The applicants in this matter were Hendrick Pieter Le Roux, Burgert Christiaan Gildenhuys and Reinardt Janse van Rensburg, the respondent was Dr Louis Dey. The applicants in the matter sought leave to appeal against a judgment and order of the Supreme Court of Appeal that upheld an award of damages made by the North Gauteng High Court, Pretoria (High Court).
The matter followed an initial application to the high court by Dr Dey of defamation based on a publication by the applicants, then schoolchildren, of a computer-created image in which the face of Dr Dey, then a deputy principal of their school, was super-imposed alongside that of the school principal on an image of two naked men sitting in a sexually suggestive posture. The school crests were super-imposed over the genital areas of the two men. DR dey was successful in her claim for defamation in the High court.
He matter was appealed by the Le Roux and his counterparts however Supreme Court of Appeal (SCA) held that to uphold both claims entailed an impermissible accumulation of actions. The SCA upheld the defamation claim, and 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.
The matter was further appealed in the Constitutional court, the applicants disputed the correctness of all the findings of the High Court and the Supreme Court of Appeal emphasized in their argument certain constitutional elements which, according to their submission, had relevance to the case. They emphasized, in particular, the right to freedom of expression. The applicants were joined in their effort to highlight the constitutional dimensions of the case by two amici curiae. The first amicus of which was the Freedom of Expression Institute.
The FXI in its involvement in this case stressed the rights of children to freedom of expression and, in particular, to satirical expression. And advocated that the common law of defamation should be developed to protect and promote children’s rights to satirical expression through the expansion of the reasonableness test as well as that knowledge and unlawfulness ought to include the intention to defame.
In the judgment, Brand AJ,(Ngcobo CJ, Moseneke DCJ, Khampepe J, Mogoeng J and Nkabinde J concurring) the majority of the Court affirmed the finding of the majority of the Supreme Court of Appeal that the image was defamatory of Dr Dey. The Court nevertheless sets aside the orders granted in the High Court and the Supreme Court of Appeal replaced it with an order that the applicants pay Dr Dey R25 000 as compensation. In addition, the applicants were ordered to tender an unconditional apology to Dr Dey for the injury they caused him. The applicants were ordered, jointly and severally, to pay Dr Dey’s costs in the High Court.