6 Comparative analysis

Most legal systems today recognise identity as a personality interest which deserves protection. The level of protection, however, differs substantially from one jurisdiction to the next.

Dutch law provides elaborate protection against unauthorised use of an individual's image. The Auteurswet protects the individual against unauthorised publication of his or her portrait. The explanatory memorandum to the Auteurswet explains that the concept "portrait" can be defined as any depiction of a person's face with or without any other parts of the body, irrespective of how the depiction was made. Section 21 of the Auteurswet provides that publication of the portrait is not authorised if the subject or, after demise of the subject, one of his or her surviving dependants has a reasonable interest in opposing publication.

The requisite interest can take one of two forms. Firstly, there is the interest in privacy. A subject can oppose publication of a portrait if the subject can show that such publication will infringe on his or her right to privacy. By the nature of things, famous people such as politicians and film and sport stars must endure invasion of privacy to a greater extent than others, but there are limits, and when the limits are exceeded this excess can form the basis for a claim. Therefore, when a magazine stated on the cover that a football player had a homosexual relationship with a singer but the article in the magazine declared the opposite, it was held that there had been a breach of the football player's privacy.³¹

Secondly, there is a commercial interest. Dutch law recognises the fact that the image of a famous person has become a commodity.³² In the 't Schaep met de Vijf Pooten case, ³³ the Hooge Raad laid down two requirements before an individual could claim a commercial interest. Firstly, the individual concerned must already have obtained some fame from practising his or her profession. The concept "profession" is interpreted broadly, so that even amateur sports people, who do not strictly speaking practise sport as their profession, are included here if they have gained some fame from participation in their sports.³⁴ Secondly, there must be a commercial exploitation of such fame. This aspect was clearly explained in the De slag om het voetbalgoud case. ³⁵ A book, entitled De slag om het voetbalgoud, filled with photographs of the players in the Dutch football team which played in the final of the 1974 World Cup tournament, was published. This in itself did not violate any of the players' rights as it merely amounted to a factual report on a contemporary matter of public interest. However, the publishers sold the entire print run of the book to a company which used the book as part of its marketing campaign. The Rechtbank Haarlem held that this latter aspect amounted to commercial exploitation, with the result that it infringed on the players' portrait rights.

In the United States of America, various states protect identity under the broader concept of privacy. The Second Circuit Court of Appeals in New York laid the foundation in Haelan Laboratories Inc v Topps Chewing Gum.³⁶ The appellant contracted with various baseball players for the exclusive right to use their images in the marketing of the appellant's chewing gum. The respondent did the same in the marketing of its chewing gum, but did not obtain the consent of the players concerned. The court held that, apart from the statutory right to privacy in the New York Civil Rights Law, a right to publicity could also be derived from the common law of New York.

The Second Circuit Court of Appeals eventually held in Pirone v MacMillan³⁷ that the court had erred in Haelan Laboratories³⁸ since the right to identity was recognised only by statute in the New York Civil Rights Law and that there was no distinguishable common law right to identity in New York.³⁹ By this time, however, Haelan Laboratories⁴⁰ had already served repeatedly as authority and led to the recognition of a common law right to publicity in more than thirty of the US states.⁴¹

In Allison v Vintage Sports Plaques,⁴² Kravitch J of the federal appeals court for the Eleventh Circuit summarised the common law position succinctly.⁴³ She explained that in Alabama, as in various other jurisdictions in the United States, the right to the use of a person's image is protected under the tort of invasion of privacy. This tort can be committed in any one of four ways. Firstly privacy is violated through access to the plaintiff's physical and intimate secludedness, secondly through publication in conflict with generally accepted norms of decency, thirdly through publication which places the plaintiff in a false light, and fourthly through unauthorised use of the plaintiff's image for commercial gain. The third category is also known as the "tort of false light publicity", while the fourth category is also known as the "tort of commercial appropriation".

The basis for the protection of the right to identity in terms of these measures is the financial interest of the individual and not merely human dignity, as one would expect with the invasion of privacy. To succeed with a claim under commercial appropriation, the plaintiff must prove that the respondent used the plaintiff's identity, that the purpose of the use of the plaintiff's identity is commercial or other gain for the respondent, that the plaintiff's image was used without consent and that the plaintiff will suffer loss or prejudice as a result. In this regard, a court would look at the commercial damage to the business value of the human identity or the extent to which the plaintiff is deprived if he or she does not receive money for authorising the use of his or her image.

Some jurisdictions in the United States of America follow a twofold approach where both statutory and common law measures are applied to provide extensive protection against the unauthorised use of an individual's image.⁴⁴ In California section 3344 of the Civil Code provides that it is unlawful for one person to use the name, voice, autograph, photo or likeness of someone else for purposes of advertising, trade, or solicitation of customers or clients, without consent. An injured party may, in terms of this provision, cumulatively claim damages consisting of the profit which the wrongdoer gained from the use of the person's image, as well as punitive damages.⁴⁵ The protection is not limited to famous people, but is at the disposal of anyone whose image is used without consent.⁴⁶ Section 1449 of the Oklahoma Statutes contains essentially the same provision.

Apart from the extensive statutory provisions to protect the individual against unauthorised use of his or her image, common law protection is also recognised in California⁴⁷ and Oklahoma.⁴⁸ In Porten v University of San Francisco⁴⁹ the court explained that the right to identity can also be protected by means of the tort of invasion of privacy. This tort can be committed in one of four ways. Firstly, privacy is breached through violation of the plaintiff's physical and intimate seclusion, secondly through publication contrary to generally accepted norms of decency, thirdly through publication which places the plaintiff in a false light and fourthly, by using the image of the plaintiff for commercial gain without consent.

 

7 South African law

In South Africa the common law approach has thus far been followed where the attributes of a person have been used without consent for commercial purposes. After some uncertainty, the Supreme Court of Appeal in Grütter v Lombard⁵⁰ at last recognised an image as an aspect of personality which demands protection, and this has now been confirmed by the Western Cape High Court in Wells v Atoll Media (Pty) Ltd.⁵¹

In Grütter⁵² the Supreme Court of Appeal had to decide if the name of the appellant could still be used in the name of a law firm even though his relationship with the firm had come to an end. The appellant did not claim any exclusive right to use the name, nor did he allege that the respondents made themselves guilty of passing off. The appellant merely made the case that it was well-known that he was one of the persons to whom the name referred and that he no longer wished to be associated with the firm now that his relationship with them had ceased.

In a unanimous judgment, Nugent JA held that privacy is merely one of a variety of interests that enjoy recognition in the concept of personality rights in the context of the actio iniuriarum. The interest which a person has to protect his or her identity against exploitation cannot be distinguished therefrom and is similarly encompassed by that variety of personality rights which is worthy of protection.

Nugent JA further referred to Neethling⁵³ who explains that

[i]dentity is that uniqueness which identifies each person as a particular individual and as such distinguishes him from others. Identity manifests itself in various indicia by which the person involved can be recognised: that is, facets of his personality which are distinctive or peculiar to him, such as his life history, his character, his name, his creditworthiness, his voice, his handwriting, his outward shape, etcetera. A person has a definitive interest that the unique nature of his being and conduct must be respected by outsiders. Similarly, identity is infringed upon if indicia thereof is used without consent in a way which is not compatible with the image of the right holder.

On the basis of these principles, Nugent JA ruled that the appellant was entitled to insist that there should be no potential for error and ordered the respondents to desist from using his name and rectify the matter within a period of 30 days.

Neethling⁵⁴ is apparently of the opinion that the right to identity is infringed only if the attributes of a person are used without consent in a way which cannot be reconciled with the actual image of the individual concerned. To succeed with a claim where the attributes of a person are used without permission, it therefore seems to be a requirement that the person concerned should indicate that there was some misrepresentation of his or her personality. In this regard, it may be sufficient if the unauthorised use of a person's attributes could create the impression that the person concerned consented to such use or has been compensated for such use.

This approach is also followed in Grütter,⁵⁵ but there is also a second seminal principle intertwined in the judgment of Nugent JA which concerns the unjustified use of an individual's image for commercial gain. Nugent JA indicated that the interest of a person in protecting his or her image from commercial exploitation cannot qualitatively be distinguished from and is equally encompassed by the variety of personality rights which are protected under the concept of dignity.⁵⁶ He further indicated that in casu that there was no justification for the respondents to use the appellant's name for their own commercial benefit.⁵⁷ This would then mean that the right to identity can in this context be violated in one of two ways.

