic example of defamation.
This brings me to the applicants’ further contention that the
reasonable observer would not have taken the picture seriously

because he or she would have regarded it as a joke. During argument
applicants’ counsel also referred to it as a schoolboy
prank
and as schoolboys poking fun at their teachers. The concept of a
joke or jest is usually cast in the role of a defence
excluding
animus iniuriandi
, an instance in which the defendant bears
the onus.
91
In this case the applicants also sought to assign it to that role.
I will come to that. But the concept of a joke may also
come in at
the earlier stage of determining whether a statement is
defamatory.
92
If the conclusion is that the reasonable observer would understand
the statement as good clean fun which simply caused amusement,
it
will not be regarded as defamatory.
93
Yet,
the mere fact that a statement raised a laugh does not mean that it
is not defamatory. Writing for the majority of the
Supreme Court of
Appeal in this case, Harms DP formulated the principle as follows:
94
“
It
appears to me that if a publication is objectively and in the
circumstances in jest it may not be defamatory. But there is
a clear
line. A joke at the expense of someone – making someone the
butt of a degrading joke – is likely to be interpreted
as
defamatory. A joke at which the subject can laugh will usually be
inoffensive.” (Footnote omitted.)
In
the same vein, Harms DP also referred
95
to the distinction drawn by the author, Melius de Villiers,
96
between “legitimate jest and jest that is not legitimate”.
Latching on to this distinction, both the applicants
and the FXI
maintained that the majority of the Supreme Court of Appeal set
themselves up as arbiters of what is a “legitimate
joke”
in the sense of whether or not a joke is in good taste,
unwholesome, objectively funny, and so forth. They further
argued,
with particular reference to certain passages from the judgment of
Sachs J in
Laugh It Off Promotions
,
97
that the majority of the Supreme Court of Appeal had erred in doing
so.
But
I do not believe that is what the majority of the Supreme Court of
Appeal set out to do. What they did was to differentiate
between
jokes which are defamatory and those which are not. This becomes
particularly clear when proper note is taken of the
substance of
the distinction by Melius de Villiers to which Harms DP referred.
What De Villiers describes as jest which is
not legitimate, is a
joke which would be insulting, offensive or degrading to another.
Or, to apply the test formulated by
Harms DP, a joke in which the
subject cannot share because it is hurtful and defamatory to the
subject. I believe that is essentially
the same distinction that
Innes CJ sought to draw in
Kimpton v Rhodesian Newspapers Ltd
98
when he said that a statement which raises a laugh is defamatory
when there is an element of
contumelia
in the joke, that is
when it is insulting or degrading to the butt of the joke.
What
I distil from all this is that in the present context, the question
is not so much whether the attempt at a joke is objectively
funny
or not. Nor is it of any real consequence whether we regard the
joke as unsavoury or whether we think that those who
may laugh at
it would be acting improperly. The real question is whether the
reasonable observer – perhaps, while laughing
– will
understand the joke as belittling the plaintiff; as making the
plaintiff look foolish and unworthy of respect;
or as exposing the
plaintiff to ridicule and contempt. Everyday experience tells us
that jokes are often intended to and are
frequently more effective
in destroying the image of those at whom they are aimed. If the
joke then achieves that purpose,
it is defamatory, even when it is
hilariously funny to everyone, apart from the victim.
Reverting
to the facts, this is precisely how the reasonable observer would,
in my view, have evaluated the picture, namely,
that it was aimed
at challenging Dr Dey’s authority through tarnishing his
image and diminishing the respect that he
enjoyed amongst the
learners of the school. That renders the picture defamatory. I am
prepared to accept that most of the learners
at the school found
the picture funny or even hilarious. But that does not detract from
my conclusion. In fact, as I see it,
the very reason why they would
probably be laughing was that the two figures of authority were
belittled and reduced to ridicule.
Ironically
enough, support for my conclusion as to how the reasonable observer
would evaluate the manipulated picture, comes
from inadmissible
evidence which the applicants sought to introduce in their favour
at the trial. It happened when the applicants’
friend, Ms
Marzaan Griesel, was called to testify on their behalf. The tenor
of her – inadmissible – evidence was
that when she saw
the picture, she regarded it as a joke. Yet, she conceded under
cross-examination that she would not like
to see the photograph of
one of her parents used in the same way, because “dit sou
hulle verneder”, which, directly
translated, means that it
would have humiliated or demeaned them. Lest I be misunderstood: I
do not rely on the concession
by Ms Griesel as part of the
reasoning which led me to the finding that the picture is
defamatory. I do believe, however, that
it is an answer to the
applicants’ contention during argument that to regard the
picture as defamatory would be to lose
touch with the ways of
schoolchildren and schoolboy pranks. In short the answer is that a
schoolchild called as a witness for
the applicants came to exactly
the same conclusion; that even though it could be called a
schoolboy prank, it humiliated and
demeaned the victims of the
prank.
Much
was made by the applicants’ counsel of the fact that the
picture was plainly created by schoolchildren. I agree that
this is
how the reasonable observer would probably see the situation. I
also agree that it is not an irrelevant consideration.
The
reasonable observer would, to an extent, take the statement from
whence it cometh. Accordingly, the reasonable observer
would accept
that teachers are often the butt of jokes by their learners and
that these jokes must not be taken too seriously.
Yet
there is a line that may not be crossed. That must be so because
teachers are entitled to protection of their dignity and

reputation; no less than to the protection of their bodily
integrity. Conversely, learners are not exempted from delictual

liability. In the case of bodily integrity and damage to property
the line is usually bright and clear. If a schoolboy, as
part of a
prank, pulls a chair from under a teacher sitting down, the
schoolboy will be liable for the damages resulting from
the
injuries the teacher may suffer. Or if he damages the teacher’s
car, the result will undoubtedly be the same.
In
the case of defamation the line might not be so bright and
sometimes it might even be wavering. Nonetheless, it is there.
In
principle it is crossed when the joke becomes hurtful; when it
represents the teacher as foolish, ridiculous and unworthy
of
respect. In the end it comes down to a value judgment. In this case
I share the value judgment of the High Court, and the
majority of
the Supreme Court of Appeal, that the applicants had crossed the
line.
Wrongfulness
The
FXI also sought to build an argument on the fact that the picture
was obviously created by schoolchildren. Its argument,
however,
went down an entirely different road. What it amounted to was that,
even if the picture was found to be defamatory,
its publication
should be held to be justified by an extension of the reasonable
publication defence developed by the Supreme
Court of Appeal in
National Media Ltd and Others v Bogoshi
,
99
as endorsed by this Court in
Khumalo.
100
In developing this argument the FXI contended that children should
be allowed, as part of their right to freedom of expression
under
section 16 of the Constitution, to experiment with satire. The very
point of satire, the argument proceeded, is to ridicule
those in
authority, even when it results in some hurt to the victim,
particularly since hurt to the victim is often necessary
to render
the expression poignant. Yet, so the argument concluded, satire is
part of the functioning of democracy and children
should,
therefore, be allowed to develop their skills through
experimentation.
By
raising the defence of justification, the FXI entered the domain of
wrongfulness. This is so because grounds of justification

customarily describe defences excluding wrongfulness. As we know, a
defendant who seeks to rely on a ground of justification
bears the
onus to raise and establish this ground. Traditionally these
grounds include, for example, that the statement was
true and
published for the public benefit, that it was published on a
privileged occasion, that it constituted fair comment
on facts
which are true, and so forth.
101
In
the more recent past our courts have come to recognise, however,
that in the context of the law of delict: (a) the criterion
of
wrongfulness ultimately depends on a judicial determination of
whether – assuming all the other elements of delictual

liability to be present – it would be reasonable to impose
liability on a defendant for the damages flowing from specific

conduct;
102
and (b) that the judicial determination of that reasonableness
would in turn depend on considerations of public and legal policy

in accordance with constitutional norms.
103
Incidentally, to avoid confusion it should be borne in mind that,
what is meant by reasonableness in the context of wrongfulness
has
nothing to do with the reasonableness of the defendant’s
conduct, but it concerns the reasonableness of imposing
liability
on the defendant for the harm resulting from that conduct.
104
In
the constitutional context, grounds of justification play a pivotal
role. Shortly after the advent of the new constitutional

dispensation, some decisions of the high courts held that our
common law was not sufficiently even-handed in its protection
of
the right to freedom of speech when it came into conflict with the
right to reputation.
105
Because of the more recent approach by our courts that there is no
numerus clausus
of justification grounds, it was open to the
Supreme Court of Appeal in
Bogoshi
106
to create a new ground of justification, subsequently referred to
as “reasonable publication”.
107
In the light of this new development, this Court was able to find
in
Khumalo
108
that the common law allows the courts to strike a proper balance
between the often conflicting fundamental rights of freedom
of
speech, on the one hand, and the right to dignity, including
reputation, on the other. Yet the categories of grounds of

justification are still not closed. Courts may in appropriate cases
thus recognise new grounds or adapt existing grounds to
give effect
to considerations of legal policy and constitutional norms.
In
the context of defamation the result of all this was summarised as
follows in
Hardaker v Phillips
:
109
“
The
element of unlawfulness [or wrongfulness] is more often than not
sought to be rebutted by the defendant attempting to establish
one
or other of the well-established defences which either owe their
origin to or bear the influence of English law. These typically

include qualified privilege in relation to judicial proceedings and
fair comment. But the defences available to rebut unlawfulness
do
not constitute a
numerus
clausus
.
. . . In the final analysis, whether conduct is to be adjudged
lawful or not depends on a balancing of the constitutionally

enshrined right of dignity, including as it does the right to
reputation on the one hand, and the right to freedom of speech,
on
the other. . . . But, the above notwithstanding, the
well-established defences and the rules relating to each are both
useful
and convenient and in addition have the advantage of
affording litigants a degree of certainty. Nonetheless, in their
application
and development, sight should not be lost of the
constitutional values underlying their true object which is the
rebuttal of
unlawfulness.”
Needless
to say, in applying these principles, dignity and freedom of speech
are not the only constitutional norms that may
come into play.
Notionally it is conceivable that a court may find an admittedly
defamatory statement justified in order to
give effect to some
other constitutional value. But the balancing act between
potentially conflicting fundamental rights can
be performed only
after all pertinent facts have been established. And, in the light
of well-established authority,
110
the defendant who invites the court to perform that balancing act
bears the onus of pleading and establishing the defence.
As I
have said earlier, satire expressed by way of cartoons, caricatures
or sketches may in principle well be found to be defamatory.
Yet,
it will not attract liability if the defendant succeeds in raising
some ground of justification. Grounds that come to
mind in this
context as being potentially available include, for example, fair
comment, privileged occasion, and justifiable
publication.
In
this case no justification ground was pleaded or relied upon by the
applicants. As I have said, justification as a potential
defence
was raised for the first time during argument in this court by the
FXI. It will be remembered that it relied on the
rather radical
ground based on the alleged right of children to develop their
satirical skills. I find it unnecessary to deal
with the proposed
ground of justification at any great length. Apart from the fact
that it derives no support from our law
as it stands, I find the
major obstacle to its acceptance in the fact that it was never
pleaded and never raised in any manner
or form at the trial. The
probable reason for this is that the applicants were never prepared
to admit that the picture was
defamatory of Dr Dey or, for that
matter, that it constituted an infringement of his dignity. But, be
that as it may, because
it has never been raised, the defence had
not been canvassed or investigated at all. Had it been so
canvassed, the court would
have had to perform the balancing act
between the freedom of expression of schoolchildren, on the one
hand, and the dignity
of teachers – including their
reputation – on the other.
To
facilitate this balancing act, there would have to be an
investigation into what the effect of such free-reigning
experimentation
by schoolchildren with satire would be. Would it
not result in a general destruction of respect for teachers? And,
if so, what
would be the effect on discipline in our schools? Apart
from his own evidence, Dr Dey also presented the evidence of Dr
Pieter
Edwards at the trial. He is the principal of a well-known
school in Pretoria. What we learn from his evidence, and that of Dr

