Le Roux and Others v Dey

JurisdictionSouth Africa
Citation2010 (4) SA 210 (SCA)

Le Roux and Others v Dey
2010 (4) SA 210 (SCA)

2010 (4) SA p210


Citation

2010 (4) SA 210 (SCA)

Case No

44/2009

Court

Supreme Court of Appeal

Judge

Harms DP, Mlambo JA, Malan JA, Griesel AJA and Majiedt AJA

Heard

March 8, 2010

Judgment

March 30, 2010

Counsel

T Strydom (with H van Tonder) for the appellants.
MC Maritz SC (with J du Plessis) for the respondent.

Flynote : Sleutelwoorde

B Defamation — Action — Double action — Whether same act could give rise to two actiones injuriarum in hands of same plaintiff — Answer in negative.

DefamationAnimus injuriandi — Consciousness of wrongfulness — Animus injuriandi requirement generally not including consciousness of wrongfulness.

C DefamationAnimus injuriandi — Jest — Jest not excluding intention to injure.

Headnote : Kopnota

As to whether the same act could give rise to two actiones injuriarum in the hands of the same plaintiff, for example, where an assault gave rise to an actio D injurarum, whether a humiliating assault gave rise to an additional action for the impairment of dignity, or whether the nature of the assault impacted on the quantum of damages, the answer was that there was only one cause of action. (Paragraph [22] at 218D - E.)

There was no instance in the history of the actio injurarum where a particular defamatory act gave rise to two causes of action (this where the respondent E had made claim, based on the same act, for defamation and for impairment of his dignity). The reason for this was that any defamation was in the first instance an affront to a person's dignity that was aggravated by publication. Someone who was not affronted by a publication and who did not feel humiliated would not sue for defamation. This was why the award of damages compensated the plaintiff for injured feelings and for the hurt to his dignity and reputation. (Paragraph [23] at 218E - 219A.)

F Moreover, mistake or bona fides might in appropriate circumstances justify a defamatory statement (ie if it was reasonable to have been made) and it was accordingly not necessary to require coloured intent (consciousness of the wrongfulness of the act or wederregtelikheidsbewussyn). In view of precedent and the constitutional emphasis on the protection of personality rights, the animus injuriandi requirement generally does not require consciousness G of wrongfulness. (Paragraphs [29] and [39] at 220C and 224E.)

In addition, jest does not exclude the intention to injure. It goes to motive, and, if a joke is degrading, the defendant's motive does not matter. (Paragraph [40] at 224F - 225A.)

Cases Considered

Annotations

Reported cases H

Southern African

Argus Printing and Publishing Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A) ([1994] 2 All SA 160): dicta at 20E - 21B explained and applied

Bennett v Minister of Police and Another 1980 (3) SA 24 (C): referred to I

Bogoshi v Van Vuuren NO and Others; Bogoshi and Another v Director, Office for Serious Economic Offences, and Others 1996 (1) SA 785 (A): considered

C v Minister of Correctional Services 1996 (4) SA 292 (T): referred to

Dantex Investment Holdings (Pty) Ltd v Brenner and Others NNO 1989 (1) SA 390 (A): J referred to

2010 (4) SA p211

Delange v Costa 1989 (2) SA 857 (A): referred to A

Gelb v Hawkins 1960 (3) SA 687 (A): dictum at 693H considered

Geyser en 'n Ander v Pont 1968 (4) SA 67 (W): dictum at 69E - H applied

Graham v Odendaal 1972 (2) SA 611 (A): referred to

Hassen v Post Newspapers (Pty) Ltd and Others 1965 (3) SA 562 (W): referred to

Herselman NO v Botha 1994 (1) SA 28 (A) ([1994] 1 All SA 420): B dictum at 35E overruled

Jansen Van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) ([1993] 2 All SA 619): referred to

Jordaan v Van Biljon 1962 (1) SA 286 (A): referred to

Kriek v Gunter 1940 OPD 136: referred to

Laugh It Off Promotions CC v SAB International (Finance) BV t/a SabMark International (Freedom of Expression Institute as Amicus Curiae) C 2006 (1) SA 144 (CC) (2005 (8) BCLR 743): referred to

Maisel v Van Naeren 1960 (4) SA 836 (C): referred to

Marais v Groenewald en 'n Ander 2001 (1) SA 634 (T) ([2000] 2 All SA 578): referred to

Masch v Leask 1916 TPD 114: referred to D

McKay v Editor City Press and Another [2002] 1 All SA 538 (SE): referred to

Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA) ([2007] 1 All SA 309): referred to

Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) ([1993] 2 All SA 232): referred to

Mogale and Others v Seima 2008 (5) SA 637 (SCA): referred to E

Mohamed and Another v Jassiem 1996 (1) SA 673 (A): referred to

Mthembi-Mahanyele v Mail & Guardian Ltd and Another 2004 (6) SA 329 (SCA) (2004 (11) BCLR 1182; [2004] 3 All SA 511): dictum in para [25] criticised, dictum in para [26] applied and dictum in para [47] approved

