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Personality rights in South Africa. An introductionActio iniuriarum The protection of personality has a rich tradition in South African law. There are different remedies available for infringement of the personality right – the most prominent and general one being that of the actio iniuriarum aestimatoria, which relates to the whole spectrum of personality rights and provides the basis for the protection of personality rights under private law [Jackson v NICRO 1976 3 SA 1(A) 11]. The concept of iniuria, was reiterated in cases like in R v Umfaan (1908 TS 62 66), Walker v Van Weze 1940 WLD 66 67; Carelse v Van der Schyff 1928 CPD 91; R v Chipo 1953 4 SA 573(A) 576; Boswell v Union Club of South Africa (Durban) 1985 2 SA 162 (D) 164-165. Iniuria denotes as per Umfann, “a wrongful act designedly done in contempt of another, which infringes his dignity his person or his reputation…the act complained of must be wrongful; it must be intentional; and it must violate one or another of those real rights, those rights in rem, related to personality which every man is entitled to enjoy.” On study of different decisions, it can be seen that courts protect the physical mental integrity (corpus) and good name (fama) as distinct, delimited aspects of personality. The protection of personality rights is however not absolute, duly limited by the rights of others and the public interest. Grounds of justification like necessity, consent to injury etc., are the means whereby the limits are determined. I Dignitas A. The right to privacy The Constitution of the Republic of South Africa expressly recognises in Section 14, a right to privacy. Section 14 states, ‘Everyone has the right to privacy, which includes the right not to have- (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed.’ Section 14(d) specifically thus allows for a general protection of privacy akin to that of the actio iniuriarum concept of common law. The right to privacy is an independent personality right included within the concept of dignitas. This was affirmed by decisions in Jansen van Vuuren v Kruger. In Bernstein v Bester NO, privacy was regarded as part of one’s autonomous identity. is considered to be the locus classicus for the recognition of an independent right to privacy in South African law. In this case, the dignitas concept was widely interpreted so as to cover the whole of the legally protected personality except corpus (bodily integrity) and fama (reputation). With specific regard to the publication of private facts, the courts have concluded that given certain conditions, this publication could constitute an iniuria and consequently a violation of the privacy right. [Kidson v S A Associated Newspapers 1957 3 SA 461 (W); Mhlongo v Bailey 1958 1 SA 370 (W)]. The right to privacy is not absolute. It is conditioned by its interplay with other constitutional rights. Also, certain grounds of justification are available to persons who infringe this right: private defence, necessity, public interest, interest in science and art, consent etc. B. Right to identity The right to identity protects a person’s uniqueness or that part of individuality that distinguishes him/her from other persons. (Universiteit van Pretoria v Tommie Meyer Films). II Right to Fama or Good name Fama (good name) also merits protection as an independent personality right under South African law of defamation. In Whittington v Bowles, it was held that defamation occurs when the defamatory words or deeds are published or made known to a third party and thereby infringes a person’s good name. More recently, the Johannesburg High Court in a legal battle between former President Nelson Mandela and his ex-lawyer and an art publisher, ordered the latter and various other companies to desist from marketing and/or selling such works of art and other merchandise, in South Africa or abroad, involving the use of the name Mandela or his reputation in whatever form. Case List* Public disclosure of private facts * Right of juristic persons to private confidential sphere * Appropriation of name, likeness * Privacy right and the public interest
* Scope of privacy in society
* Presumption of animus iniuriandi * Right of reputation v freedom of expression
Literature listBooks
Articles, documents and working papers
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