Dey himself, is that, in their experience, respect for teachers is
an essential precondition for discipline; that discipline
in turn
is an essential requirement for the functioning of the school
system; and that there is a growing tendency in our schools
to
challenge the status and authority of teachers with a concomitant
breakdown in discipline. In this light it would, in my
view,
frankly be irresponsible to allow the extension of the reasonable
publication defence contended for by the FXI without
any proper
investigation into the potential repercussions.
Animus
iniuriandi
This brings me to the defence raised by the applicants that they
lacked
animus iniuriandi
or intent. Broadly stated for
present purposes,
animus iniuriandi
is the subjective intent
to injure or defame. It is the equivalent of
dolus
in
criminal law. It does not require that the defendant was motivated
by malice or ill-will towards the plaintiff. It includes
not only
dolus directus
but
dolus eventualis
as well.
111
As
we know, a defendant who raised absence of
animus iniuriandi
as a defence, bears the onus of establishing that defence on a
preponderance of probabilities. In their endeavour to do so,
the
applicants relied on two grounds. First, that they intended the
picture as a joke and therefore had no intent to injure
or defame.
Second, that they did not appreciate the wrongfulness of their
conduct. I propose to deal with these two grounds
separately.
As
to the first ground, established principles of our law dictate that
motive to raise a laugh and not to injure, in itself,
would not
exclude
animus iniuriandi
. This is so because in our law
motive does not necessarily correlate with intent. A defendant who
foresaw the possibility that
his attempt at humour might be
defamatory of the plaintiff, but nonetheless proceeds with the
attempt, will have
animus iniuriandi
or intent in the form
of
dolus eventualis.
I
believe that, at best for the applicants, this is what happened in
this case. On the assumption, in the applicants’
favour, that
they intended to amuse their fellow learners through wit, they knew
at the same time that an inherent element
of the joke was to
humiliate Dr Dey and the principal. Stated somewhat differently, I
believe the applicants appreciated that
the very reason why fellow
learners may find the joke funny, was that it subjected the two
figures of authority at the school
to humiliation and ridicule.
I say this because two of the applicants conceded in
cross-examination that they would not paste the face of their
dominee
(church leader) on the same picture because one does
not “mess” with the
dominee
. They also admitted
that they would not like to see their own faces or the faces of
their parents in that position. The only
sensible inference I can
draw from all this is that they knew that any person whose face was
pasted on that picture would be
humiliated and suffer harm through
degradation. In short, they knew that they were “messing”
with Dr Dey’s
image and carried on regardless of the
consequences.
The
second basis on which the applicants rely for their alleged lack of
intent, is absence of knowledge of wrongfulness. I must
admit that,
in the circumstances I found their reliance on this basis rather
peculiar. Lack of knowledge of wrongfulness is
generally advanced
in the context of a subjective belief in some ground of
justification which is then found, objectively,
not to exist. So,
for example, it would be contended by a defendant that he or she
thought the defamatory statement was privileged,
112
or that the defamatory statement was true and its publication for
the public benefit,
113
or that the plaintiff had consented to publication.
114
But this was not the defence raised by the applicants. Nor did they
contend that they were unaccountable or
culpae incapax
because
their emotional and intellectual development had not reached the
stage that enabled them to distinguish between right
and wrong and
to act accordingly.
115
They simply denied that they were aware that what they were doing
was wrong.
The
trial court held that on the applicants’ own evidence they
indeed knew that what they did was wrongful. In support
of this
finding the court referred, inter alia, to their admission that
they would not paste the face of their
dominee
or their
parents in the same position and that one of the applicants tried
to stop further publication of the picture. The
finding that the
applicants knew that what they were doing was wrongful is
well-supported.
Harms
DP also agreed with that factual finding. But he had “some
difficulty with the conclusion because it could confuse
moral and
legal blameworthiness.”
116
This difficulty seems to derive from the applicants’
testimony that they were unaware of the concept of defamation.
117
This led Harms DP to enquire whether knowledge of wrongfulness
should still be part of our law.
118
In the event, he concluded that it should not and that so-called
colourless intent is enough to establish
animus iniuriandi
.
119
But,
with due respect, I fail to share the difficulty. I do not believe
that knowledge of wrongfulness requires familiarity
with the
existence of a particular delict. Just as much as it will be no
defence in a criminal trial to plead ignorance of
a crime called
crimen iniuria
, ignorance of the name of the particular
delict is simply no answer to delictual liability. What is more, it
was never suggested
by or on behalf of the applicants that their
knowledge of wrongfulness, which was found to exist, only pertained
to issues
of morality. Ultimately, it must be borne in mind that
the applicants bore the onus to establish their defence of absence
of
knowledge of wrongfulness on a preponderance of probabilities.
In my view, they simply failed to rebut this onus. It was therefore

not necessary for the Supreme Court of Appeal to embark upon the
enquiry as to whether our law should still require knowledge
of
wrongfulness as part of
animus iniuriandi
. Nor do I find it
necessary for this Court to do so.
Dignity
claim
In
terms of our Constitution, the concept of dignity has a wide
meaning which covers a number of different values. So, for example,

it protects both the individual’s right to reputation and his
or her right to a sense of self-worth.
120
But under our common law “dignity” has a narrower
meaning. It is confined to the person’s feeling of
self-worth.
While reputation concerns itself with the respect of
others enjoyed by an individual, dignity relates to the
individual’s
self-respect. In the present context the term is
used in the common law sense. It is therefore used to the exclusion
and in
fact, in contradistinction to reputation, which is protected
by the law of defamation.
In
his pleadings, Dr Dey relied on defamation and impairment of his
dignity as separate causes of action, arising from the same
facts.
The High Court held in his favour on both counts but made only one
award of damages. But, in the Supreme Court of Appeal
the
majority,
121
and Griesel AJA in his minority judgment,
122
agreed that the same conduct cannot give rise to two actions under
the
actio iniuriarum
. Consequently, the majority held that,
because Dr Dey was successful in his defamation claim, his claim
based on impairment
of dignity did not require further
consideration.
123
The minority, on the other hand, found that Dr Dey had failed to
establish defamation but that his claim for impairment of
dignity
should succeed.
124
I
find myself in respectful agreement with the principle that the
same conduct should not render a defendant liable by dint
of more
than one
actio iniuriarum
. I say that for the reasons that
follow.
Traditional
learning generally defines
iniuria
as the wrongful and
intentional impairment of a person’s physical integrity
(
corpus
), dignity (
dignitas
), or reputation (
fama
).
125
Academic authors are in agreement, however, that although the
time-honoured three-fold distinction is a useful classificatory

device to highlight the different interests involved, these
interests often overlap.
126
Thus, for example, although assault is classified as an
infringement of physical integrity it will also often infringe the

victim’s sense of dignity; malicious attachment of property
will frequently carry with it an infringement of the plaintiff’s

reputation or dignity or both while the infringement of reputation
will almost always be accompanied by an affront to dignity.
In
view of this constant overlapping of manifestations of
iniuria
,
duplication of
actiones
would therefore have been expected
as a matter of common occurrence, if it were allowed in principle.
Yet, like Harms DP,
127
I am unaware of a single case where two actions for
iniuria
were
allowed on the same facts. On the contrary, as pointed out by the
majority in the Supreme Court of Appeal,
128
it is recognised that an award of damages for defamation should
compensate the victim for both wounded feelings and the loss
of
reputation.
129
I see that as an implicit endorsement of the principle that the
plaintiff will not be able to succeed in separate claims for
both
defamation and infringement of dignity, arising from the same
facts. In the same way as the majority of the Supreme Court
of
Appeal did, I therefore conclude that the corollary of Dr Dey’s
success in his defamation claim is that his claim
based on dignity
must fail.
To
complete the picture I may add that, if the defamation claim were
to fail, Dr Dey should, in my view, succeed in his dignity
claim.
Broadly stated, the claim for impairment of dignity comprises both
a subjective and an objective element. The subjective
element
requires that the plaintiff must in fact feel insulted. To satisfy
the objective element our law requires that a reasonable
person
would feel insulted by the same conduct.
130
As
to the subjective element, Dr Dey testified that he was deeply hurt
by the applicants’ conduct; that he felt belittled
and
humiliated; that in his perception he had lost the image he had
worked so hard to achieve as the upholder of values at
the school;
that in his mind, the majority of the children saw him as a
laughing stock; and that he had therefore lost the
respect of the
schoolchildren which was vital for his continued functioning as a
teacher at the school. No-one suggests that
this evidence should
not be believed or that his feelings were not genuine. In this
light the subjective element of the dignity
claim was clearly
established.
As
to the objective element I have already found the picture
defamatory because in the eyes of the reasonable observer it was

likely to make Dr Dey look foolish and ridiculous. By the same
token, the reasonable observer would, in my view, also have
felt
humiliated and belittled if his or her face were to substitute that
of Dr Dey. After all, the applicants themselves admitted
that they
would not like to see their own faces or those of their parents in
the same position. And their friend, Ms Griesel,
gave the reason:
it would humiliate them.
But
at the same time I feel constrained to state the converse: if I
were to hold the picture non-defamatory, I would dismiss
the claim
based on dignity as well. The minority judgment in the Supreme
Court of Appeal came to the contrary conclusion. Though
he found
the picture not defamatory, essentially because the reasonable
observer would, in his view, regard it as a schoolboy
prank,
131
he held that the claim based on impairment of dignity should
succeed.
132
The
applicants submitted, however, that the minority judgment cannot be
sustained because it focussed solely on how Dr Dey subjectively

