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One of my sons has been a compulsive cartoonist since the age of six. His
heroes include Jonathan Shapiro and Gerald Scarfe. Like many boys with a
similar inclination, he went through a stage of paging through magazines and
visually transforming the images that he found there by adding spectacles,
teeth, horns, moustaches, beards, and so on. One day he came upon a
photograph of the novelist Christopher Hope. He added, among other
things, a ‘Hitler moustache’. The effect was comic (if you doubt that a Hitler
moustache can be used to comic effect, go and watch Charlie Chaplin’s The
Great Dictator). The effect was also that, from that day onwards, I have been
unable to disassociate Christopher Hope from the man responsible for the
Holocaust.
No matter how you look at it, it is incomparably worse to murder six
million Jews than to masturbate in the presence of another or allow yourself
to be photographed pretending to do so. If, as the Constitutional Court
found, the defendants in Le Roux v Dey defamed the plaintiff, then so did my
son defame Mr Hope (and so did I when I showed the modified photograph
to my parents and brothers). It follows that, unless it could be shown that my
son nonetheless did not act wrongfully or did not act intentionally, he would
have committed the iniuria of defamation vis-à-vis Mr Hope. Could he
show this? Probably not. Since this would be defamation by association and
not by assertion, no justification would be available to him. Given the
Constitutional Court’s understanding of the requisite intention (which is
unobjectionable), it is likely that he had this too.
Common sense suggests that doodling of the kind performed by my son
does not amount to defamation. The first defendant in Le Roux v Dey was
doodling in a similar manner. That he was manipulating images on a
computer rather than manipulating a pencil line on a magazine page should
not blind one to this fact.
THE HETERONORMATIVE OBSERVER: THE CONSTITU-
TIONAL COURT’S DECISION IN LE ROUX v DEY
JACO BARNARD-NAUDÉ
Associate Professor of Private Law, University of Cape Town
PIERRE DE VOS
Claude Leon Foundation Chair in Constitutional Governance,
University of Cape Town
‘In the mid-1950s, when I was fourteen or fifteen, I told my mother that I was
homosexual: that was the word back then, homosexual, in its full satanic majesty,
cloaked in ether fumes, a combination of evil and sickness.’ (Edmund White
My Lives: An Autobiography (2005) 1.)
INTRODUCTION
In this note we propose to deal, from a particular vantage point, with the
Constitutional Court’s judgment in Le Roux & others v Dey (Freedom of
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Expression Institute and Restorative Justice Centre as Amici Curiae)2011 (3) SA
274 (CC): we investigate how heteronormativity (as a cultural phenomenon)
influences the determination in the majority judgment (authored by Brand
AJ) that defamation had been committed by the applicants. By using the term
‘heteronormativity’ we mean to gesture at the set of cultural practices and
assumptions that privilege heterosexuality and assume that the monogamous
heterosexual couples represent the principle of social union itself. Put
differently, heteronormativity can be understood as:
‘[T]he institutionalisation of exclusive heterosexuality in society. Based on the
assumption that there are only two sexes and that each has predetermined
gender roles, it pervades all social attitudes, but is particularly visible in ‘‘family’’
and ‘‘kinship’’ ideologies. Heteronormativity . . . is embedded in discourses
which create punitive rules for non-conformity to hegemonic norms of heterosexual
identity.’ (Melissa Steyn & Mikki van Zyl (eds) ‘The prize and the price’in The
Prize and the Price: Shaping Sexualities in South Africa (2009) 3 (emphasis added)).
As a cultural phenomenon of anti-homosexual bias, heteronormativity
emphasises the ‘correctness’ of heterosexuality and is closely related to the
concept of heterosexism which exists at the institutional or structural level to
‘legitimize the violence and discrimination that takes place on other levels’
(Görel Granström ‘Challenging the heteronormativity of law’ in Åsa Gunar-
sson, Eva-Maria Svensson & Margaret Davies Exploiting the Limits of Law
(2007) 128). In other words, we take heteronormativity (as a regulatory
practice) to be the cultural cause of heterosexism at the institutional level. In
this sense we argue, unavoidably so, that the majority judgment of the
Constitutional Court is heterosexist, precisely because in the assumptions it
makes about the same-sex sexual activity depicted in the photographic image
at issue, it perpetuates the violence and discrimination that takes place at
other levels.
