Journal articles on the topic 'Actio iniuriarum'

Compensation for non-pecuniary loss and the actio aestimatoria, The case of Van Kreuningen/Bessem. – In the case Van Kreuningen/Bessem of 1943, the Roman actio iniuriarum (aestimatoria) was used as an argument in favour of granting compensation for non-pecuniary loss. This is surprising for a number of reasons, not least because it was a penal action. In this article, the action and its value as an argument is studied in the wider context of the history of compensation for pain, suffering and disfigurement in Dutch law before and after the codification of 1838.

Daar is geen klinkklare antwoord in die Suid-Afrikaanse reg op die vraag of gades mekaar met die actio legis Aquiliae en die actio iniuriarum kan aanspreek nie. Vir doeleindes hiervan word onderskei tussen huwelike buite en binne gemeenskap van goed. Net eersgenoemde is hier van direkte belang en die positiefregtelike posisie sien soos volg daaruit: ’n Gade getroud buite gemeenskap van goed mag in beginsel stante matrimonio vrylik enige van dié twee deliksaksies teen die ander gade instel. In TG v WC was die partye, getroud buite gemeenskap van goed, besig om te skei. Hulle is getroud na ’n verhouding waarin die verweerder te kenne gegee het dat hy die eiseres lief het en altyd saam met haar wil wees. Kort na huweliksluiting het hul verhouding egter verbrokkel toe die verweerder haar begin verneder en gevra het om die huis te verlaat. Die eiseres het toe uitgevind dat op die tydstip wat die verweerder haar gevra het om te trou, hy reeds gemeen het dat hul verhouding onherstelbaar verbrokkel het, maar dit nie vir haar gesê het nie. Sodoende het hy haar deur sy bedrieglike wanvoorstelling beweeg om die huwelik te sluit. Gebaseer op dié feite, het die eiseres die verweerder op twee skuldoorsake aangespreek; eerstens die Aquiliese aksie om skadevergoeding te eis vir die suiwer ekonomiese verlies wat sy gely het (haar onkoste weens die huwelik) as gevolg van die verweerder se opsetlike wanvoorstelling; en tweedens die actio iniuriarum om solatium te verhaal weens die aantasting van haar eer en goeie naam. Die verweerder teken eksepsie teen beide eise aan op grond daarvan dat geeneen ’n skuldoorsaak daarstel nie. Die hof beslis dat die eiseres se eerste eis nie gedingsvatbaar is nie omdat dit strydig met openbare en regsbeleid sou wees. Ten onregte. Dit is gevestigde reg dat ’n opsetlike wanvoorstelling wat tot kontraksluiting lei, contra bonos mores en bygevolg onregmatig is en daarom ’n deliktuele skuldoorsaak uitmaak. Die hof moes dus die eksepsie teen hierdie eis van die hand gewys het. Daarenteen het die hof tereg bevestig, soos deesdae algemeen aanvaar word, dat die actio iniuriarum tot die beskikking van gades getroud buite gemeenskap van goed is en dat daar dus geen hindernis vir ’n vrou is om haar man weens iniuria aan te spreek nie. Die eksepsie teen hierdie eis word dus tereg afgewys.

‘REMOTIO AB ORDINEM’. COUNCILLORS’ (‘DECURIO’) EXPULSION FROM THE CITY COUNCIL (‘ORDO DECURIONUM’) Summary In the light of the Polish law every citizen who has all civil rights can perform a function of a councillor. Polish legislation, with the exception of the requirement of age, does not introduce any further formal requirements for candidates for that office. A councillor needs not to have any professional or moral qualifications. Although there are codes of councillors’ conduct which relate to such values as honesty and integrity, however they do not introduce any sanctions for their violation. Source analysis shows that in the Roman law the major causes of expulsion from the city council include: conducting an immoral life, performing an infamous profession (actual infamy), conviction on the basis of a disgracing civil action (iudicia privata) or a disgracing public action (iudicia publica) and criminal expulsion from the army (missio ignominiosa). To the professions causing infamy were also included such professions as gladiator, actor, herald, gravedigger, or guardian in a theatre. Civil actions disgracing lost party were: fiduciae actio pro socio, actio tutelae, actio mandati. To the disgracing civil actions, but with the tort nature, were also included actio porter, actio iniuriarum and actio lot. Sentencing in the public was always associated with an additional penalty that generated discredit on the honour, or to infamy. The same was in the case of criminal deportation from the army.