experienced the picture and completely negated the objective
element of the action. In view of the way in which the findings
of
the minority on this aspect are formulated,
133
I am constrained to agree with this submission.
Once
the objective element is introduced, I find it hard to understand
why the same reasonable observer, who would regard the
picture as a
schoolboy prank, would feel insulted by the prank. Why would the
picture suddenly change its nature when it pertained
to the
reasonable observer herself? Stated somewhat differently, if the
reasonable observer would not think that the picture
humiliated Dr
Dey by rendering him the object of disrespect – as I believe
it did – why would he or she think that
Dr Dey was right in
feeling humiliated?
In
short, if a reasonable observer would agree with Dr Dey that he had
been humiliated, infringement of dignity has been established.
But
by the same token Dr Dey would have been humiliated in the eyes of
a reasonable observer to whom the statement had been
communicated,
which means that defamation had been established as well. If, on
the other hand, the reasonable observer did
not find the picture
humiliating of Dr Dey, defamation would not have been established,
but neither would infringement of dignity.
And so I believe that we
land ourselves in the same never-ending circle of logic.
Quantum
and costs
With
regard to quantum I agree with the general approach adopted in the
joint judgment by my colleagues Froneman J and Cameron
J and
particularly with their view on the import and the role of an
apology. Ultimately I agree with the order they propose
to make.
Overall, I agree with paras 154 to 157, 168 to 173, 181 to 189 and
195 to 203 of their judgment.
According
to established principle, an award of damages for defamation should
compensate the plaintiff for both wounded feelings
and loss of
reputation. It is also accepted that in some cases the former may
outweigh the latter.
134
I believe this is one of those cases. That is the reason why,
despite our differences on the cause of action upon which Dr
Dey
should succeed, I can agree with my colleagues on quantum.
I am
mindful that I am interfering with the award that both the High
Court and the Supreme Court of Appeal made for defamation.
Where I
respectfully differ with the approach adopted by the two courts is
that, as I see it, too little was made of the fact
that the
defendants were schoolchildren, as well as the fact that they had
already been subjected to other forms of punishment
for the same
act in more than one way. I appreciate that we are not dealing with
sentencing in a criminal case or with an award
of punitive damages.
Yet, Dr Dey should, in my view, have taken substantial consolation
from the fact that he had to some extent
been vindicated in the
eyes of members of the school community – who observed the
picture – by the punishment that
the wrongdoers had already
endured.
Ngcobo
CJ, Moseneke DCJ, Khampepe J, Mogoeng J and Nkabinde J concur in the
judgment of Brand AJ.
FRONEMAN J AND CAMERON J:
Introduction
In
his judgment Yacoob J concludes that the respondent (Dr Dey) must
fail in both his defamation and dignity claim. We agree
that the
defamation claim should be dismissed, but we consider that the
dignity claim should be upheld. The facts, history
of the matter
and the issues to be determined are clearly and admirably set out
in his judgment. If we have any difference
in that regard it is
merely in emphasis. In this same spirit we endorse our colleague’s
treatment of the context in which
the impugned image should be
assessed. We agree that leave to appeal should be granted for the
reasons given in our colleague’s
judgment and that the
application to lead further evidence should be dismissed. Whilst we
value his approach to the weighing
up of the right of freedom of
expression in a situation where children are involved because it is
thought-provoking, we consider
that in the particular circumstances
of this case a more conventional approach accords with the dictates
of the Constitution.
We are also indebted to the comprehensive
treatment of the law of defamation in the judgment of Brand AJ. We
do not consider
our treatment to differ materially from his general
exposition of the law, except in its application.
Our
common law recognises that people have different claims for
injuries to their reputation (
fama
) and to their own sense
of self-worth (
dignitas
).
135
Both are affronts to the rights of personality, and although the
Bill of Rights does not always draw sharp lines between the
two,
136
the distinction is important to our new constitutional order. It
illuminates the tolerance and respect for other people’s

dignity expected of us by the Constitution in our public and
private encounters with one another. We may be deeply hurt and

insulted by the actions of others, in calling or portraying us as
what we have chosen, freely, not to be, or to keep private,
even
though we are not defamed. It may be that the personal insult or
injury may not be considered, in the public eye, as something
that
harmed our reputation. But within limits our common law, and the
Constitution, still value and protect our subjective
feelings about
our dignity. It is this difference between private and public
esteem that explains, in our view, why Dr Dey
cannot succeed in his
defamation claim, but must do so in his dignity claim.
As
the judgment of our colleague Yacoob J related, the applicants
caused an electronically manipulated image to be distributed
at the
school they attended. It showed the bodies of two naked men sitting
close together on a couch, their legs suggestively
apart, with the
leg of one crossing that of the other. The men’s hands are in
the area of their genitals, but both hands
and genitals are
strategically covered by the school crest. On the faces of the two
naked men the “creator”, the
first applicant, Hendrick
Pieter Le Roux, electronically superimposed the facial images of
the school principal and of Dr Dey.
The idea to do so came to him
after watching an episode of
South Park
, an adult cartoon
series on television.
For
the purposes of his defamation claim, Dr Dey’s personal
understanding of this image is not decisive or even relevant.
Nor
is the way in which others actually understood it. Hence evidence
of what those who saw the image thought it meant or conveyed,
if
anything, is not admissible in a defamation claim. Our law of
defamation decrees that the “ordinary”, or “primary”,

meaning conveyed by the image is an objective matter of
interpretation by the courts, on which direct evidence of how it

was actually understood is not admissible.
137
What matters is thus not what any particular individual who saw the
image thought, but the court’s objective interpretation
of
the meaning it conveyed to the reasonable average viewer of the
image, and whether that meaning would probably lower Dr
Dey’s
esteem in the eyes of the public.
138
This
does not mean that how Dr Dey understood what the image conveyed is
irrelevant, since his understanding is crucial to his
dignity
claim. But first we must explain why we consider that Dr Dey was
not defamed.
Defamation
claim
As
far as we have been able to establish there is no reported case in
this country where schoolchildren have been held liable
for
defaming their schoolteachers in a school setting. That is no
accident. What the applicants did here is not exceptional.
Every
generation of schoolchildren includes individuals who try to make
fun of their teachers, who attempt to ridicule them
and who attempt
to undermine their authority. Some of their peers may laugh at
their jokes, or guiltily enjoy the attempt to
ridicule and
undermine authority; many others will disagree. But for none of
them, we suggest, would the jokes, the attempted
ridicule or
undermining of authority made by the few, in the eyes of the
reasonable observer, imply that the teacher is now
somehow someone
different to the person they knew, diminished by the attempted
joke, ridicule or subversion of authority. And
that, we think, will
also be the reaction of teachers, parents and outsiders who come to
know of it. The children’s conduct
will be recognised as
naughty, or worse, but hardly ever as lowering the public esteem of
the teacher. In most, if not all,
cases the converse will be true:
the offending children will be thought less of, not the teacher.
Everybody would accept that
the conduct was wrong and that the
offenders need to be punished, not because the teacher’s
public esteem was probably
diminished, but because the children did
not measure up to the public standard expected of them at the
school.
We
see no material difference between that general situation and the
particular facts of this case. The applicants distributed
the
manipulated image at school and it was seen by schoolchildren and
teachers there. Dr Dey was a well-respected teacher and
authority
figure at the school. He was known not to be sexually promiscuous
or exhibitionist. That was why the perpetrators
thought what they
were doing was funny. Nobody would have thought that Dr Dey and the
school principal actually indulged in
lewd, camera-loving
nakedness. Some might have thought it funny, some less so and for
others it may have seemed insulting.
But it seems common sense that
everyone would have accepted that the applicants’ conduct was
wrong and that they would
be punished for it, not because Dr Dey’s
reputation had suffered, but because the applicants’ own
behaviour did
not come up to scratch. In fact, the applicants were
punished at school for their transgression and that, normally,
would have
been that. In addition, because Dr Dey laid a criminal
charge against them, the weight of our criminal justice system came

to bear upon them, but they were “diverted” into a
juvenile programme that permitted them, on admitting guilt, to

perform community service at the Pretoria Zoo instead of being
convicted.
As
we indicated earlier, for a statement or image to defame another,
it must in the eyes of a reasonable observer undermine
the status,
good name or reputation of that person. The standard of proof is
probability of injury. This means that the plaintiff
must prove
that a reasonable person would have thought less of the plaintiff
because of the image. Whether a statement or image
is defamatory
thus involves a two-stage enquiry. The first is to establish the
natural or ordinary meaning of the statement
or image in its
localised factual context. The second is whether that meaning is
defamatory.
139
The
majority of the Supreme Court of Appeal held that the image defamed
the plaintiff because “[i]t ridicules him, his
moral values
and disrespects his person.”
140
It rejected the defence of jest and refused to find that the viewer
of the image would have accepted that its creator was a
child.
With
respect, we do not share the view that the image is defamatory. The
Supreme Court of Appeal found as a fact that the viewer
would not
have known that the authors of the image were schoolchildren. There
was “no reason”, the court found,
for the likely viewer
to have accepted “that children were behind it all”.
This finding seems to have been pivotal
to its conclusion as to the
nature of inference the reasonable viewer would have drawn from it.
The majority pointed out that
it cannot be that “the identity
of the alleged defamer can determine the objective meaning of a
publication.”
141
That is right, but it is not the point. The fact is that, in the
school context, the likely childish origins of the image would,

