IN DISSENT: A CRITICAL REVIEW OF THE MINORITY JUDGMENT OF YACOOB J Le Roux v Dey 2011 (3) SA 274 (CC)

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The facts of Le Roux v Dey (2011 (3) SA 274 (CC)) are so well-known that they have become public knowledge. In brief: The applicants were three pupils, Le Roux, Gildenhuys and Janse van Rensburg. Using his computer, Le Roux manipulated an image that showed the bodies of two naked men sitting close together on a couch and with their legs suggestively apart, while the leg of one crossed that of the other. Their hands were placed on the genital areas, but both hands and genitals were strategically covered using a school crest. Le Roux then electronically superimposed the facial images of the school principal and of Dey (the deputy principal) on the faces of the two naked men. Le Roux claimed that the idea to create the image came to him after watching an episode of an adult-cartoon series, South Park, on television. The image was created in about 5 minutes, and was not professionally done. Thereafter, the three learners – the applicants in the Constitutional Court – circulated the image among their peers using cellphones, and eventually placed an A4-size image on the school notice board. At the time Le Roux was about 15½ years old, while Gildenhuys and Janse van Rensburg were about 17 years old. All three learners were disciplined by the school authorities for their conduct and were criminally charged and sentenced to do community service. Gildenhuys and Janse van Rensburg also tendered an apology to the principal, whereas Dey, acting on legal advice, would not enter into any negotiations with the two applicants. Dey went on to institute legal proceedings against the three learners in the High Court, for defamation and injured feelings or iniuria. The High Court upheld both claims and awarded R45 000 in damages as a composite award. The learners, however, appealed to the SCA, which upheld, by the majority, the defamation claim, while regarding the finding of the High Court as “an impermissible accumulation of actions”. Nevertheless, the SCA upheld the amount awarded by the High Court against the learners. The present case then dealt with the application for appeal to the Constitutional Court brought by the three learners against this decision of the SCA, which found them liable for damages for publication of an allegeddefamatory image bearing Dey’s face. Six members of the Constitutional Court, as per Brand AJ, affirmed the finding of the SCA that the image was defamatory of Dey, whereas they were also amenable to the view that the image amounted to an injury to his feelings, even if it were not defamatory of him. Meanwhile, two members of the court, Froneman J and Cameron J, held that the image amounted to injury to Dey’s feelings, but were not defamatory of him. The other two members of the court, Yacoob J and Skweyiya J, held that the image was neither defamatory nor injurious to Dey’s feelings. According to Campbell, the Constitutional Court judgments give rise to a number of concerns that may become a subject for comments over time. This note highlights a few of the concerns evident from the dissenting minority judgment of Yacoob J, which was supported by Skweyiya J. Primarily, the note provides a critique of the main findings of this minority judgment with regard to both claims brought by Dey, namely the defamation claim and the claim based on iniuria or the impairment of his dignity. It particularly takes issue with the minority’s application of the wrongfulness test in their judgment. Furthermore, the note explores the role of minority and the principle of the paramountcy of the best interests of thechild, applying the principles of the actio iniuriarum.