THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 597/05
Reportable

In the matter between:

MERVYN DENDY                                                       APPELLANT

and

UNIVERSITY OF THE
WITWATERSRAND                                   FIRST RESPONDENT
NEIL GARROD                                       SECOND RESPONDENT
ANDREW ST QUINTIN SKEEN             THIRD RESPONDENT

CORAM:
SCOTT, FARLAM, VAN HEERDEN, JAFTA et

PONNAN JJA
HEARD:

12 MARCH 2007

DELIVERED:
28 MARCH 2007

SUMMARY:
Constitution – Delict – Injuria – Alleged violation of plaintiff’s
constitutional right to dignity – conduct complained of not such as to violate dignity of
reasonable person – unnecessary to develop common law in terms of s 39 (2) of
Constitution.

Neutral citation: This judgment may be referred to as Dendy v University of the
Witwatersrand [2007] SCA 30 (RSA).

________________________________________________________
FARLAM JA

[1] This is an appeal from a judgment of Boruchowitz J, sitting in the
Johannesburg High Court, in which exceptions to two claims brought by the
appellant against the first respondent, the University of the Witwatersrand,
were upheld. The judgment of the court a quo  has been reported: see Dendy
v University of the Witwatersrand and Others 2005 (5) SA 357 (W).

[2] The claims against which the exceptions were successfully taken
concern alleged injuries to the appellant’s right to dignity in terms of s 10 of
the Constitution, and/or at common law. The first claim was said to have
arisen from the manner in which the appellant’s application for appointment to
a chair of law at the university was dealt with, in that, so it was alleged,
various procedural irregularities took place. The appellant contended that
these irregularities constituted a violation of certain of his rights as entrenched
in the Bill of Rights contained in chapter 2 of the Constitution. Details of the
alleged violation are set out in paragraphs 2.12 and 2.13 of the appellant’s
particulars of claim, which are quoted in extenso in para 8 of the judgment of
the court a quo. The second claim concerned an alleged failure by the
university or its agents to furnish the appellant with the reasons that his
application for a chair of law was unsuccessful and with a copy of the minutes
of the meeting of the committee which considered his application. This failure,
so it was contended, also constituted a wrongful violation of certain of the
appellant’s constitutional rights. Details of this alleged violation are set out in
paragraph 3.24 of the appellant’s particulars of claim, which is quoted in para
51 of the judgment of the court a quo. In both claims it was alleged that as a
result of conduct complained of the appellant ‘felt insulted and humiliated . . .
and a reasonable person in the position of the [appellant] would have felt so
insulted and humiliated.’

[3] Exception was taken to both claims on the ground that the facts
pleaded in support of the claims were insufficient to disclose a cause of
action, not reasonably capable of injuring the appellant’s dignity or causing
him insult or humiliation and not sufficient to justify a remedy in damages.

[4] The court a quo, in a careful and comprehensive judgment, rejected the

appellant’s submission that the common law had to be developed in terms of s
39(2) of the Constitution because it failed to promote the spirit, purport and
objects of the Bill of Rights.

[5] The learned judge held (at para 27) that the common law position
applicable to this case had been authoritatively laid down by Melius de Villiers
in The Roman and Roman Dutch Law of Injuries (1899) p 27 in a passage
which was approved by the Transvaal Supreme Court in 1908 (Rex v Umfaan
1908 TS 62 at 66) and by this court on a number of occasions, culminating in
Delange v Costa 1989 (2) SA 857 (A) at 860I-861A. The passage in question
reads as follows:
‘(T)here are three essential requisites to establish an action of injury. They are as follows:-
I.
An intention on the part of the offender to produce the effect of his act;
II.
An overt act which the person doing it is not legally competent to do; and which at the
same time is
III.
An aggression upon the right of another, by which aggression the other is aggrieved
and which constitutes an impairment of the person, dignity or reputation of the other.”