without doubt have played a role in, if not determined, the likely
viewer’s assessment and understanding of the image.
Counsel
for Dr Dey conceded that the Supreme Court of Appeal’s
finding that the likely viewer would not have accepted
that the
image was the handiwork of children was wrong. That concession was
in our view correct. The school setting is pivotal
to determining
the meaning of the image, defamatory or otherwise, because it is
overwhelmingly likely that the reasonable viewer
would have seen it
as a childish, if tasteless or cruel, prank.
In
addition to the school setting, which pointed to the prank’s
likely origin, the fact was that the image was a crude
pastiche:
the heads are misaligned with the bodies, and wrongly sized; the
two faces are different in size; the cut and paste
job is evident
from the edging of the inset; and indeed Dr Dey’s face is
pasted over the remnants of the hair of the
person in the original:
he is invested with a fuzzy halo of another’s hair.
All
this bears on how the reasonable viewer would have assessed the
image – in other words, on the meaning the image would
have
conveyed to that viewer or reader. She may have been offended or
shocked by it or disapproved it, but she would certainly
not have
taken it seriously. Differently put, she would not have thought
that the image conveyed, or was intended to convey,
any factual
averment about the plaintiff or his sexuality or sexual lifestyle.
We
accept that the manipulated image depicted two people in a sexually
compromising position and that the crude pasting of the
faces of Dr
Dey and the school principal onto the bodies of the men sought to
create some association between Dr Dey and the
indecent situation
that the image portrays. We also accept that the manipulation was
an attempt by its creators to ridicule
and undermine the authority
of Dr Dey and the school principal (although we have sympathy with
those whose sense of humour
declines to accept that these deeper,
darker forces were really at work).
But
an acceptance of all this does not, in our view, mean that the
average reasonable person viewing the image in the school
context,
where it was published, would regard the picture as defamatory of
Dr Dey by countenancing the indecent association
or attempted
ridicule. That contextually average reasonable school viewer,
learner or teacher, knew better: Dr Dey and the
school principal
were not promiscuous, they were respected teachers, and the
offenders would get their just disciplinary deserts
for their crude
joke – as indeed they did. They were formally punished at
school, as well as in a “diversion programme”
under the
Criminal Procedure Act,
142
after Dr Dey laid charges against them, which resulted in their
performing community service by cleaning cages at the local
zoo.
Any diminution in public esteem would affect the applicants, not Dr
Dey or the school principal.
The
conventional test for determining whether a statement is defamatory
is if it would probably lower the plaintiff in the estimation
of
right-thinking members of society generally.
143
This test has been widely applied in our courts,
144
subject to the qualification that the reference to “right-thinking
persons” is no more than a convenient description
of a
reasonable person of normal understanding and development,
145
and that the reference to the views of society “generally”
includes views held by a substantial section of the
community.
146
This
test is useful and practically expedient if it is understood
properly as an objective test to determine whether the reputation

of a person has been objectively infringed,
147
on a balance of probabilities.
148
The Supreme Court of Appeal appears to have taken this test to mean
that likelihood is not a requirement, but that it is sufficient
if
a statement merely has the “tendency” to undermine the
status, good name or reputation of a person, to qualify
as
defamatory.
149
In our view this approach does not take sufficient account of
constitutional values and norms, nor the practice in our courts

even before the advent of the Constitution.
The
suggestion that a person may be defamed without probable impairment
of his right to reputation is inconsistent with the
decisions in
Botha v Marais
150
and
Demmers v Wyllie
.
151
These state that the determination of impairment of the right to
reputation should be done objectively and should be proven
on a
balance of probabilities. It is also inconsistent with the
requirement of publication of a defamatory statement and the

concomitant requirement that the ordinary or reasonable reader of
the published statement must have understood the statement
as
defamatory.
152
Defamation
law involves the consideration and weighing up of competing
fundamental constitutional rights against each other,
normally
those of freedom of expression against those of dignity and
privacy.
153
Once a defamatory statement is proven to have been published our
law presumes that its publication was unlawful and done

intentionally, and the onus is then on a defendant to prove
otherwise.
154
The normal constitutional practice and requirement is that the onus
is on a plaintiff to prove the infringement of a fundamental
right
and for the defendant to justify that infringement.
155
If
the current state of our law of defamation is properly understood
as requiring objective proof, on a balance of probabilities,
that a
plaintiff’s reputation has been impaired, the onus on a
defendant, once the requisite proof of impairment of reputation
has
been offered, to rebut the presumption of unlawfulness and
animus
iniuriandi
, fits well with accepted constitutional practice and
requirements. The contrary is the case were there to be defamation
without
actual impairment of the right to reputation. It seems
clear that pronouncements suggesting that statements may be
defamatory,
even though no impairment of a plaintiff’s
reputation has been established, do not correctly reflect our law.
This affirmation
entails no reformulation of the rules of evidence
relating to the determination of the meaning and defamatory content
of a
publication or image. The test to determine infringement is
the same objective test as it has always been.
Once
it is clear that our law requires probable impairment of the right
to reputation (the public aspect of the constitutional
right to
dignity)
156
before a statement or image may be considered defamatory, general
pronouncements that statements or images that arouse hatred,

contempt or ridicule are defamatory
157
are better understood. It then becomes clear that statements or
images that were “
calculated or had the tendency
or
propensity
to defame”
158
are defamatory only if they objectively and as a matter of
probability cause impairment of a plaintiff’s good name. If

they do not, there is no defamation: but there may be impairment of
dignity.
Dignity
claim
And
that is what happened here. Objectively, the prank did not impair
Dr Dey’s reputation. But he experienced it as a
deep affront
to his personal dignity. The question is whether, in law, his right
to dignity, coupled with his right to privacy,
was impaired. For
the purposes of this claim, what Dr Dey understood the image to
convey is highly important, since wounded
feelings are
indispensable to the claim. But they are not enough. What the
common law requires for a dignity claim to succeed
are three
elements: a deliberately inflicted, wrongful act, that impairs the
plaintiff’s dignity.
Apart
from the intention to injure him (or
animus iniuriandi
), Dr
Dey therefore had to establish that subjectively his feelings were
violated by what he understood to be portrayed by the
image, but
also, objectively, that the way the image portrayed him was
wrongful.
159
These common law requirements are in conformity with our
Constitution’s protection of everyone’s inherent right

to dignity.
Dr
Dey testified at length, and with some emotion, that the portrayal
of him as somehow involved in homosexual activities was
deeply
hurtful and that he considered this imputation as an affront to his
personal dignity. Dignity and privacy are closely
linked in our
constitutional order.
160
There can be no doubt that subjectively he was deeply affronted by
the superimposition of his face not only on to naked bodies,
but on
to an image that evoked same-sex sexuality. The subjective
component of wounded dignity was undoubtedly established.
But
Dr Dey also had to establish that this depiction was wrongful. The
injury he suffered should be one of which the law takes
cognisance.
Not every subjective slight has legal impact. Counsel for the
applicants seized upon Dr Dey’s anguish at
the homosexual
dimension of the image. He suggested that this created a problem
for Dr Dey’s dignity claim. Counsel contended
that the
objective requirement of unlawfulness had not been established.
In
Delange v Costa
, Smalberger JA explained that in determining
objective wrongfulness the criterion is one of reasonableness:
“
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.”
161
The
reason why an objective standard was necessary, Smalberger JA
explained, was to avoid the courts “being inundated
with a
multiplicity of trivial actions by hypersensitive persons.”
162
It may be noted that here, in determining whether Dr Dey’s
dignity was unlawfully infringed, as in determining whether
the
publication of the image defamed him, an objective test of
reasonableness is applied. But it must be emphasised that the
two
inquiries are different, and hence that their outcomes may differ.
The one reflects inwardly, the other outwardly.
In dignity claims,
the injured interest is self-esteem, or the injured person’s
feelings. In defamation, it is public
esteem or reputation. And the
objective reasonableness in a dignity claim is assessed in relation
to feelings of individual
affront, not in relation to the audience
that sees the image or reads the statement as in a defamation
claim. It is in our
view obvious that the reasonable observer may
conclude that, objectively seen, an affront did not damage a
person’s reputation,
while at the same time concluding that,
objectively seen, the injury to that person’s feelings was
palpable and reasonably
felt, and hence actionable.
The
test of objective reasonableness to determine wrongfulness
enunciated in
Delange
must incorporate constitutional values
and norms and give effect to them.
163
Here the submission by counsel for the applicants becomes
pertinent. Are there constitutional values and norms that would
deny Dr Dey his dignity claim? More specifically, are there
constitutional values and norms that preclude him from claiming

compensation for being portrayed as associated with camera-happy
naked sexuality?
It
is correct, as counsel for the applicants emphasised, that Dr Dey
found it objectionable that the image associates him with
two men
portrayed as engaging in same-sex conduct. Counsel also emphasised
that the Constitution discountenances anti-gay sentiments.
He
suggested that Dr Dey’s claim should for this reason fail.
The
submission embodies a germ of truth but the basis of the injury
must be carefully delineated. It is not, and should not
be
considered to be, an actionably injurious slight to offend
someone’s feelings by merely classing them in a condition
the
Constitution protects – be it religious, racial, age, birth
or sexual. To simply call someone Muslim, Christian,
gay, black,
white, lesbian, female, male, an old-age pensioner, atheist, Venda,
or Afrikaans-speaker is not actionably injurious.
Something more is
needed.
The
Bill of Rights, while respecting sexual orientation, and protecting
gay and lesbian people against unfair discrimination,
also protects
autonomy of choice in relation to sexual orientation. Many of the
Constitution’s provisions protect the
right to choose to live
in a certain way – the rights to language, culture, religion
and equality embody protection of
autonomous choices, which should
be constitutionally protected.
But
it does not follow that Dr Dey’s choice to lead a
heterosexual lifestyle, and to be known as heterosexual, should
be
protected by legal action. An actionable injury cannot be based
solely on a ground of differentiation that the Constitution
has
ruled does not provide a basis for offence. The Constitution does
not condone individual prejudice against people who are
different
in terms of race, sex, sexual orientation, conscience, belief,
culture, language or birth. These are unfair grounds
for
differentiation and the equality provision of the Bill of Rights
protects against discrimination based on them.
It
therefore cannot be actionable simply to call or to depict someone
as gay even though he chooses not to be gay and dislikes
being
depicted as gay – and even though stigma may still surround
being gay. To hold actionable an imputation based on
a protected
ground of non-discrimination would open a back-door to the
enforcement by the law of categories of differentiation
that the
Constitution has ruled irrelevant.
Here
counsel for the applicants was correct in pointing out that the
injury in such a case would have to be located in some
further
overlay or imputation – for example that a member of a
close-knit conservative religious community attended a
different
place of worship, and was thus a hypocrite, or untruthful, or
disloyal to the community, or unworthy of trust within
the
community, or inconsistent. The mere fact of falsely stating that a
person has made a particular constitutionally protected
personal
choice, different to that person’s actual constitutionally
protected personal choice, is insufficient to found
an actionable
injury in the absence of some further imputation of indignity
associated with it.
In
objecting to the same-sex depiction, Dr Dey did not make out such a
case. Nor is that what he pleaded. He pleaded simply
that it was
defamatory and injurious to convey that he was, inter alia, in a
homosexual relationship or that he himself was
homosexual. This, by
itself, cannot found an action in law, and if that had been his
entire pleading, it would have had to
fail.
But
Dr Dey’s pleadings went further. He pleaded, in addition,
that the image conveyed that he masturbated in public, or
in the
presence of another person, or engaged in indecent exposure, or
that he was a person of low moral character. None of
these grounds
of complaint invoke constitutionally proscribed objections.
The
image showed Dr Dey’s face on a naked body in a sexually
compromising position, being photographed. The affront this
caused
to his feelings is in our view actionable. The wounded feelings
relate to constitutionally sanctioned and protected
personal
choices, and are legally compensable.
This
is because a reasonable person in Dr Dey’s position, whether
gay or straight, is understandably affronted by being
depicted in,
or aligned to, a naked, indecent and probably lewd picture. In our
view those affronted feelings should be protected.
The
superimposition of Dr Dey’s face on the naked body in
proximity to another, even when so crude as not to injure his

reputation by conveying a defamatory meaning, is actionably
injurious.
Both
the High Court and the Supreme Court of Appeal held that the
same-sex sexual orientation depicted in the photograph, and
the
orientation of the plaintiff, were irrelevant. Both courts took
care not to relate the insult or injury to specific sexual

orientation, because “the sexual orientation itself . . .
[was] of little moment because the ridicule would not have
been
different if the other person had been a female member of staff.”
164
And whether straight or gay the image “deals with his sexual
orientation in a derogatory manner.”
165
For “sexual orientation” in this last statement we
would substitute only “sexual conduct”, but otherwise

we agree. In fairness to Dr Dey, it is necessary to make the point
that his distress at the image may have focused on the same-sex

depiction simply because it was a same-sex depiction. There is
little reason to believe that he would have responded much less

acutely to a depiction showing his face on that of a naked male
body alongside a female body in a sexually suggestive posture.
The
applicants were aware that their manipulation of the image was
wrong, even though they regarded it as a joke. We accept
that they
attempted to ridicule Dr Dey and the school principal and, to the
extent that Dr Dey’s subjective understanding
of the
manipulation was genuinely held and objectively reasonable, they
succeeded in their attempt at that private, individual,
level.
Intention has been proven.
For
that, they were punished in a formal disciplinary process at
school, and performed community service under the Criminal