We contend in this regard that the majority judgment failed to conform to
the principles established by the Constitutional Court in previous cases
dealing with sexual orientation discrimination. Previously, the Constitu-
tional Court held that the right to equality and non-discrimination requires
the law to reject the traditional, heteronormative, assumptions which tend to
associoate sexual deviance with same-sex sexual desire and acts. As Sachs J
stated in the first Constitutional Court judgment dealing with sexual
orientation discrimination (National Coalition for Gay and Lesbian Equality &
another v Minister of Justice & others 1999 (1) SA 6 (CC) para 134):
‘The concept of sexual deviance needs to be reviewed. A heterosexual norm
was established, gays were labelled deviant from the norm and difference was
located in them. What the Constitution requires is that the law and public
institutions acknowledge the variability of human beings and affirm the equal
respect and concern that should be shown to all as they are. At the very least,
what is statistically normal ceases to be the basis for establishing what is legally
normative. More broadly speaking, the scope of what is constitutionally normal
is expanded to include the widest range of perspectives and to acknowledge,
accommodate and accept the largest spread of difference. What becomes
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normal in an open society, then, is not an imposed and standardised form of
behaviour that refuses to acknowledge difference, but the acceptance of the
principle of difference itself, which accepts the variability of human behaviour.’
The majority in Dey, we contend, impermissibly and instinctively jumped
to conclusions about what is normal and what not by making assumptions
about the promiscuity and immorality of same-sex eroticism. We argue that
despite the protestations to the contrary, there is a cognitive link in the
majority judgment between, on the one hand, the depiction of same-sex
eroticism in the alleged defamatory image and, on the other, the determina-
tion that the image portrayed indecent conduct and, that in as far as it
associated this ‘indecent’ conduct with the person of the respondent (Dr
Dey), it constituted a defamatory image. To be sure, our argument is that had
the depiction not been a same-sex one, it is highly improbable that the
determination would be that the image depicts indecency and is therefore
defamatory. But for the same-sex conduct in the image, we argue, a
judgment that the depiction was defamatory would not have ensued. In
making this argument, we emphasise with Samuel Chambers that a norm
(here heteronormativity) works best when it works invisibly, when it is
concealed or covered over, as it is in this case by the allusion that the
judgment would have been no different if the image at issue was one
depicting heterosexual sexually suggestive conduct. (See S AChambers ‘‘‘An
incalculable effect’’: Subversions of heteronormativity’ (2007) 55 Political
Studies 656 at 665.)
In addition, we argue that the judgment once again throws into relief the
heteronormative assumptions on which courts, for most part, base their
(heterosexist) judgments. In this sense, the judgment problematises, once
more, the question whether there can ever really be an actualisation of a
distinctly ‘queer’ jurisprudence in our courts, given the dominance of the
heteronormative hegemony. Yet, at the same time we insist that if it is the
case that, as Sachs, J put it in Minister of Home Affairs v Fourie 2006 (1) SA 524
(CC) para 138 the law ‘serves as a great teacher, establishes public norms that
become assimilated into daily life and protects vulnerable people from unjust
marginalisation and abuse’ then the courts should do more than occasionally
acknowledging the gay movement. As Michael Warner ‘Fear of a queer
planet’ (1991) 29(1) Social Text 3 at 8 puts it: ‘[S]o much of heterosexual
privilege lies in heterosexual culture’s exclusive ability to interpret itself as
society. Even when coupled with a toleration of minority sexualities,
heteronormativity has a totalizing tendency that can only be overcome by
actively imagining a necessarily and desirably queer world.’
Whatever the answer then to the question whether a queer jurisprudence
can ever be expected to emerge from our courts, it clearly has serious
implications, not only for South Africans who form part of a sexual minority,
but indeed for all members of minority groups in South Africa, for
heteronormativity is only one cultural mode of societal oppression, as
heterosexism is only one institutional-structural mode of its legitimation. In
this sense and to this extent, we remain concerned by ‘heteronormativity as
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the enduring dominant ideological formation in post-apartheid South Africa’
(Steyn & Van Zyl op cit at 3).
