Thread by @Richard_Spoor

“So here is the thing. Julius Malema accused Trevor Manuel of nepotism and corruption on Twitter. These defamatory claims damaged Trevor’s public standing and reputation. So Trevor sued him and he Julius was forced to pay R500k for the harm done to his good name.

A persons right to his good name is called a personality right. There are other personality rights. One of them is dignity. If a pervert drags you into a dark room and molests you, no one saw what happened, you were not hurt, but you were degraded and your sense of self wounded.

In those instances you have a claim for the violation of your personality rights.

It’s the same for rape, there is the physical harm but even if not physically harmed, it can harm the very core of you and leave you damaged for life.

A last example is If you are falsely imprisoned, you may not be harmed by the experience but it is an awful feeling to be confined. It robs you of the joy you get from being a free human.

It’s why we imprison criminals. We don’t hurt them, we just deprive them of their humanity, we just strip them of their dignity and their identity and of most everything that makes it worthwhile to be human.

Now what if you were a mother or a father, and the thing that made you happier than anything else, the thing that gave your life meaning, that made you feel fulfilled and happy and valuable was being a mother or a father. It defined your very being; I am a mother.

What if someone intentionally killed your child? What then? Well for a parent this can be absolutely earth shattering, your purpose your identity, your sense of worth ripped from you. What does the law provide then?

Well, as it stands, your claim is for funeral costs and to the extent that there were medical costs, you can claim those too. Otherwise nothing.

The only way to bump in the damages for this terrible thing that has happened is to medicalize your grief and pain.

Grief and pain, loss and despair associated with the death of a child are entirely normal emotions. But the law doesn’t compensate for that.

So what you do as a smart lawyer is you get psychologists and psychiatrists to confirm that your clients pain and grief is pathological.

She has developed a depression, post traumatic stress disorder or some kind of adjustment or grieving disorder. And if you can demonstrate that, then you can claim damages for that pathology under the heading we often term “emotional shock”.

Now of course this is a monstrous situation, you know it, I know it and the Courts know it,so they tend to lean right over to accommodate the grieving parent. Often times they won’t even require an expert to testify.

You can’t sleep, you can’t eat, you don’t go out, you are said and cry a lot. Ok, no problem you are suffering from emotional shock, here have R100k.

(The dent to Trevor’s good name and reputation is worth five times that much.)

But it’s wrong. This is where Equal Education and Section 27 stepped in. Following the death of Michael Komape, the five year old boy who fell into a school pit latrine and drowned, they helped the family to sue for damages from the Limpopo Education authorities.

They claimed for funeral costs, and emotional shock on behalf of Michaels traumatized parents and siblings but also put in a special claim for the “extraordinary grief” that they had suffered.

They argued that the law does not adequately compensate for the life of a child who has been wrongfully killed. To that extent they argued the common law should be developed to allow for a claim for extraordinary grief, alternatively for Constitutional damages.

In the Limpopo High Court that special claim for grief alternatively constitutional damages was dismissed and the matter is now under appeal in the Supreme Court of Appeal.

Now this issue is of great concern to our law firm as well. We represent the families of 86 children who died after they contracted listeriosis.

Most of the children contracted the disease from their mothers either in utero or during birth.

Their mothers contracted the disease after eating contaminated food products, typically policy manufactured by Tiger Brands at the Enterprise meat processing facility in Polokwane.

A great many more children died before they could be born.

In the class action proceedings against Tiger we also included a claim for “exemplary or punitive or constitutional” damages. Our claim is also based on the inadequacy of the common law and the violation of the parents and close family members, but we took a different tack.

Once we learned of the Michael Komape appeal and had the chance to read EE and Section27’s excellent submissions we decided in the interests of our clients and the broader public we should apply to be admitted as friends of the Court to make our own arguments.

We were extremely grateful to have been granted the opportunity to make submissions when the matter is heard on 2 September in Bloemfontein. We are permitted exactly 30 minutes, so we have to make it count.

Our starting point is that when someone wrongfully kills your child they violate the parents dignity in a very fundamental and serious way. It goes straight to our personhood, our identity and our sense of self worth.

It also violates our right to a family, which is recognized, inter alia in the African Charter, as a fundamental human right. In the South African law it is an aspect to the fundamental right to dignity.

Our second point is that there must be consequences for such a gross violation of a fundamental right. If not what is our constitutional right to dignity worth?

Some of the authorities say that the anomaly namely that it is cheaper to kill a child than to injure it has to do with the relationship between the civil and the criminal law as instruments for accountability.

So, If you kill a child wether negligently or intentionally it’s a criminal matter, culpable homicide or murder, both carry severe sanctions for the wrong doer, but there are no civil consequences.

On the other hand there is no crime called negligent injury, but there are significant civil sanctions, including a claim for pain and suffering and the violation of the child’s personality rights.

We say that is not true when you look at the challenges we face in modern times holding large corporations criminally accountable for the wrongful killing of workers or, as in this instance, consumers.

When last did you hear of a corporation being convicted of culpable homicide or murder? It just does not happen. We will be arguing that the civil justice system has to take responsibility to hold them to account because the criminal justice system cannot.

We also argue that it is not necessary for the Court to create a whole new remedy the existing common law remedies are, with the tiniest adjustment perfectly adequate.

The action for the vindication of personality rights is known as the actio iniuriarum.

It’s the one that covers defamation, wrongful imprisonment, and other violations of dignity, and that we say can and should include the violation of our personality rights, flowing from the killing of my child.

The actio iniuriarum is different in that unlike the action for a wrongful injury or the action for pain and suffering, which require proof of negligence, it requires intention which is generally a higher standard of proof.

There is no claim for accidentally defaming or imprisoning someone, you have to prove that the wrongdoer acted intentionally.

However once wrongfulness has been established eg you prove that you were defamed or that you were deprived of your liberty.

It’s then up to the wrongdoer to prove that he did not act intentionally or that he had some ground of justification. So for example in a wrongful imprisonment case, if it’s proven that you locked me in your cellar for three days,

it’s up to the defendant to prove that it was an accident or that he did it in self defense.

Similarly in a defamation case once I show that you made the defamatory statement, it’s up to you to prove that you meant someone else or that it was true and in the public interest.

It should be the same when I can show that you wrongfully killed my child.

Looking forward to the 2nd, it’s a big day for our firm and our clients.

Viva