FXI Law Clinic Cases
The FXI has contributed to the body of knowledge on freedom of expression in South Africa through cases undertaken by the FXI Law Clinic. The FXI Law Clinic has intervened in over 200 freedom of expression related matters since its inception.
Brief history of the FXI Law Clinic
The Media Defence Trust was established in 1989 in response to the wave of state action against the media, such as the closure of newspapers and detention of journalists. In its six years of establishment the Media Defence Trust was the sole supporter and defender of independent media and journalists. The Media Defence Trust was incorporated into the FXI in 1994, at the request of its administrators, and became the Defence Fund of the FXI. The Defence Fund was re-launched as the Freedom of Expression Defence Fund in 1997 to reflect the broadening of its role to include all cases involving freedom of expression and access to information. The Freedom of Expression Institute Law Clinic was established in 2005 and is accredited by the Law Society of South Africa.
Le Roux and Dey
This case concerns a sexually suggestive image created by one of the applicants and distributed by the others. The image involves two male bodybuilders sitting in a sexually explicit manner with the likenesses of the respondent, Dr. Dey (vice principal of the applicants' school), and the principal superimposed over the original faces. Dr. Dey brought suit against the applicants, all school children, for defamation. The boys countered that the picture was clearly meant as a joke, and thus, did not constitute defamation.
The Supreme Court of Appeals ruled against the applicants, upholding the judgment of the trial court. The court advanced a two-prong test for prima facie defamation: first, the court must consider the ordinary meaning-express or implied-of the defamatory depiction by a reasonable person; and second the judge must decide whether such a meaning is defamatory in nature (i.e., that it could injure the good esteem of an individual as determined by a reasonable person). Based on this test, applicants' image was found to be defamatory since a reasonable person would associate Dr. Dey with the image, subjecting him to potential ridicule. Though authority figures, such as teachers, should expect some jokes to be made at their expense, the image crossed a line in the eyes of the court. The court did not buy applicants' defense that a reasonable person would consider the picture to be a joke, stating that defamation and jokes were not mutually exclusive. Accordingly, a joke can still be defamatory.
Similar to the Afri-Forum v Malema decision, in which the Equality Court considered the reaction of the audience to weigh heavily in favor of a finding of hate speech, the Supreme Court of Appeals decided that the reaction of the defamed, in this case Dr. Dey, tipped the scale in favor of a finding of defamation. The intention of the accused defamer mattered little in comparison. Such a legal formulation is potentially problematic because it restricts free speech based on the reactions of others, which can be varied and unpredictable.
Open/View PDF (Le-Roux-v-Dey.pdf)
March 08 2011 By Freedom Of Expression Institute