The Constitutional Court has spoken the last word and closed the chapter after five years on the three former schoolboys who played a prank on their principal and deputy principal by doctoring a picture to show them as gay bodybuilders.
The central finding was that the picture created by the boys and later distributed among other pupils did amount to defamation and that they were thus liable for damages. But it was found the amount was too high.
Former deputy principal Dr Louis Dey will now receive R25 000 instead of R45 000 as earlier ordered. The court found that Dey should have found solace in some of the other measures taken against the boys earlier.
Hennie le Roux, Christiaan Gildenhuys and Reinhardt Janse van Rensburg were also ordered to apologise unconditionally to Dey and pay the legal costs of his damages claim instituted in the Pretoria High Court.
Judges Zac Yacoob and Thembile Skweyiya, however, found this matter should be judged from the perspective that the picture had been made by children and it did not amount to defamation. Judges Edwin Cameron and Johan Froneman agreed with this, but found Dey’s dignity had been infringed.
While Dey on Tuesday regarded this as a victory for the teaching profession, the attorney acting on behalf of the young men, as well as the Freedom of Expression Institute (FXI), which entered the fray as an interested party, were of the opinion that there were no winners in this case.
“While there were no winners in our opinion, we will honour the court order and we will pay the R25 000 and render an apology,” said Carl Zietsman, the three’s attorney.
“I am also not sure how the young men will pay the R25 000 as they are students. They will probably have to pay it off from their pocket money.”
Zietsman said it was correct to institute the claim against the then teenagers and not against their parents, as happened in this case.
“One can never sue the parents for the wrongdoing of their children,” he said.
Dey was elated with the outcome. “I feel like an amateur boxer who had to go three rounds before delivering the knockout blow - the High Court, the Appeal Court and now the Constitutional Court.”
He said the fact that the amount of damages was now reduced was irrelevant. It was never about the money, but about protecting the integrity of the teaching profession.
“It is all about the fact that teachers must be treated with respect.
“The fact that a teacher stands in front of a class does not make him or her the punchbag of bullies and arrogant parents,” he said.
He was just grateful that this chapter was now closed.
The Restorative Justice Centre, which joined the case as a friend of the court, said there was an overreaction to the boys’ misbehaviour as they had been punished at school, at court and still had to face a damages claim. The centre felt restorative justice - such as an apology - was the route to take, but in South African law one could not sue for an apology.
The court on Tuesday found that if the law gave recognition to the value of an apology and retraction, things might have turned out differently, adding it was time South African law recognised the value of this kind of restorative justice.
Mike Batley, of RJC, said this judgment might pave the way in future for this type of restorative justice.
“We already use restorative justice in criminal law, but this is a new development in civil law,” he said.
Ann Skelton, of the Centre for Child Law, had her doubts about the appropriateness of ordering an apology. She was also concerned about compounding the apology on top of the damages.
But she was optimistic that lawyers involved in damages claims for defamation would in future use the judgment to support calls for retraction or apology before the matter proceeded to a damages claim. - Pretoria News