THE DEY CASE — FACTS
While surfing the internet on a Sunday in February/March of 2006, Pieter le
Roux (the first applicant) visited the website of his school (Hoërskool
Waterkloof in Pretoria) and downloaded face pictures of the school principal
and Dr Dey, the deputy principal. The pictures reminded Le Roux of an
episode of a television programme (South Park) he had seen recently. In the
episode, one of the characters electronically placed the head of a boy on an
image of the body of a gay bodybuilder. Le Roux then visited a website
which contained depictions of gay bodybuilders. One of these images
depicted two naked men, sitting next to each other on a couch in
circumstances that could have been interpreted as sexually suggestive or
intimate (para 14). The hands of the figures on the couch were positioned
around their genitals and the left leg of one of them was placed over the right
leg of the other.
Le Roux downloaded the image and electronically superimposed the face
pictures of the principal and of Dr Dey over the faces of the models in the
image. He also downloaded an image of the school badge and superimposed
this image over the genital area of the models, so as to obscure both the hands
and genitals of both of them. Le Roux then sent the image to his friend’s cell
phone who forwarded the image to the cell phone number of another learner
at the school. As could be expected, the image was circulated amongst many
of the learners, although Le Roux did not intend for this to happen (para 16).
A few days later, Christiaan Gildenhuys (the second applicant) printed the
image and took it along with him to school in order to show it to his fellow
learners. One of the learners to whom it was shown, suggested that the
printed image be placed on the school noticeboard. Reinardt Janse van
Rensburg (the third applicant) was the learner who carried out this task (para
17). The printout remained on the notice board for half an hour.
Upon the discovery of the image by the school authorities, the applicants
admitted what they had done. They were disciplined by being prohibited
from assuming leadership positions at the school or from wearing honorary
colours for the rest of the school year.They also had to undergo detention for
three hours for five consecutive Fridays (para 18). Dr Dey, however, was not
satisfied by these disciplinary measures on the part of the school authorities
and insisted that the applicants be charged criminally. These charges were
resolved through the Criminal Procedure Act 51 of 1977’s provisions in
terms of a diversion process. As a result of this process the applicants were
punished by way of community service: they were required to clean cages at
the local zoo (para 19).
The principal accepted the apologies of the second and third applicants,
but Dr Dey refused to entertain any discussion of an apology, because he
obtained legal advice not to do so (para 20). Dr Dey subsequently caused
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summons to be issued, claiming an amount of R600 000 from the applicants.
Half of the amount claimed was for the alleged injury to his dignity (‘the
dignity claim’) and the other half for the alleged injury to his good name and
reputation (the ‘defamation claim’) (para 22).
IN THE HIGH COURT AND THE SUPREME COURT OF
APPEAL (SCA)
The High Court and the Supreme Court of Appeal came to the conclusion
that the published image was defamatory of Dr Dey and that the applicants
had established neither absence of intention to defame, nor absence of
wrongfulness, as they were required by law to do in order to avoid a
successful defamation claim against them (para 24). As regards the dignity
claim, the High Court upheld the claim and took it into account in the award
of damages of R45 000. In the Supreme Court of Appeal, the award of
R45 000 was upheld as compensation in respect of the defamation claim only
(para 26). The SCA denied the dignity claim as it was of the view that once it
has found that defamation had taken place, upholding a dignity claim would
amount to a duplication of causes of action (para 26). The minority in the
SCA denied the defamation claim but upheld the dignity claim (para 25).
CONSTITUTIONAL COURT
The Constitutional Court was called upon to determine the correctness of
the findings of the High Court and the SCA in respect of the defamation
claim (para 27) and, as regards the dignity claim, the correctness of the High
Court and minority in the Supreme Court’s approach. A finding that the
SCA was wrong in relation to the defamation claim would result in that claim
falling away, leaving only the dignity claim to consider. A finding that the
minority in the SCA was wrong as regards the dignity claim, would result in
that claim falling away (para 28).
In determining the above issues, the Constitutional Court found itself
heavily divided. The majority judgment of BrandAJ (finding that defamation
was committed, that no defence was established and, in addition, finding that
the dignity claim was satisfied by the successful defamation claim), was
concurred in by Ngcobo CJ, Moseneke DCJ, Khampepe J, Mogoeng J and
Nkabinde J (para 152). Yacoob J wrote the minority opinion which was
concurred in by Skweyiya J (who also wrote further separate remarks).
Froneman J and Cameron J wrote a separate opinion in which the majority
partially concurred. The award of damages was lowered to R25 000 (para 10).