Firstly, a person's right to identity is violated when the attributes of that person are used without permission in a way which cannot be reconciled with the true image of that person. Apart from the unauthorised use of a person's image, this kind of infringement also entails some kind of misrepresentation concerning the individual, such as that the individual approves of or endorses a particular product or service or that an attorney is a partner in a firm, while this is not the case. The unlawfulness in this kind of case is found in the misrepresentation concerning the individual and, consequently, in the violation of the right to human dignity.

Secondly, the right to identity is violated if the attributes of a person are used for commercial gain without authorisation by another person. Apart from the unauthorised use of the individual's image, such a use also primarily entails a commercial motive, which is exclusively aimed at promoting a service or product or to solicit clients or customers. The unlawfulness in this case is found mainly in the infringement of the right to freedom of association and the commercial exploitation of the individual.

This is not stated explicitly in Grütter,⁵⁸ but can be deduced from a careful analysis of the judgment. The significance of the judgment by Davis J in Wells⁵⁹ is that this interpretation of the judgment in Grütter⁶⁰ has now received judicial confirmation. Davis J clearly interpreted the judgment in Grütter⁶¹ as holding that the appropriation of a person's image or likeness for the commercial benefit or advantage of another calls for legal intervention in order to protect the individual concerned.

Thirdly, the judgment in Wells v Atoll Media (Pty) Ltd⁶² highlights an important aspect of the law of personality to which the court in Grütter⁶³ also referred, and that is the interrelation between the various manifestations of personality rights. Wells⁶⁴ simultaneously involved the right to a good name, the right to privacy and the right to identity. I have previously criticised the approach in various jurisdictions in the United States, which views the unauthorised use of a person's image as a violation of the right to privacy, as jurisprudentially less sound than an approach which bases the unauthorised use of a person's image on the infringement of dignitas.⁶⁵ Privacy in this context is usually violated through access to a person's physical and intimate secludedness, or through publication in conflict with generally accepted norms of decency.⁶⁶ The criticism was based on the argument that the unauthorised use of a person's image would generally not involve either of these aspects.

However, Wells v Atoll Media (Pty) Ltd⁶⁷ has clearly illustrated how the unauthorised use of a person's image could also negatively impact on that person's privacy. In the first instance, no matter how one looks at the matter, the publication of a provocative photograph of a twelve-year-old girl simply cannot be reconciled with generally accepted norms of decency. It would be hard to reconcile it, even if the girl and her parents or guardian had consented to such use. Without consent, such publication should simply not be tolerated. Secondly, the publication of the photograph exposed the girl to disparaging mobile text messages sent to her telephone. This latter fact clearly illustrates how the unauthorised use of an image can also draw unwelcome attention and affect the private life of the individual concerned. As a result, the criticism of the American approach may be unfounded.

But what is the implication of all of this for media freedom? With any action for the infringement of a subjective right, a variety of conflicting interests must be weighed against one another. With the use of a person's image, the rights to identity, human dignity and freedom of association of the individual must often be weighed against the user's right to the freedom of expression and the freedom of the media. This important question relating to the right to identity is only touched upon as an aside in the Grütter⁶⁸ and Wells⁶⁹ cases. In both instances the courts made it clear that the right to identity is not absolute, but did not discuss this issue much further.

It goes without saying that the use of a person's attributes must be unlawful before a plaintiff will succeed with any claim in delict. In other cases where satisfaction or damages were claimed due to the infringement of dignitas, the courts have already recognised certain grounds of justification which would mean that the apparent violation of personality rights would indeed be lawful.

Neethling⁷⁰ correctly states that public policy can justify an apparent violation of the right to identity, but it would also make sense to consider the other grounds on which the infringement of dignitas can be justified. These grounds include consent,⁷¹ truth and public interest,⁷² fair comment⁷³ and jest.⁷⁴ In addition Neethling⁷⁵ also indicates that the public interest in art can in appropriate cases justify the use of a person's image.

 

8 Conclusion

Because the South African approach is derived from a common law based on general principles, the law as laid down and contemplated in Grütter⁷⁶ and restated in Wells⁷⁷ is open and receptive to change, so that current developments in commerce can be accommodated. This approach provides broader scope for protection than most statutory or codified provisions dealing with the right to identity. On the one hand the South African law avoids discrimination based on fame or the lack thereof, which seems to beset Dutch law in this regard. On the other hand, it seems as if South African law now recognises a variety of attributes that are worthy of protection, in contrast to statutory or codified provisions which, by definition, can protect only specifically-listed attributes.

The judgment in Wells⁷⁸ is significant for various reasons. It is a restatement of the law laid down in Grütter⁷⁹ and provides a judicial interpretation of the judgment in the latter case. In the process, Davis J has also redefined the right to identity and provided some clarity on what infringement of that right would amount to.

It is now trite that everyone has a right to identity. For these purposes, identity includes the collection of specific congenital and acquired attributes which are unique to the individual and distinguish the individual from others. When the attributes of a person are used without consent, the right to identity can be violated in one of four ways. A person's right to identity can be infringed if the attributes of that person are used without permission in a way which -

a) cannot be reconciled with the true image of the individual concerned;

b) amounts to commercial exploitation of the individual;

(c) annot be reconciled with generally accepted norms of decency; or

(d) violates the privacy of that person.

From this analysis, it would seem that our law has now reached a level of development which is not very different from the common law tort of invasion of privacy which applies in most US states.

In the final analysis, though, Wells⁸⁰ should not be seen as a precedent to suggest that the media may not display or publish a photograph depicting an individual subject unless that subject has consented to such display or publication. The unique facts of the case and the fact that Davis J repeatedly qualified his judgment with reference to the context of the case mean that such an interpretation would be exaggerated. The user can therefore still, in certain appropriate cases, justify the unauthorised use of a particular person's attributes on the basis of public interest if such use takes place mainly in connection with public interest reporting, jest or art.

What is clear though is that the law in South Africa, because of the flexibility of a common law approach based on general principles, probably leads the way when it comes to the protection of an individual against the unauthorised use of his or her attributes.

 

Bibliography

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Abdul-Jabbar v General Motors Corp 75 F 3d 1391         [ Links ]

Allison v Vintage Sports Plaques 136 F 3d 1443         [ Links ]

Arnold Vanderlijde 1994 NJ 658         [ Links ]

Benally v Hundred Arrows Press Inc 614 F Supp 969         [ Links ]

Candebat v Flanagan 487S 2d 207         [ Links ]

Carson v Here's Johnny Portable Toilets Inc 698 F 2d 831         [ Links ]

Carson v National Bank of Commerce 501 F 2d 1082 Chimarev v TD Waterhouse Investor Services Inc 280 F Supp 2d 208         [ Links ]         [ Links ]

Cox v Hatch 761 P 2d556         [ Links ]

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Douglas v Hustler Magazine Inc 769 F 2d 1128         [ Links ]

Elvis Presley International Memorial Fund v Crowell 733 SW 2d 89         [ Links ]

Fergerstrom v Hawaiian Ocean View Estates Inc 441 P 2d 808         [ Links ]

Flake v Greensboro News Co 195 SE 55         [ Links ]

Foster-Milburn Co v Chinn 120 SW 364         [ Links ]

Freihofer v Hearst Corporation 65 NY 2d 135         [ Links ]

Gee v CBS Inc 612 F2d 572         [ Links ]

Gilham v Burlington Northern Inc 514 F 2d 660         [ Links ]

Grütter v Lombard 2007 4 SA 89 (SCA)        [ Links ]

Haelan Laboratories Inc v Topps Chewing Gum 202 F 2d866         [ Links ]

Haith v Model Cities Health Corp 704 SW 2d 684         [ Links ]

Harlow v Buno Co 36 Pa D&C 101         [ Links ]

Hirsch v SC Johnson and Sons Inc 280 NW 2d 129        [ Links ]

In re DoraP 418 NYS 2d 597         [ Links ]

Johnson v Boeing Airplane Co 262 P 2d 808         [ Links ]

Kidson v SA Associated Newspapers Ltd 1957 3 SA 461 (W)         [ Links ]

Kiss v County of Putnam 398 NYS 2d 729        [ Links ]

