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Johannesburg - A schoolboy prank which saw the pictures of a principal and deputy principal pasted on an image of two gay bodybuilders was a defamatory action which warranted compensation, the Constitutional Court ruled on Tuesday.
"The majority of the Court affirmed the finding of the majority of the Supreme Court of Appeal [SCA] that the image was defamatory of Dr [Louis] Dey," the court found after Dey had sued the boys for damages for defamation and injury to his feelings.
Former Waterkloof High School pupils Hennie le Roux, Christian Gildenhuys and Reinhardt Janse van Rensburg had approached the court to challenge the R45 000 damages awarded to Dey.
In 2006 then 15-year-old Le Roux cobbled the picture together on his computer, pasting the school's crest over the genital area, and sent it to a friend via cellphone.
This was then passed on to Gildenhuys. It was eventually printed out, and Van Rensburg pinned it on to the school notice board. A teacher pointed it out to Dey, who took offence.
Schoolboy behaviour
The boys' defence had been that they had a constitutional right to freedom of expression.
During the hearing last August, their lawyer Gilbert Marcus had tried to convince the court that their actions had been typical schoolboy behaviour. The Freedom of Expression Institute, as a friend of the court, had submitted that children should be given more leeway as they experimented with freedom of expression.
But Dey did not want to be seen as a person who masturbated in public, had low morals, was guilty of indecent exposure and was in a homosexual relationship.
The matter had already passed through the North Gauteng High Court, which had awarded R45 000 damages to Dey and the SCA, which agreed that it was defamation but felt the claim of injured feelings was an impermissible accumulation of actions.
However, that court agreed with the R45 000 payout.
The Constitutional Court's majority judgment held that a reasonable observer would associate the picture with Dey and regard it as defamatory. If the defamation claim had not prevailed, it would still hurt Dey's feelings, they ruled.
The court reduced the payout to R25 000 but ordered that the boys apologise unconditionally to Dey and pay his costs in the High Court.
Punishment
At the time of the incident, the boys got 50 demerits and five detentions each, were not allowed to wear their 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.
There were two other minority judgments.
Judges Edwin Cameron and Johan Froneman felt that it was not defamatory, but did infringe of Dey's dignity and also would have awarded R25 000.
Justice Zac Yacoob felt that it was neither defamatory nor hurt Dey's feelings and felt that the average reasonable observer would bear in mind constitutional provisions relating to freedom of expression and the rights and interests of children.
It would have been known that it was created at school and would have regarded it as an immature attempt at an attack on Dey's authority, rather than on him as a person.
"The majority of the Court affirmed the finding of the majority of the Supreme Court of Appeal [SCA] that the image was defamatory of Dr [Louis] Dey," the court found after Dey had sued the boys for damages for defamation and injury to his feelings.
Former Waterkloof High School pupils Hennie le Roux, Christian Gildenhuys and Reinhardt Janse van Rensburg had approached the court to challenge the R45 000 damages awarded to Dey.
In 2006 then 15-year-old Le Roux cobbled the picture together on his computer, pasting the school's crest over the genital area, and sent it to a friend via cellphone.
This was then passed on to Gildenhuys. It was eventually printed out, and Van Rensburg pinned it on to the school notice board. A teacher pointed it out to Dey, who took offence.
Schoolboy behaviour
The boys' defence had been that they had a constitutional right to freedom of expression.
During the hearing last August, their lawyer Gilbert Marcus had tried to convince the court that their actions had been typical schoolboy behaviour. The Freedom of Expression Institute, as a friend of the court, had submitted that children should be given more leeway as they experimented with freedom of expression.
But Dey did not want to be seen as a person who masturbated in public, had low morals, was guilty of indecent exposure and was in a homosexual relationship.
The matter had already passed through the North Gauteng High Court, which had awarded R45 000 damages to Dey and the SCA, which agreed that it was defamation but felt the claim of injured feelings was an impermissible accumulation of actions.
However, that court agreed with the R45 000 payout.
The Constitutional Court's majority judgment held that a reasonable observer would associate the picture with Dey and regard it as defamatory. If the defamation claim had not prevailed, it would still hurt Dey's feelings, they ruled.
The court reduced the payout to R25 000 but ordered that the boys apologise unconditionally to Dey and pay his costs in the High Court.
Punishment
At the time of the incident, the boys got 50 demerits and five detentions each, were not allowed to wear their 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.
There were two other minority judgments.
Judges Edwin Cameron and Johan Froneman felt that it was not defamatory, but did infringe of Dey's dignity and also would have awarded R25 000.
Justice Zac Yacoob felt that it was neither defamatory nor hurt Dey's feelings and felt that the average reasonable observer would bear in mind constitutional provisions relating to freedom of expression and the rights and interests of children.
It would have been known that it was created at school and would have regarded it as an immature attempt at an attack on Dey's authority, rather than on him as a person.