The majority judgment is, naturally, the focus of this note as it constitutes
the judgment of the court. In the discussion that follows, we will, however,
in as far as they are implicated in our argument, also refer to the opinions of
Yacoob J, and of Froneman J and Cameron J. (We note with grave concern
that Mogoeng J did not provide his reasons for his partial dissent from that
part of the majority judgment which concurs with the opinion of Froneman
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and Cameron JJ that a description of someone as homosexual does not,
without more, amount to defamation per se.)
THE MAJORITY JUDGMENT
The judgment of Brand AJ opens with the admission that essentially the
disagreement between the majority and the minority exists in the view each
takes of the role that ‘constitutional considerations’set out in the judgment of
Yacoob J should play ‘and how they impact on the outcome of this case’ (para
82).
Brand AJ then continues to set out the basic principles of the law of
defamation as they were described by the CC in Khumalo & others v Holomisa
2002 (5) SA 401 (CC) para 18: the elements of defamation are wrongful,
intentional, publication of a defamatory statement, concerning the plaintiff.
The plaintiff does not have to prove each element of the delict separately.All
he needs to prove is the publication of defamatory matter concerning himself
(para 84). Once this has been established, wrongfulness and intention is
presumed and the defendant, in order to avoid liability, must raise a defence
that excludes either wrongfulness or intent on a balance of probabilities.
Next, the court sets out the meaning of ‘publication’ as the ‘communica-
tion or making known to at least one person other than the plaintiff of the
statement. It can take a number of forms, including photographs or
caricatures (as was the case here) (para 86). The published statement may
have a primary and secondary meaning. The primary meaning is the
‘ordinary meaning given to the statement in its context by a reasonable
person’ (para 87). The secondary meaning is a meaning other than the
ordinary meaning. It is also referred to as a quasi-innuendo and is a meaning
that can be derived from special circumstances only by someone having
knowledge of these circumstances.
Where a plaintiff relies on the primary meaning of the statement the claim
is one of defamation per se (para 88). In order to determine whether a
published statement is defamatory per se, a court must follow a two stage
enquiry. First, it must establish the ordinary meaning of the statement. Once
this meaning is established, it must decide whether such ordinary meaning is
defamatory (para 89). The test to be applied in determining the ordinary
meaning is an objective one: the criterion is what meaning ‘the reasonable
reader of ordinary intelligence would attribute to the statement’ (para 89). It
is accepted that the reasonable reader would understand the statement in its
context and would have regard not just to what is expressly stated, but also to
what is implied by the statement in its context. The court was at pains to
point out that the reasonable reader is a ‘legal construct of an individual
utilised by the court to establish meaning’ (para 90). The consequence of
utilising this objective standard is that the court is excluded from hearing
evidence on how the statement was actually understood by the actual
observer of the statement.
At the second stage of the enquiry, it is accepted that a statement is
defamatory if it is ‘likely to injure the good esteem in which’ the plaintiff is
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held by the reasonable or average person to whom the statement had been
published (para 91). Phrased somewhat more precisely, the question is
whether the statement is more likely to harm the esteem in which the
plaintiff is held than not. Where the statement is ambiguous in that it can bear
both a defamatory and a non-defamatory meaning, the standard of proof
remains a preponderance of probabilities (para 91). ‘If the defamatory
meaning is more probable than the other, the defamatory nature of the
statement has been established as a fact’(para 91). In applying the test, it is also
important to bear in mind that ‘statements which are likely to humiliate or
belittle the plaintiff; which tend to make him or her look foolish, ridiculous or
absurd; and which expose the plaintiff to contempt or ridicule that renders the
plaintiff less worthy of respect by his or her peers’ (para 91) are also defamatory.
Against the background of the applicable law, BrandAJ then proceeded to
determine whether defamation had been established. That the picture
communicated a statement about the plaintiff and that the statement was
widely published were undisputed. Since Dr Dey contended that the
manipulated picture was defamatory per se, the court proceeded to deter-
mine the ordinary meaning of the picture with reference to the meaning that
the reasonable observer would attribute to the picture in its ‘proper context’
(para 97). The determination of the ordinary meaning raises two further
questions: (i) ‘what does the picture show, both expressly and by implication’
(to the reasonable observer); and (ii) what is the ‘proper context’, according to
the reasonable observer, in which the statement must be understood? (para 97).