KNB Enterprises v Matthews 78 Cal App 4th 362         [ Links ]

Lawrence v AS Abell Co 475 A2d448         [ Links ]

Mabry v Kettering 117 SW 746         [ Links ]

Mapp v Ohio 367 US 643         [ Links ]

Martin Luther King Jr Center for Social Change Inc v American Heritage Products Inc 296 SE 2d 697         [ Links ]

Martinez v Democrat-Herald Publishing Co 669 P 2d 818         [ Links ]

McCormack v Oklahoma Publishing Co 613 P 2d 98         [ Links ]

Messenger ex rel Messenger v Gruner Jahr Printing and Publishing 94 NY 2d 436         [ Links ]

Michaels v Internet Entertainment Group Inc 5 F Supp 2d 823         [ Links ]

Myskina v Conde Nast Publications Inc 386 F Supp 2d 409         [ Links ]

National Bank of Commerce v Shaklee Corp 503 F Supp 533         [ Links ]

Novel v Beacon Operating Corporation 446 NYS 2d 118         [ Links ]

Olan Mills Inc v Dodd 353 SW 2d 22         [ Links ]

Pavesich v New England Life Insurance Co 50 SE 68         [ Links ]

People for the Ethical Treatment of Animals v Berosini Ltd 895 P 2d 1269         [ Links ]

Pirone v MacMillan 894 F 2d 579         [ Links ]

Porten v University of San Francisco 64 Cal App 3d 825         [ Links ]

Prudhomme v Proctor and Gamble Co 800 F Supp 390         [ Links ]

Reeves v United Artists Corp 765 F 2d 79         [ Links ]

Smith v Suratt 1926 WL 1024         [ Links ]

Staruski v Continental Telephone Co 581 A 2d 266         [ Links ]

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Teddy Scholten 1961 NJ 160         [ Links ]

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Register of legislation

Auteurswet 1912 (Netherlands)         [ Links ]

California Civil Code Section 3344         [ Links ]

Florida Statutes Section 540.08         [ Links ]

Illinois Right of Publicity Act 765 ILCS 1075         [ Links ]

Kentucky Statutes Section 391.170         [ Links ]

Nebraska Revised Statutes Section 20-202         [ Links ]

Nevada Revised Statutes Section 597-770         [ Links ]

New York Civil Rights Act 1964         [ Links ]

Oklahoma Statutes Section 1449         [ Links ]

Tennessee Code Section 47-25-1101         [ Links ]

Texas Property Code Section 26.001         [ Links ]

Utah Code Section 76-9-407         [ Links ]

Wisconsin Statutes Section 895.50         [ Links ]

 

List of abbreviations

HLR	Harvard Law Review
ISLRP	International Sports Law Review Pandektis
TSAR	Tydskrif vir die Suid-Afrikaanse Reg

 

 

