Hennie le Roux, Christiaan Gildenhuys and Reinhardt Janse van Rensburg — long ago students at a South African high school — decided to pick on their headmaster Christo Bekker and his deputy Louis Dey (pictured) by circulating photos of the pair with their faces superimposed onto “naked gay bodybuilders,” which soon had the whole school singing “Dey is gay.” The pair sued for defamation, kept winning in court, and now South Africa’s Constitutional Court (its highest bench) has ruled in the school administrators’ favor, ending this saga once and for all.

The central finding was that the picture created by the boys and later distributed among other pupils did amount to defamation and that they were thus liable for damages. But it was found the amount was too high. Former deputy principal Dr Louis Dey will now receive R25 000 instead of R45 000 as earlier ordered. The court found that Dey should have found solace in some of the other measures taken against the boys earlier.

Hennie le Roux, Christiaan Gildenhuys and Reinhardt Janse van Rensburg were also ordered to apologise unconditionally to Dey and pay the legal costs of his damages claim instituted in the Pretoria High Court. Judges Zac Yacoob and Thembile Skweyiya, however, found this matter should be judged from the perspective that the picture had been made by children and it did not amount to defamation. Judges Edwin Cameron and Johan Froneman agreed with this, but found Dey’s dignity had been infringed.

If kids do it, then it’s not defamation? I’m sort of loving that legal theory! What other infractions can youngsters commit that they should be able to get away with? Or rather, why can’t young people just pay for their sins with an apology?

The Restorative Justice Centre, which joined the case as a friend of the court, said there was an overreaction to the boys’ misbehaviour as they had been punished at school, at court and still had to face a damages claim. The centre felt restorative justice – such as an apology – was the route to take, but in South African law one could not sue for an apology. The court on Tuesday found that if the law gave recognition to the value of an apology and retraction, things might have turned out differently, adding it was time South African law recognised the value of this kind of restorative justice.

Mike Batley, of RJC, said this judgment might pave the way in future for this type of restorative justice. “We already use restorative justice in criminal law, but this is a new development in civil law,” he said.

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