The court proceeded to describe what the picture ‘explicitly’shows (to the
reasonable observer): two naked men, sitting ‘very close together on a
couch’. Their legs are ‘wide open’and the leg of one of them is resting across
the leg of the other. The hands of both of them are ‘obviously’in the region
of their own genitals, ‘but both the hands and the genitals are covered by an
image of the school crest’. The position of the hands behind the crest is
‘suggestive of sexual stimulation or some other sexual activity’(para 98).
‘[T]he vision created is one of two promiscuous men who allowed themselves
to be photographed in what can only be described as a situation of sexual
immorality, which would be embarrassing and disgraceful to the ordinary
members of society’ (ibid).
Over the heads of these two allegedly promiscuously behaving men, the
face pictures of Dr Dey and the principal are superimposed. The manipula-
tion of the picture is obvious and crude — no reasonable person would think
that the bodies behaving in such an allegedly promiscuous manner are the
actual bodies of Dr Dey and the principal.
So much for what the picture explicitly showed to the reasonable
observer, hence the ordinary meaning of the picture. The court proceeded to
determine the context in which the statement was published — the teachers
and learners of a particular school where Dr Dey worked in a position of
authority as one of five deputy principals (para 99) who were responsible for
discipline at the school. The context obviously also included the fact that
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learners of the same school were responsible for the creation and publication
of the statement (para 100).
The applicants contended that the reasonable observer would not associate
Dr Dey with the conduct of the bodies on the picture since the picture was
an obvious and crude manipulation (para 103). To this Brand AJ responds by
determining that the statement constitutes a caricature: ‘it is obvious that the
person identified is not an actual depiction of that person, but that there is
some association between that person and what the picture conveys’ (para
103). According to the court, the applicants’ argument on this point
amounted to a contention that a caricature can never be defamatory.
However, in our law a caricature may well be defamatory. The court then
concluded the first stage of the enquiry by holding that the reasonable
observer would ‘understand the image or statement conveyed by the picture
as associating or connecting Dr Dey and the principal with the indecent
situation that the picture portrays’(para 105).
The next stage of the enquiry is whether the ordinary meaning of the
statement was defamatory.The answer to this question depended on the answer
to the question whether, in the eyes of the reasonable observer, the statement
was likely to ‘undermine the esteem in which Dr Dey is held by others’ (para
106) or the ‘respect enjoyed’ by him. In answering this question, the court held
that the reasonable observer would ask why Dr Dey and the principal are
portrayed as engaging, specifically, in ‘indecent’behaviour and not as engaging
in ‘some other comical but innocuous’ (para 107) activity. Here the court in fact
departed from the standard of the reasonable observer. It proceeded to rely on a
rather novel standard in our law, that of the instinctive observer. To quote the
majority of the court (see para 107, emphasis added):
‘The answer to these questions that, in my view, instinctively springs to mind is
this: the whole purpose and effect of the association created by the picture is to
tarnish the image of the two figures representing authority; to reduce that
authority by belittling them and by rendering them the objects of contempt and
disrespect; and to subject these two figures of authority to ridicule in the eyes of
the observers who would predominantly be learners at the school. This means
that the average person would regard the picture as defamatory ....’
The court rejected a justification defence of reasonable publication raised
by the Freedom of Expression Institute as one of the amici curiae, primarily
on the basis that it was not pleaded at trial (para 127) and also dismissed a
defence based on a lack of animus iniuriandi (para 129). The latter defence
was dismissed primarily on the basis that the applicants foresaw or should
have foreseen that the publication of the image (although intended as a joke)
could cause harm in the form of humiliation and ridicule (para 132).
CRITIQUE
The success of either the defamation claim or the dignity claim fundamentally
depends on the determination of the ordinary meaning of the picture. Without
a negative judgment on the part of the reasonable observer as to what the
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image portrayed as its ordinary meaning, the basis for the defamation claim (as
it was pleaded) would fall away and so would the basis for the dignity claim. In
this case the decision was reached that the reasonable observer would regard
the image as one portraying sexual immorality or indecency.