[6] The judge continued (at para 28):
‘Prior to Delange there was judicial controversy as to whether injury to dignity must be tested
subjectively or objectively. Compare Walker v Van Wezel [1940 WLD 66 at 71] and Jackson v
SA National Institute for Crime Prevention and Rehabilitation of Offenders [1976 (3) SA 1 (A)
at 12]. In Delange the Court recognized the need for objective limits to be placed on the
action for injury to dignity in order to keep it within manageable proportions. It accepted that
an entirely subjective test of dignity had the potential for opening the floodgates to successful
actions by hypersensitive persons who felt insulted by statements or conduct which would not
insult a person of ordinary sensibilities. And so it fashioned what is in effect a hybrid test, one
that is both subjective and objective in nature. To be considered a wrongful infringement of
dignity, the objectionable behaviour must be insulting from both a subjective and objective
point of view, that is, not only must the plaintiff feel subjectively insulted but the behaviour,
seen objectively, must also be of an insulting nature. In the assessment of the latter, the legal
convictions of the community (boni mores) or the notional understanding and reaction of a
person of ordinary intelligence and sensibilities are of importance [Neethling’s Law of
Personality at 194-5]. In Delange Smalberger JA summarized the position as follows [at
862A-G]:
“(B)ecause proof that the subjective feelings of an individual have been wounded, and his
dignitas thereby impaired, is necessary before an action for damages for injuria can succeed,
the concept of dignitas is a subjective one. But before that stage is reached it is necessary to

establish that there was a wrongful act. Unless there was such an act intention becomes
irrelevant as does the question whether subjectively the aggrieved person’s dignity was
impaired. I do not understand the judgment of Jansen JA to suggest that all that is required
for a successful action for damages for injuria are words uttered animo injuriandi towards
another which offend such person’s subjective sensitivities, and in that sense impair his
dignitas. It this were so it could lead to the courts being inundated with a multiplicity of trivial
actions by hypersensitive persons. (See Burchell 1977 SALJ at 7-8; Neethling
Persoonlikheidsreg 2nd ed at 193.) According to Melius de Villiers op cit at 37,
‘(so) long as an act is outwardly lawful it cannot be an injury, with whatever intention or motive
it may have been committed. Even when a person entertaining an injurious intention believes
an act which he commits to be injurious when it really is not such, his intention will not affect
the character of the act.’
Likewise the character of the act cannot alter because it is subjectively perceived to be
injurious by the person affected thereby.
In determining whether or not the act complained of is wrongful the Court applies the criterion
of reasonableness – the “algemene redelikheidsmaatstaf” (Marais v Richard en ‘n Ander 1981
(1) SA 1157 (A) at 1168C). This is an objective test. It requires the conduct complained of to
be tested against the prevailing norms of society (ie the current values and thinking of the
community) in order to determine whether such conduct can be classified as wrongful. To
address the words to another which might wound his self-esteem but which are not,
objectively determined, insulting (and therefore wrongful) cannot give rise to an action for
injuria. (Walker v Van Wezel (supra) at 68.)’

[7] The learned judge held (at para 29) that the legal position as laid down
by this court in Delange v Costa was consistent with the Constitution and
needed no adaptation to bring it into harmony therewith.

[8] Applying the law as laid down in Delange’s case he held (at para 32)
that the only ‘overt’ act complained of was the decision not to appoint the
appellant to a chair of law and said that there was
‘nothing inherent in the decision not to appoint the [appellant] which could conceivably be
characterised as being of an offensive or insulting character. Objectively considered the
defects of a procedural nature about which he complains cannot be characterised as
offensive or insulting when tested against the objective criterion of reasonableness. Moreover
the decision in question was “outwardly lawful”.’

[9] The learned judge also held (at para 33) that the appellant’s argument
overlooked the principle affirmed in Delange that only conduct that is offensive

or insulting can form the basis of an action for injuria. He held (at para 34)
that, while the constitutional violations alleged may be wrongful, the conduct
upon which they were premised was not of an overt character.

