The Best Interests of the Child and South African Defamation Law: Reconsidering Le Roux v Dey

Abstract

This research report investigates whether the common law of defamation is consistent with the principle of the “best interests of the child” entrenched in section 28(2) of the Constitution. An analysis of the judgments in Le Roux v Dey considers whether a child-centred approach to defamation law involving a child wrongdoer and an adult victim requires development to preclude an adult victim’s claim for damages. In this report I first seek to understand the current law and its rationale, by reviewing how the judgments in Le Roux grappled with the child/adult dynamic and applied the prima facie elements of defamation as well as the possible defences available to child defendants. Secondly, I consider the constitutional imperatives when there are conflicting constitutional rights, focusing on the rights to freedom of expression and human dignity and a third complicator being the best interests of the child. By conducting a balancing act of these rights with guidance from leading defamation law cases, I conclude that there is no need to further develop the common law of defamation as it is compliant to the Constitution and strikes a delicate balance between the three main rights