What began as a schoolboy prank four years ago is, this week, an issue before the Constitutional Court.
In 2006 Hendrik Pieter le Roux, a pupil at Hoërskool Waterkloof in Pretoria, doctored a picture of two male bodybuilders in a compromising position by superimposing the faces of his principal and deputy principal over the bodybuilders’ bodies.
The Constitutional Court now has to decide whether the image can be considered defamatory.
Le Roux is appearing alongside Christiaan Gildenhuys, who printed out the image, and Reinardt Janse van Rensburg, who stuck the picture on a school noticeboard, where a teacher found it and took it to the deputy headmaster, Louis Dey. Dey reported the matter to the principal, Christo Bekker, and the police.
Le Roux, Janse van Rensburg and Gildenhuys were severely punished by the school. They each received 50 demerits and community service, which included cleaning animal cages at the Pretoria Zoo. But Dey felt that his reputation had been seriously compromised and laid a R600 000 defamation claim against the boys.
The Pretoria High Court (now called the North Gauteng High Court) found in favour of Dey in November 2008 and he was awarded R45 000. This ruling was later upheld by the Supreme Court of Appeal.
The boys’ defence counsel argues that the image was intended as a joke and that, because they were minors when the incident took place, they should not be subject to the same limits of their freedom of expression as adults.
During the hearing on Thursday Justice Zak Yacoob said the incident “was a comment, a negative comment, on the authority of the deputy principal”. He questioned whether the boys would have done the same thing with pictures of their parents and concluded they would not have, “because they love their parents; they probably do not love the deputy principal”.
The defence claims that the previous courts erred by, among other things, failing to take into account the context: that it was intended for a school-aged audience and the Constitution guarantees the right to freedom of expression.
Two friends of the court have also made applications. The Freedom of Expression Institute (FXI) argued that children have the right to be more careless in their expressions because they are children and act impulsively, without thinking. But Deputy Chief Justice Dikgang Moseneke argued against this, saying children know just how far to push boundaries, which is why they would never have done such a thing to their parents. “It was meant to ridicule [Dey],” he said.
The FXI pointed out that ordering children to pay damages is unnecessary and ineffective and that a “well-meaning apology” would work better.
The Restorative Justice Centre wants the law of defamation to be changed so that in cases involving children more negotiations and discussions are held before resorting to legal measures.
Dey’s legal team is arguing that the boys knew they had done wrong, that the image was defamatory and that it harmed his standing in the eyes of others.