Procedure Act.
166
Their punishment in these forms indeed counters the suggestion,
raised during argument, that this case concerns the maintenance
of
discipline at schools, and that a decision adverse to Dr Dey, or
one diminishing his recompense, would undermine teachers’

authority. That is not so. The school effectively asserted its
authority, and vindicated that of Dr Dey. Dr Dey’s

determination to seek civil redress from the applicants, beyond the
school setting, led to his instituting action. His choice
of a
civil claim must be adjudged in the arena in which it was brought,
without being freighted with the need to shore up teachers’

disciplinary authority in general.
Dr
Dey’s dignity claim should thus, in our judgment, succeed.
That brings us to the appropriate remedy.
Development
of the Roman Dutch common law
The
present position in our Roman Dutch common law is that the only
remedy available to a person who has suffered an infringement
of a
personality right is a claim for damages. One cannot sue for an
apology and courts have been unable to order that an apology
be
made or published, even where it is the most effective method of
restoring dignity.
167
A person who is genuinely contrite about infringing another’s
right cannot raise an immediate apology and retraction
as a defence
to a claim for damages. At best it may influence the amount of
damages awarded.
168
This is an unacceptable state of affairs, illustrated by what
happened in this case.
Counsel
for Dr Dey informed us that for Dr Dey this case is not about
money, but about restoration of his dignity. Counsel for
the
applicants indicated that they were prepared to participate in a
process under the auspices of the second amicus, the Restorative

Justice Centre, to engage with Dr Dey in order to apologise to him
for their conduct. But a long road has already been travelled

through the courts. Soon after the incident the applicants
apologised to the school principal (who accepted the apology) and

attempted to apologise to Dr Dey, but he waved them away because of
legal advice he had received. The matter proceeded to trial
after
that, with attitudes hardened. Dr Dey initially claimed R600 000
for defamation and
iniuria
and the applicants defended the
claim. In the High Court, Dr Dey was awarded R45 000 as damages, an
award confirmed by the
Supreme Court of Appeal. The Supreme Court
of Appeal expressed some doubt about the genuineness of the apology
proffered by
the applicants to Dr Dey and commented adversely on
the manner in which their case was presented in the trial court.
That appeared
to play some role in accepting that the award made by
the trial court should not be reduced on appeal.
Had
our Roman Dutch law given due recognition to the value of an
apology and retraction in restoring injured dignity, things
might
have turned out differently. The applicants might have convinced Dr
Dey that their attempted apology was genuine, which
in turn would
not only have given him the personal satisfaction of assuaged
feelings, but would have contributed to the restoration
of mutual
respect between them, something which the trial record showed had
been grievously damaged on all sides. Indeed, as
Ms Skelton on
behalf of the second amicus rightly pointed out, the recourse to
legal proceedings in these matters of feeling
“deepens and
steepens” the conflict. We think it is time for our Roman
Dutch common law to recognise the value
of this kind of restorative
justice. Moreover, we think it can be done in a manner which, at
the same time, recognises the
shared values of fairness that
underlie both our common law and customary law, and which form the
basis of the values and norms
that our constitutional project
enjoins us to strive for.
Roman
Dutch law was a “rational, enlightened system of law,
motivated by considerations of fairness” which combined
“the
wisdom of the Roman law jurists with the idealism of the Dutch
scholars.”
169
This feature of it was sometimes lost from view in pursuit of
doctrinal purity,
170
but in virtually every aspect of Roman Dutch law one will find
equitable principles and remedies which give concrete expression
to
its underlying concern with justice and fairness.
171
And this area of the law is no exception.
Roman
Dutch law provided two remedies for injury to what we now call
personality rights, namely the
amende honorable
(honourable
amends) and the
amende profitable
(profitable amends).
Something akin to profitable amends for injury to dignity survives
in our law as damages, or monetary compensation,
for an actionable
injury to dignity and reputation, albeit in the guise of the
actio
iniuriarum
.
172
But to make honourable amends is said to have fallen into disuse,
although it has come to the fore in academic discussion
173
and case law
174
more recently. It is not necessary for our purposes to trace its
origin and history in any great detail, because we only wish
to
emphasise that the remedy consisted of a retraction and apology for
the wrong committed. We are not proposing its reinstatement,
but
the development of the law in accordance with equitable principles
also rooted in Roman Dutch law.
Similar
roots are to be found in customary law and tradition, but their
interrelation with the Roman Dutch remedies, and their
melding into
the single system of law under the Constitution, requires mature
reflection and consideration on a future occasion.
175
The
legal representative for the Restorative Justice Centre, Ms
Skelton, urged us to develop the law to give effect to these

aspects of restorative justice. She did not restrict her
submissions to remedies, but in effect asked for the law to be

developed in such a manner that the re-establishment of
relationships ruptured by infringements of dignity should
preferably
occur before matters reach the court.
176
A
practical difficulty with that suggestion is that we are concerned
with a matter that has already ended up in court. However,
the
order we suggest should be made in this case flows from a general
principled justification for it. We consider that justification
to
be this. Respect for the dignity of others lies at the heart of the
Constitution and the society we aspire to. That respect
breeds
tolerance for one another in the diverse society we live in.
Without that respect for each other’s dignity our
aim to
create a better society may come to naught. It is the foundation of
our young democracy. And reconciliation between
people who opposed
each other in the past is something which was, and remains, central
and crucial to our constitutional endeavour.
Part of
reconciliation, at all different levels, consists of recantation of
past wrongs and apology for them. That experience
has become part
of the fabric of our society. The law cannot enforce reconciliation
but it should create the best conditions
for making it possible. We
can see no reason why the creation of those conditions should not
extend to personal relationships
where the actionable dignity of
one has been impaired by another.
The
applicants’ depiction of Dr Dey in the image is an actionable
injury to his dignity. He is entitled to an apology
from them. That
apology should be ordered in addition to the sum of compensation
the applicants must pay to him.
Costs
The
appeal thus succeeds to the extent that the order made in the High
Court and confirmed in the Supreme Court of Appeal must
be set
aside in relation to the damages awarded. The costs of the action
must also be considered. The High Court, in upholding
Dr Dey’s
action but granting him far less than he claimed in damages,
awarded him costs only on the magistrate’s
court scale. The
Supreme Court of Appeal set this order aside. Its principal reason
for doing so was that both parties agreed
that the matter involved
complicated issues necessitating the employment of two counsel.
That Court affirmed this approach,
concluding that the High Court’s
award of lower-court costs was incongruous. It therefore granted Dr
Dey trial court
costs on the High Court scale. We agree with that
order and the reasons for it. The order as to trial court costs
granted in
the Supreme Court of Appeal should therefore stand.
The
costs on appeal however stand on a different footing. We have set
aside the order of the Supreme Court of Appeal, which
upheld the
amount of damages the High Court awarded. In its place, we have
substituted a lesser sum of damages. The applicants
have to this
extent succeeded on appeal. Nevertheless, Dr Dey has succeeded in
vindicating his claim, and in defending a damages
award when the
applicants sought to leave him empty-handed. In these
circumstances, we consider that the most just award would
be for
the parties to pay their own costs in this Court and the Supreme
Court of Appeal.
Order
The
following order issues:
The
application to lead further evidence is dismissed.
The
orders granted in the High Court and Supreme Court of Appeal are
both set aside and replaced with the following:
The
defendants are ordered, jointly and severally, to pay the
plaintiff R25 000 as compensation.
In
addition, the defendants are ordered to tender an unconditional
apology to the plaintiff for the injury they caused him.
The
defendants are ordered, jointly and severally, to pay the
plaintiff’s costs in the High Court.
There
is no order as to costs in this Court and in the Supreme Court of
Appeal.
SKWEYIYA
J:
This
is a case concerning children. In and amongst all the other
considerations relevant to this matter, this is the inescapable
and
overarching fact of this case. The judgments prepared by my
colleagues are all well-reasoned, but it is with the judgment
of my
colleague Yacoob J that I concur. There are, however, a few
observations I wish to make. I do not intend to traverse
the legal
issues pertinent to claims of defamation or an infringement of
dignity, as these have already been eloquently and
comprehensively
addressed in the other judgments. Instead, my remarks are limited
to the relevance of the consideration that
the challenged conduct
was committed by children, and the emphasis that should be placed
on this aspect.
It
is a well-recognised principle of our law that adjudication must
occur within context. In my view, this is all the more important

when there are children concerned. The applicants, to whom I refer
as the learners, were all under the age of 18 years at the

pertinent time. Their actions were directed at the principal and
the deputy principal of the school, although only the deputy

principal, Dr Dey, has opted to litigate against the learners.
The
principal and deputy principal represent the two most senior
figures of authority at the school; to my mind, this is one
of the
most relevant considerations in this matter, and immediately
changes the nature of the action to little more than a
school
prank. Regardless of whether we believe it to be right or wrong,
one element that is often present in the school environment
is
rebellion against authority. That is how I would categorise this.
However, simply because this rebellion is commonplace
does not
position it beyond reproach, and it can be taken too far given the
sensitivities of a particular situation or the
relevant prevailing
norms.
Our
constitutional order mandates special protection to be afforded to
children. The exact scope of application of section 28
of the
Constitution
177
has been the subject of some debate in this Court’s
jurisprudence, although it is by now clear that the implication of

this is not to render the “best interests”
consideration absolute.
178
Whilst section 28(2) of the Constitution requires that “[a]
child’s best interests are of paramount importance
in every
matter concerning the child”, none of the rights listed in
section 28(1) have direct bearing here. However,
in
Minister of
Welfare and Population Development v Fitzpatrick and Others
,
179
this Court stated that:
“
Section
28(1) is not exhaustive of children’s rights. Section 28(2)
requires that a child’s best interests have paramount

importance in every matter concerning the child. The plain meaning
of the words clearly indicates that the reach of section 28(2)

cannot be limited to the rights enumerated in section 28(1) and
section 28(2) must be interpreted to extend beyond those provisions.

