Contumelia and the South African Law of Defamation

6

Contumelia and the South African Law of Defamation

HELEN SCOTT

I.  Animus Iniuriandi in South African Law

The case of Le Roux v Dey1 arose from a schoolboy prank. The three defendants (all between the ages of 15 and 17) had between them manufactured and disseminated an image of their school principal and vice-principal naked and locked in an intimate embrace. It appeared that the first defendant had simply pasted images of his teachers’ faces over the heads of the two people depicted in the original photograph. It was sufficiently crudely executed to be an obvious fake.

The boys having been found out and punished, the school principal was prepared to dismiss the episode. Not so Dr Dey, the vice principal. He pursued the matter in the courts by means of an action that in South African law is still called the actio iniuriarum. More specifically, he claimed sentimental damages for the infringement of both his dignity (dignitas) and his reputation (fama). The High Court found for the plaintiff on both counts, awarding a composite amount of R45,000 (about £4,000) as damages with costs on the magistrate’s court scale. Both sides appealed to the Supreme Court of Appeal, the boys against the judgment and Dr Dey against the damages award. The boys’ appeal was dismissed, while the cross-appeal was upheld. On appeal to the Constitutional Court, the orders granted in the High Court and Supreme Court of Appeal were set aside and the defendants ordered, jointly and severally, to pay the plaintiff R25,000 (about £2,000) as compensation and to tender an unconditional apology to the plaintiff for the injury they caused him.2

The case raised a number of important issues, both constitutional and otherwise: these included whether the image was defamatory, and whether infringements of

1 Le Roux and others v Dey 2010 (4) SA 210 (SCA); Le Roux and others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC).

2 The defendants were ordered pay the plaintiff ’s costs in the High Court but no order was made as to costs in the Constitutional Court or in the Supreme Court of Appeal.

dignity and reputation were separate wrongs for the purposes of the actio iniuriarum; in other words, whether the same act could give rise to two actions. However, this essay addresses only one further issue, namely, the precise character of the requirement of animus iniuriandi, intention to injure. Assuming the image to be defamatory, the three schoolboy defendants attempted to rebut the presumption of animus iniuriandi generated by its publication by arguing that they had not known that their conduct was unlawful – indeed, that they did not know that there was such a thing as defamation – and that they had intended the publication as a joke. These defences were rejected by a majority of both the Supreme Court of Appeal and the Constitutional Court. Giving the judgment of the SCA, Harms DP held as follows:

[27] To assess the defence of lack of animus injuriandi it is necessary once again to visit the issue as to its meaning and application in the context of the actio injuriarum in its different forms . . . [A]nimus injuriandi means the intention to injure.

. . .

[29] The Continental Pandectists of the 19th century analysed the concept of dolus and added another element to the intention to injure, namely consciousness of the wrongfulness of the act (coloured intent or ‘wederregtelikheidsbewussyn’). In spite of my high regard for them it has to be conceded that by systematising the Roman-law concepts they did not necessarily state the Roman-Dutch law. This means that an adherence to the roots of our law does not necessarily require an adoption of Pandectist theories.

. . .

[37] A purely Pandectist approach does get one into a bind . . . It appears to me to be incongruous that a defendant who, for example, cannot establish truth and public benefit to justify defamation, can nevertheless escape liability by relying on a belief in either the truth or public benefit.

. . .

[39] . . . I therefore conclude, especially in view of precedent and the constitutional emphasis on the protection of personality rights, that the animus injuriandi requirement generally does not require consciousness of wrongfulness (wederregtelikheidsbewussyn).

[40] In addition . . . I do not believe that jest excludes the intention to injure. It goes to motive and . . . if a joke is degrading the defendant’s motive does not matter.3

Speaking for the majority in the Constitutional Court, Brand J upheld Harms DP’s finding regarding the defendants’ argument that they had intended the publication as a joke:

3 Footnotes omitted. cf also para 10: ‘It appears to me that if a publication is objectively and in the circumstances in jest it may not be defamatory. But there is a clear line. A joke at the expense of some-one – making someone the butt of a degrading joke – is likely to be interpreted as defamatory. A joke at which the subject can laugh will usually be inoffensive.’