Abstract‘Revenge porn’ is conceptualised as a modern phenomenon which the law is not equipped to deal with. The advent of smartphone technology has allowed sexually explicit material to be created easily and disseminated quickly. An increasing number of individuals have fallen victim to this phenomenon in recent years. This paper submits that victims of revenge porn ought to be held due monetary redress in the civil law, while acknowledging that the damage done by revenge porn need not necessarily involve a loss. Victims of revenge porn are likely to suffer from severe emotional distress and upset, but these injuries are non-patrimonial. This can consequently make it difficult to frame an action for damages. This paper asks if the delict iniuria might offer appropriate remedy in instances of revenge porn. The actio iniuriarum was, in Roman law, a delict which served to protect the non-patrimonial aspects of a person's existence – ‘who a person is rather than what a person has’. As the propagation of sexually explicit images of an individual without their consent is clearly an affront to the esteem of that individual, it is argued that instances of revenge porn ought to be considered actionable as iniuria in modern Scottish law.

FREEDOM TO USE PUBLIC PLACES AS EXEMPLIFIED BY THE USE OF THE SEA AND SEASHORESummaryIn Roman law the sea and its shore were considered res communes omnium, common property. This classification gave rise to two important consequences. Firstly, everyone was granted the right to their free access and use, viz. fishing, hauling fishing nets in, mooring boats were all permitted in such places. Furthermore, it was also admissible to build a cottage or an adobe on the coast, and to acquire property rights to it. The second consequence of the recognition of the sea and shore as res communes omnium was that any interested party could be granted legal protection if his entitlements within this scope were violated. One of the legal measures available was actio iniuriarum, alongside injunctions. Protection by injunction was also provided forthe sea itself and the shore as such.

AbstractComparing the legal development in France, Germany and England from 1500–1800, this article analyses the protection of those interests which are covered today by the law of privacy. Continental law, influenced by the Roman actio iniuriarum, protected personal secrets, and it also restrained, to a certain extent, the divulgation of embarrassing truths. The English law of defamation however, afforded no comparable protection, the proof of truth ("justification") being a perfect defence against any claim for damages under the head of defamation. The conclusion that the civil law has a long tradition of preserving sensitive information against unwanted publicity is underlined by the fact that the ancient ideas of protecting secrets and restricting publication of the truth helped 19th century lawyers in France and in Germany to approach the modern concept of privacy ("vie privée", "Privatleben").

<p>The dissonance between the perception of <em>edictum de iniuriis quae servis fiunt</em> on Ulpian’s and Gaius’ part is so significant that it can lead to a conclusion that a deed done to a slave – even if not always, what seems the most probable, certainly in most cases – qualified only as an insult harming the slave’s owner, whereas a would-be <em>actio</em> <em>servi</em> <em>nomine</em> was <em>de facto</em> not in use. As an infringement of a slave could additionally give rise to an owner’s entitlement to plead for damages according to the Aquilian regime, it seems that practical use of the edictal clause with regard to <em>actio</em> <em>servi</em> <em>nomine</em>, even if possible to take place at a certain level of legal development of the delict, was of minor importance. However, recognizing the main role of the edict in providing a modern and flexible basis for bringing praetorial <em>actio</em> <em>iniuriarum</em> <em>suo</em> <em>nomine</em> in a case of <em>iniuria</em> suffered through one’s slave, not limited to decemviral instances of <em>os fractum</em> and <em>membrum ruptum</em>, appears to be the most probable interpretation.</p>

This article revisits the doctrinal basis of the positive law in protecting the human personality as a legal interest given the approach adopted by the judiciary. In terms of this approach, based on common law and constitutional considerations, the human personality is not articulated as a composite interest (ie the human personality is not doctrinally conceptualised as consisting of various discrete personality rights). Arguably, such an approach denigrates the traditional view that the human personality ought to be protected as a composite interest in law. Therefore, this article interrogates more carefully the doctrinal basis of the law of personality from the perspective of the common law and the Constitution in the light of the controversial nature of the judiciary’s recent approach. In this regard, the article finds that there is an overlap, or more specifically a convergence, between common-law personality rights (as premised on the doctrine of subjective rights and the actio iniuriarum) and fundamental constitutional rights regarding the human personality. The article demonstrates that in terms of scope (ie the various personality interests recognised in positive law) and framework (ie the differentiation and adjudication of the different personality interests in positive law), both the common law and the Constitution attest to the composite nature of the human personality as a legal interest. On this basis, I argue that such convergence enables the creation of a single and integrated doctrinal basis for the post-constitutional operation of the human personality as a legal interest. It is further argued that such a single and integrated doctrinal basis provides the foundation for the further constitutionalisation of the law of personality in terms of a transformative constitutionalism paradigm and the horizontal application of the Constitution.