* I thank Ms Elize Retief of the National Library in Pretoria and Ms Hannetjie Boshoff of the Oliver R Tambo Law Library at the University of Pretoria for their assistance with the research for this note. I also thank the anonymous referees who made some valuable comments on an earlier draft of this note. The views expressed are entirely my own.
1 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
2 Grütter v Lombard 2007 4 SA 89 (SCA).
3 Grütter v Lombard 2007 4 SA 89 (SCA).
4 Grütter v Lombard 2007 4 SA 89 (SCA): Davis J at para 45.
5 Tab VIII.1 -4. See also Zimmermann Obligations 1050 et seq.
6 Zimmermann Obligations 1050.
7 Borkowski Roman Law 348; Van Zyl History 343; Neethling Persoonlikheidsreg 51.
8 D 47.10.1.1 et seq.
9 D 47.10.15.27. Own translation. The original text reads: Generaliter vetuit Praetor quid ad infamiam alicuius fieri. Proinde quodcumque quis fecerit vel dixerit, ut alium infamet, erit a ctio iniuriarum.
10 D 47.10.1.2.
11 Neethling Persoonlikheidsreg 55.
12 D 47.10.15.27.
13 Kidson v SA Associated Newspapers Ltd 1957 3 SA 461 (W).
14 Grütter v Lombard 2007 4 SA 89 (SCA).
15 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
16 Voet Commentarius ad Pandectas 47.10.7; Pothier Traité des Obligations 116, 118; Lessius De Iustitia et Iure, Ceterisque Virtutibus Cardinalis Libri Quatuor 2.7.5.19; Durandus Speculum Iuris 4.4.2.15; Ubaldi Commentaria Corpus Iuris Civilis 9.2.41.
17 Voet Commentarius ad Pandectas 47.10.7.
18 Voet Commentarius ad Pandectas 47.10.7.
19 Zimmermann Obligations 1050 et seq.
20 Jenks History 47.
21 Reeves History 84 et seq.
22 Reeves History 88 et seq.
23 Lunny and Oliphant Tort 2.
24 Burdick Torts 1.
25 Originally the Fourth Amendment restricted the power of only the Federal Government, until the US Supreme Court ruled in Mapp v Ohio 367 US 643 that it was also applicable to state governments.
26 Glenn Privacy 47 et seq.
27 Warren and Brandeis 1890 HLR 193.
28 Beverley-Smith Personality 146 et seq.
29 Pavesich v New England Life Insurance Co 50 SE 68.
30 See eg. Smith v Suratt 1926 WL 1024 (Alaska); Mabry v Kettering 117 SW 746 (Arkansas); Thayer v Worcester Post Co 187 NE 292 (Massachusetts); Vassar College v Loose-Wiles Biscuit Co 197 F 982 (Missouri); Flake v Greensboro News Co 195 SE 55 (North Carolina); Harlow v Buno Co 36 Pa D&C 101 (Pennsylvania).
31 Vondelpark 1988 NJ 1000.
32 Teddy Scholten 1961 NJ 160.
33 't Schaep met de Vijf Pooten 1979 NJ 383.
34 Arnold Vanderlijde 1994 NJ 658.
35 De slag om het voetbalgoud 1974 NJ 415.
36 Haelan Laboratories Inc v Topps Chewing Gum 202 F 2d 866.
37 Pirone v MacMillan 894 F 2d 579.
38 Haelan Laboratories Inc v Topps Chewing Gum 202 F 2d 866.
39 See also Chimarev v TD Waterhouse Investor Services Inc 280 F Supp 2d 208; Myskina v Conde Nast Publications Inc 386 F Supp 2d 409; Messenger ex rel Messenger v Gruner Jahr Printing and Publishing 94 NY 2d 436; Freihofer v Hearst Corporation 65 NY 2d 135; Novel v Beacon Operating Corporation 446 NYS 2d 118; In re Dora P 418 NYS 2d 59; and Kiss v County of Putnam 398 NYS 2d 729.
40 Haelan Laboratories Inc v Topps Chewing Gum 202 F 2d 866.
41 See for instance Allison v Vintage Sports Plaques 136 F 3d 1443 in Alabama (the framing and resale of collectors' cards depicting sports stars are unlawful); Olan Mills Inc v Dodd 353 SW 2d 22 in Arkansas (the use of a person's image in an advertising brochure without consent is unlawful); Venturi v Savitt Inc 468 A 2d 933 in Connecticut (a claim by a golf player for the unauthorised use of his photograph in an advertisement fails because the plaintiff could not prove intent to cause harm); Vassiliades v Garfinckel's Brooks Bros 492 A 2d 580 in the District of Columbia (a plastic surgeon and publisher who published "before" and "after" pictures of patients violated the privacy of the patients, whether they were famous or not); Martin Luther King Jr Center for Social Change Inc v American Heritage Products Inc 296 SE 2d 697 in Georgia (the court prohibits the unauthorised sale of statuettes made to the image of King); Fergerstrom v Hawaiian Ocean View Estates Inc 441 P 2d 808 in Hawaii (a property developer may not use pictures of the purchaser and construction of a house in an advertising brochure without consent); Johnson v Boeing Airplane Co 262 P 2d 808 in Kansas (an employee who tacitly agreed to have a photograph taken next to an aircraft and for the photograph to be used in an advertising brochure forfeits a claim against the employer); Prudhomme v Proctor and Gamble Co 800 F Supp 390 in Louisiana (advertising showing an impersonator of a famous chef violates the privacy of the chef); Lawrence v AS Abell Co 475 A 2d 448 in Maryland (the use of newspaper clippings with pictures of babies in advertising for a newspaper does not violate the privacy of the mothers or the babies); Carson v Here's Johnny Portable Toilets Inc 698 F 2d 831 in Michigan (the unauthorised use of a famous person's name is unlawful if that person can be identified); Candebat v Flanagan 487 S 2d 207 in Mississippi (a reference to a particular person's motor vehicle collision without consent in advertising is unlawful); Haith v Model Cities Health Corp 704 SW 2d 684 in Missouri (an employer may not use the names of medical practitioners whom it employs in advertising without their consent); Gilham v Burlington Northern Inc 514 F 2d 660 in New Jersey (where a company owns the copyright in a picture of an individual that company may consent to the use of that picture on the cover of a magazine); Benally v Hundred Arrows Press Inc 614 F Supp 969 in New Mexico (the publication of a photograph showing Navajo natives in a book on the life and work of a photographer is not unlawful); Reeves v United Artists Corp 765 F 2d 79 in Ohio (the right to publicity is not heritable and lapsed on the death of a famous boxer); Martinez v Democrat-Herald Publishing Co 669 P 2d 818 in Oregon (a picture of a student with a history of drug abuse in an article on drug use on campus does not violate the rights of the student); Gee v CBS Inc 612 F 2d 572 in Pennsylvania (where a record company owns the copyright in a musical performance it may use the name and image of the singer on the record cover); Staruski v Continental Telephone Co 581 A 2d 266 in Vermont (an employer may not use a picture of an employee in advertising without consent); Crump v Beckley Newspapers Inc 320 SE 2d 70 in West Virginia (a picture of a female coal miner in an article on women in coal mines is not unlawful).
42 Allison v Vintage Sports Plaques 136 F 3d 1443.
43 Under US law, when a federal court is deciding a common law issue, it is bound to follow the specific decisions of the state supreme court for the state whose common law applies. Thus, the federal court in Allison was predicting how the Alabama Supreme Court would define the scope of the tort of invasion of privacy.
44 The mixed approach is followed in California (compare s 3344 of the Civil Code and Michaels v Internet Entertainment Group Inc 5 F Supp 2d 823); Florida (compare S 540.08 of the Florida Statutes and Zim v Western Publishing Co 573 F 2d 1318); Illinois (compare the Illinois Right of Publicity Act and Douglas v Hustler Magazine Inc 769 F2d 1128); Kentucky (compare S 391.170 of the Kentucky Statutes and Foster-Milburn Co v Chinn 120 SW 364); Nebraska (compare S 20-202 of the Nebraska Revised Statutes and Carson v National Bank of Commerce 501 F 2d 1082); Nevada (compare S 597-770 et seq of the Nevada Revised Statutes and People for the Ethical Treatment of Animals v Berosini Ltd 895 P 2d 1269); Oklahoma (compare S 1449 of the Oklahoma Statutes and McCormack v Oklahoma Publishing Co 613 P 2d 98); Tennessee (compare S 47-25-1101 et seq of the Tennessee Code and Elvis Presley International Memorial Fund v Crowell 733 SW 2d 89); Texas (compare S 26.001 et seq of the Texas Property Code and National Bank of Commerce v Shaklee Corp 503 F Supp 533); Utah (compare S 76-9-407 of the Utah Code and Cox v Hatch 761 P 2d 556); Wisconsin (compare S 895.50 of the Wisconsin Statutes and Hirsch v SC Johnson and Sons Inc 280 NW 2d 129). Although the exact formulation of the various provisions differs from one state to the next, the underlying principles are essentially the same. As a result, I refer to a few examples only.
45 Subdivision (a) provides: (a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorised use, and any profits from the unauthorised use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.
46 KNB Enterprises v Matthews 78 Cal App 4th 362.
47 Michaels v Internet Entertainment Group Inc 5 F Supp 2d 823; Abdul-Jabbar v General Motors Corp 75 F 3d 1391.
48 McCormack v Oklahoma Publishing Co 613 P 2d 98.
49 Porten v University of San Francisco 64 Cal App 3d 825.
50 Grütter v Lombard 2007 4 SA 89 (SCA).
51 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
52 Grütter v Lombard 2007 4 SA 89 (SCA).
53 Neethling Persoonlikheidsreg 44 et seq.
54 Neethling Persoonlikheidsreg 308 et seq.
55 Grütter v Lombard 2007 4 SA 89 (SCA).
56 Grütter v Lombard 2007 4 SA 89 (SCA) 95D: "The interest that a person has in preserving his or her identity against unauthorised exploitation seems to me to be qualitatively indistinguishable and equally encompassed by that protectable 'variety of personal rights'''.
57 Grütter v Lombard 2007 4 SA 89 (SCA) 96B: "... I can see no such considerations that justify the unauthorised use by the respondents of Grütter's name for their own commercial advantage".
58 Grütter v Lombard 2007 4 SA 89 (SCA).
59 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
60 Grütter v Lombard 2007 4 SA 89 (SCA). See Cornelius 2008 TSAR; Cornelius 2008 ISLRP.
61 Grütter v Lombard 2007 4 SA 89 (SCA).
62 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
63 Grütter v Lombard 2007 4 SA 89 (SCA).
64 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
65 See Cornelius 2008 TSAR; Cornelius 2008 ISLRP.
66 See Allison v Vintage Sports Plaques 136 F 3d 1443.
67 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
68 Grütter v Lombard 2007 4 SA 89 (SCA).
69 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
70 Neethling Persoonlikheidsreg 315.
71 Neethling, Potgieter and Visser Deliktereg 89.
72 Neethling, Potgieter and Visser Deliktereg 313.
73 Neethling, Potgieter and Visser Deliktereg 315.
74 Neethling, Potgieter and Visser Deliktereg 317.
75 Neethling Persoonlikheidsreg 315.
76 Grütter v Lombard 2007 4 SA 89 (SCA).
77 Wells v Atoll Media (Pty) Ltd (11961/2006) [2009] ZAWCHC 173 (9 November 2009).
78 Wells v Atoll Media (Pty) Ltd (11961/2006) [2009] ZAWCHC 173 (9 November 2009).
79 Grütter v Lombard 2007 4 SA 89 (SCA). See Cornelius 2008 TSAR; Cornelius 2008 ISLRP.
80 Wells v Atoll Media (Pty) Ltd (11961/2006) [2009] ZAWCHC 173 (9 November 2009).

^rND^sCornelius^nSJ^rND^sCornelius^nSJ^rND^sWarren^nSD^rND^sBrandeis^nLD^rND^1A01^nKJ^sSelala^rND^1A01^nKJ^sSelala^rND^1A01^nKJ^sSelala

NOTES

 

The enforceability of illegal employment contracts according to the Labour Appeal Court: comments on Kylie v CCMA 2010 4 SA 383 (LAC)

 

 

KJ Selala

Kobolo J Selala. BIuris LLB LLM (UNIN). Lecturer, Faculty of Law, North-West University, Mafikeng Campus (22013113@nwu.ac.za)

 

 

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SUMMARY

The Labour Appeal Court in Kylie v CCMA decided the vexed question as to whether or not the CCMA has jurisdiction to resolve a dispute of unfair dismissal involving a sex worker. Both the CCMA and the Labour Court had declined to assume jurisdiction to resolve the dispute on the basis that the employee's contract of employment was invalid and therefore unenforceable in law. The Labour Appeal Court, on the other hand, overturned the Labour Court's decision and held that the CCMA has jurisdiction to resolve the dispute, regardless of the fact that sex work is still illegal under the South African law. For this decision, the Labour Appeal Court relied on section 23(1) of the Constitution, which provides that everyone has the right to fair labour practices. According to the Labour Appeal Court the crucial question for determination by the court was if a person in the position of a sex worker enjoyed the full range of constitutional rights including the right to fair labour practices. In the court's reasoning the word everyone in section 23(1) of the Constitution is a term of general import and conveys precisely what it means. In other words everyone, including a sex worker, has the right to fair labour practices as guaranteed in the Constitution. A critical analysis of the judgment is made in this case note. The correctness of the court's judgment, particularly insofar as it relates to the approach to and the determination of the issue of jurisdiction, is questioned. It is argued that the Court lost focus on the main issue in the appeal, namely jurisdiction, and instead proceeded to place heavy emphasis on the employee's constitutional rights. Relying on a handful of cases of the Supreme Court of Appeal and the Constitutional Court, the case note concludes that the approach adopted by the Labour Appeal Court in the determination of the appeal was incorrect -hence its decision. Given the critical importance of the matter, and the attendant implications of the judgment for labour litigation in South Africa, it is hoped that a similar case will soon come to the attention of a superior court and that a definitive pronouncement will be made.