The alleged indecency of the picture is itself intimately connected to a
reading of the picture as depicting two specifically ‘promiscuous men’,
‘photographed in what can only be described as a situation of sexual
immorality, which would be embarrassing and disgraceful to the ordinary
members of society’ (para 98, emphasis added). Presumably then, the
situation in which they were photographed could have no other description
than as constituting a situation of sexual immorality because it depicts two
promiscuous men. In other words, the judgment that the picture is sexually
immoral hinges on or flows from the depiction of promiscuity. The court is in
fact saying that it is the promiscuity that renders the picture sexually immoral,
because it is the promiscuity that constitutes the immoral element of the
conduct. To be sure, the immorality lies not in the two men having allowed
themselves to be photographed per se or even to have been photographed
naked per se — the sexual immorality lies in the photograph per se depicting
a situation that reveals them to be promiscuous and therefore sexually
immoral. It is specifically this aspect which renders the picture a sexually
immoral one ‘which would be embarrassing and disgraceful to the ordinary
members of society’(para 98).
However, the question is whether the picture in fact did depict two
promiscuous men. In light of the fact that it is the ordinary meaning of the
picture that had to be determined here, one would have expected the court
to have consulted its much revered authority on the ordinary ‘meaning of
everything’ (the Oxford English Dictionary) as to the ordinary meaning of the
word ‘promiscuous’. Had the court done so it would have realised that the
picture decidedly did not depict promiscuity in any ordinary sense of the
word. The Oxford English Dictionary defines ‘promiscuous’as ‘undiscriminat-
ing in sexual relations. Also (of sexual intercourse, relationships etc.): casual,
characterized by frequent changes of sexual partner’ (Oxford English Dictionary
s v ‘promiscuous’).
How could an image of two naked men sitting next to each other on a
couch possibly stimulating their genitals erotically, possibly not, have indicated
that they were indiscriminate in their sexual relations, that their relationship
was a casual one or that they frequently changed sexual partner? How could it
then possibly indicate a situation of sexual immorality? There was simply no
evidence emanating from the picture itself from which it was possible to tell
whether they were in fact promiscuous (and therefore sexually immoral) in any
ordinary meaning of the term in the context that the court uses it.
How then did the court come to the conclusion that the image portrays
promiscuous men and is therefore a sexually immoral one? It is only on the
basis of an underlying, unspoken and pre-judged assumption that one could
come to a conclusion that the only description of an image of two naked men
sitting ‘very close together’ on a couch, engaged in some form of homoerotic
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activity, could be that it portrays promiscuous subjects and a situation of
sexual immorality. This is a heteronormative assumption about same-sex
sexuality — an assumption that people who engage in same-sex sexual
activity (whether they identify as gay or not) simply are promiscuous. This is
the only assumption that could be the basis for a determination that the two
men in the image were promiscuous — they were promiscuous because they
engaged in same-sex activity. This is also the only assumption upon which
the decision that the image was one of sexual immorality and (having had the
face of Dr Dey superimposed upon one of the bodies in the image and having
published the image in his workplace where he assumed a position of
authority) that it was defamatory, could be based.
‘Heteronormativity’, argues Chambers, ‘accrues privilege to those behav-
iours, practices and relationships that more closely approximate the norm,
while stigmatising, marginalising or rendering invisible — making unintelligi-
ble — those behaviours, relationships and practices that deviate from it.’
(Chambers op cit at 666.) The implication of this description is that the
same-sex context per se already constitutes a deviation from the heterosexual
norm. It is thus no coincidence that the language of deviance looms large in
the majority judgment when it comes to the detailed description of the
picture which depicts same-sex conduct, leading to the conclusion that it
depicts indecent, promiscuous (deviant) behaviour. Clearly, the heterosexual
matrix through which the majority judgment views the picture, piles its
charges of the deviances of indecency and promiscuity against the picture on
the original deviance that is the depicted same-sex conduct. In other words,
if the same-sex activity constitutes the roots and the bark of the poisonous
tree, the indecency and the promiscuity are its flowers and its fruits.
It is thus the very heteronormative assumption that men who engage in
same sex sexual activity are promiscuous and therefore immoral that
determines the entire heterosexist outcome of this case. Such assumption is
neither tangential nor coincidental — it is fundamental. To be sure, without
the judgment that the statement depicts ‘a situation of sexual immorality,
which would be embarrassing and disgraceful to the ordinary members of
society’, the very basis of the defamation claim falls away. And for that
judgment there is only one explanation — an irrational, unjustifiable (and in
fact unconstitutional) heteronormative assumption about male same-sex
sexual contact and activity.