Breach of promise by a betrothed is not met with the same sanctions as breach of contract. The disappointed previously engaged party cannot approach the court for an order against the other party for specific performance. The erstwhile future spouse cannot be compelled to enter into the envisaged marriage relationship notwithstanding the doubt that surfaced about the everlasting joyous nature of this union. For the same reason, no claim for positive interest as damages will be honoured by a court. The deserted betrothed cannot claim half of the estate of the other party because she was under the impression that the marriage would have been in community of property. The unavailability of these categories of remedies indicates that the foundation of an engagement agreement should not be seen as a contract between the parties to enter into a legal relationship which will entitle them to reciprocal claims for performance. It must rather be classified as a factual relationship between two parties that is recognised in law and therefore carries consequences. A betrothed cannot simultaneously be engaged to more than one prospective future spouse in a legal system that only recognises a monogamous marriage. The unsavoury conduct of the guilty party who breached the promise to marry on the proverbial steps of the church, is, however, often the cause of damage and hardship for the innocent party and may also cause prejudice to her family when they have indebted themselves for the prospective marriage. The disappointed previous fiancée may have incurred significant costs for the bridal lay-out, the wedding feast and the intended honeymoon, but it may also include the loss of a previous job opportunity or the burdening of the claimant with the cost of a new dwelling that would not otherwise have been encountered. Common law recognised the need to reimburse the innocent party for such losses and also for the personal injury suffered if the breach occurred shortly before the marriage was supposed to be concluded or the conduct of the guilty party was especially harsh and impolite. Harbouring bad manners comes at a cost. In this contribution the historical development of the applicable claims is discussed by way of comparison with other legal systems in order to define the underlying foundation of the claims as recognised in South African law. In principle, claims founded on the actio legis Aquiliae as well as the actio iniuriarum should be available, provided the various requirements for the remedy can be met. It is questioned whether there is any truth in the premise that the continued recognition of such a delictual claim will endanger the value of marriage as a binding institution in modern society and that this excuse justifies the demise of the sanctions against such a delict in some modern societies. The well-known proverb ubi ius ibi remedium also indicates that as long as the delictual conduct of the unreliable suitor is recognised as unacceptable conduct, private law should provide a suitable remedy to the injured subject. It is presumed that parties who decided mutually to become betrothed represent to each other and to third parties that they intend to enter into marriage as a lifelong relationship and that all concerned may act according to this representation of their mutual intent. Should any of the parties experience a serious change of heart and repudiate the agreement, the other may claim for any damage suffered as a result of the breach with the actio legis Aquiliae. In addition, the contumely conduct entitles the aggrieved party to claim solatium for the injury to her personality rights. Although the claims founded in the breach of promise are often referred to as contractual claims, the case law displays many examples where the claimant for the wasted damages caused by the delictual behaviour happened to be the parents or guardian of the party left in the lurch, notwithstanding the fact that the defendant did not enter into a contract with them as the future in-laws. This points to the fact that the remedy is a delictual and not a contractual remedy and founded in the breach of trust.

The South African law of damages purports to be compensatory in nature. Although the inherent historical punitive element of the actio iniuriarum is generally recognised, the Constitutional Court has held that punitive damages have no place in South African law, because they would inter alia violate the public law-private law divide. The actio iniuriarum, the remedy for defamation, also places strain on the right of freedom to expression, because potential defendants could be intimidated by large damages awards from exercising this right. At the same time it protects the right to dignity of the individual. In the past decade the idea has been mooted by academics and also in our case law that the revival of the medieval amende honorable in our law would solve the problem of balancing the rights to freedom of expression and dignity. This remedy involves an apology by the defendant, and because with this remedy a potential defendant does not face financial ruin, his right to freedom of expression is upheld. At the same time an apology by the defendant for defamatory remarks could do much more to restore the plaintiff’s dignity than a monetary award.This note juxtaposes the African concept of ubuntu with the amende honorable, a remedy which may be traced back to medieval European canon law. In the Constitutional Court judgment of Dikoko v Mokhatla (2006 6 SA 235 (CC)) two of the judges opined that the amende honorable has a place in the South African law of defamation, and moreover, that it is fully compatible with the notion of ubuntu.

In Le Roux v Dey a vice-principal at a well-known secondary school in Pretoria instituted two separate claims for sentimental damages under the actio iniuriarum for insult (infringement of dignity) and defamation (infringement of reputation) against three school learners. The defendants published manipulated pictures of the plaintiff and the principal of the school depicting them both naked and sitting alongside each other with their hands indicative of sexual activity or stimulation. The school crests were superimposed over their genital areas. The plaintiff succeeded with both claims in the High Court (Dey v Le Roux 2008-10-28 case no 21377/06 (GNP)) butthe Supreme Court of Appeal (Le Roux v Dey 2010 4 SA 210 (SCA)) held that the separate claim for insult was ill-founded because in assessing damages for defamation, the court should also take the plaintiff’s humiliation into account. The Supreme Court of Appeal nevertheless confirmed the trial court’s award of R45 000. The defendants appealed to the Constitutional Court.