Keywords: Employee; jurisdiction; sex workers; dismissal, sex industry, fair labour practice

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1 Introduction

On 28 May 2010, the Labour Appeal Court delivered a judgment in the case of Kylie v CCMA¹ regarding the jurisdiction of the CCMA to resolve a dispute of unfair dismissal involving a sex worker. Coincidentally, the judgment was handed down on the eve of the FIFA 2010 World Soccer competition, held in South Africa,² when a large contingent of sex workers were reportedly expected to descend on the shores of the Republic to ply their trade during the tournament.³ Unsurprisingly, given the controversy attached to the issues, the judgment was well noted in the media and drew some quite interesting commentary in legal circles.⁴ In the judgment delivered by Davis JA, with which Zondo JP and Jappie JA concurred, the Court overturned a previous judgment of the Labour Court,⁵ where it was held that the CCMA ought to have refused to grant a relief to the employee because by doing so it would have been sanctioning or encouraging illegal activity. The Labour Appeal Court held that the CCMA did have the jurisdiction to resolve the dispute, regardless of the fact that sex work is an illegal activity.⁶ In justifying the conclusion it reached the court premised its argument on section 23(1) of the Constitution,⁷ which provides that everyone has a right to fair labour practices. The Court reasoned that the word "everyone" is a term of general import and unrestricted meaning and that it means what it conveys.⁸ Of the main issues examined by the Court was if a person such as a sex worker was entitled to enjoy constitutional rights in general, and specifically those rights set out in section 23 of the Constitution. Relying on the minority judgment of O'Regan and Sachs JJ in S v Jordan,⁹ the Court held that the illegal activity of a sex worker does not per se prevent the sex worker from enjoying a range of constitutional rights, including the right to fair labour practices.

The purpose of this case note is to analyse the judgment critically and to consider its implications for the future of labour litigation in South Africa. The correctness of the judgment, in particular, and especially insofar as it relates to the jurisdiction of the CCMA, or the Labour Court, to resolve disputes of the nature presented by the case, will be questioned. It will be argued that the Court erred in finding that the CCMA has the jurisdiction because jurisdiction is not only a question of interpretation but a matter of fact. It is either there or not. Jurisdiction, as will be shown, is predicated on the twin pillars of the court's authority over the litigating parties and the court's ability to grant an effective judgment. As the Constitutional Court has repeatedly stated, the courts are concerned with legality.¹⁰ And, to suggest that the requirement of legality in the determination of jurisdiction is unconstitutional, as the judgment implies, would no doubt be in conflict with the same Constitution that the courts seek to uphold. In this analysis, therefore, the main question will be this: should the Constitution, as the supreme law, be interpreted as conferring on the courts and tribunals jurisdiction to enforce any transactions which are in conflict with the law? Inevitably, the Courts' approach to the main issues raised by the appeal will be critically examined. Consequently, it will be argued that both the CCMA and the Labour Court's decisions were correct insofar as the jurisdictional ruling on the matter was concerned.

 

2 Factual background

The appellant, a certain Ms Kylie, (hereinafter the employee) was employed in a massage parlour as a sex worker. Her employment was terminated without a proper hearing. She then referred a dispute of unfair dismissal to the CCMA for arbitration. In the light of the fact that the employee was a sex worker, the CCMA Commissioner ruled that she did not have jurisdiction to entertain the dispute because sex work is strictly prohibited by legislation.¹¹ The Commissioner argued that section 23 of the Constitution and the Labour Relations Act¹² (hereinafter the LRA) did not apply to workers who did not have a valid and enforceable contract, which was the situation in this instance, as the employee was engaged in an invalid contract. This decision of the Commissioner was then taken on review to the Labour Court.

In the Labour Court,¹³ the employee's argument was that the Commissioner committed a legal error in excluding workers who did not have a valid and therefore enforceable contract from the ambit of the LRA, because the LRA defines employees to include anyone 'who works for another person' and accordingly the Act applies to all employment relationships irrespective of whether they are underpinned by enforceable contracts or not.¹⁴ In the light of the approach taken in argument, the Labour Court sought to clarify at the outset what its judgment was about and which issues it does not decide. The Labour Court stated that its judgment does not decide (1) that a sex worker is an employee for the purposes of the LRA, just that neither the CCMA nor the Court should enforce the statutory right to a fair dismissal under the LRA; (2) that a sex worker is not entitled to protection under the Basic Conditions of Employment Act, occupational health legislation, workers' compensation or unemployment insurance and; (3) the issue as to whether or not the definition of employee in the LRA applies to those in an employment relationship without a valid contract.¹⁵ In the Court's opinion, the proper approach to the issues would not be to ask whether a sex worker was an employee within the ambit of the definition in the LRA or not. The correct approach, as the Court determined, would be to ask whether as a matter of public policy courts (and tribunals), by their actions, ought to sanction or encourage illegal conduct in the context of statutory and constitutional rights.¹⁶ It is submitted that this approach was correct. Consequently, the Labour Court found that the CCMA Commissioner ought to have refused to grant the relief sought by the employee because by doing so the CCMA would have been sanctioning or encouraging prohibited commercial sex. ¹⁷ In effect, the Labour Court's judgment confirmed the CCMA's jurisdictional ruling on the matter. It is this decision of the Labour Court which gave rise to the judgment of the Labour Appeal Court under discussion.

 

3 The decision of the Labour Appeal Court

Two main issues stood out for the determination by the Court. Firstly, the Court had to determine whether or not the CCMA Commissioner was correct in her jurisdictional ruling, and/or whether or not the Labour Court was correct in its approach and assessment of the law and consequently its judgment. Secondly, and depending on its finding against the judgment of the Labour Court, if a remedy avails to an employee involved in the kind of the employment relationship presented by the case.

The Court commenced with an analysis of the Labour Court judgment. It noted that while the Labour Court conceded that Kylie was an employee for the purposes of the LRA, the Labour Court did not acknowledge her rights to relief or the enforceability of her rights in terms of the LRA simply because she was a sex worker and therefore, in the opinion of the Labour Court, not entitled to protection against unfair dismissal.¹⁸ On the other hand, the Court also noted the submissions made on behalf of the employee. According to the employee, the Labour Court adopted a wrong approach in its judgment. Instead of commencing with the Constitution, that is, whether or not a person such as the employee enjoyed constitutional rights in general and specifically those entrenched in section 23(1),¹⁹ the Labour Court, so it was submitted, started with the discussion on policy as divined from the law of contract.²⁰ Further to that, the employee argued that it should be only after the question of the application of the Constitution has been answered, and if in the favour of the employee, that the Court would be required to proceed to determine the issues of remedy, and that it would be at this stage that the question of policy would come in.²¹ This submission, seemingly, impressed the Court. The Court stated that since the dispute was predicated on the application of the LRA, it would be necessary to commence with the Constitution, to examine the application of section 23(1) to the facts of the dispute.²² In its analysis the Court noted that section 23(1) provides everyone the right to fair labour practices and that the word 'everyone' is a term of general import and unrestricted meaning -it means what it conveys.²³ The Court then made reference to the minority judgment of the Constitutional Court in S v Jordan.²⁴ In the latter case O'Regan and Sachs JJs had held that prostitutes are not stripped of rights to be treated with dignity simply because the nature of the work they undertake devalues the respect that the Constitution regards as inherent in the human body.²⁵ The Court then turned to confront the key question, that is, whether section 23 affords protection to a sex worker. In its judgment the court found that it does. In support of this conclusion reference was made to a few cases, among others, NEHAWU v UCT²⁶; SANDU v Minister of Defence²⁷; State Information Technology Agency (Pty) Limited v CCMA²⁸; and Denel (Pty) Ltd v Gerber.²⁹