A careful distinction needs to be drawn here between what the judgment
claims to be doing and what its actual effect is. The judgment of Brand AJ
states clearly (para 150) that it agrees with that part of the opinion of Froneman
J and Cameron J in which it is unequivocally stated that it is not actionable
simply to falsely depict someone as gay (paras 185–187), and that the injury in
such a case ‘would have to be located in some further overlay or imputation’
(para 186). Froneman J and Cameron J were at pains to point out that Dr Dey
pleaded not only that he was defamed because he was falsely depicted as gay,
but also that the image conveyed that he masturbated in public, in the presence
of another person or that he engaged in ‘indecent exposure’ (para 188).
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Froneman J and Cameron J however judged the image in the same terms as the
majority — it is an ‘indecent and probably lewd picture’(para 190). Why this is
an indecent and lewd picture is not explained at all.
As the minority opinion of Yacoob, J points out: even if it is accepted that
the naked men in the picture allowed themselves to be photographed (as
opposed to a photograph having been taken of them by stealth) it does not
follow that the picture shows them ‘to be possessed of low, seedy values and
of indecent sexuality’ (para 62). And if it is assumed that they had photo-
graphed themselves and that the picture in one way or the other found its
way onto the internet, the picture depicts nothing more than two ‘people
engaged in perfectly legitimate homosexual activity’ (para 62) — nothing
more and nothing less. Besides, as pointed out above, the majority found that
the picture was problematic because the two men, who are assumed to be
promiscuous, had ‘allowed themselves to be photographed in what can only be
described as a situation of sexual immorality’ (para 98, emphasis added). The
assumption that the two men were promiscuous and involved in a situation
of sexual immorality stands independently from the fact that the two men
‘had allowed themselves to be photographed’ (ibid). For the majority, even if
the two men had never been photographed they would have remained
promiscuous and engaged in a sexually immoral situation.
Yacoob J also points out that the reasonable observer would ‘be motivated
by the values of the Constitution’ (para 71) and that when it comes to the
determination whether the injury to feelings is actionable, regard must be
had not simply to the ‘views of the community’ but also to ‘the values of the
Constitution’(para 34). To the extent that the ordinary meaning of the image
was arrived at on the heteronormative assumption that gay men are
promiscuous, it turns out that the majority had not employed the standard of
the reasonable observer at all. As Yacoob, J emphasises, the reasonable
observer would have been ‘motivated by the values of the Constitution’,
which, through the prohibition of unfair discrimination on the basis of sexual
orientation, places heteronormativity and non-heteronormativity on the
same footing. As we have seen, in our constitutional democracy in which
unfair discrimination on the basis of sexual orientation is prohibited, the very
notion of heteronormativity is rejected: what is constitutionally normal is
expanded to include the widest range of perspectives and to acknowledge,
accommodate and accept the largest spread of difference. In other words, the
Constitution deligitimises the stigmatisation of homosexuality in our society.
To put it differently, the Constitution does not endorse heteronormative
prejudice and heterosexist judgments. Had it done so, it would have been
hard to imagine how the Constitutional Court could have come to decisions
on the decriminalisation of sodomy, the granting of equal rights to homosex-
ual subjects and finally, the legalisation of same-sex marriage.
The construct of the reasonable person is of course a legal fiction. The
reasonable person is a fictitious person created by the judge as a mechanism to
provide a lens through which to evaluate the picture or publication. Where a
judge, however, constructs the reasonable person as someone who jumps to
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the conclusion that where two men are depicted as engaging in sexual
activity they are promiscuous and engaged in immoral activity, what the
judge in effect is doing is telescoping his or her own heteronormative beliefs
and prejudices on to the legal construct of the reasonable person to justify his
or her own judgment. We would argue that the judgment of Brand AJ (and,
to a lesser extent that of Froneman J and Cameron J) perhaps says more about
the stereotypes about sexual relations that are still deeply embedded in the
minds of a majority of South Africans and about the impossibility of judges
constructing and applying a truly ‘objective’ standard, than it says about the
defamatory nature of the image under discussion. The ‘reasonable’ observer
as constructed by these two judgments is a person who ‘instinctively’assumes
that men depicted as engaging in sexual acts are promiscuous and that what
they are doing is immoral — without ever having to engage with concepts
such as promiscuity and immorality.