[10] The judge also upheld a contention advanced before him by counsel
for the university to the effect that the plaintiff was not entitled to bring an
action for damages to obtain redress for the violations of which he complained
because he had had at his disposal the remedy of review. He said (at para
35):
‘The conduct of the Selection Committee, if proved, would have been reviewable under the
common law and the Constitution [footnote omitted]. The setting aside of the decision of the
Selection Committee would, in my view, have constituted sufficient vindication of the rights
that had been infringed, and would in large measure have assuaged the plaintiff’s wounded
feelings.’

[11] His reasons for upholding the exception to Claim B are set out in paras
49 to 59 of his judgment. He held (at para 54) that the only ‘overt act’
complained of was the refusal to furnish the appellant with the reasons for his
non-appointment and copies of the minutes. This refusal was not of an
offensive or insulting character and an application of the principles in Delange
thus led on this claim also to the upholding of the exception. Here also he held
(at para 56) that another reason for upholding the exception was the fact that
there were effective alternative remedies at the appellant’s disposal, with the
result that he had no right of action in damages by reason of the violation
complained of.

[12] The appellant advanced a number of wide-ranging arguments in his
submissions before this court, most of which he had advanced before the
court a quo and which are summarized in its judgment.

[13] Among the arguments advanced was the contention that the reliance
by the court a quo on the fact that the decision of the selection committee was
‘outwardly lawful’ and not offensive or insulting was incorrect. He submitted in
this regard that this doctrine of the common law, which was affirmed in
Delange’s case, required development and modification in terms of s 39(2) of

the Constitution to bring it in line with the increased importance accorded
under the Constitution to human dignity. He also contended that the court a
quo had erred in holding that the remedy in damages was not available to him
and that he should instead have instituted review proceedings in respect of
Claims A and B or, in the case of Claim B, brought an application for access
to the reasons for the committee’s decision under ss 32(1) and 33(2) of the
Constitution. In this regard he pointed out that Boruchowitz J (at para 45 of his
judgment) had said that ‘[a] successful review or the grant of interdictory relief
obliging [the university] to furnish reasons would go a long way to assuage his
wounded feelings and at the same time serve to vindicate the infringement of
his fundamental rights.’ In this regard he submitted that, even if the decision of
the selection committee were set aside on review and the university ordered
to give him the reasons and the minutes, this would not have the effect of
erasing the hurt, humiliation and insult suffered when the violations took place.

[14] I am satisfied that the two claims under consideration cannot succeed
for a reason which renders it unnecessary to consider the correctness of
these submissions. I shall assume (without deciding) that these submissions
are correct.

[15] Although as pointed out by the Constitutional Court (in National
Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6
(CC) at para 28) - ‘(d)ignity is a difficult concept to capture in precise terms’1, it
is clear, as was pointed out by the court a quo (at para 14 of its judgment) that
‘(f)or present purposes . . . there is little difference between the right to dignity
as it is comprehended under the Constitution and its common-law
counterpart.’ That is because what the appellant is claiming is an award of
damages to assuage his wounded feelings arising from the insult and
humiliation he suffered as a result of the procedural irregularities of which he
complains and the refusal to give him the reasons for the committee’s

1 See also Stuart Woolman, ‘Dignity’ in Woolman et al Constitutional Law of South Africa 2 ed
Original Service, paras 36.2 and 36.3; Johann Neethling, ‘Die betekenis en beskerming van die eer,
dignitas en menswaardigheid in gemeenregtelike en grondwetlike sin’ in C Nagel (ed) Gedenkbundel
vir JMT Labuschagne 85 and Gay Moon and Robin Allen QC, ‘Dignity Discourse in Discrimination
Law. A Better Route to Equality?’ [2006] EHRLR 610.

decision and the minutes of its meeting.

