Human dignity and the actio injuriarum: a constitutionalised approach to personality infringements

Visser, C J
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This thesis interrogates the constitutionalisation of the common law of personality in terms of doctrine and its underpinning ideology, both in terms of the substance and method invoked by the doctrine of subjective rights and actio iniuriarum. This interrogation is the result of the criticisms that I have levelled against the Constitutional Court in Le Roux v Dey 2011 (3) SA 274 (CC) as one of the most recent authoritative judgments concerning the constitutional development of the common law of personality. These criticisms include that the approach adopted by the Court creates doctrinal inconsistencies and promotes a stifling ideological conception of the human personality, which in turn limits the ability of the legal method of the common law to articulate the human personality as a composite legal interest. On this basis, with reference to the overarching transformative constitutionalism paradigm, I hypothesise that the underlying cause to these concerns is a judicial ideology ascribing to a liberal mindset which systematically limits judicial discretion. Accordingly, I advocate for the development of an alternative framework to that of the Court, which I call the ̳personality framework‘, to constitutionalise the common law of personality in terms of doctrine, ideology, substance and method. In terms of doctrine, I illustrate that the personality framework is premised on the interplay between personality rights, constitutional values (most notably human dignity) and fundamental rights as derived from a convergence between the common law and Constitution in respect of the human personality. With further reference to the transformative constitutionalism paradigm, I illustrate how to organise these legal concepts for the ideological and methodological dimensions of the personality framework. Ideologically, I argue that these legal concepts form a broader ideological backdrop which denotes the substantive individual and collectivist dimensions of the human personality in a constitutional context based on a multi-faceted conception of human dignity. In terms of substance and method, I demonstrate that this ideological backdrop acts as a transformative tool to evaluate the common law‘s framework of conceptualising and adjudicating the human personality. In this regard, I affirm the liberal judicial mindset of the Le Roux v Dey judgment, as influenced by a conservative judicial culture, and further show that the broader judicial mindset feeds into pre-constitutional conceptions of (classical) liberalism. Consequently, I argue that the substance of the common law‘s actio iniuriarum and the attending legal method employed through the judicial adjudicative function realises the individual dimensions of the human personality but not its collectivist dimensions, and I suggest necessary constitutional adjustments. Finally, I contemplate the practical implications and pertinent connections between the doctrinal, ideological, substantive and methodological dimensions of the personality framework and explain how this framework will operate by applying to the personality rights to dignity, reputation and privacy. I show how this framework highlights the substance of the distinctive interests of the different personality rights and the differing dimensions of human dignity as a constitutional value, as well as a legal method that is sensitive to these dimensions and which is able to articulate the composite nature of the human personality as a legal interest through the specific entitlements created by the personality rights and corresponding fundamental rights
A thesis submitted in fulfilment of the requirements for the degree Doctor of Philosophy in the School of Law at the University of the Witwatersrand, 2020