Le Roux and Others v Dey is a 2011 decision of the Constitutional Court of South Africa in the South African law of delict. It was the court's first decision on alleged defamation by a minor. A majority of the court upheld the award of monetary damages to a high school vice-principal who had been defamed by three of his pupils through the publication of a digitally manipulated photo.

The case arose in 2006 from the conduct of three students at Hoërskool Waterkloof in Pretoria.^[1] The first student, fifteen-year-old Hendrick Pieter Le Roux, crudely digitally manipulated a photo of two naked bodybuilders so that it appeared to depict the school's principal and vice-principal engaged in sexual activity. Le Roux sent the photo to a friend, who sent it on to seventeen-year-old Burgert Christiaan Gildenhuys; Gildenhuys printed the photo out to show it around at the school, and a third student, seventeen-year-old Reinardt Janse van Rensburg, placed the picture on the school's notice board.

The vice-principal depicted in the picture, Louis Dey, sued the three students. He sought sentimental damages for humiliation (the infringement of dignity) and defamation (the infringement of reputation). The students, however, argued that the publication of the picture was intended as a joke and perceived as such. They therefore denied that their conduct met the element of wrongfulness required for delictual liability under the actio iniuriarum, insofar as they lacked animus iniuriandi (intent to injure the plaintiff).

The three students appealed the Supreme Court of Appeal's judgment to the Constitutional Court of South Africa. The matter was heard in the Constitutional Court on 26 August 2010,^[3] and judgment was handed down on 8 March 2011.^[4]

The bench was split along several, partly overlapping lines. The justices filed four separate judgments: a majority judgment by Acting Justice Fritz Brand, joined by five other justices; a minority judgment co-written by Justices Johan Froneman and Edwin Cameron; another minority judgment written by Justice Zak Yacoob and joined by Justice Thembile Skweyiya; and a final minority judgment written by Justice Skweyiya alone. An additional introduction, attributed to the Court, outlined the court's order and the justices' various points of agreement and disagreement. The order upheld the three students' appeal insofar as it set aside the R45,000 damages award in favour of a R25,000 award. It also set aside the favourable costs order that the Supreme Court of Appeal had granted to Dey; the students were ordered to pay costs in the High Court only. However, the students were also ordered to tender an unconditional apology to Dey.

The order itself was written by one of the minorities, Froneman and Cameron, but had the concurrence of Brand's majority judgment. The justices were unanimous in joining Justice Yacoob's factual exposition and determination on the grant of leave to appeal and the dismissal of an application to lead further evidence; they were also unanimous in joining Froneman and Cameron's argument about apology as a remedy.

Of the eight justices who supported the court's order, six – those who joined in Brand's judgment – did so by upholding the Supreme Court of Appeal's finding of defamation. Froneman and Cameron agreed with Acting Judge of Appeal Griesel, the lone dissenter in the Supreme Court, that Dey had not been defamed but that his dignity had been actionably injured. All eight agreed on the legal principles to be applied in adjudicating defamation, wrongfulness, and animus iniuriandi.

Justice Yacoob dissented, finding that the majority's judgment did not adequately protect children or their freedom of expression,^[5] while Justice Skweyiya both joined in Yacoob's dissent and wrote a separate opinion to elucidate his reasons.

The judgment attracted academic interest for its attempt to "constitutionalise" the common law of personality^[6] and for Cameron and Froneman's revival of the amende honorable as a remedy for civil delict.^[7] However, several legal commentators were highly critical of the majority judgment,^[6][8][9] including on the grounds that it neglected children's rights and the best interests of the child.^[10][11] It was also criticised in the mainstream media.^[12][13]

The Mail & Guardian also noted that all of the justices except Mogoeng Mogoeng had expressed concurrence with paragraphs 181 to 189 of Cameron and Froneman's minority judgment, which set out that "It is not, and should not be considered to be, an actionably injurious slight to offend someone’s feelings by merely classing them in a condition the Constitution protects", as the students' image of Dey classed him as homosexual. The newspaper pointed out that, "in what must surely be unique in South African legal history", Mogoeng had not written to provide reasons for dissenting from this point, and argued that he was obligated to do so.^[13]