Newspaper clipping – The Mercury – 1 April 2010

Here comes the judge with an unenviable task

Did the Supreme Court of Appeal get it right when it found a trio of high school boys had defamed senior staff at their school?

Some days I think I might like to have been a judge. Other days – Tuesday was one of them – I know I am not cut out for such a role.

That was the day the Supreme Court of Appeal handed down its decision in Le Roux v Dey, (full judgment on the Up2speed website) a judgment concerning a trio of naughty high school boys. The court found they had defamed a teacher and upheld a high court decision that they pay R45 000 in damages.

The first boy, in grade 9 and aged 15 at the time, searched the Internet one night for pictures of gay body-builders. The one he downloaded showed two naked men sitting side by side, apparently sexually stimulating each other. He rather crudely lopped off the original heads and substituted them with those of the principal and deputy principal, placing the school badge over the genital area of the two men. In other words, there was no suggestion that he tried to pretend the picture was actually of the two teachers portrayed.

Then, with the help of two other boys (in grade 11 and both 17 at the time), the photograph was widely distributed at the school and presumably elsewhere as well.

The main appeal judgment, was written by the deputy president of the court, Louis Harms, not a man who shirks difficult issues. A separate concurring decision was written by an acting judge of that court, Bennie Griesel.

In this decision Harms displays considerable erudition, grappling with some of the early Roman Dutch legal fundis on the questions of defamation, “tweaking” the law in relation to a relatively recent decision that he believed needed to be revisited, tackling the issue of laughter and humour and their philosophical meaning. With the consent of all four colleagues who sat with him (although Griesel’s reasoning was slightly different), Harms concluded that indeed the boys had defamed the teacher and that they should be made to pay compensation.

What the judgment showed me about myself is that I am temperamentally unsuited to dealing with certain matters – my instincts and passions very easily get in the way of the kind of “cool work” a judge must do.

As I read the story of what the boys had done, I became angry with them. I hated the idea that they should have tried to demean anyone by suggesting they were gay. I felt they had resorted to gay bashing and I despaired about how one can ever make the constitution’s promise of equality a reality for gay people.

But what if they were doing something completely different? What if I was wrong that they had detected some weakness in either of the two teachers and had taken the opportunity to depict them as gay to exploit this weakness? What if in fact one or both of the teachers concerned had used their position to suggest that being gay was unacceptable? What if the crude depiction of the teachers was intended to make a pro-gay comment?

And what about the evidence of the boys that they found the pastiche funny precisely because it was so incongruent? That it was “far-fetched” to see the principal and deputy principal in such a compromising position, because there was nothing about them that would have suggested they could be leading a double life of this sort?

Once I began to consider the boys’ evidence, I had to wonder whether I had been a bit uptight about my original response. Maybe the court had also been more strait-laced than the situation required.

The principal accepted the boys’ apology and was not part of the litigation. Perhaps his was a more balanced approach than that of his deputy and of the erudite court. Maybe he knows more about how boys of that age think than I can remember from my long-ago days as a teacher in a boys’ high school. Even Harms suggested that perhaps the aggrieved deputy principal was a sensitive person who “may have taken this matter too much to heart”.

Yesterday I heard a new movie reviewed on the BBC World Service. It was likely to appeal only to those with a “subversive sense of humour”, said the critics. So when exactly would it be appropriate to define as defamatory a sense of humour that I don’t share, I wondered?

Did the judges get it right in this appeal? With all my preconceptions and prejudices, could I have done any better? – Carmel Rickard