Le Roux and Others v Dey
Jurisdiction | South Africa |
Citation | 2010 (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. |
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.
Defamation — Animus injuriandi — Consciousness of wrongfulness — Animus injuriandi requirement generally not including consciousness of wrongfulness.
C Defamation — Animus 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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