[16] Although, as I have said, the appellant submitted that part of the ratio of
the Delange decision is no longer good law, he accepted as still valid the
double requirement recognised in Delange that the conduct complained of
must not only be insulting from a subjective point of view but must also be
insulting when viewed objectively. That is why he pleaded that a reasonable
person in his position would have felt insulted and humiliated by the conduct
of one or more of the members of the selection committee and of those
officials of the university who refused to give him the reasons for the
committee’s decision and the minutes.

[17] As this is an exception the court has to accept the correctness of the
facts pleaded. This means, amongst other things, that it must be accepted
that the appellant did feel insulted and humiliated as a result of the conduct
complained of in Claims A and B. But this court is able, at this stage already,
to decide whether a reasonable person in the appellant’s position would have
felt insulted and humiliated thereby. The appellant emphasised in argument
before us that his claims were not based on his failure to be appointed to a
chair in law, but rather on the manner in which the decision not to appoint him
was arrived at and the subsequent refusal to give him the reasons and
minutes he asked for. I can understand that he must have been disappointed
and distressed when he learnt that he had not been appointed. But, as I have
said, he does not claim damages because of such feelings of disappointment
and distress, nor could he.

[18] The court must also accept for the purposes of deciding the exception
that the irregularities complained of took place and that at some stage the
appellant became aware of them. (He could not have felt insulted and
humiliated until he became aware of the irregularities.) In my opinion the
reaction of a reasonable person in the position of the appellant who became
aware of the manner in which the decision not to appoint him had been
arrived at and that that decision could accordingly be set aside on review in
consequence thereof would not have had feelings of insult and humiliation but

rather feelings of elation and relief. The same applies in relation to the refusal
of the reasons and the minutes. A reasonable person in the position of the
appellant would have realised that the refusal was not sustainable and that
the university would, if taken to court, be ordered to provide the reasons and
minutes. Here again, the reasonable person’s reaction would not have been
one of insult and humiliation.

[19] As feelings of insult and humiliation were facta probanda on both
Claims A and B it follows, in my view, for the reasons I have given that both
claims fail to disclose a cause of action. It follows that the appeal must be
dismissed with costs.

[20] The following order is made:
The appeal is dismissed with costs, including those occasioned by the
employment of two counsel.

……………..
IG FARLAM
JUDGE OF APPEAL

CONCURRING
SCOTT

JA
VAN HEERDEN
JA
JAFTA

JA
PONNAN

JA

PONNAN JA

[21] I have had the benefit of reading the judgment of my Brother Farlam
with which I am in agreement.  A further aspect that I wish to address and to
which I now turn, is the contention by the appellant that the court is obliged by
the Constitution to develop the common law so as to give a person in his
position a claim for damages for breach of his constitutionally entrenched
rights.  According to the appellant, the common law should be developed in

order to render the actio injuriarum available to a natural person if the
defendant wrongfully and intentionally violates one or more of the plaintiff’s
constitutionally entrenched rights in such a manner as to cause the plaintiff to
suffer hurt, humiliation or insult in circumstances in which a reasonable person
in the plaintiff’s position would likewise feel hurt, humiliated or insulted.  This
development would then, so the appellant asserts, enable such a plaintiff to
recover from the defendant a solatium in the form of monetary compensation
for the hurt, humiliation or insult thus suffered by him or her.

[22] That courts are enjoined to develop the common law, if this is
necessary, is beyond dispute.  That power derives from sections 8(3) and 173
of the Constitution. Section 39(2) of the Constitution makes it plain that, when
a court embarks upon a course of developing the common law, it is obliged to
‘promote the spirit, purport and objects of the Bill of Rights’ (S v Thebus 2003
(6) SA 505 (CC) at para 25).  This ensures that the common law will evolve,
within the framework of the Constitution, consistently with the basic norms of
the legal order that it establishes (Pharmaceutical Manufacturers Association
of SA: In re Ex parte President of the Republic of South Africa 2000 (2) SA
674 (CC) at para 49).  The Constitutional Court has already cautioned against
overzealous judicial reform.  Thus, if the common law is to be developed, it
must occur not only in a way that meets the section 39(2) objectives, but also
in a way most appropriate for the development of the common law within its
own paradigm (Carmichele v Minister of Safety and Security 2001 (4) SA 938
(CC) at para 55).  (See also City of Tshwane Metropolitan Municipality v RPM
Bricks (Pty) Ltd [2007] SCA 28 (RSA) para 20.)

