Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae)

• Jurisdiction: South Africa
• Judge: Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skewyiya J, Yacoob J and Brand AJ
• Judgment Date: 19 February 2010
• Docket Number: CCT 45/10
• Hearing Date: 26 August 2010
• Counsel: G Marcus SC (with S Budlender) for the applicants. JL van der Merwe SC (with J du Plessis) for the respondent. AD Stein (with JJ Meiring and K McLean) for the first amicus curiae. AM Skelton for the second amicus curiae.
• Court: Constitutional Court

The court: E

Introduction

[1] This is an application for leave to appeal against a decision of the Supreme Court of Appeal, in which that court upheld an award of F damages to the respondent, Dr Dey. This arose from the publication by the applicants, then schoolchildren, of a computer-created image in which the face of Dr Dey, then a deputy principal of the school, was superimposed alongside that of the school principal on an image of two naked men sitting in a sexually suggestive posture. Further details were occluded by the superimposition of the school crest over the genital areas G of the two men. The Supreme Court of Appeal affirmed the judgment of the North Gauteng Division of the High Court, Pretoria (High Court), that the publication of this image defamed Dr Dey, and confirmed the award of R45 000 in damages to him.

[2] This court, in the judgments that follow, grants leave to appeal, H upholds the appeal, and sets aside the award of R45 000. In its stead, this court grants Dr Dey R25 000. The High Court costs award the Supreme Court of Appeal granted Dr Dey is left intact. However, this court sets aside the costs award the Supreme Court of Appeal granted in Dr Dey's favour, and substitutes no order as to costs in that court. There is also no order as to costs in this court. The applicants are, in addition, ordered to I tender an unconditional apology to him for the injury they caused him.

[3] Five members of the court concur in the judgment of Brand AJ, which constitutes the judgment of the court. In this judgment of the court we indicate the further common areas of principle and the factual J findings on which all the members of the court agree.

The Court

[4] Dr Dey instituted action for recompense on the basis of two A claims — one based on defamation and the other on the injury to his feelings. The High Court upheld both claims, and granted a composite award of R45 000 in damages. But the Supreme Court of Appeal held that to uphold both claims entailed an impermissible accumulation of actions. The majority of that court upheld the defamation claim, and B found accordingly that the additional claim based on affront to dignity was ill-founded and required no further consideration. The Supreme Court of Appeal nevertheless confirmed the amount the trial court awarded. One member of the Supreme Court of Appeal found that Dr Dey had not been defamed, but that his dignity claim, and so too the amount of damages, should be upheld. C

[5] Six members of this court, in a judgment by Brand AJ in which Ngcobo CJ, Moseneke DCJ, Khampepe J, Mogoeng J and Nkabinde J concur, affirm the finding of the majority of the Supreme Court of Appeal that the image was defamatory of Dr Dey. They further conclude that if the defamation claim had not prevailed the image was in any event D an injury to Dr Dey's feelings.

[6] The joint judgment by Froneman J and Cameron J concludes that Dr Dey was not defamed, but that his feelings were actionably injured. Yacoob J concludes that Dr Dey's claim should have failed entirely. Skweyiya J concurs with Yacoob J, and sets out his reasons in a separate E judgment.

[7] All members of the court agree with the factual exposition contained in the judgment of Yacoob J (paras [11] to [20]), with his exposition of the issues (paras [21] to [28]), with his reasoning and conclusion F regarding the grant of leave to appeal (paras [30] to [35]), and with his decision and reasoning regarding the application to lead further evidence (para [80]).

[8] Save for Yacoob J and Skweyiya J, who do not reach these issues, all members of the court further endorse the exposition regarding the G applicable legal principles of the law of defamation in the judgment of Brand AJ (paras [84] to [91]), and in the judgment of Froneman J and Cameron J (paras [154] – [157] and [168] – [173]). Save for Yacoob J and Skweyiya J, all members of the court also agree with the exposition in the judgment of Brand AJ regarding wrongfulness (paras [120] – [128]) and animus iniuriandi (paras [129] – [137]). H

[9] All members of the court in addition endorse the exposition in the judgment of Froneman J and Cameron J about apology (paras [195] – [203]) and, save for Mogoeng J, regarding expression about constitutionally protected groups (paras [181] – [189]). In addition, all members of court, barring Yacoob J and Skweyiya J, concur in the order I contained in the judgment of Froneman J and Cameron J, which is also set out immediately below.

