Opinionista Stephen Grootes 10 March 2011

Constitutional Court can make a mistake too

There are times when very clever, learned and wise people make mistakes. When they think too much, sometimes it’s because they actually know too much. I believe the Constitutional Court has made such a mistake. This is my opinion on the judgment.

Note: Grootes writes this piece as a parent.

On Tuesday the Constitutional Court ruled on the case of Le Roux v Dey. Louis Dey was the deputy principal at Pretoria’s Waterkloof Hoërskool five years ago, when a schoolboy manipulated a picture of him. In essence, in what the judgment describes as a five minute process, the teenager placed a picture of Dey’s face onto the body of a bodybuilder engaged in what the judges coyly called an “intimate activity” with another bodybuilder. And just to leave some room for doubt, the youngster placed a picture of the school crest over their nether regions. But the meaning was obvious. At some point, another boy put this picture on a school notice board, where it remained for a brief period.

Dey sued. The North Gauteng High Court found the three boys had defamed him and ordered them to pay him R45,000. They went to the Supreme Court of Appeal which disagreed slightly on legal grounds, but confirmed the monetary award. On Tuesday, the Constitutional Court, in a split decision, ordered the young men to pay Dey R25,000 and to “apologise unconditionally”.

This is so stuffed up.

Reading through Tuesday’s judgments, it’s clear a lot of thought went into all of this. There’s a lot of Latin on the law of defamation, in particular on the rights of teachers to dignity, about how there is a line that children have to respect and about how it was crossed here. There is the point that it is a classic intent of defamation to “belittle and humiliate him as a person”. All of this is true in law, and in fact.

But it only makes sense in real life if you’re an ass.

Here’s why. Firstly, and I’ll return to this point many times, the three boys were aged just 16 and 17 when this happened. So a court has now ordered people to pay monetary damages for something they did when they were minors. Minors. Under the age of 18. How can a child pay money for something? Surely that is simply wrong. Secondly, why were they judged as adults? Everyone knows that they were not adults. The judges even refer to the picture itself as something that any reasonable observer would recognise as being made by younger people. Surely that should have been taken into account.

If you decide to draw the line for legal responsibility at some point other than 18, surely that needs to be made explicit in our law. It cannot be that suddenly in one decision judges draw a line, with no public debate. And why the age of 16, why not the age of two? If we’re going to change it, let’s talk about it. And if they are legally responsible, how can they afford damages? What if the children were 15 at the time, and thus, under our law, not allowed to legally work? Must they sell a body part, as it’s the only thing they own? If this had happened not at a middle-class school, but in a much poorer community, and the children did not have middle-class parents, what then? Could we jail children for being in contempt because they don’t pay a court-ordered debt? Rather Dickensian vision, don’t you think?

There is another serious logical flaw in this decision. The court has ordered the three to pay up and to apologise unreservedly. Surely, if they are children, you make them apologise. If they are not, you order them to pay. It cannot be both ways. And that misses an even more important point. What if they don’t want to apologise? What if they believe it was the right thing to do. No matter how warped that may be, surely a judge doesn’t get to be inside someone’s head and order them to do something like that. An apology surely is not something that can be ordered by a court.

When I was at my middle-class high school, there was a teacher known by us boys as “Caveman”. There were pictures drawn of him, sometimes they fell on the floor – in one memorable incident, a friend was caught with them. While violence is not a good thing, the smack on the bum he received was surely a much better way of dealing with the situation than suing him. And who sues a child in the first place? Surely if you are someone who feels the need to do that, you may want to reconsider your choice of career. This thing should have been stopped at the high court. While I understand that a judge cannot tell someone not to sue, surely there was another way.

The real pity here is that the Constitutional Court, with its weighty powers, is the Constitutional Court. This judgment will set a precedent. What happens when my son, whose artistic expression so far has been limited to wax crayons and the lounge wall, graduates to better and possibly more dangerous things. Should I take out “suing insurance” for him, just in case there’s a teacher he doesn’t like? Sometimes the point of school is to learn where to draw the line. Not to be punished in court for making a mistake. Part of this is to learn what is funny and what is not. Just read “Spud” to see what kind of process this is, and how funny it can be. Incidentally, surely that entire book could be judged as defamatory, if indeed it is based on fact.

The Court seems to have missed a great opportunity here. The Centre for Restorative Justice made a submission during its hearing on this case. There was an opening for the judges to go another way. They didn’t take it.

Incidentally, on a personal note, I want to say, I deliberately didn’t speak to any lawyers before writing this piece. I didn’t want to have to think too hard before engaging common sense. While that may open me up to what will no doubt be attacks from people cleverer than I, so be it.  DM

Grootes is an EWN reporter.