Law of Delict

Locking the Proverbial Closet

A few of us keep a little more than Prada shoes in our closets – and if you do actually own a pair – well honey, enough said. But there is no permanent solace in the closet. Sure enough, like the inevitable consequences of gravity, the truth, in one way or another, eventually comes out. Those on the straight and narrow may view ‘coming out’ as an arbitrary process, but disclosing one’s ‘deviant’ sexual orientation is slightly more complex than can be anticipated. Circumstance, resources and culture are all factored in when deciding whether or not to come out, but of all considerations, voluntariness is the most imperative.

Unfortunately there are those instances where a person is deprived of the decision as to when and how to come out. To out someone is to disclose a person’s homosexual orientation to a third person against the former person’s will. Except where circumstances are evident of voluntary consent to such publication, it is generally irrelevant whether the ‘publisher’ found out from the gay person him/herself or through alternative means. Hence the Gay Pages should too be kept in the closet, not under the bed and the ‘delete history’ icon is as good a friend as the bottle post-exams. The closet’s purpose is regrettably obvious.

However, does a ‘civilized’ society and a Constitution that contains a right to equality, explicitly prohibiting unfair discrimination on the basis of sexual orientation, render such a protective mechanism superfluous? Oh sure, legally speaking South Africa is now relatively liberal. Nevertheless, is the existence of the Civil Unions Act merely indicative of a constitutionally imposed tolerance or does it really indicate a movement towards genuine societal acceptance?

Taking a gentle stroll down the ever lovely Homophobia Lane, one is witness to the charming sights of schoolyard bullying, teen suicide, familial rejection, general- and employment-related discrimination, the always popular sport of ‘gay-bashing’ and the obvious “oh, why didn’t I think of that” ‘cure’ for lesbianism – rape. That aside, as was noted in Selane v SABC, ‘[one’s homosexuality] is a very personal matter that should be left to the gay person him/herself to disclose’. Until circumstances change, the closet is a necessary survival technique. While it is without legal lock and key however, it is more of a guise than real security.

The law of defamation could perhaps provide a measure of much needed legal protection in this context. Defamation is the wrongful and intentional publication of matter which refers to another and diminishes that person’s reputation. Having proven the latter three elements, wrongfulness and intention are presumed. The question then is whether outing could have a defamatory effect? The test applied to establish whether the statement is defamatory is whether the publication, given the proven meaning, has the effect that a right-thinking member of the community would think less of the defamed person? In the law of delict, ‘thinking less of’ amounts to imputations against the defamed person’s moral character or imputations that arouse hatred, contempt or ridicule. So, Mr. Right-Thinking person, what is your opinion regarding outing?

South African law is currently divided as to whether to adopt a normative or empirical approach to the right-thinking person test. Morality, as seen from a normative perspective, is informed by the Constitution. The Constitution states that no one shall discriminate on various grounds including that of sexual orientation. Therefore, when applying the normative right-thinking person test, outing someone could not be considered defamatory because discrimination is precluded by the Constitution. Simply put, the prohibition on discrimination means that no ’right-thinking’ South African would think less of a person for being homosexual. Accordingly any such delictual action would fail.

Now as much as this pretty-picture thinking tugs at my heartstrings and tickles my tear ducts, the imposition of hypothetical, utopian thinking is nonsensical. The harm caused through current homophobic actions is derived from negative perceptions held by real-life South Africans regarding homosexuality and is independent of the hypothetical ‘right-thinking’ South African. I’m glad that I’m not the judge telling a victim of a ‘conversion rape’ that they are precluded from suing the individual who outed them because Mr Right Thinking (rapist) would never discriminate against a lesbian. Or, consider a single closeted entrepreneur living on Homophobia Lane with his adopted son. Our handsome homo is subsequently outed by someone who is jealous of his impeccable style. Consequently, the townsfolk avoid his business, subject him to gossip and instruct their children not to associate with his son. It is clear that a normative evaluation of Mr Right Thinking would prevent the ‘outee’ from having a claim in delict.

The alternative is to examine Mr Right Thinking empirically, taking into account the realistic probability that the average South African is homophobic. Considering that there are no official statistics regarding homophobia, the problem becomes proving that the majority of society is in fact homophobic. Then again, let us not forget that over 84% of South Africans consider themselves to be religious. Furthermore, most fundamentalist religious institutions may be ‘accepting’ of homosexuals yet condemn the so-called ‘practice’. Accordingly, the only logical inference must then be that such an ‘alternative lifestyle’ would generally be thought less of.

To deny an action for outing as a result of a normatively evaluated right-thinking person, based on constitutional rights, would have the perverse real-life effect of condoning homophobia. Conversely, to afford an action leads to the conclusion that to be ‘outed’ and thus to be published as gay is defamatory.

Which approach should modern South African law follow? In Mohamed v Jassiem, the Appellate Division preferred the empirical approach and although bound by the Appellate Division’s decision, the Cape High Court in Rivett-Carnac v Wiggins adopted the normative approach. Clearly, to follow the Appellate Division, a court would find that to ‘out’ someone is defamatory, whereas the trend in High Court decisions tends towards the opposite conclusion.

If recent High Court cases are to potentially preclude an action in defamation, where do we go from here?

The aquilian action would neither prevent nor remedy the injustices of Homophobia Lane simply because the damages caused by outing are only rarely patrimonial. Additionally, to categorise ‘outing’ as hate speech, one is burdened with the demanding task of showing incitement, the difficulty of which is compounded by the absence in the Constitution of sexual orientation as an appropriate ground. Perhaps a more realistic solution is to frame sexual orientation as a matter which falls to be protected under the right to privacy.

There are concerns that to consider such disclosure an infringement of one’s privacy would reinforce the shameful perceptions associated with homosexuality – but any costs associated with reinforcing these perceptions are outweighed by the incalculable benefits of affording the appropriate legal protection. Personally, I would prefer to have my right to privacy protected, ensuring that I have the choice as to when, how and to whom I come out, while simultaneously avoiding the connotation that being published as gay is defamatory.

All things considered, I don’t see why I can’t have my fruitcake - and eat it.

Alan Wright