Dendy v University of the Witwatersrand and Others

• Jurisdiction: South Africa
• Judge: Boruchowitz J
• Judgment Date: 05 April 2005
• Citation: 2005 (5) SA 357 (W)
• Docket Number: 03/2015
• Counsel: R G Cohen for the plaintiff. G J Marcus SC (with him G Malindi) for the defendants.
• Court: Witwatersrand Local Division

Boruchowitz J:

Introduction F

[1] The plaintiff, a former associate professor of law, has issued summons against three defendants (the University of the Witwatersrand, Professor Garrod and Professor Skeen) in which he claims general damages totalling R7 600 000 for injury to his dignity and reputation. The defendants have raised an exception against the plaintiff's particulars of claim. A key issue that arises for G consideration is whether an award of damages is an appropriate remedy for the violation of a fundamental constitutional right.

[2] The damages allegedly flow from five separate causes of action identified as claims A, B, C, D and E in the particulars of claim. The claims are not directed against all three defendants. H Claims A and B are against the first defendant only. Claims C and D are against the first and second defendants, and claim E is against the first and third defendants.

[3] The causes of action are based upon separate and distinct events. Claim A concerns an alleged injury to the plaintiff's dignity by reason of various procedural irregularities in the consideration of I the plaintiff's application for appointment to a chair of law of the first defendant. For this the plaintiff claims R2 250 000. Claim B is based upon an alleged failure by the first defendant or its employees to furnish the plaintiff with reasons why his application for a chair of law was unsuccessful. For this J

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a sum of R2 million is claimed. Claim C relates to the publication of an allegedly defamatory A e-mail by the second defendant to two people (the third defendant and the third defendant's secretary) on 4 March 2002. The amount claimed in respect of this cause of action is R500 000. Claim D is based on the publication of an allegedly defamatory letter by the second defendant on 25 March 2002 in respect whereof the plaintiff claims R1,6 million. Claim E concerns the publication of an allegedly defamatory letter by the third B defendant on 17 April 2002 for which a sum of R1 250 000 is claimed.

[4] The defendants have taken ten exceptions which may conveniently be divided into two groups. The first group, comprising the third to seventh exceptions, are based upon misjoinder (the C misjoinder exception). The submission is that it is not competent to join the three defendants in one summons relating to five separate causes of action in respect of which none of the causes of action is directed against all three defendants and in relation to which there is no suggestion that the five causes of action depend upon D substantially the same questions of law and fact. And, nor is there any principle of convenience that would justify the joinder. The second group, comprising the eighth to tenth exceptions, are aimed at the validity of claims A, B and C.

Claim A E

[5] Claim A is entirely novel in South African law. Damages are claimed for loss of dignity arising from the alleged violation of certain of the plaintiff's fundamental constitutional rights. Under the common law, protection of an individual's right to dignity is provided by the Roman law actio injuriarum. In its present undeveloped state the actio injuriarum does not afford the F plaintiff a remedy sounding in damages because it has never been held up to now that the concept of dignity (or dignitas as it is referred to) includes the right to have one's rights entrenched by ch 2 of the Constitution respected. The meaning and determinacy of dignitas is dealt with more fully hereafter. G

[6] The salient facts alleged in support of the claim are the following: On 11 October 1999 the plaintiff, who was at the time eligible for appointment to a chair of law of the first defendant, applied in writing to the first defendant for promotion to one of the chairs of law which had at that time recently been advertised by the first defendant. On 29 November 1999 the plaintiff was H advised that he had been short-listed for the position and as such would be required to submit for assessment by members of the selection committee for chairs of law (the selection committee), several of his publications, present a guest seminar on a topic of his choice in his field of legal expertise and present himself for an interview by the I committee. The plaintiff duly complied with these requirements. On 3 February 2000 the selection committee took a decision not to appoint the plaintiff to a chair of law of the first defendant but to appoint three rival candidates. No reason for the refusal to appoint the plaintiff was furnished. J

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[7] It is alleged that the selection committee was required to assess candidates against various criteria and that the plaintiff had a A right or legitimate expectation that the members of the committee would, only, take the stipulated criteria into account in their assessment; that they would not act partially or pre-judge his application and that they would assess the application in accordance with the applicable provisions of the Constitution and the common law. B

