Defamation the South African way

6 April 2011 by

Le Roux and others v Dey  (South African Constitutional Court) – read judgment

With the new libel reform proposals doing the consultation rounds it is enlightening to see how other jurisdictions strike the balance privacy and dignity on the one hand, and freedom of  expression on the other.

A recent case before the South African Constitutional Court raised two interesting issues: the extent to which liability for defamation should be reduced where children are concerned, and the question whether it should be actionable at all to refer to someone in terms of the condition protected by the Constitution – sexual orientation, for example.

In the light of the recent political history of that troubled country, the Constitutional Court is at pains to emphasise the importance of free speech. Indeed in a previous case it was contended with some force

that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore we should be particularly astute to outlaw any form of thought control, however respectably dressed.

The present case concerned the defamation claim of a deputy school principal who was portrayed in a photograph of two gay body-builders in a sexually compromised pose. A pupil at the school attached the head of Dr Louis Dey and the school principal to those bodies and placed the school badge to obscure their hands and genitals. The image was circulated via mobile phones throughout the school.  Dey pressed criminal charges against the pupils responsible and caused them to be severely disciplined by the school authorities. He also sued in defamation; although he did not particularise the implied meanings, it was generally alleged that the sting of the defamation was that Dr Dey, amongst other things, was of low moral character and was in a homosexual relationship with the other person depicted. He succeeded in both the High Court and the Supreme Court of Appeal, which awarded him R45,000 (approximately £4.140). The Constitutional Court by a majority upheld the defamation finding but reduced the damages to R25,000 (£2,300).

The challenge in the Constitutional Court was based on the right to free expression under Section 16 of the Bill of Rights.

Children’s rights: the paramountcy principle

What was unique about this case was that it was the first time – at least in South Africa – where schoolchildren have been held liable for defaming their schoolteachers in a school setting. South African libel law is very similar to our own. The question is whether a given statement was “calculated to expose a person to hatred, contempt or ridicule”.  Everyday experience demonstrates that a caricature or cartoon can be more devastating to the image of the victim than, say, an accusation of dishonesty.  Both the High Court and the Supreme Court had found that the reasonable observer would understand the picture to associate the two teachers with the bodies and their behaviour, and this association would render Dr Dey (who was the only one of concern) the object of ridicule and disrespect for his person.

In South Africa, as in England, the onus is on the defendant wishing to avoid liability for defamation by relying on justification has a full onus to plead and prove facts. In fact the applicants did not rely upon any justification ground; their sole case was to deny the defamation.

However under the Constitution the judicial determination of whether it would be reasonable to impose liability on a defendant depends in turn on considerations of public and legal policy in accordance with constitutional norms.  So grounds of justification play a pivotal role, and the South African courts have recently created a new ground of justification, referred to as “reasonable publication”.  The Freedom of Expression Institute, which filed an amicus brief in support of the applicants, contended that children should be allowed, as part of their right to freedom of expression under Section 16 of the constitution, to experiment with satire. The submission was that these rights should be taken into account in the process of balancing these rights against the right to dignity.

Two of the dissenting judges, Yacoob J and Skweyiya J, were much taken with this argument. Unlike the ECHR, the South African Bill of Rights contains many “second generation” rights, including a section protecting numerous “children’s rights” such as the right to legal representation.   Section 28(2) proclaims that “A child’s best interests are of paramount importance in every matter concerning the child.”  This provision has in turn been interpreted by the Constitutional Court to mean that children should be protected “against undue exercise of authority.”

The applicants (who were fifteen and a half and seventeen at the pertinent time) argued that children who are held liable for defamation merely because the defamatory meaning of a statement or picture is probable do not receive adequate protection. The child’s “vulnerability and weakness” are not sufficiently catered for in that approach. A change was necessary to afford children adequate protection and is therefore constitutionally mandated. Yacoob J and Skweyiya agreed.