It creates a right that is independent of those specified in section
28(1).”
180
There
certainly can be no doubt that this is a unique matter, unlike
anything that this Court has had to determine in its jurisprudence:

here we have a civil claim of a substantial value, targeted
directly at children, arising from a scenario that occurred in
the
school environment. How should the “best interests”
standard come into play in a matter such as this? To this
end, I
find the construction of Article 3 of the Convention on the Rights
of the Child
181
appealing. Article 3 is similar to our section 28 of the
Constitution. However, there is one interesting difference: instead

of using the words “paramount importance”, Article 3(1)
states that “the best interests of the child shall
be
a
primary consideration
.”
182
Read with the provisions of section 28(2) of the Constitution, what
it would mean is that the best interests of the child consideration

is not artificially elevated above all others; rather, it forms the
basis and starting point from which the matter is to be
considered.
Once the considerations relevant to this foundation are clearly
cemented, one can then begin to examine the other
rights that enter
the balance, without losing sight of the fact that the best
interests of the child remain “of paramount
importance”.
Children
are treated differently in our legal and social structures. In
effect, we seek to create different “worlds”
for our
children in an effort to protect them, to help them develop, and to
give them a forum to make mistakes and then learn
from these
mistakes. One is not hard-pressed to find examples of ways in which
we treat children differently, or offer them
greater protection. We
give children a measure of leeway, and in many instances hold them
to a lower standard of account, as
we accept that they lack the
emotional maturity and wisdom to clearly distinguish right from
wrong when there is a grey area.
In my view, the facts of this case
present such a grey area. As this Court stated in
Centre for
Child Law v Minister of Justice and Constitutional Development and
Others
183
regarding this distinction between adults and children (albeit in
the context of criminal proceedings):
“
The
Constitution draws this sharp distinction between children and
adults not out of sentimental considerations, but for practical

reasons relating to children’s greater physical and
psychological vulnerability. Children’s bodies are generally

frailer, and their ability to make choices generally more
constricted, than those of adults. They are less able to protect

themselves, more needful of protection, and less resourceful in
self-maintenance than adults.
. . . .
We distinguish them because we
recognise that children’s crimes may stem from immature
judgment, from as yet unformed character,
from youthful
vulnerability to error, to impulse, and to influence. We recognise
that exacting full moral accountability for
a misdeed might be too
harsh because they are not yet adults. Hence we afford children some
leeway of hope and possibility.”
184
Elsewhere
in the same judgment, it is stated that “[n]ot only are
children less physically and psychologically mature
than adults:
they are more vulnerable to influence and pressure from others.”
185
In my view, that well sums up the way in which the case before us
played out. The picture was spawned from an episode of a
popular,
somewhat controversial, television series, and snowballed from that
point into the matter that is before us today.
One can only imagine
how the interchange amongst the learners played out, with each one
spurring the others on in their bad
behaviour. And, indeed, there
certainly can be no doubt that this was an instance of bad
behaviour. However, given all of the
above, I cannot agree with the
High Court or the Supreme Court of Appeal that a severe award of
damages is the appropriate
sanction under the circumstances.
I do
not condone what the learners did, and I certainly would not
suggest that the learners should not be punished for their
actions.
It is important that children are made to face the consequences of
their actions – how else can we expect them
to learn? –
but this must be done in a manner that is commensurate with the
alleged offence. A judicial officer would
be remiss if
consideration were not properly given to the effect of one’s
decision on the rights of the child. In this
matter, precisely
because they were children, the learners have been subjected to an
additional round of punishment through
the school disciplinary
measures. It is common cause that they have been formally
disciplined at the school, and that they
have served community
service as a result of the criminal charges laid against them by Dr
Dey. The learners have also expressed
their willingness to
apologise to Dr Dey. If this additional legal wrangle were to
result in an award of damages made against
the learners, it would
seem to me to be a step too far.
186
A
school environment is not just one of academic study; it is also a
place for growth and development. We institutionalise the
learning
environment in an effort to guarantee that, regardless of social
circumstances, every child has the opportunity to
mature
emotionally and intellectually. In our efforts to teach right from
wrong, we also want to encourage freedom of speech
amongst our
children, and we certainly do not want to instil in them fear of
the law or the legal process. Measures are put
in place, within the
learning environment, to ensure that when children transgress the
rules they will be appropriately and
commensurately dealt with.
Although in appropriate cases children may be held criminally and
civilly liable, in my view it
is unnecessary in this case for the
children to be subjected to litigious court proceedings as well.
187
In addition to my concern about the potential treble-punishment
that the learners will face,
188
I also have grave doubts regarding the efficacy of monetary awards
being made against children. I return to the first statement
that I
made: this is a case concerning
children.
189
In the result, I must concur in the judgment of Yacoob J that the
civil claim against the learners, for an action of defamation,
or,
in the alternative, an infringement of dignity, must fail.
For the Applicants: Advocate G Marcus SC and Advocate S Budlender
instructed by Webber Wentzel Attorneys.
For the Respondent: Advocate JL van der Merwe SC and Advocate J du
Plessis instructed by Gerhard Wagenaar Attorneys.
For the First Amicus Curiae: Advocate AD Stein, Advocate JJ Meiring
and Advocate KS McLean instructed by the Freedom of Expression

