Dendy v University of the Witwatersrand

The appellant (Dendy) applied for appointment to a chair of law at the University of the Witwatersrand. His application was unsuccessful. He brought two claims against the University based on alleged violations of his constitutional right to dignity under section 10 of the Constitution and/or common law injuria. Claim A alleged that various procedural irregularities occurred in the manner his application was dealt with. Claim B concerned the University's alleged failure to furnish him with reasons for the unsuccessful application and copies of the minutes of the selection committee meeting. In both claims, the appellant alleged he felt insulted and humiliated, and that a reasonable person in his position would have felt similarly. The University excepted to both claims on the grounds that the facts pleaded were insufficient to disclose a cause of action. Boruchowitz J in the Johannesburg High Court upheld the exceptions. The appellant appealed to the Supreme Court of Appeal.

• Whether the facts pleaded disclosed a cause of action for injuria based on violation of the constitutional right to dignity
• Whether the common law of injuria required development under section 39(2) of the Constitution to align with constitutional protection of dignity
• Whether conduct complained of was objectively insulting or offensive to support an action for injuria
• Whether a reasonable person in the appellant's position would have felt insulted and humiliated by the alleged conduct
• Whether damages were an appropriate remedy where alternative remedies (review, application for access to information) were available

The appeal was dismissed with costs, including costs of two counsel.

For a claim of injuria based on violation of dignity to succeed, the conduct complained of must be insulting and humiliating from both a subjective and objective perspective. The objective test requires assessment of whether a reasonable person in the plaintiff's position would have felt insulted and humiliated. Where alleged conduct consists of procedural irregularities that would render a decision reviewable, or refusal to provide information that could be compelled by court order, a reasonable person would not experience feelings of insult and humiliation but rather relief or elation at the availability of remedies to vindicate their rights. Therefore, such conduct does not satisfy the objective component of the test for injuria and fails to disclose a cause of action. The common law of injuria as formulated in Delange v Costa is consistent with constitutional protection of dignity under section 10 of the Constitution and requires no development under section 39(2). Development of common law is not required where existing common law remedies adequately vindicate the rights allegedly violated.

Ponnan JA made observations about the proper approach to developing common law under section 39(2) of the Constitution. He emphasized that courts should not engage in overzealous judicial reform and that development must occur within the common law's own paradigm. He outlined a two-stage enquiry: first, whether the existing common law should be developed beyond existing precedent given section 39(2) objectives; second, if development is needed, how it should occur and which court should undertake it. An integral part of the first enquiry is determining whether the common law is deficient and in what respect. Ponnan JA observed that the appellant in this case was essentially 'a disgruntled applicant for promotion' who had consciously eschewed traditional legal remedies (review, applications for access to information) that would have vindicated his complaints, instead seeking to fashion a novel claim. He characterized this as the appellant having 'elected to saddle what has proven to be an unruly horse.' The court a quo (Boruchowitz J) had observed that successful review or interdictory relief would have gone a long way to assuage the appellant's wounded feelings and vindicate the infringement of his fundamental rights, though the appellant argued this would not erase the hurt and humiliation suffered. The judgment also noted the difficulty of capturing dignity in precise terms, citing National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC).

This case is significant in South African law for: (1) Affirming that the common law test for injuria as established in Delange v Costa (requiring both subjective feelings of insult and objective determination that conduct was insulting) remains consistent with constitutional protection of dignity and requires no adaptation. (2) Establishing limits on claims for violation of dignity by applying the objective reasonableness test - not all subjectively experienced hurt from procedural violations will ground a claim for injuria. (3) Clarifying the proper approach to developing common law under section 39(2) of the Constitution - courts must first determine whether the common law is deficient before embarking on development, and should not develop common law where adequate existing remedies are available. (4) Demonstrating judicial restraint against expanding delictual liability for dignity violations where traditional administrative law remedies (review, access to information applications) provide adequate vindication of rights. (5) Illustrating that constitutional entrenchment of dignity does not automatically create new causes of action or expand the scope of existing delictual remedies beyond their common law bounds.