[131] . . . [E]stablished principles of our law dictate that motive to raise a laugh and not to injure, in itself, would not exclude animus iniuriandi. This is so because in our law motive does not necessarily correlate with intent. A defendant who foresaw the possibility that his attempt at humour might be defamatory of the plaintiff, but nonetheless proceeds with the attempt, will have animus iniuriandi or intent in the form of dolus eventualis.4

Regarding the defendants’ argument that they did not know that their conduct was unlawful,

[134] I must admit that, in the circumstances I found their reliance on this basis rather peculiar. Lack of knowledge of wrongfulness is generally advanced in the context of a subjective belief in some ground of justification which is then found, objectively, not to exist. So, for example, it would be contended by a defendant that he or she thought the defamatory statement was privileged, or that the defamatory statement was true and its publication for the public benefit, or that the plaintiff had consented to publication. But this was not the defence raised by the applicants. Nor did they contend that they were unaccountable or culpae incapax because their emotional and intellectual development had not reached the stage that enabled them to distinguish between right and wrong and to act accordingly. They simply denied that they were aware that what they were doing was wrong.

. . .

[137] I do not believe that knowledge of wrongfulness requires familiarity with the existence of a particular delict . . . Ultimately, it must be borne in mind that the appli- cants bore the onus to establish their defence of absence of knowledge of wrongfulness on a preponderance of probabilities. In my view, they simply failed to rebut this onus. It was therefore not necessary for the Supreme Court of Appeal to embark upon the enquiry as to whether our law should still require knowledge of wrongfulness as part of animus iniuriandi. Nor do I find it necessary for this Court to do so.5

Thus Brand J distanced himself from the finding of Harms DP that, ‘the animus injuriandi requirement generally does not require consciousness of wrongfulness’. On the other hand, he upheld his finding that jest goes only to motive and is thus incapable of excluding animus iniuriandi.

These conclusions rest on hundreds of years of legal development. In the South African context, the meaning of animus iniuriandi in the original Roman sources and in the later civilian tradition has been the subject of contention for at least a century.6 It may well be that a concept of animus iniuriandi which incorporates

4 cf also para 110: ‘The concept of a joke or jest is usually cast in the role of a defence excluding animus iniuriandi, an instance in which the defendant bears the onus. In this case the applicants also sought to assign it to that role. I will come to that. But the concept of a joke may also come in at the earlier stage of determining whether a statement is defamatory. If the conclusion is that the reasonable observer would understand the statement as good clean fun which simply caused amusement, it will not be regarded as defamatory’.

5 Footnotes omitted.

6 eg Melius De Villiers, The Roman and Roman-Dutch Law of Injuries (1899); ‘Malice in the English and Roman Law of Defamation’ (1901) 17 Law Quarterly Review 288; RG McKerron,‘Fact and Fiction in the Law of Defamation’ (1931) 48 South African Law Journal 154; Melius De Villiers, ‘Animus

consciousness of wrongfulness is incompatible with the analytical structure of the modern South African law of defamation: that a defamation regime that recognises (as South African law has done since the nineteenth century) the stereotyped defences of English law – truth (in the public interest), fair comment and privilege

– and which conceives of these defences (as South African law now does) as defences to wrongfulness, cannot also accommodate a fault regime that allows liability to be defeated by proof of the absence of wrongful intention.7 Yet it is not the purpose of this paper to rehearse or contribute to that important debate. All that it seeks to do is to consider the propositions set out above: that advanced by Harms DP, that consciousness of wrongfulness is a Pandectist invention, and that ‘adherence to the roots of our law’ does not therefore require that we recognise such coloured intent as an element of liability under the modern actio iniuriarum;8 and that accepted by both Harms DP and Brand J, that jest goes only to motive and is thus incapable of excluding animus iniuriandi.