In two recent case-law dicta, one of the Constitutional Court, it was made perfectly clear that there is no room in the South African law of delict for awarding punitive damages. In Dikoko v Mokhatla (2006 6 SA 235 (CC) 263) Mokgoro J expressed it as follows:“Equity in determining a damages award for defamation is ... an important consideration in the context of the purpose of a damages award, aptly expressed in Lynch [1929 TPD 974 at 978] as solace to a plaintiff's wounded feelings and not to penalise or deter people from doing what the defendant has done. Even if a compensatory award may have a deterrent effect, its purpose is not to punish. Clearly, punishment and deterrence are functions of the criminal law. Not the law of delict ... In our law a damages award thereforedoes not serve to punish for the act of defamation. It principally aims to serve as compensation for damage caused by the defamation, vindicating the victim's dignity, reputation and integrity. Alternatively, it serves to console.” A similar approach is also apparent from Seymour v Minister of Safety and Security (2006 5 SA 495 (W) 500), where Willis J stated unequivocally that it “is trite that the primary function of awards for damages under the actio injuriarum is to compensate the victim for his or her injuriae, and is not exemplary”.It is, however, debatable whether this view accurately reflects the position in positive law, or, if it does, whether the de lege ferenda approach in our law should not be different. Under South African law there is consensus that the actio legis Aquiliae, in terms of which patrimonial damages may be claimed, and the action for pain and suffering aimed at non-patrimonial damages for bodily injuries, have purely compensatory functions - punitive damages are thus completely out of the question. But not so in the case of the actio iniuriarum which is traditionally directed at solatium (solace money) or (personal) satisfaction (sentimental damages) for an iniuria – that is, the wrongful and intentional infringement of an interest of personality.

The facts of Le Roux v Dey (2011 (3) SA 274 (CC)) are so well-known that they have become public knowledge. In brief: The applicants were three pupils, Le Roux, Gildenhuys and Janse van Rensburg. Using his computer, Le Roux manipulated an image that showed the bodies of two naked men sitting close together on a couch and with their legs suggestively apart, while the leg of one crossed that of the other. Their hands were placed on the genital areas, but both hands and genitals were strategically covered using a school crest. Le Roux then electronically superimposed the facial images of the school principal and of Dey (the deputy principal) on the faces of the two naked men. Le Roux claimed that the idea to create the image came to him after watching an episode of an adult-cartoon series, South Park, on television. The image was created in about 5 minutes, and was not professionally done. Thereafter, the three learners – the applicants in the Constitutional Court – circulated the image among their peers using cellphones, and eventually placed an A4-size image on the school notice board. At the time Le Roux was about 15½ years old, while Gildenhuys and Janse van Rensburg were about 17 years old. All three learners were disciplined by the school authorities for their conduct and were criminally charged and sentenced to do community service. Gildenhuys and Janse van Rensburg also tendered an apology to the principal, whereas Dey, acting on legal advice, would not enter into any negotiations with the two applicants. Dey went on to institute legal proceedings against the three learners in the High Court, for defamation and injured feelings or iniuria. The High Court upheld both claims and awarded R45 000 in damages as a composite award. The learners, however, appealed to the SCA, which upheld, by the majority, the defamation claim, while regarding the finding of the High Court as “an impermissible accumulation of actions”. Nevertheless, the SCA upheld the amount awarded by the High Court against the learners. The present case then dealt with the application for appeal to the Constitutional Court brought by the three learners against this decision of the SCA, which found them liable for damages for publication of an allegeddefamatory image bearing Dey’s face. Six members of the Constitutional Court, as per Brand AJ, affirmed the finding of the SCA that the image was defamatory of Dey, whereas they were also amenable to the view that the image amounted to an injury to his feelings, even if it were not defamatory of him. Meanwhile, two members of the court, Froneman J and Cameron J, held that the image amounted to injury to Dey’s feelings, but were not defamatory of him. The other two members of the court, Yacoob J and Skweyiya J, held that the image was neither defamatory nor injurious to Dey’s feelings. According to Campbell, the Constitutional Court judgments give rise to a number of concerns that may become a subject for comments over time. This note highlights a few of the concerns evident from the dissenting minority judgment of Yacoob J, which was supported by Skweyiya J. Primarily, the note provides a critique of the main findings of this minority judgment with regard to both claims brought by Dey, namely the defamation claim and the claim based on iniuria or the impairment of his dignity. It particularly takes issue with the minority’s application of the wrongfulness test in their judgment. Furthermore, the note explores the role of minority and the principle of the paramountcy of the best interests of thechild, applying the principles of the actio iniuriarum.