[10] The following order is granted:

1.

The application to lead further evidence is dismissed.

2.

The orders granted in the High Court and Supreme Court of J

Yacoob J (Skweyiya J concurring)

A Appeal are both set aside and replaced with the following:

(a)

The defendants are ordered, jointly and severally, to pay the plaintiff R25 000 as compensation.

(b)

In addition, the defendants are ordered to tender an unconditional apology to the plaintiff for the injury they caused him.

(c)

B The defendants are ordered, jointly and severally, to pay the plaintiff's costs in the High Court.

(d)

There is no order as to costs in this court and in the Supreme Court of Appeal.

Judgment

Yacoob J (Skweyiya J concurring):

Introduction C

[11] This application for leave to appeal is about the determination of liability of children for defamation or for injured feelings in the light of the values and certain of the fundamental rights enshrined in our D Constitution. The three applicants want to challenge the correctness of a judgment of the Supreme Court of Appeal holding them liable for damages in the sum of R45 000 and costs, consequent upon a finding that they had wrongfully and intentionally published defamatory material concerning the respondent. [1] The Supreme Court of Appeal confirmed E the award of damages by the High Court but increased the scale of the High Court's costs award from that of the magistrates' court to that of the High Court. [2] I will refer to the first applicant as Mr Le Roux, the second applicant as Mr Gildenhuys and the third applicant as Mr Janse van Rensburg. The respondent will be referred to as Dr Dey.

Factual background F

[12] The publication of the alleged defamatory material took place during February/March 2006 at a high school in Pretoria which had more than 2000 learners. Dr Dey was at that time the deputy principal of the school having served in that capacity for 11 years. The applicants G were all learners at the school: Mr Le Roux was about 15½ years old while Messrs Gildenhuys and Janse van Rensburg were about 17 years old.

[13] The defamatory material complained of is an image. It is not disputed that the image [3] was created by Mr Le Roux in the following H way. At home one Sunday, Mr Le Roux was surfing the internet and, while on the website of his school, saw pictures of the principal and that of Dr Dey. These pictures brought to mind an audiovisual programme he had seen, called South Park, in which the head of a boy was, presumably electronically, placed on the body of a gay bodybuilder by I another boy. It was then that he thought that the transposition of the

Yacoob J (Skweyiya J concurring)

heads and faces of the school principal and that of Dr Dey onto gay A bodybuilders might result in an enjoyable spectacle.

[14] He went to a site apparently dedicated to gay bodybuilders and there found a picture of two men naked and sitting next to each other in sexually suggestive and intimate circumstances. They sat close, with the right leg of one over the left leg of the other, and with their hands B evocatively in the region of their genitals. Mr Le Roux attached the head and face of Dr Dey to one of these bodies and the head and face of the principal to the other. Although the evidence is not clear on this, it seems probable from an examination of the image that at least part of the heads and faces that represented the image were first removed. It is clear from C the image though, as pointed out by the judge in the High Court, that the heads and faces on the image before manipulation, had not been completely cut out. Mr Le Roux then took the school badge from the school website and placed one on each of the bodies on the image, so as to obscure the hands and genitals. It took him much less than five minutes to perform this exercise. D

[15] Apparently satisfied and amused by his own handiwork, Mr Le Roux felt the need to share his achievement with a close friend, and sent it to his friend's cellphone, using the same computer. He went to church later that day and met that friend who, in his presence, sent the image to the cellphone of another learner at the school. When he saw this happen, E he implored his friend to desist from distributing the image to anyone else, emphasising that the image should be, as it were, for his eyes only. Mr Le Roux understandably became concerned about the consequences of the wide circulation of the image and in particular, the possible response of the authorities at the school, more especially the responses of F the principal and Dr Dey when they came to know of the production and circulation of the image. Any schoolchild of that age would have foreseen trouble upon the discovery of that image. He had clearly done something wrong as far as school discipline was concerned.

[16] We do not know whether Mr Le Roux's friend further published the G image, despite Mr Le Roux's entreaties not to do so. But it comes as no surprise that the image was circulated by cellphone amongst many of the schoolchildren, against Mr Le Roux's wishes.

[17] Some days later, Mr Gildenhuys, who had received a copy of the image on his cellphone, thought it would be a good idea to print and take it along with him to...