In this respect Reinhard Zimmermann’s warning regarding the role of subjective considerations in classical Roman law is salutory:

Objective and subjective ingredients were inextricably interwoven within the concept of iniuria, and the relative weight attached to each depended, furthermore, on the type of injury in question. This makes it impossible to generalize. The most one can probably say is that here, as in many other instances, the Roman lawyers did not think in terms of specific, isolated requirements for liability that had to be satisfied, but tended to look at the typicality of the situation.9

Injuriandi: An Essential Element in Defamation’ (1931) 48 South African Law Journal 308; RG McKerron, The Law of Delicts in South Africa (1933); TW Price, ‘Animus Injuriandi in Defamation’ (1949) 66 South African Law Journal 4; TW Price, ‘The Basis of the South African Law of Defamation’ [1960] Acta Juridica 254. Much of this literature was cited by De Villiers AJ (not Melius) in Maisel v Van Naeren [1960] 4 All SA 447 (C), in which a mistaken belief in the existence of a privilege on the part of the defendant was taken to exclude animus iniurandi and thus liability. For a more recent view see J Neethling and JM Potgieter, Neethling-Potgieter-Visser: Law of Delict, 6th edn (Durban, LexisNexis, 2010) 128–30. Regarding the fault standard to be applied to the press see Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A); National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA); Khumalo v Holomisa 2002 (5) SA 401 (CC); NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA 250 (CC).

7 It is clear that these defences were originally (ie in the nineteenth and early twentieth centuries) conceived of as defences to animus iniuriandi: see eg Crawford v Albu 1917 AD 102 (dealing with fair comment). For the modern South African position regarding the nature of these defences, see eg Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A); Pakendorf v De Flamingh 1982 (3) SA 146 (A); Khumalo v Holomisa 2002 (5) SA 401 (CC) and Le Roux v Dey 2011 (3) SA 274 (CC) itself. For a masterful account of this paradigm shift and its doctrinal implications see Fagan, this volume, ch 9.

8 As authority for this proposition Harms DP cited R Midgley and JC van der Walt ‘Delict’ in The Law of South Africa 8(1), 2nd edn (Durban, LexisNexis, 2005) para 105 fn 3: ‘Although there are indications that Roman and Roman-Dutch law acknowledged the relevance of consciousness of the wrongfulness of the act as an element of dolus (see, in particular, D 47 10 3 2–4; Voet 47 10 20; De Villiers Injuries 28–29, 193–99), the constituent elements of the concept dolus were only formulated during the nineteenth century by the Pandectists.’

9 Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Cape Town, Juta, 1990) 1061. This is essentially the view of Raber. See Fritz Raber, Grundlagen Klassischer Injurienansprüche (Wien, Böhlaus, 1969) ch 3, summarised on p 174.

Indeed, it is anachronistic to speak of a requirement of animus iniuriandi in Roman law: certainly the term itself is not used in Digest 47.10.10 Nevertheless, it will be argued below that the Roman delict of iniuria was in fact overwhelmingly subjective in focus. Not only was it extremely sensitive to shades of intent on the part of the defendant (what the judges in Le Roux v Dey called motive); by the end of the classical period it was approaching the position that the defendant’s injurious or contemptuous intent – the fact that he had acted in order to perpetrate an iniuria or out of contumelia – was determinative of liability.11

II.  Roman Iniuria: The Edictal Delict

The relationship between the iniuria of the Twelve Tables and that of the praetorian General Edict de iniuriis aestumandis is obscure.12 Equally, the meaning of iniuria in each context is unclear. According to Table 1.13–15, there was to be talio in cases of membrum ruptum (the maiming of a limb or rendering useless of some part of the body), fixed penalties of 300 or 150 asses for the os fractum (broken bone) of a free person or a slave, and a penalty of 25 asses for ‘any other iniuria’.13 Assuming that this provision did contemplate a particular species of wrongdoing called iniuria, it is generally thought to have referred to minor personal injuries such as slapping, as distinct from the more serious assaults set out in the two preceding provisions.14 On the other hand, the text of the General Edict de iniuriis aestumandis, enacted around the turn of the second century BCE, read as follows: