CCT45/10

[2011] ZACC 4

2011 (3) SA 274 (CC)

Brand AJ Majority judgment

Froneman and Cameron JJ separate judgment

Yacoob J dissenting judgment

Skweyiya J separate judgment

26 August 2010

8 March 2011

http://hdl.handle.net/20.500.12144/3614

Application for leave to appeal against a decision of the Supreme Court of Appeal: Le Roux and Others v Dey 2010 (4) SA 210 (SCA). The case was first heard in the North Gauteng High Court, Pretoria: Dey v Le Roux en Andere, Case No. 21377/06, North Gauteng High Court, Pretoria, 28 October 2008, unreported.

An application to confirm and properly adjudicate upon an alleged defamation of a school principal by school children who put up a picture in which the principal's face was superimposed on an image of a gay man engaged in a sexually explicit pose. The Court held that such conduct amounted to defamation on the basis that the reasonable observer would understand the image or statement conveyed by the picture as associating or connecting the principal with the indecent situation that the picture portrays and that the average person would regard the picture as defamatory. The majority further concluded that if the defamation claim had not prevailed the image was in any event an injury to the principal's feelings and his dignity. The Court set aside the orders granted in the High Court and the Supreme Court of Appeal and ordered the children to pay principal R25 000 as compensation. In addition, the children were ordered to tender an unconditional apology to the principal for the injury they caused him. The dissenting judgment of Yacoob J held that the image was neither defamatory nor an infringement dignity because the average reasonable observer in a constitutional state would bear in mind the constitutional provisions relating to freedom of expression and the rights and interests of children. The joint minority judgment of Cameron J and Froneman J held that the image was not defamatory, but that it infringed upon the principal's personal dignity. They would have awarded the same relief for that infringement as the majority did for the defamation. Majority: Brand AJ (Ngcobo CJ, Moseneke DCJ, Khampepe J, Mogoeng J and Nkabinde J concurring). Partial Dissent: Cameron J and Froneman J. Dissent: Yacoob J (Skweyiya J concurring with separate reasons).