Institute.
For the Second Amicus Curiae: Advocate AM Skelton
instructed by Gordon Stevens & Ranchhojee Attorneys.
1
Le
Roux and Others v Dey
2010 (4) SA 210
(SCA).
2
Dey
v Le Roux en Andere
, Case No. 21377/06, North Gauteng High
Court, Pretoria, 28 October 2008, unreported.
3
It
will be convenient to describe the image later.
4
51
of 1977. It is not clear from the record whether the condition
obliging the applicants to go into the diversion process was
imposed
in terms of section 72(1)(b).
5
It
must be remembered though, that the High Court’s award was a
single lump sum in satisfaction of both claims.
6
The
jurisdictional pre-requisite prescribed by section 167(3)(b) of the
Constitution.
7
Section
167(6)(b) of the Constitution read with Rule 19 of the Rules of the
Constitutional Court.
8
Section
10 of the Constitution.
9
Section
14 of the Constitution.
10
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002
(8) BCLR 771
(CC) at paras 27-8.
11
Section
167(7) of the Constitution.
12
Section
16 of the Constitution.
13
Section
28 of the Constitution.
14
Dikoko
v Mokhatla
[2006] ZACC 10
;
2006 (6) SA 235
(CC);
2007 (1) BCLR 1
(CC).
15
Id
at para 92.
16
Id
at para 54.
17
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development, and Others
[2009] ZACC 8
;
2009 (4)
SA 222
(CC);
2009 (7) BCLR 637
(CC) at paras 71-80.
18
Id
at para 79.
19
Above
n 1 at para 5.
20
Id
at para 6.
21
Golding
v Torch Printing and Publishing Co. (Pty.), Ltd. and Others.
1949 (4) SA 150
(C).
22
Id
at 159-60.
23
S
v Mamabolo (E TV and Others Intervening)
[2001] ZACC 17
;
2001
(3) SA 409
(CC);
2001 (5) BCLR 449
(CC) at para 41.
24
Section
9(2) and 9(3) provide:
“
(2) Equality includes the
full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative
and other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may
be taken.
(3) The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, including race,
gender,
sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience,
belief,
culture, language and birth.”
25
Per
Ngcobo J in
Phaswane
above n 17 at para 72.
26
Above
n 23 at para 37.
27
South
African National Defence Union v Minister of Defence and Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) at para
8.
28
Id
at para 7.
29
Above
n 17.
30
Id
at para 72.
31
Id.
32
Id
at para 73.
33
Id
at para 74.
34
S
v M
(Centre for Child Law as Amicus Curiae)
[2007] ZACC
18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC) at para 15.
35
Above
n 17 at para 74.
36
United
Nations Guidelines on Justice Matters involving Child Victims and
Witnesses of Crime.
37
Above
n 17 at para 78.
38
Centre
for Child Law v Minister of Justice and Constitutional Development
and Others
[2009] ZACC 18
;
2009 (6) SA 632
(CC);
2009 (11) BCLR
1105
(CC).
39
Id
at para 25.
40
Id.
41
Id
at paras 26-8.
42
Channing
v. South African Financial Gazette Ltd. and Others
1966 (3) SA
470
(W).
43
Demmers
v Wyllie and Others
1980 (1) SA 835
(A).
44
Id
at 843A.
45
SA
Associated Newspapers Ltd en ’n Ander v Samuels
1980 (1)
SA 24
(A).
46
Id
at 27C-E.
47
Van
Vuren v Minister of Correctional Services and Others,
[2010]
ZACC 17
;
2010 (12) BCLR 1233
(CC);
Abahlali baseMjondolo Movement
SA and Another v Premier of the Province of Kwazulu-Natal and Others
[2009] ZACC 31
;
2010 (2) BCLR 99
(CC) at para 119;
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at para 72;
National
Director of Public Prosecutions and Another v Mohamed NO and Others
[2003] ZACC 4
;
2003 (4) SA 1
(CC);
2003 (5) BCLR
476
(CC) at para 35;
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at para 22;
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR
39
(CC) at paras 23-4 and
De Lange v
Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 85.
48
Above
n 1 at para 16.
49
Id.
50
Id.
51
See
the last sentence of [162] below.
52
Section
28(1)(b) of the Constitution.
53
Section
28(1)(d) of the Constitution.
54
Section
28(2) of the Constitution.
55
Delange
v Costa
1989 (2) SA 857
(A) at 862F.
56
Above
n 10.
57
The
image was created and published during February/March 2006 and Dr
Dey gave evidence on 9 and 10 October 2008.
58
Dey
L v Le Roux H and 2 Others
, Case No.
21377/06, 28 October 2008, unreported
(High Court)
,
per Du Plessis J.
59
Le
Roux and Others v Dey
2010 (4) SA 210
(SCA) (Harms DP writing for the majority with Mlambo and Malan JJA
and Majiedt AJA concurring, Griesel AJA dissenting).
60
[2002]
ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para 18.
61
A
synonym for “wrongfulness” is “unlawfulness”
and the two terms are often used interchangeably –
see for
example
Khumalo
id – though the former seems to be the
preferred term, at least in the field of delict (see
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006 (1) SA 461
(SCA) at para 13).
62
See
for example
Joubert and Others v Venter
1985 (1) SA 654
(A)
at 696A-B.
63
See
for example
Argus Printing and
Publishing Co Ltd v Inkatha Freedom Party
[1992] ZASCA 63
;
1992
(3) SA 579
(A) at 590J-591C.
64
See
Mohamed and Another v Jassiem
[1995] ZASCA 115
;
1996 (1) SA 673
(A) at 709H-I
and
Hardaker v Phillips
2005 (4) SA 515
(SCA) at para 14.
65
National
Media Ltd and Others v Bogoshi
1998 (4) SA 1196
(SCA) at 1202H
and
Hardaker
id.
66
See
for example
Golding v Torch Printing & Publishing Co. (Pty.)
Ltd. and Others.
1948 (3) SA 1067
(C) at 1087; Burchell
The
Law of Defamation in South Africa
(Juta, Cape Town 1985) at 82;
and Visser “Compensation for Harm to the Personality –
the Actio Iniuriarum” in
Du Bois et al (eds)
Wille’s
Principles of South African Law
9 ed (Juta, Cape Town 2007) 1165
at 1168.
67
Argus
Printing and Publishing Co Ltd and Others v Esselen’s Estate
1994 (2) SA 1
(A) at 21A-B.
68
Id.
69
See
for example
Sachs v Werkerspers Uitgewersmaatskappy (Edms.) Bpk
1952 (2) SA 261
(W) at 272G-273B and
HRH King Zwelithini of Kwa
Zulu v Mervis and Another
1978 (2) SA 521
(W) at 524G.
70
1980
(1) SA 835
(A) at 845E-G.
71
Above
n 12
.
72
See
for example
SA Associated Newspapers Ltd en ’n Ander v
Samuels
1980 (1) SA 24
(A) at 30F-G and
Sindani v Van der
Merwe and Others
2002 (2) SA 32
(SCA) at paras 10-1.
73
See
for example
Basner v Trigger
1945 AD 22
at 32;
Pienaar and
Another v Argus Printing and Publishing Co. Ltd.
1956 (4) SA 310
(W) at 322A-B; and Visser above n 9 at 1173.
74
See
for example
Demmers
above n 13 at 842A-C;
Sindani
above
n 15 at para 11;
Mthembi-Mahanyele v Mail & Guardian Ltd and
Another
2004 (6) SA 329
(SCA) at paras 25-6; and Burchell above
n 9 at 84.
75
See
for example
Mangope v Asmal and Another
1997 (4) SA 277
(T) at 284I-286H.
76
In
this regard the test proposed by Lord Atkin in
Sim
v Stretch.
1936 (2) All ER 1237
(HL)
at 1240,
that a statement is defamatory if it would “tend
to lower the plaintiff in the estimation of right-thinking members
of society
generally” has often been referred to with approval
in our courts. In
Mohamed
above n 7 at 706H-707A it had been
recognised, however, that the “right thinking members of
society in general” is
no different in the context of a
criterion for defamation than the legal construct of the
“reasonable”, “ordinary”
or, “average”
observer.
77
Per
De Villiers JP (Fischer J concurring)
in
Pitout v Rosenstein.
1930
OPD 112
at 117, referred to with approval in
Johnson
v Beckett and Another
[1991] ZASCA 175
;
1992 (1) SA 762
(AD) at 774C.
78
See
for example
Demmers
above
n
13
at 842A-H;
Botha
en ’n Ander v. Marais.
1974 (1)
SA 44
(A) at 48E-F; and
Mangope
above
n
18
at 286C-D.
79
Neethling
et al
Neethling’s Law of Personality
2 ed
(Butterworths, Durban 2005) at 135-6, referred to with approval by
Harms DP in the Supreme Court of Appeal judgment above
n 2 at para
8.
80
Burchell
above n
9
at 89-90.
81
1966
(3) SA 470
(W) at 473E, referred to with approval in
Demmers
above n 13 at 842H-843B and 843D-E.
82
See
for example Neethling above n
22
at 140-3
and Burchell above n
9
at 103-14.
83
Or,
as De Villiers JP said in
Pitout v Rosenstein
above n 20 at
117 “the word ‘contempt’ as used in the definition
of defamation does not mean virulent scorn
or dispisal.”
84
See
for example
Marruchi v Harris.
1943 OPD 15
at 22;
Holdt. v
Meisel.
1927 SWA 45 at 49;
Pitout
id; Burchell above n at
115-6; Neethling above n 22 at 135; and Burchell
Personality
Rights and Freedom of Expression
(Juta , Cape Town 1998) at 196.
85
Above
n 2 at p
ara 14. See also para 19.
86
See
for example
Demmers
above n 13 at 845E-G and
HRH King
Zwelithini of Kwa Zulu
above n 12 at 524E-G.
87
Above
n 2 at p
ara 15.
88
Summarised
by the SCA
id at paras 13-4.
89
Id
at
para 19.
90
See
for example
Lewison v Philips
(1842)
3 Menz 37
;
Golding
above
n
9
; and Burchell above n 9 at
115-6.
91
See
for example Burchell
above
n
9
at
285-6;
Visser
above n
9 at 1189;
Neethling above n 22 at 181; and
Masch v Leask
1916 TPD 114
at 116.
92
In
Masch
above n 34 the difference became somewhat obscure.
93
See
for example
Peck v Katz
1957
(2) SA 567
at 572H-573A (T) and
Masch
above n 34.
94
Above
n
2
at para 10.
95
Id
at para 9.
96
De
Villiers
The Roman and Roman-Dutch Law of
Injuries
(Juta, Cape Town 1899) at
195.
97
Laugh
It Off Promotions CC v SAB International (Finance) BV t/a Sabmark
International (Freedom of Expression Institute as Amicus
Curiae)
[2005] ZACC 7
;
2006 (1) SA 144
(CC);
2005 (8)
BCLR 743
(CC) at para 88.
98
1924
AD 755
at 757-8.
99
Above
n
8
at 1212G-H.
100
Above
n 3
at para 43.
101
For
a more detailed exposition of these defences, see Burchell above n 9
at 206-79 and Visser above n 9 at
1177-86.
102
See
for example
Argus Printing
above n
6
at 588H-I.
103
Id
at 588I-J. See also
Phumelela Gaming
and Leisure Ltd v Gründlingh and Others
[2006] ZACC 6
;
2007 (6) SA 350
(CC);
2006 (8) BCLR 883
(CC) at paras
32-4;
Fourway Haulage SA (Pty) Ltd v SA
National Roads Agency Ltd
[2008] ZASCA 134
;
2009 (2) SA
150
(SCA) at para 12;
Minister of
Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) at paras 12 and 22;
and
Bogoshi
above n
8
at 1204D-E.
104
See
Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty)
Ltd
2006 (3) SA 138
(SCA) at para 11.
105
See
for example
Holomisa v Argus Newspapers
Ltd
1996 (2) SA 588
(W).
106
Above
n
8
at 1212G-H.
107
Perhaps,
with the wisdom of hindsight, it might have been better, as was
pointed out in
Mthembi-Mahanyele
above n
17
at para 44,
to talk about “justifiable”, rather than “reasonable”,
publication so as to avoid possible
confusion between wrongfulness
and negligence.
108
Above
n
3
at paras 43-4.
109
Above
n
7
at para 15. See also
Khumalo
above n
3
at
paras 26-7.
110
Hardaker
above n 7;
Khumalo
above n 3 at paras 37-44; and
Bogoshi
above n 8 at 1215-8.
111
See
for example
Suid-Afrikaanse
Uitsaaikorporasie v O’Malley
1977
(3) SA 394
(A) at 402H and 409G-H and
Marais
v Groenewald en ’n Ander
2001
(1) SA 634
(T) at 644B-C and 645F-G.
112
See
Maisel v Van Naeren.
1960
(4) SA 836
(C).
113
See
Nasionale Pers, BPKT., v Long,
1930 AD 87
and
O’Malley
above n
54.
114
See
NM and Others v Smith and Others
(Freedom of Expression Institute as Amicus Curiae)
[2007]
ZACC 6
;
2007 (5) SA 250
(CC);
2007 (7) BCLR 751
(CC).
115
As
to the accountability of children see for example Van der Walt and
Midgley
Delict: Principles and Cases,
Volume 1: Principles
2 ed
(Butterworths, Durban 1997) at 139-42 and Himonga “Children
(minors)” in Du Bois et al above n
9
170
at 176-7.
116
Above
n 2
at para 41.
117
Id
at para 26.
118
Id
at paras 27-38.
119
Id
at para 39.
120
See
Khumalo
above
n
3
at para 27.
121
Above
n 2 at paras 22-5.
122
Id
at para 64.
123
Id
at para 25.
124
Id
at para 64.
125
A
distinction ascribed to Voet
Commentarius
ad Pandectas
(1829) at 47.10.1
.
On this see Visser above n 9 at 1166.
126
See
Visser id and Neethling above n
22
at
85-6.
127
Above
n 2
at para 23.
128
Id.
129
See
for example