Muller v SA Associated Newspapers Ltd and Others 1972 (2) SA 589 (C): F referred to

National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA) (1999 (1) BCLR 1; [1998] 4 All SA 347): referred to

Nydoo en Andere v Vengtas 1965 (1) SA 1 (A): referred to

Ramsay v Minister van Polisie en Andere 1981 (4) SA 802 (A): dicta at 817F - 819C overruled G

Rudolph and Others v Minister of Safety and Security and Another 2009 (5) SA 94 (SCA) ([2009] 3 All SA 323): referred to

SA Associated Newspapers Ltd en 'n Ander v Samuels 1980 (1) SA 24 (A): referred to

Sheriff, Pretoria East v Meevis 2001 (3) SA 454 (SCA) ([2001] 1 All SA 10): referred to H

Sindani v Van der Merwe and Others 2002 (2) SA 32 (SCA) ([2002] 1 All SA 311): followed

Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A): referred to

Tsedu and Others v Lekota and Another 2009 (4) SA 372 (SCA) ([2009] 3 All SA 46): referred to

Van der Berg v Coopers & Lybrand Trust (Pty) Ltd and Others I 2001 (2) SA 242 (SCA) ([2001] 1 All SA 425): referred to

Whittaker v Roos and Bateman 1912 AD 92: referred to.

Foreign

Australia

Uren v John Fairfax & Sons Pty Ltd 117 CLR 118 (HCA): dictum at 150 approved. J

2010 (4) SA p212

United States A

Lochner v New York 198 US 45 (1905) (49 L Ed 937): referred to.

Case Information

Appeal against a decision in the North Gauteng High Court, Pretoria (Du Plessis J). The facts appear from the judgment of Harms DP.

T Strydom (with H van Tonder) for the appellants. B

MC Maritz SC (with J du Plessis) for the respondent.

Cur adv vult.

Postea (March 30). C

Judgment

Harms DP:

[1] This appeal relates to a claim for sentimental damages for the infringement of the dignity (dignitas) and reputation (fama) of the D plaintiff, the present respondent, who was a vice-principal at a well-known secondary school in Pretoria. The perpetrators were three scholars, the defendants. The High Court upheld both claims and awarded a composite amount of R45 000 with costs on the magistrates' courts' scale. With the leave of the trial court the defendants appeal the judgment while the plaintiff cross-appeals the quantum of the award and E the costs order.

[2] The claims arose from these facts: the first defendant, who then was 15 and in grade 9, one evening searched the internet for pictures of gay bodybuilders. He found one. It showed two of them, both naked and F their legs astride, sitting next to each other in a rather compromising position - a leg of the one was over a leg of the other - and the position of their hands was indicative of sexual activity or stimulation. He manipulated the photograph by pasting a photo of the plaintiff's face on the face of the one bodybuilder and the face of the principal of the school onto the other. He also covered the genitals of each with pictures of the G school's badge.

[3] He sent the manipulated photo to a friend who, in turn, sent it by cellphone to the second defendant, who was in grade 11, and 17 years old. The picture spread like fire among the scholars. A few days later the second defendant showed the picture to a female teacher during class H and later decided to print the photo in colour and showed it around on the playground. At his behest and because he did not have the necessary 'guts' the third defendant, who was in the same grade and of the same age, placed the photograph prominently on the school's notice board. A teacher saw it quite soon and removed it.

I [4] As a result, the plaintiff instituted an action against them based on the actio injuriarum, claiming damages for defamation, as well as for his humiliation. The facts are fairly uncontentious and the main issues raised by the appeal and cross-appeal concerned (a) wrongfulness; (b) the presence of fault in the form of animus injuriandi; (c) the quantum of damages; and (d) the appropriate costs order. There is, however, another J fundamental question relating to splitting of causes of action that will be

2010 (4) SA p213

Harms DP

dealt with in the course of the judgment. It may be pointed out at this A early stage that the first two issues are essentially related to the evidence of the defendants, that the publication of the picture was intended as a joke and was perceived as such and that, accordingly, they could not be liable under the actio injuriarum because their actions were not wrongful and because they did not have the intent to injure the plaintiff (a lack of animus injuriandi). B

Defamation: wrongfulness

[5] I begin with the defamation claim. The first matter to consider is the wrongfulness of the publication of the manipulated photo. It is well C 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...