With reference to NEHAWU v UCT the Court observed the Constitutional Court's emphasis that the focus of section 23(1) of the Constitution was on the relationship between the worker and the employer and the continuation of that relationship on terms that are fair to both.³⁰ The Court further noted that in SANDU v Minister of Defence the Constitutional Court considered the question as to whether members of the armed forces constituted workers for the purposes of section 23(2)³¹ of the Constitution. With reference to the latter case the Labour Appeal Court found that even if a person is not employed under a contract of employment, that does not deny the employee all constitutional protection.³² Based on the State Information Technology (Pty) Limited v CCMA and the Denel (Pty) Ltd v Gerber cases, the court summarised its approach thus:

In summary, as sex workers cannot be stripped of the right to be treated with dignity by their clients, it must follow that, in their other relationship namely with their employers, the same protection should hold. Once it is recognised that they must be treated with dignity not only by their customers but by their employers, section 23 of the Constitution, which, at its core, protects the dignity of those in an employment relationship should also be of application.³³

Having decided that the sex worker meets the threshold requirement for constitutional protection, that is, being the beneficiary of the applicable constitutional rights,³⁴ the Court turned to examine the question of relief. The Court noted that compensation for a substantively unfair dismissal would be inappropriate in the present kind of case. By contrast, however, the Court held that monetary compensation for a procedurally unfair dismissal would appear to be applicable in the appropriate case where the services rendered by the employee are classified as illegal. For this, the Court reasoned that this kind of compensation is independent of the loss of illegal employment and is treated as a solatium for the loss by an employee of her right to a fair procedure.³⁵ Regarding the future application of the LRA to cases of a similar nature the Court stated that for the reasons given in its judgment, cases involving employment relationships which are in breach of legislation, such as the present dispute, should proceed through the constitutional threshold but not all will enjoy the defining weight of public policy so as to justify the granting of a remedy.³⁶

 

4 Analysis of and comment on Kylie v CCMA 2010 4 SA 383 (LAC)

4.1 The Court's approach to the issues

The judgment, in my opinion, is problematic and quite erroneous on various levels. First, it is not readily ascertainable from the judgment what the main issues are. In its judgment the Court commenced with the background on the facts of the case, the submissions made by the parties both in the CCMA and the Labour Court, and the analysis of the Labour Court's judgment.³⁷ Since the matter was an appeal against the decision of the Labour Court regarding its jurisdictional ruling, it was expected of the Labour Appeal Court to introduce, right at the beginning of its judgment, the main issues and the legal questions to be decided. Instead, the Labour Appeal Court cluttered the issue of jurisdiction with the question of the sex worker's entitlement to constitutional rights, such that the latter consideration overshadowed the main issue, which is jurisdiction. It is submitted that this approach contributed immensely to the Court's losing focus on what the main issue for determination in the appeal was.³⁸

Secondly, the approach of the Court on the question of jurisdiction is, with respect, erroneous. As will be argued here below, instead of placing a heavy reliance on the rights of the person as an employee, the Court should have considered equally the nature of the dispute and the circumstances surrounding it to determine whether or not the dispute was enforceable in the courts. Linked to the Court's approach to the case is the order granted. The Court's order, it is submitted, is confusing and to some extent impracticable. An extensive argument in support of this contention is made below.

It is important to emphasise that this case hinged predominantly on jurisdiction, hence the order granted by the Court. In its approach, the Court preferred to decide the issues from the constitutional rights perspective. What the Court seemingly failed to do, though, was to put the dispute in a clearer perspective from the onset. Nevertheless, the Court proceeded on the basis that section 23 of the Constitution was the premise from which all issues related to the dispute could be addressed. In this regard the Court stated that 'since the dispute was predicated on the application of the LRA, it is necessary to commence with the source of the LRA, that is, to engage in an examination the application of section 23(1) to the present dispute'.³⁹ The Court accepted that the word 'everyone' in section 23(1) of the Constitution is a term of general import and unrestricted meaning, and that it conveys what it means. ⁴⁰ In the Court's reasoning, it would not matter if the employee was a criminal or involved in any other form of criminal activity as employment: the right to fair labour practice is available to everyone including a sex worker.

This reasoning of the Court seems attractive but cannot be accepted entirely without qualification. As a matter of logical construction, it is submitted, the right to fair labour practices is not available to "everyone" in the strictest literal sense, but applies exclusively to those persons who are involved in an employment relationship.⁴¹ It is distinct from other rights such as the right to life, the right to dignity, and the right to equality, all of which depend for their existence simply on the fact of one's being human. The latter rights are actually fundamental human rights which accord to every human being by reason of being alive. In contrast, the right to fair labour practices is available only to persons who are involved in an employment relationship. It is submitted that the Court's extensive examination of this concept was unnecessary because the status of the employee was not an issue in dispute in this case. All that was required or expected of the Court was to confirm, as the Court correctly did, that the employee was an employee for the purposes of the LRA and the Constitution.⁴² Surprisingly, the Court then proceeded to determine if the employee was entitled to relief.⁴³

It is submitted, with respect, that this was a step prematurely taken by the Court. Instead of proceeding to consider the question of relief, the Court should have proceeded to consider the nature of the employment contract or relationship to determine whether or not it was legally enforceable. That examination, it is argued, was meticulously done by Cheadle J in the Labour Court.⁴⁴ As will be shown below, it is not only the Court's power to hear a party that determines jurisdiction but most importantly the Court's power to give an effective judgment which is the key.

4.2 The test for jurisdiction

In Ewing McDonald & Co Ltd v M & M Products Co⁴⁵ the Appellate Division, as it was then known, defined the term jurisdiction as 'the power vested in a Court by law to adjudicate upon, determine and dispose of a matter.' In the determination of jurisdiction, the requirement of legality is therefore the overriding consideration. As Ngcobo J correctly noted in S v Jordan,⁴⁶ the Constitution is concerned with legality and not desirability. Furthermore, as Professor Theophilopoulos has quite correctly observed, jurisdiction is predicated on the twin pillars of the court's capacity to take cognizance of a case, to hear it, to give judgment and to enforce its decision.⁴⁷ Further, it is the power to give an effective judgment and not merely power over the defendant which is the test of jurisdiction.⁴⁸ To determine if the court is able to render an effective judgment is thus a matter of common sense.

It is convenient to pause for a moment to examine if the CCMA or the Labour Court was able to render an effective judgment in this matter. Section 193(1) of the LRA provides for reinstatement as the primary remedy against a substantively unfair dismissal.⁴⁹ This remedy is to be preferred against any other remedies unless there are compelling reasons why compensation should be more appropriate in the circumstances. Furthermore, the use of the peremptory word 'must' in subsection (2) indicates that the onus rests on the employer to provide compelling reasons why reinstatement should not be ordered.⁵⁰

In considering the question of appropriate relief, the Court acknowledged the possible difficulties that the CCMA or the Labour Court would be confronted with when dealing with cases such as the present one. The Court pointed out, quite correctly it is submitted, that reinstatement would not be appropriate in the circumstances of the case, because by ordering reinstatement, the CCMA or Court would manifestly be ordering for violation of the provisions of the Act.⁵¹ The Court stated emphatically thus:

... this judgment does not hold that, when a sex worker has been unfairly dismissed, first respondent or a court should or can order her reinstatement, which would manifestly be in violation of the provisions of the Act. ... Manifestly, it would be against public policy to reinstate an 'employee' such as appellant in her employ even if she has could show, on the evidence, that her dismissal was unfair.⁵²

In a similar vein, the Court stated that:

[F]or similar reasons it may well be that compensation for a substantively unfair dismissal would be inappropriate in the present kind of case. If compensation for substantive unfairness is to be regarded as a monetary equivalent for the loss of employment, it may be, although given the precise relief sought I express no final view, that such compensation would be inappropriate in a case where the nature of the services rendered by the dismissed employee are illegal.⁵³

What this concession boils down to is that the Court appreciated the fact that with the kind and nature of the case before it, it would be virtually impossible, sometimes, for a court or the CCMA to render an effective award or judgment. This is especially true in cases where the dispute raised by the employee is based on substantive unfairness only. It follows, as a matter of logic, therefore, that in all disputes involving sex workers as employees, and/or any other employment relationships which are characterised by an element of illegality, the courts may not be able to render effective judgment and may therefore not assume jurisdiction to resolve the dispute involved.⁵⁴

In employment relationship disputes, then, the proper approach is for the court to determine jurisdiction in terms of the LRA and the legal rules applicable to the dispute before it. In so doing the court or the CCMA would scrutinise the nature of the dispute to determine if there are any traces of illegality in the particular transaction giving rise to the dispute. This determination may, however, be effectively done after a proper examination of the true nature of the dispute has been undertaken by the court. In this regard the guidance given by the Constitutional Court in NUMSA v Bader Bop (Pty) Ltd⁵⁵ is apposite: it is the duty of a court to ascertain the true nature of the dispute between the parties. In ascertaining the real dispute a court must look at the substance of the dispute and not at the form in which it is presented.⁵⁶ The true nature of the dispute, or the real issue, in this matter (Kylie) was not at all about the protection of the constitutional right to fair labour practice (section 23(1)), as presented by the employee, but the jurisdiction of the CCMA to deal with that kind of dispute.