[8] The essence of the plaintiff's claim is to be found in the following paragraphs of the particulars of claim:

'2.12

In deciding not to appoint the plaintiff to a chair of law, alternatively in deciding to appoint the rival candidates to chairs of law in preference to the plaintiff, one or more C or all of the members of the selection committee for chairs of law of the first defendant acted in breach of the rights of the plaintiff, alternatively frustrated and/or violated the legitimate expectations of the plaintiff, by: D

2.12.1

failing to take into consideration one or more or all of the criteria adumbrated in subparas 2.10.1 to 2.10.9, and in particular the criteria of:

2.12.1.1

scholarship;

2.12.1.2

teaching ability;

2.12.1.3

research ability; E

2.12.1.4

leadership qualities;

2.12.1.5

experience; and/or

2.12.1.6

reputation and standing in the profession or discipline;

2.12.2

taking into account against the plaintiff: F

2.12.2.1

a perception that the plaintiff had improperly and/or unreasonably involved himself in factionalism within the School of Law of the first defendant;

2.12.2.2

adverse criticism expressed by the plaintiff in the past of the conduct of individual members of the academic staff in relation G to the management of the School of Law of the first defendant, and in particular past and present members of the Governing Committee of the School of Law; H

2.12.3

acting towards the plaintiff in a biased or partial manner;

2.12.4

allowing themselves to be influenced against the plaintiff by personal dislike and antipathy on the part of former senior members of the academic staff of the Faculty of Law of the first defendant (as it then was), towards the plaintiff; I

2.12.5

prejudging the plaintiff's application, by deciding prior to the conclusion of the series of guest seminars and the series of interviews by the selection committee for chairs of law that the plaintiff should not be J

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appointed to a chair of law of the first defendant, alternatively that one or more or all of the A rival candidates should be appointed to a chair, or chairs, of law of the first defendant in preference to the plaintiff;

2.12.6

having no legally valid reason or reasons for failing, alternatively refusing, to appoint the plaintiff to a chair of law in preference to one or more of all of the rival candidates; B

2.12.7

appointing different referees to assess and to report to the selection committee on the six publications submitted for assessment by the plaintiff and the six publications submitted by each of the rival candidates, with the result that no one person assessed the publications of the plaintiff and of each of the rival candidates, and C no one person was therefore in a position to furnish the selection committee for chairs of law with a comparative assessment of the merits of the plaintiff's six publications against the merits of the six D publications submitted by each of the rival candidates.

2.13

The conduct of one or more or all of the members of the selection committee for chairs of law of the first defendant as set out in para 2.12 constituted a wrongful violation of one or more or all E of the plaintiff's rights:

2.13.1

to equality in terms of s 9 of the Constitution of the Republic of South Africa Act 108 of 1996;

2.13.2

to dignity in terms of s 10 of the Constitution of the Republic of South Africa Act 108 of 1996; F

2.13.3

to freedom of conscience, thought, belief and/or opinion in terms of s 15 of the Constitution of the Republic of South Africa Act 108 of 1996;

2.13.4

to freedom of expression in terms of s 16 of the Constitution of the Republic of South Africa Act 108 of 1996; G

2.13.5

to freedom of association in terms of s 18 of the Constitution of the Republic of South Africa Act 108 of 1996;

2.13.6

to fair labour practices in terms of s 23 of the Constitution of the Republic of South Africa Act 108 of 1996; H

2.13.7

to just administrative action in terms of s 33 of the Constitution of the Republic of South Africa Act 108 of 1996, alternatively in terms of common law;

and consequently constituted a wrongful injury to the plaintiff's right to dignity in terms of s 10 of the Constitution of the Republic I of South Africa Act 108 of 1996, alternatively a wrongful injury to the plaintiff's right to dignity at common law, further alternatively a wrongful injury to the plaintiff's right to dignity both in terms of s 10 of the Constitution of the Republic of South Africa Act 108 of 1996 and at common law. J

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2.14

The plaintiff felt insulted and humiliated by the conduct of one or more or all of the...