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25 practice notes
  • Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae)
    • South Africa
    • Invalid date
    ...(Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) (2005 (8) BCLR 743): referred to Le Roux and Others v Dey 2010 (4) SA 210 (SCA): confirmed on appeal Lewison v Philips (1842) 3 Menz 37: applied D Maisel v Van Naeren 1960 (4) SA 836 (C): referred to Mangope v Asmal and......
  • Country Cloud Trading CC v MEC, Department of Infrastructure Development
    • South Africa
    • Invalid date
    ...280 (W): referred toLanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 (4) SA 378(D): distinguishedLe Roux and Others v Dey 2010 (4) SA 210 (SCA) ([2010] ZASCA 41):referred toLee v Minister for Correctional Services 2013 (2) SA 144 (CC) (2013 (2)BCLR 129; [2012] ZACC 30): referred......
  • When the exception is the rule: Rationalising the medical exception in Scots law
    • South Africa
    • Juta Fundamina No. , January 2021
    • 17 January 2021
    ...between the parties”; “the obligant must have been aware of the conduct on which the bar is said to be based”. Thus, in Le Roux v Dey 2010 (4) SA 210 (SCA), for instance, the school principal, in intimating that he was “prepared to dismiss the episode”, would be deemed to have suffered no a......
  • WHEN THE EXCEPTION IS THE RULE: RATIONALISING THE MEDICAL EXCEPTION IN SCOTS LAW
    • South Africa
    • Juta Fundamina No. , January 2021
    • 17 January 2021
    ...between the parties”; “the obligant must have been aware of the conduct on which the bar is said to be based”. Thus, in Le Roux v Dey 2010 (4) SA 210 (SCA), for instance, the school principal, in intimating that he was “prepared to dismiss the episode”, would be deemed to have suffered no a......
  • Request a trial to view additional results
19 cases
  • Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae)
    • South Africa
    • Invalid date
    ...(Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) (2005 (8) BCLR 743): referred to Le Roux and Others v Dey 2010 (4) SA 210 (SCA): confirmed on appeal Lewison v Philips (1842) 3 Menz 37: applied D Maisel v Van Naeren 1960 (4) SA 836 (C): referred to Mangope v Asmal and......
  • Country Cloud Trading CC v MEC, Department of Infrastructure Development
    • South Africa
    • Invalid date
    ...280 (W): referred toLanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 (4) SA 378(D): distinguishedLe Roux and Others v Dey 2010 (4) SA 210 (SCA) ([2010] ZASCA 41):referred toLee v Minister for Correctional Services 2013 (2) SA 144 (CC) (2013 (2)BCLR 129; [2012] ZACC 30): referred......
  • The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae)
    • South Africa
    • Invalid date
    ...of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC): referred to Le Roux and Others v Dey 2010 (4) SA 210 (SCA): referred Marais v Richard en 'n Ander 1981 (1) SA 1157 (A): referred to Masch v Leask 1916 TPD 114: referred to G May v Udwin 1981 (1) SA......
  • Afriforum and Another v Malema and Another
    • South Africa
    • Invalid date
    ...(Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) (2005 (8) BCLR 743): referred to Le Roux and Others v Dey 2010 (4) SA 210 (SCA): dictum in paras [7] and [60] – [61] applied D Manong and Associates (Pty) Ltd v City of Cape Town and Another 2011 (2) SA 90 (SCA): referr......
  • Request a trial to view additional results
1 firm's commentaries
  • What Is A "stakeholder" And Why Does It Matter?
    • South Africa
    • Mondaq Southafrica
    • 27 August 2020
    ...question of wrongfulness is a policy consideration. Footnotes 1. 2020 JDR 1485 (GJ) 2. 1985 (3) SA 429 (A) 3. 1991 (2) SA 301 (C) 4. 2010 (4) SA 210 (SCA) 5. 2006 (1) SA 461 (SCA) The content of this article is intended to provide a general guide to the subject matter. Specialist advice sho......
5 books & journal articles
  • When the exception is the rule: Rationalising the medical exception in Scots law
    • South Africa
    • Juta Fundamina No. , January 2021
    • 17 January 2021
    ...between the parties”; “the obligant must have been aware of the conduct on which the bar is said to be based”. Thus, in Le Roux v Dey 2010 (4) SA 210 (SCA), for instance, the school principal, in intimating that he was “prepared to dismiss the episode”, would be deemed to have suffered no a......
  • WHEN THE EXCEPTION IS THE RULE: RATIONALISING THE MEDICAL EXCEPTION IN SCOTS LAW
    • South Africa
    • Juta Fundamina No. , January 2021
    • 17 January 2021
    ...between the parties”; “the obligant must have been aware of the conduct on which the bar is said to be based”. Thus, in Le Roux v Dey 2010 (4) SA 210 (SCA), for instance, the school principal, in intimating that he was “prepared to dismiss the episode”, would be deemed to have suffered no a......
  • Balancing ‘equality of respect’ with freedom of expression: The actio iniuriarum and hate speech
    • South Africa
    • Juta Acta Juridica No. , December 2019
    • 24 December 2019
    ...See, for instance, Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A) 403C–D and Le Roux and Others v Dey 2010 (4) SA 210 (SCA) para 137.© Juta and Company (Pty) THE ACTIO INIURIARUM AND HATE SPEECH 217common-law principles relating to intention to impair dignity in the crime ......
  • Why intention matters and how it does
    • South Africa
    • Juta Acta Juridica No. , December 2019
    • 24 December 2019
    ...v Gore NO 2007 (1) SA 111 (SCA) 139E–H.9 Gore (n 8) 139H–I.10 Gore (n 8) 140D–F.11 Gore (n 8) 139H–I.12 Le Roux and Others v Dey 2010 (4) SA 210 (SCA) 222D–F; Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA) 224D; Minister of Safety and Security......
  • Request a trial to view additional results

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