It is submitted that had the Court followed the above approach, it would undoubtedly have been impossible for it to come to the conclusion it reached.

4.3 The relevance and appropriateness of section 23 to the case

As argued above, the Court's approach in deciding this matter, specifically its heavy reliance on section 23 of the Constitution, was unnecessary. It is submitted that, by adopting the approach which it did, the Court seemingly lost sight of the purpose of the LRA, namely to be the exclusive statute regulating labour relations.⁵⁷ In NAPTOSA v Minister of Education, Western Cape⁵⁸ the Court held that a litigant may not bypass the provisions of the LRA and rely directly on the Constitution without challenging the provisions of the LRA on constitutional grounds. A similar view was taken by Ngcobo J in Minister of Health v New Clicks South Africa (Pty) (Treatment Action as Amici Curiae).⁵⁹

In its approach, the Labour Appeal Court seems to have ignored the fact that the employee bypassed the relevant provisions of the LRA and relied directly on the Constitution to seek a remedy. The employee did not challenge any specific provision of the LRA on constitutional grounds. Instead, she contended that the approach adopted by the Labour Court was wrong because that approach effectively excluded her from enjoying her constitutionally entrenched right to fair labour practices.⁶⁰ But does the LRA provide no remedy? Clearly the employee is covered by the definition of 'employee' in the LRA. It is trite that the LRA is aimed to be a one-stop shop dispute resolution structure in the employment sphere,⁶¹ and that the Labour Courts and the Labour Appeal Court derive their jurisdiction from it.⁶² In its approach, therefore, the Court should have started with the LRA, and not the Constitution, in deciding the question of jurisdiction in this matter. It goes without saying then that the Court was clearly misguided in its reliance on section 23 of the Constitution in deciding the matter. This conclusion, though, does not in any way suggest that the Court, in adjudicating any particular employment dispute, may not rely on the Constitution to determine the dispute. What is in fact contended is that section 23(1) may not exclusively be invoked to determine jurisdiction. Other factors, such as the possibility of rendering an effective judgment, as argued above, should also be considered.

Based on the abovementioned authority,⁶³ it is clear that the Court's invocation of section 23 of the Constitution at the jurisdictional stage was inappropriate. The employee's challenge was not raised against a provision of the LRA. If there were any legal rule which had the effect of (unconstitutionally) ousting the CCMA or Court's jurisdiction to the detriment of the employee, such a legal rule would, obviously, be tested against the LRA. For that purpose section 210⁶⁴ of the LRA would have been used to safeguard the LRA against any undue intrusion.

The next issue to be considered, and this is quite critical in this analysis, is the implication of the Court's judgment for the Constitution and for the future of labour litigation in general.

4.3 May a constitutional provision be interpreted as conferring on the court the jurisdiction to enforce illegal transactions?

It is important first to set out the legal principles relating to illegal contracts in our law. It is a fundamental principle of our law that any act done contrary to the direct prohibition of the law is void and of no effect.⁶⁵ This principle is applied by courts in all legal systems based on the rule of law and is a necessary incident of the rule of law in the same way as the doctrine of legality is.⁶⁶ Accordingly, if a contract is illegal, the courts regard the contract as void and therefore unenforceable.⁶⁷

In the course of its assessment of the legal issues, the Court accepted the employee's argument that the illegal activity of a sex worker does not per se prevent the latter from enjoying a range of constitutional rights.⁶⁸ In support of this view the

Court made reference to the minority judgment of O'Regan and Sachs JJ in Sv Jordan⁶⁹ where it was held, in part:

[T]he very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body. This is not to say that as prostitutes they are stripped of the right to be treated with respect by law enforcement officers. All arrested and accused persons must be treated with dignity by the police. But any invasion of dignity, going beyond that ordinarily implied by an arrest or charge that occurs in the course of arrest of incarceration cannot be attributed to section 20(1A)(a) but rather to the manner in which it is being enforced. The remedy is not to strike down the law but to require that it be applied in a constitutional manner. Neither are prostitutes stripped of the right to be treated with dignity by their customers. The fact that a client pays for sexual services does not afford the client unlimited license to infringe the dignity of the prostitute.

It submitted that the Court's reference to the abovementioned authority was not at all helpful to its reasoning. Firstly, as correctly categorised by the majority judgment in S v Jordan,⁷⁰ per Ngcobo J, the case was concerned with the commercial exploitation of sex and not an infringement of dignity nor unfair discrimination,⁷¹ nor in the present context, a dispute about the right to fair labour practices. Secondly, many of the views expressed by the minority judgment were rejected in the majority judgment.⁷² In support of the reasoning based on the sex worker's right to dignity, the Court recorded its observation that within the South African context many sex workers are particularly vulnerable and are exposed to exploitation and vicious abuse,⁷³ and for that reason are entitled to some constitutional protection designed to protect their dignity, which protection by extension has now been operationalised in the LRA.⁷⁴ It is submitted that this line of reasoning is, with respect, equally unsound. The reasoning is not supported by any relevant legal authority and appears to be more inventive than considerate of the current legally relevant authority.⁷⁵ That a sex worker forms part of a vulnerable class does not mean that the court is bound to assume jurisdiction simply because of that fact. What if the particular sex worker is one of those sex workers in the plush suburbs of Johannesburg who charges R20 000 a night and does not need the protection? In other words, is it necessary to conceive of the litigant as a victim in order to want to come to her aid?⁷⁶ By the same token, the fact that a person has a right to life or to be treated with dignity does not mean that the courts should come to his or her assistance if he or she surrenders such rights by engaging in acts which conflict with the law. To hold otherwise would certainly lead to absurdity.

Without overstating the fact, this case hinged purely on jurisdiction. The key question in this analysis therefore is simply if the common law requirement of legality in the determination of a court's jurisdiction in employment disputes indeed offends against the provisions of the Constitution, specifically the right to fair labour practices (section 23). Should it be accepted also that the Constitution, as the supreme law of the land, confers in general jurisdiction on the courts and tribunals to adjudicate matters and disputes flowing from illegal activities? Clearly, the answer cannot be anything close to affirmative. It is to be hoped that this matter will attract the attention of a superior court soon, and that a definitive pronouncement will be made.

 

5 The significance of Kylie v CCMA 2010 4 SA 383 (LAC)

Sex work is illegal in South Africa, yet it exists. It is not difficult to imagine how many cases would flow into the labour litigation mainstream following this judgment, the nature of the cases that the CCMA Commissioners are likely to be confronted with on a daily basis, and the reaction of the Commissioners upon receipt of such cases. One can think of quite a number of examples of cases other than those involving sex workers which the CCMA Commissioners and the South African community at large would frown upon, or even hate to think of them being dealt with by the legitimate legal structures of government.

The following two examples can best illustrate this problem: think of a paid assassin whose employment (which is to murder other people for reward) has been terminated, who then approaches the CCMA to claim unfair dismissal. Should the CCMA really set up a conciliation and subsequently arbitration hearings for such a dispute? Another example one can think of is that of a gambler who knowingly engages in illegal gambling activities as an employee to promote gambling against the relevant legislation. In the case of a dismissal or unfair labour practice dispute ensuing between such an employee and his or her employer, should the CCMA nevertheless assume jurisdiction to resolve the dispute because the judgment in this matter regards such a person as an employee for the purposes of the Constitution? It is submitted that the implications will be quite undesirable and surely, it is submitted, would not have been what the Court intended in its judgment.