SA Associated Newspapers
above n
15
at
39F-G read with 40B and the other authorities cited by Harms DP id.
Compare increased awards for infringement of physical integrity
in
compensation for the infringement of dignity accompanied by assault,
for example in
G Q v Yedwa
and Others
1996
(2) SA 437
(Tk) at 438A-439G and
Jooste,
N.O. v Minister of Police
and
Another.
1975 (1) SA 349
(E) at
355B-E.
130
See
for example
Delange v Costa
1989
(2) SA 857
(A) at 862A-I and Neethling
above
n
22
at 195.
131
Above
n 2
at paras 61-4.
132
Id
at paras 64-5.
133
Id.
134
See
for example
Gelb v Hawkins.
1960
(3) SA 687
(A) at 693H. Compare also
Van
der Berg v Coopers & Lybrand Trust (Pty) Ltd and Others
[2000] ZASCA 77
;
2001
(2) SA 242
(SCA) at 260H.
135
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002
(8) BCLR 771
(CC) at para 27.
136
Id.
137
Sutter
v Brown
1926 AD 155
at 167 and
Botha en ’n Ander v
Marais
1974 (1) SA 44
(A) at 48E. See also Joubert et al (ed)
The Law of South Africa (LAWSA)
(2 ed) vol 7 at para 242.
138
LAWSA
id at para 237.
139
Sindani
v Van der Merwe and Others
2002 (2) SA 32
(SCA) at paras 10-1
and
SA Associated Newspapers Ltd en ’n Ander v Samuels
1980 (1) SA 24
(A) at 30F-G.
140
Le
Roux and Others v Dey
2010 (4) SA 210
(SCA) at para 19.
141
Id
at para 16.
142
51
of 1977.
143
See
Sim v
S
tretch.
[1936] 2 All ER 1237
(HL) at 1240 per
Lord Atkin.
144
Independent
Newspapers Holdings Ltd and Others v Suliman
2004 3 All SA 137
(SCA) at paras 29-30;
Mthembi-Mahanyele v Mail & Guardian Ltd
and Another
2004 (6) SA 329
(SCA) at para 25;
Delta Motor
Corporation (Pty) Ltd v Van der Merwe
2004 (6) SA 185
(SCA) at
para 10;
Botha
above n 3;
Hassen v Post Newspapers (Pty.)
Ltd. and Others.
1965 (3) SA 562
(W) at 564E-G and
Conroy v
Stewart Printing Co., Ltd.
1946 AD 1015
at 1018.
145
Mohamed
and Another v Jassiem
[1995] ZASCA 115
;
1996 (1) SA 673
(AD) at 706H-J.
146
Id
at 709A-F and
Hix Networking Technologies v System Publishers
(Pty) Ltd and Another
[1996] ZASCA 107
;
1997 (1) SA 391(A)
at 403G-I.
147
Botha
above n 3 at 48E-F.
148
Demmers
v Wyllie
and Others
1980 (1) SA 835
(AD) at 842A-843E.
149
Above
n 6 at para 8.
150
Above
n 3.
151
Above
n 14.
152
See
Burchell
The Law of Defamation in South Africa
(Juta, Cape
Town 1985) at 68-70 and 86.
153
Above
n 1 at para 28.
154
Id
at para 18.
155
Currie
and de Waal
The
Bill of Rights Handbook
(5 ed) (Juta,
Lansdowne 2005) at 166-7 and Woolman and Botha “Limitations”
in Woolman et al (eds)
Constitutional Law of South Africa
(2
ed) vol 2 at 34–42 - 34–43. See also
Ferreira v Levin
NO and Others; Vryenhoek and Others v Powell NO and Others
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para
44 and
Moise v Greater Germiston Transitional Local Council:
Minister of Justice and Constitutional Development Intervening
(Women’s
Legal Centre as Amicus Curiae
)
[2001] ZACC 21
;
2001 (4) SA 491
(CC);
2001 (8) BCLR 765
(CC) at paras 18-9.
156
Compare
Khumalo
above n 1 at para 27.
157
Burchell
above n 18 at 103. Compare also
De Wet v Morris.
1934 EDL 75
;
Pitout v Rosenstein.
1930 OPD 112
and
Kimpton v Rhodesian
Newspapers, Ltd.
1924 AD 755.
158
Neethling
et al
Neethling’s Law of Personality
(Butterworths,
Durban 1996) at 146.
159
Delange
v Costa
1989 (2) SA 857
(A) at 861D-862G.
160
O’Regan
J in
Khumalo
above n 1 at para 27.
161
Above
n 25
at 862E-F
. `
162
Id
at 862C-D.
163
See
for example
Carmichele v Minister of Safety and Security
and
Another (Centre for Applied Legal Studies Intervening)
[2001]
ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 43.
See also
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency
Ltd
[2008] ZASCA 134
;
2009 (2) SA 150
(SCA) at para 12;
Minister of Safety
and Security v Van Duivenboden
2002 (6) SA 431
(SCA) at paras 12
and 22;
National Media Ltd and Others v Bogoshi
1998 (4) SA
1196
(SCA) and
Argus Printing and Publishing Co Ltd v Inkatha
Freedom Party
[1992] ZASCA 63
;
1992 (3) SA 579
(A) at 588H-I.
164
Above
n 6 at para 14.
165
Id
at para 19.
166
Above
n 8 at section 72(1)(b)
.
167
Kritzinger
v Perskorporasie van Suid-Afrika (Edms) Bpk en ’n Ander
1981 (2) SA 373
(O) at 389G-H.
168
SA
Associated Newspapers Ltd
above n 5 at 41G.
169
Dugard
“No Jurisdiction Over Abducted Persons in Roman-Dutch Law:
Male Captus, Male Detentus”
(1991) 7
SAJHR
199
at 203.
170
Dugard
“Grotius, The Jurist And International Lawyer: Four Hundred
Years On”
(1983) 100
SALJ
213
at 216-7 states:
“
The true heirs of Grotius are
not those who cling to antiquity and abstention, but those who seek
to shape the contemporary South
African legal order in accordance
with the values and principles of Roman-Dutch law expounded by
Grotius and his successors.”
Compare
Van der Walt “Tradition on Trial: A Critical Analysis of the
Civil-Law Tradition in South African Property Law”
(1995) 100
SAJHR
169.
171
Compare
Zimmerman “Good Faith and Equity” in Zimmermann and
Visser (eds)
Southern Cross: Civil Law and Common Law in South
Africa
(Juta, Cape Town 1996) at 218.
172
Neethling
et al above n 24 at 54 regards the
amende honorable
and
amende profitable
to have both “fallen into desuetude
in contemporary South African law.”
173
Midgley
“Retraction, Apology and Right to Reply”
(1995) 58
THRHR
288
; Mukheibir “Reincarnation or Hallucination? The Revival
(or not) of the Amende Honorable”
(2004) 25
Obiter
455
at 457 and Mukheibir “Ubuntu and the Amende Honorable –
A Marriage between African Values and Medieval Canon Law”
(2007) 28
Obiter
583.
See also Burchell above n 18 at 315-9.
174
Mineworkers
Investment Co (Pty) Ltd v Modibane
2002 (6) SA 512
(W) at para
24.
175
In
Dikoko v Mokhatla
[2006] ZACC 10
;
2006 (6) SA 235
(CC);
2007
(1) BCLR 1
(CC) at para 68 and 69, Mokgoro J explained the
significance of ubuntu or botho in the following terms:
“
In our constitutional
democracy the basic constitutional value of human dignity relates
closely to ubuntu or botho, an idea based
on deep respect for the
humanity of another. Traditional law and culture have long
considered one of the principal objectives
of the law to be the
restoration of harmonious human and social relationships where they
have been ruptured by an infraction
of community norms. It should be
a goal of our law to emphasise, in cases of compensation for
defamation, the re-establishment
of harmony in the relationship
between the parties, rather than to enlarge the hole in the
defendant’s pocket, something
more likely to increase
acrimony, push the parties apart and even cause the defendant
financial ruin. The primary purpose of
a compensatory measure, after
all, is to restore the dignity of a plaintiff who has suffered the
damage and not to punish a defendant.
A remedy based on the idea of
ubuntu or botho could go much further in restoring human dignity
than an imposed monetary award
in which the size of the victory is
measured by the quantum ordered and the parties are further
estranged rather than brought
together by the legal process. It
could indeed give better appreciation and sensitise a defendant as
to the hurtful impact of
his or her unlawful actions, similar to the
emerging idea of restorative justice in our sentencing laws.
The focus on monetary compensation diverts attention
from two considerations that should be basic to defamation law. The
first
is that the reparation sought is essentially for injury to
one’s honour, dignity and reputation, and not to one’s
pocket. The second is that courts should attempt, wherever feasible,
to re-establish a dignified and respectful relationship between
the
parties. Because an apology serves to recognise the human dignity of
the plaintiff, thus acknowledging, in the true sense
of ubuntu, his
or her inner humanity, the resultant harmony would serve the good of
both the plaintiff and the defendant. Whether
the
amende
honorable
is part of our law or not, our law in this area should
be developed in the light of the values of ubuntu emphasising
restorative
rather than retributive justice. The goal should be to
knit together shattered relationships in the community and encourage
across-the-board
respect for the basic norms of human and social
interdependence. It is an area where courts should be proactive,
encouraging
apology and mutual understanding wherever possible.”
(Footnotes omitted.)
See also the remarks of Sachs J in his minority
judgment at paras 113-8. The majority did not agree that the amount
of compensation
could be interfered with and thus did not express
themselves on the issue.
176
Burchell
above n 18 at 318 and 340 argues for retraction and apology as a
defence rather than as a remedy, but Midgley above n
39 at 292 fears
that there are a number of problems in adopting that approach. The
principled justification for the acceptance
of retraction and
apology as part of restorative justice that we suggest should be
adopted will mean that its application will
depend on the facts of
each case.
177
Section
28 of the Constitution states:
“
(1) Every child has the
right—
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate
alternative care when removed from the family environment;
(c) to basic nutrition, shelter, basic health care
services and social services;
(d) to be protected from maltreatment, neglect, abuse
or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or
provide services that—
(i) are inappropriate for a person of that child’s
age; or
(ii) place at risk the child’s well-being,
education, physical or mental health or spiritual, moral or social
development;
(g) not to be detained except as a measure of last
resort, in which case, in addition to the rights a child enjoys
under sections
12 and 35, the child may be detained only for the
shortest appropriate period of time, and has the right to be—
(i) kept separately from detained persons over the age
of 18 years; and
(ii) treated in a manner, and kept in conditions, that
take account of the child’s age;
(h) to have a legal practitioner assigned to the child
by the state, and at state expense, in civil proceedings affecting
the
child, if substantial injustice would otherwise result; and
(i) not to be used directly in armed conflict, and to
be protected in times of armed conflict.
(2) A child’s best interests are of paramount
importance in every matter concerning the child.
(3) In this section ‘child’ means a person
under the age of 18 years.”
178
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development, and Others
[2009] ZACC 8
;
2009 (4)
SA 222
(CC);
2009 (7) BCLR 637
(CC) at para 72;
S v M (Centre for
Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC) at para 26.
179
[2000]
ZACC 6
;
2000 (3) SA 422
(CC);
2000 (7) BCLR 713
(CC).
180
Id
at para 17.
181
(1989)
28
ILM
1448. The Convention on the Rights of the Child
entered into force on 2 September 1990. South Africa ratified the
Convention on
the Rights of the Child on 16 June 1995.
182
Emphasis
added.
183
[2009]
ZACC 18
;
2009 (6) SA 632
(CC);
2009 (11) BCLR 1105
(CC).
184
Id
at paras 26 and 28.
185
Id
at para 27.
186
Compare,
in the criminal context, the prohibition on double jeopardy,
discussed in
S v Basson
[2005] ZACC 10
;
2007 (3) SA 582
(CC);
2005 (12)
BCLR 1192
(CC) at paras 248-59.
187
See
the comments of my colleague, Yacoob J at [76] above.
188
The
first instance of punishment is the community service served by the
learners as a consequence of the criminal charges laid
against them;
the second instance is the disciplinary procedures imposed by the
school and the third instance is this litigation
and an award of
damages.
189
See
Corinthians 13:11 (King James Version) where the following is
stated: “When I was a child, I spake as a child, I understood

as a child, I thought as a child: but when I became a man, I put
away childish things.”