The Doctrine of Subjective Rights, the Actio Iniuriarum and the Constitution: A Convergent Doctrinal Basis for the Law of Personality

• Author: Visser, C.J.
• DOI: https://doi.org/10.47348/SLR/2021/i2a5
• Published date: 29 September 2021
• Date: 29 September 2021
• Pages: 272-287

https://doi.org /10.47348/ SLR/2 021/i2a5

272

THE DOCTRINE OF SUBJECTIVE RIGHTS, THE

ACTIO INIURIARUM AND THE CONSTITUTION:

A CONVERGENT DOCTRINAL BASIS FOR THE

LAW OF PERSONALITY

CJ Visser

LLB (UJ) LLM PhD (Wits)

Senior Lecturer, School of Law, University of the Witwatersrand*

Abstract

This article revi sits the doctrinal basis of th e positive law in protecting

the human personalit y as a legal interest given the approa ch adopted by the

judiciary. In terms of this a pproach, based on common law and const itutional

considerations, the h uman personality is not a rticulated as a compo site interest

(ie the human personality is n ot doctrinally conceptu alised as consisting of

various discrete pe rsonality rights). Arguably, such an approach denig rates

the traditional view th at the human personality o ught to be protected as a

composite interest in law. Therefore , this article interrogates m ore carefully

the doctrinal basis of th e law of personality from the pe rspective of the

common law and the Const itution in the light of the controversial nat ure of

the judiciary’s recent approach . In this regard, the art icle nds that there

is an overlap, or more specically a convergence, between common-law

personality rights (as premise d on the doctrine of subjective r ights and

the actio iniuriarum) and fu ndamental constitut ional rights regarding the

human personality. The a rticle demonstrates t hat in terms of scope (ie the

various personalit y interests recognised i n positive law) and framework

(ie the differentiation and a djudication of the different personality inte rests in

positive law), both the common law and the Const itution attest to the composite

nature of the human perso nality as a legal interest. On this basis, I arg ue that

such convergence enables t he creation of a single and integrated do ctrinal

basis for the post-const itutional operation of the human per sonality as a legal

interest. It is furthe r argued that such a single and integ rated doctrinal basis

provides the foundation for th e further constitut ionalisation of the law of

personality in term s of a transformative con stitutionalism paradig m and the

horizontal application of th e Constitution.

Keyword s: law of personality; doctrine of subjective r ights; actio iniuriarum;

fundamental rights

*This art icle is based on the f irst (“Introd uction”) and second (“ The transfor mative paradig m and

doctrin e”) chapters of CJ Visser Human Dig nity and the Act io Iniuriaru m: A Constituti onalised

Approach to Personality Infringements PhD thes is Universi ty of the Witw atersra nd (2020) Tha nk you to

my supervisor, Dee ksha Bhana, for her helpful i nput on this article Tha nk you also to Emile Zitzke who

provided insig htful comment s

(2021) 32 Stell LR 272

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https://doi.org /10.47348/ SLR/2 021/i2a5

1 Introduction

The human person ality as a legal interest encompasses various pe rsonality

rights wh ich collectively r epresent individuals as physical and spiritual

moral beings that guarantee the e njoyment of their own existence through

their u nique and expres sive personal ities.1 At t he most basic level, the legal

protection of the human personality in positive law is predicated on the

common law of personality.2 In this regard , Johann Neeth ling, J Potgiet er and

Anneliese Roos dene the law of per sonality as

“the legal norms (rules and principles) aimed at protecting an individual’s (or a juristic person’s)

personality, including the rules and principles which deal with the recognition, denition and

protection of various personality rights”.3

Of central impor tance to the common law of personalit y is the recognition

that the human per sonality is a composite legal interest.4 As noted by Willem

Joubert, the notion of compositeness underlies the doctrinal basis of the

common law of personality in protecting the human persona lity, ie the human

personality is dif ferentiated into various subjective r ights of personality

(which are more commonly known as “ personality r ights”)5 which seek to

protect a particular interest of an i ndividual’s person ality.6 For the purpose

of fur ther doctrinal clarication, the protection of the human personalit y as

a composite legal i nterest is founded on the doctrine of subjective rig hts and

the actio iniuriaru m.7

The doctrine of subjective r ights provides the r ules a nd pri nciples that

deal with the recog nition of various personality right s (ie the scope of

personal ity rights recognised).8 In addition, the current framework of t he

law of personality, that i s the differentiation and adjudication of the different

personality r ights, is based on the histor ic delictual action of the actio

iniuriarum.9 In ot her words, the actio iniuriarum enables the articulation

and protection of the various per sonality rights whereas the doctri ne of

subjective rights provide s the genesis a nd recognition of these person ality

rights in positive law.

Proceeding f rom this doctri nal understanding, the Supre me Court of

Appeal in Dendy v University of the Witwatersrand10 (“Dendy”) accept ed

the constitutional legitimacy of the doctrinal basis of the common law of

1 WA Joubert Grondslae van die Persoonlikheid sreg (1953) 10, 18, 130-131; L Ackerm ann Human

Dignity: Lode star for Equality i n South Africa (2012) 89; J Neethli ng, J Potgieter & A Roos Neethli ng on

Personality R ights 3 ed (2019) 24

2 Neethling et al Personalit y Rights 3-5; JM Burchel l Personality Right s and Freedom of Expre ssion: The

Modern Actio I njuriarum (1998) 133

3 The law of per sonality forms part of the broader discipli ne of the law of delict See Neethling et a l

Personality R ights 3

4 Joubert Persoonlikheidsreg 10

5 Neethling et al Personality Rights 3

6 Joubert Persoonlikheidsreg 10, 23-39, 118-120 See also R v Umfaan 1908 TS 62 68

7 Joubert Persoonlikheidsreg 121, 140; Neethling et al Personalit y Rights 4

8 Joubert Persoonlikhe idsreg 123-124; Ackerman n H uman Dignit y 90-91; Ne ethling et al Personality

Rights 3, 11-14

9 Joubert Persoonlikheidsreg 11-12; Ackermann Human Dignity 87; Neethling et al Personality Rights 2,

39-40

10 2007 8 BCLR 910 (SCA)

THE DOCTRINE OF SUBJECTIVE RIGHTS, THE

ACTIO INIURIARUM AND THE CONSTITUTION

273

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