Mhlongo v Bailey and Another

• Jurisdiction: South Africa
• Judge: Kuper J
• Judgment Date: 19 November 1957
• Citation: 1958 (1) SA 370 (W)
• Court: Witwatersrand Local Division

B Kuper, J.:

The magazine Drum is a monthly publication circulating amongst members of the non-European community, and it has a circulation of between 75 - 80,000. In its January 1957 issue, which was distributed for sale about the 20th December 1956, there appeared an C article entitled 'Dolly and Her Men', written by a member of the staff, one Can Themba. The article ran into several pages, and towards the end of the article a whole page was almost entirely devoted to photographs of - so the heading read - 'the young men in her young life'. One of the young men so photographed is the plaintiff, and two D photographs of the plaintiff are shown, one with the caption 'Allison Mhlongo, in the days when he admired young Dolly Rathebe secretly' and the other with the caption 'Allison Mhlongo, now a science master at St. Peter's School Rosettenville'. Dolly Rathebe, the subject of the article, is a very prominent artiste in the non-European community and the whole article, which was written in a flamboyant and exuberant E style, unfortunately followed the appeal to sex commonly found in 'sensation seeking' magazines and periodicals.

The plaintiff, a native, who, until the beginning of this year, had been a schoolteacher and who is now a student of the University of South Africa, claims the sum of £500 damages because, he says, the photographs F were published without his permission or consent and that, having regard to that fact and to the setting in which they appear, there was an intentional infringement of his right to personal privacy, and there was an unjustified aggression upon his dignity. The defendants, in their plea, denied that the plaintiff had suffered any injuria because of the publication of the photographs, but at the conclusion of the evidence, G Mr. Davidson, who appeared for the defendants conceded, correctly in my view, that the plaintiff had suffered an injuria and that the only issue was the quantum of damages which should be awarded. In their plea the defendants, whilst denying liability, tendered the plaintiff the sum of £50 together with costs on the appropriate magistrate's court scale up to the date of the tender.

H It is necessary, however, before fixing the sum to be awarded, to determine the precise nature of the injury inflicted upon the plaintiff. The mere unauthorised publication of photographs does not necessarily in itself entitle the aggrieved party to damages, and the question whether...