In Loco Parentis: Le Roux v Dey

• Jurisdiction: South Africa
• Date: 16 August 2019
• Published date: 16 August 2019
• Author: Mkhululi Stubbs
• Pages: 377-390

377

IN LOCO PARENTIS: LEROUXv DEY

[DISCUSSION OF LE ROUX V DEY (FREEDOM

OF EXPRESSION INSTITUTE AND ANOTHER AS

AMICI CURIAE) 2011 3 SA 274 (CC)]

Mkhululi Stubbs

BA LLB LLM

Advocate of the High Court of South Africa*

1 Introduction

This case note analyses t he decision of the Constitutional Cou rt (the

“Court”) i n Le Roux v Dey (Freedom of Ex pression Institute and anoth er

as amici curiae)1 (“Le Roux v Dey”). In the case, t he majority of the Court

held three schoolchildren liable in delict for man ipulating and distributing an

image of the deputy pri ncipal (“Dr Dey”) amongst their fellow learne rs and

teachers.

The image the childre n created was held by the majority of the Court to be

defamatory. They were accordingly ordere d by the C ourt to apologise, to pay

damages and also to pay Dr Dey’s legal costs.

In this note, I exami ne the majority decision against the d issenting

judgment (the “Dissent”) in Le Rou x v Dey, and also against one par ticularly

cogent critique (the “Assertion Argument ”) that has been published since

the judgment was handed down .2 As a matter of practical applicat ion, and

considering the fact th at the Constitution of the Republic of South Af rica,

1996 (“the Constitution”) provides that “a child’s best interests ar e of

paramount impor tance in every mat ter concerni ng the child”,3 I conclude

furthe r below, for the reasons that follow, th at the Assertion Arg ument is

most preferable. I also conclude that the Dissent nevert heless accords with the

Assertion Arg ument’s conception of “common sense” and that, in t he light

of the importance of the r ights of the child under the Const itution, and the

Dissent’s emphasis thereon, it is the latter judg ment that ought to have won

th e day.

The note is divided into six pa rts. The second par t, which follows

immediately below, sets out the salient legal principles. The th ird part sets out

the reasoning of the majorit y decision and the Dissent, and it highl ights the

* Though the er rors remain my own, I a m indebted to Shoneez Rugan , Mieke Krynauw and Rya n Kitcat

for their assis tance and to Stu Woolm an, without whom th is paper would not have been p ossible Though

it does not pur port to represent hi s views on the matter, this p aper was inspired by a co nversation with

Professor Fran k Michelman, Har vard Law School, Spr ing Term, 2011

1 2011 3 SA 274 (CC)

2 A Faga n “The Constitutiona l Court Loses Its (and Our) Sen se of Humour: Le Roux v Dey” (2011) 128

SALJ 395 405 Profess or Fagan draws atte ntion to a “big mist ake” (402) and a “small mist ake” (403) in the

majority deci sion An analysis of the “s mall mistake” is , however, beyond the scope of th is note

3 Se e s 28(2) of the Constitution , which is set out fully i n the next section of th is case note

(2013) 24 Stell LR 377

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