Klofies defamation case in ConCourt
2010-08-25 20:06
Johannesburg - The Constitutional Court will hear argument on Thursday on whether a schoolboy prank - involving the doctored photograph of a deputy headmaster - can be considered defamation.
According to the heads of argument, Pretoria schoolboy Hennie Le Roux got the idea while watching an episode of South Park in 2006 in which a character digitally superimposed a picture of himself on that of a bodybuilder.
Le Roux logged on to the Hoërskool Waterkloof website and found a picture of its then headmaster Christo Bekker and deputy headmaster Louis Dey.
As a joke, he googled the word "bodyguard" and went to a site for gay bodybuilders where he found an image and saved it.
He then digitally removed the heads of Bekker and Dey from the school photograph and pasted them over the bodybuilders' heads. He covered the bodybuilders' private parts with the school crest.
He sent the manipulated image to a friend and the next day, at church, the two had a laugh over the picture.
This friend then sent the picture to another friend, and it was then forwarded to Christian Gildenhuys, who was 17 at the time.
Punishment
He did not know who had sent it to him. He sent the picture to his friends and printed it out. It was shown around.
Then, Reinardt Janse van Rensburg slipped it under the glass of the school notice board, placing it next to the social committee announcements.
It stayed there for at least one class period, or 30 minutes.
A teacher saw it and laughed it off, but another showed it to Dey, who reported it to the headmaster and to the police.
The boys got 50 demerits and five detentions each, they were not allowed to wear honours colours, were not allowed to be considered for leadership positions for the rest of the year and had to clean cages at the Pretoria Zoo.
Concerned that he would be seen as a person who masturbated in public, had low morals, was guilty of indecent exposure, was in a homosexual relationship and was a homosexual, Dey then and laid a claim for R600 000 for defamation.
Damages
The High Court in Pretoria found that the image ridiculed his moral values and disrespected him. It awarded him R45 000 in damages.
The Supreme Court of Appeals upheld the ruling, finding that "defamation is in the first instance an affront to a person's dignity, which is aggravated by publication".
The boys said they published the image because they thought it was amusing and did not know that their conduct was unlawful or would have consequences.
However, in a majority ruling, the SCA found the picture to be defamatory, that knowledge of unlawfulness was no longer an element of the civil wrong, and that "jest does not exclude the intention to injure".
The boys' counsel believed nobody would have taken the image seriously or literally, that the boys lacked the necessary wrongful intention to be held liable and that they did not have the "requisite consciousness in this regard".
The boys are expected to argue in the Constitutional Court that the image was not real and therefore did not convey a defamatory meaning, that they did not understand their actions to be defaming and that the damages were exorbitant.
The Freedom of Expression Institute will stress the rights of children to freedom of expression and to satirical expression.
It will submit that the requirements for defamation should be modified to allow defences that give due recognition to these rights.
The second friend of the court, the Restorative Justice Centre, wants the court to change the law so that, especially in defamation cases concerning children, the parties talk to each other meaningfully before going to court.
- SAPA