The importance of the distinction between adults and children rests on the so-called “constitutional imperative” that

children’s crimes may stem from immature judgment, from as yet unformed character, from youthful vulnerability to error, to impulse, and to influence.  [it is recognised that] exacting moral accountability for a misdeed might be too harsh because they are not yet adults…

The reasonable observer would consider that an over-emphasis on the rights of a good name and reputation of a deputy principal in relation to the rights of powerless children will be counter-productive and will be harmful to the interests of children.

This had been argued below, but the Supreme Court had rejected the contention that the reasonable observer would have taken the fact that the image was a child creation into account in assessing the meaning of the image, particularly since it was anonymously disseminated via cellphones. It is indeed difficult to appreciate how in such circumstances the identity of the alleged defamer could determine the objective meaning of a publication.

Writing for the majority, Judge Brand found that the photo, even though it was a schoolboy prank, was a “classic example of defamation”. It might have been intended to destroy the respondent’s image as a figure of authority but it had the net effect

to belittle and humiliate [Dey] as a person, to represent him as unworthy – or at least less worthy – of respect by the learners of the school.

Nor was Judge Brand impressed by the children’s rights argument in general. He acknowledged that the fact that the source of the defamation was a child was not an irrelevant consideration, however, there is a line that may not be crossed.

That must be so because teachers are entitled to protection of their dignity and reputation; no less than to the protection of their bodily integrity. Conversely, learners are not exempted from delictual liability.

If the applicants had properly canvassed a justification defence, the Court would have had to perform the balancing act between the freedom of expression of schoolchildren, on the one hand, and the dignity of teachers – including their reputation – on the other. To facilitate this balancing act, there would have to be an investigation into what the effect of such free-reigning experimentation by schoolchildren with satire would be. Would this not, Brand J asks wryly, result in a general destruction of respect for teachers?

Content of the libel: constitutionally protected grounds

Two of the judges found that the defamation claim had not been made out, but that the respondent could succeed on the claim of injury to his dignity. The constituents of this delict are not important here, except to say that in order to make it out the plaintiff has to establish that the statement or depiction was wrongful for the law to take cognisance of the injury he suffered.

Counsel for the applicants seized upon Dr Dey’s anguish at the homosexual dimension of the image. He suggested that this created a problem for Dr Dey’s dignity claim, because sexual orientation is a prohibited ground for discrimination under the Constitution, and therefore it was contended that the objective requirement of unlawfulness had not been established. In other words, homosexuality in itself is not conduct that can be classified as wrongful against the prevailing norms of society. The Constitution discountenances anti-gay sentiments. The applicants therefore suggested that Dr Dey’s claim should for this reason fail. An actionable injury cannot be based solely on a ground of differentiation that the constitution does not provide a basis for offence.

To hold actionable an imputation based on a protected ground of non-discrimination would open a back-door to the enforcement by the law of categories of differentiation that the Constitution has ruled irrelevant.

Interesting though that argument was, in the end the court rejected it because Dr Dey’s pleadings went further than the implication of the image that he was homosexual. Of course it should not be an actionably injurious slight to offend someone’s feelings by merely classing them in a condition which the Constitution protects, whether it is religious, racial or sexual.

To simply call someone Muslim, Christian, gay, black, white, lesbian, female, male, an old-age pensioner, atheist, Venda, or Afrikaans-speaker is not actionably injurious. Something more is needed.

There was this extra ingredient here: a reasonable person in the respondent’s position, whether gay or straight, would be understandably affronted by being depicted in, or aligned to, a naked, indecent and lewd picture.

The South African weekly Mail and Guardian in their column “Serjeant at the Bar” asked whether the conclusion reached by the majority comports with the constitutional principles of diversity and freedom, or with a mind-set that children should be seen and not heard and that authority should be respected at all times. But this is to miss the point of the delicate balance that has to be struck between free speech and dignity.
The respondent’s wounded feelings relate to constitutionally sanctioned and protected personal choices, and were therefore legally compensable.

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