CONCLUSION
The decision by a majority of judges of the Constitutional Court in Le Roux v
Dey is, to say the least, disappointing. Had the Constitutional Court — in its
earlier jurisprudence — not explicitly warned against the adoption of a
heterosexual norm when judging the variability of human life, and had it not
previously demonstrated the incompatibility of traditional assumptions about
sexual deviance with the equality provisions of our Constitution, the
judgment, while troubling, might still have been understandable. After all,
we cannot deny that hegemonic heteronormativity can, at times, appear to
be all encompassing and totalising, nor that it would be surprising if judges
(or legal academics and lawyers) were able to escape the disciplining power of
heteronormativity. Ordinarily one would not assume that judges — espe-
cially not judges who construct and then apply the fiction of the reasonable
person to help them judge whether a picture is ‘immoral’, depicts ‘promiscu-
ity’ and is therefore defamatory — would be attuned to their own deeply
problematic and often unexamined assumptions about the ‘immoral’ and
‘promiscuous’nature of same-sex eroticism.
Judges are products of the society they live in and when they construct the
fiction of the reasonable person they will inevitably (one is tempted to say,
instinctively) jump to conclusions about what is normal and what is abnormal,
what is moral and what is immoral, what is socially acceptable and what is
not. However, the South African case is somewhat unique as our Constitu-
tional Court has, in the past, shown some sensitivity to the dangers of
heteronormativity and has pointed out that the achievement of equality for
gay men, lesbians and other sexual minorities requires serious engagement
with traditional assumptions — often shared by judges, lawyers and legal
academics — about normal and abnormal sexuality. When judges in future
engage in the difficult (some might say impossible) task of constructing the
fiction of a reasonable person without falling back on heteronormative
assumptions about moral and immoral depictions of sexuality and without
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making assumptions about the promiscuity of two men depicted in a
erotically charged situation, they might do well to heed the warning of Sachs
J that what becomes normal in an open society, is not an imposed and
standardised form of behaviour that refuses to acknowledge difference, but
the acceptance of the principle of difference itself. A more reflective and
self-critical approach by judges when they construct the mythical reasonable
person is therefore needed.
Jacqueline Rose contends that ‘[i]f the visual image in its aesthetically
acclaimed form serves to maintain a particular and oppressive mode of sexual
recognition, it does so only partially and at a cost’(Jaqueline Rose Sexuality in
the Field of Vision (2005) 232). Unfortunately, the cost of the Constitutional
Court’s judgment in this case is that it upsets the judicial progress that has
been made in ridding our law and society of its apartheid-style heteronorma-
tivity.And the price to be paid will, in one or the other way, invariably exact
itself on the still marginalised and stigmatised sexual minority in SouthAfrica.
Yet, there lies a certain hope in Rose’s argument above. This is the hope that
aesthetic interpretation always offers us — the hope of contestation, of
differing and difference. For the majority’s interpretation of the image at issue
in this case is, in the end, an interpretation that only partially maintains the
oppressive mode of sexual recognition. This is the case because the
interpretation is itself always only partial. Interpretation can never be total. As
long as one is prepared to emphasise this fact over and over again, there
remains hope for a queer jurisprudence to come.
PLEADING MEANING IN DEFAMATION CASES: LE ROUX v DEY
JOHN CAMPBELL SC
Johannesburg Society of Advocates
The Constitutional Court judgments in Le Roux & others v Dey (Freedom of
Expression Institute and Restorative Justice Centre as Amici Curiae)2011 (3) SA
274 (CC) give rise to many concerns that will no doubt be commented on in
the coming months and years. I wish, in this short note, to focus only on
what was said about the pleading of meaning in the defamation judgment. In
other words, I do not address the freedom of speech issues, but rather the fair
trial issue that is raised in this judgment.
In fairness to Brand AJ (who wrote the majority decision on defamation) I
must make it clear that the judgments do not replicate the pleadings in detail,
and that aspects of the matter apparently were not always presented to the
satisfaction of the judges who heard it. Nevertheless, the majority judgment
of Brand AJ did purport to deal with the elements of defamation and the rules
of pleading in principle, and my comments are therefore made on this basis,
and also on the application of the principles to the case.
The particular aspect of pleading that I take issue with in this note is the
allegation, commonly made by plaintiffs, that the text complained of is ‘per se
NOTES 419