[23] A court, faced with such a task, is obliged to undertake a two-stage
enquiry.  First, it should ask itself whether, given the objectives of s 39(2), the
existing common law should be developed beyond existing precedent.  If the
answer to that question is a negative one, that should be the end of the
enquiry.  If not, the next enquiry should be how the development should occur
and which court should embark on that exercise. (See S v Thebus at para 26.)

[24] An integral part of the first enquiry, it seems to me, is to enquire in any
given matter whether the common law is deficient, and, if so, in what respect.
The appellant is in essence a disgruntled applicant for promotion.  He
complains of a range of procedural irregularities in the assessment of his
candidacy, but not of the resultant decision.  His further complaint relates to
the failure of the University to furnish him with reasons for his non-
appointment or to supply him with copies of the minutes of the meeting at
which the decision was taken.  Those complaints could have been vindicated
respectively by the remedies of review or a relatively simple application to
compel production of the documentation and the reasons sought.  Those
remedies were available to the appellant and on his own version he was
aware of them, yet he chose to forego them.  Instead he seeks to fashion a
novel claim, which he contends is mandated by the court’s obligation to
develop the common law in terms of s 39(2) of the Constitution.  It bears
noting that the novelty is entirely self–created, the appellant having
consciously chosen to eschew a range of legal remedies that have
traditionally served to vindicate the complaints encountered here.  Those

remedies in one form or another were available to the appellant at all stages
of the process.  The common law, which has not been shown to be wanting,
was therefore broad enough to provide the appropriate relief in this case.  The
appellant elected instead to saddle what has proven to be an unruly horse.  It
therefore in this instance could hardly be contended that the common law was
deficient.  Much less, in any specific respect.  It follows in my view that the first
postulated enquiry must yield a negative response. In any event, in his
formulation of the development contended for, the appellant accepts that the
alleged violation of a plaintiff’s constitutionally entrenched rights must be
hurtful, humiliating or insulting from both an objective and a subjective
standpoint. Like Farlam JA, I am of the view that the appellant fails at the
objective threshold.  He thus fails to bring himself within the ambit of his own
formulation of the development contended for. It therefore follows that this
issue warrants no further consideration.

………………..
V M PONNAN
JUDGE OF APPEAL

CONCURRING:
VAN HEERDEN JA
JAFTA JA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal

DATE:
28 March 2007

STATUS:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal

The Supreme Court of Appeal today dismissed an appeal brought by Mr Mervyn
Dendy, a former associate professor at the University of Witwatersrand, against a
judgment of the Johannesburg High Court in which exceptions to two claims brought
by him against the University were upheld.

Following on an unsuccessful application by Mr Dendy for promotion to a chair of
law at the university he claimed damages from the university alleging that his
constitutional right to dignity had been violated because of the manner in which his
application had been considered by the selection committee and because his request
for the reasons for the committee’s decision and a copy of the minutes of its meeting
had been refused. He alleged in this regard that he was humiliated and insulted by the
conduct of the university’s representatives and that a reasonable person in his position
would also have been humiliated and insulted.

The Supreme Court of Appeal upheld exceptions to these claims on the ground that a
reasonable person would not have felt humiliated and insulted in the circumstances.
Three members of the court also held that in any event it was not necessary to develop
the common law in terms of s 39 (2) of the Constitution to provide the remedy of an
action for damages on the facts pleaded in Mr Dendy’s particulars of claim.