Before concluding, there is one other issue regarding the Court's comment on the future adjudication of cases involving employment relationships which are in breach of legislation which requires a quick examination. The Court stated that "cases involving employment relationships which are in breach of legislation, such as the present dispute, should proceed through the constitutional threshold but not all will enjoy the defining weight of public policy, as set out, so as to justify the granting of a remedy".⁷⁷

It is doubtful if the court really appreciated the implications of this finding. On proper interpretation, this statement could mean that all those employees who, but for illegality, are employees in terms of section 213⁷⁸ of the LRA may rely not on the LRA to seek a remedy in the CCMA or Labour Court, but directly on the Constitution. The implications are that such employees would be excluded from the application of the LRA, just as the members of the South African National Defence Force, the National intelligence Agency and the Secret Service are.⁷⁹ If this is indeed what the above statement of the Court intended to convey, then the Court's order, directing that the CCMA has jurisdiction to resolve the dispute in this case, was absurd. Otherwise the Court should not have ruled that the CCMA has jurisdiction, because the CCMA is not empowered to resolve disputes which flow directly from challenges based on a constitutional provision but enforces the LRA strictly. Only the High Court, concurrently with the Labour Court, is empowered to adjudicate disputes in respect of alleged or threatened violation of any fundamental right entrenched in the Bill of Rights, including those arising from employment and from labour relations.⁸⁰ Even if the CCMA were to assume jurisdiction, it is submitted that it would be prevented from resolving unfair dismissal disputes based on the constitutional provision without reference to the LRA, because the concept of unfair labour practice, as conceptualised in section 23 of the Constitution, is not defined in the Constitution but only in the LRA. In any event, the definition of an unfair labour practice in the LRA does not include unfair dismissal.⁸¹ Either way, the CCMA would still decline jurisdiction because it would not be able to render an effective award. So, to make sense of the Court's judgment in this matter appears to be quite a daunting task.

 

6 Conclusion

In the above analysis an attempt has been made to show that the approach adopted by the Court in deciding the case is unsupportive of legality. For that reason, it is argued, the judgment is problematic. What emerges from the analysis is that the Court was apparently not interested in the public policy issues which the facts of the case revealed, nor was it concerned with the implications of the judgment on effective labour litigation or the credibility of our Constitution in general. Furthermore, the reasoning of the Court, especially its finding on jurisdiction, is less than satisfactory. The judgment, it is submitted, will have far-reaching implication for the conduct of cases in the CCMA in general and in particular in respect of those cases which are characterised by elements of illegality. The judgment has undoubtedly triggered a new approach to constitutional labour interpretation and with the absurdity highlighted in some parts of the judgment, it will surely take a considerable time for the CCMA and other courts to get to make sense of it and to appreciate the legal force of the judgment. Finally, it is submitted that this judgment is not the best of the judgments ever delivered by the Court, and unless it is overturned soon, the CCMA Commissioners will continue to adjudicate such labour disputes, albeit under a cloud of uncertainty.

 

Bibliography

Pistorius Jurisdiction Pistorius D Pollack on Jurisdiction 2^nd ed (Juta Cape Town 1993)         [ Links ]

Theophilopoulos 2010 Stell LR Theophilopoulos C "Arresting a foreign peregrinus: Bid industrial Holdings (Pty) Ltd v Strang and a New Jurisdictional Lacuna" 2010 Stell LR 132-157         [ Links ]

Register of legislation

Constitution of the Republic of South Africa, 1996         [ Links ]

Labour Relations Act 66 of 1995         [ Links ]

Sexual Offences Act 23 of 1957         [ Links ]

Register of court cases

Chirwa v Transnet Ltd 2008 4 SA 367 (CC)         [ Links ]

Denel (Pty) Ltd v Gerber 2005 26 ILJ 1256 (LAC)         [ Links ]

Ewing McDonald & Co Ltd v M & M Products Co 1991 1 SA 252 (A)        [ Links ]

Hannah v Government of the Republic of Namibia 2000 4 SA 940 (NmLC)         [ Links ]

Kylie v CCMA 2008 29 ILJ 1918 (LC)         [ Links ]

Kylie v CCMA 2010 4 SA 383 (LAC)         [ Links ]

Makhanya v University of Zululand 2010 1 SA 62 (SCA)         [ Links ]

Minister of Health v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign as Amici Curiae) 2006 2 SA 311 (CC)         [ Links ]

NAPTOSA v Minister of Education, Western Cape 2001 2 SA 112 (C)         [ Links ]

NEHAWU v University of Cape Town 2003 24 ILJ 95 (CC)         [ Links ]

NUMSA v Bader Bop (Pty) Ltd 2003 3 SA 513 (CC)         [ Links ]

S v Jordan 2002 6 SA 642 (CC)         [ Links ]

SANDU v Minister of Defence 1999 4 SA 482 (CC)         [ Links ]

SANDU v Minister of Defence 2007 5 SA 400 (CC)         [ Links ]

Schierhout v Minister of Justice 1926 AD 99         [ Links ]

State Information Technology Agency (Pty) Limited v CCMA 2008 29 ILJ 2234 (LAC)         [ Links ]

Register of internet resources

Le Roux 2010 www.mg.co.za Le Roux M 2010 'Not all Sex Workers are Victims' Mail & Guardian 4 June 2010 www.mg.co.za/article/2010-06-04-not-all-sex-workers-are-victims [         [ Links ]date of use 30 Aug 2010]

Kwinika 2010 nehandaradio.com Kwinika S 2010 'Prostitutes flock to SA ahead of World Cup' Nehanda Radio: Zimbabwe News and Internet Radio Station 13 May 2010 nehandaradio.com/2010/05/13/prostitutes-flock-to-sa-ahead-of-world-cup [         [ Links ]date of use 31 Aug 2010]

Skoch 2010 www.globalpost.com Skoch I 2010 'World Cup welcome: a billion condoms and 40,000 sex workers' Global Post 7 May 2010 www.globalpost.com/dispatch/sports/100505/world-cup-sex-workers/ [         [ Links ]date of use 31 Aug 2010]

List of abbreviations

BCEA	Basic Conditions of Employment Act
CCMA	Commission for Conciliation, Mediation and Arbitration
LAC	Labour Appeal Court
LC	Labour Court
LRA	Labour Relations Act
NEHAWU	National Education Health and Allied Workers Union
NAPTOSA	National Professional Teachers Organisation of South Africa
NUMSA	National Union of Metalworkers of South Africa
SANDU	South African National Defence Union
Stell LR	Stellenbosch Law Review

 

 

1 Kylie v CCMA 2010 4 SA 383 (LAC).
2 The FIFA Soccer World Cup kicked off in Johannesburg on the 10th of June 2010.
3 Le Roux 2010 www.mg.co.za; Kwinika 2010 nehandaradio.com;Skoch 2010 www.globalpost.com.
4 Le Roux 2010 www.mg.co.za.
5 Kylie v CCMA 2008 29 ILJ 1918 (LC).
6 Kylie v CCMA 2010 4 SA 383 (LAC) para 61.
7 Constitution of the Republic of South Africa, 1996 (hereafter the Constitution).
8 Kylie v CCMA 2010 4 SA 383 (LAC) para 17.
9 S v Jordan 2002 6 SA 642 (CC).
10 S v Jordan 2002 6 SA 642 (CC) para 30.
11 Sexual Offences Act 23 of 1957.
12 Labour Relations Act 66 of 1995.
13 Kylie v CCMA 2008 29 ILJ 1918 (LC).
14 Kylie v CCMA 2008 29 ILJ 1918 (LC) para 12.
15 Kylie v CCMA 2008 29 ILJ 1918 (LC) para 4.
16 Kylie v CCMA 2008 29 ILJ 1918 (LC) para 23.
17 Kylie v CCMA 2008 29 ILJ 1918 (LC) para 93. Although the Court's approach to the matter was different from the CCMA's, its decision nevertheless vindicated the position of the CCMA Commissioner regarding its jurisdictional ruling. In this case note it is contended that both the CCMA and the Labour Court's decisions were correct.
18 Kylie v CCMA 2010 4 SA 383 (LAC) para 3.
19 Section 23(1) of the Constitution provides that everyone has the right to fair labour practices.
20 Kylie v CCMA 2010 4 SA 383 (LAC) para 14.
21 Kylie v CCMA 2010 4 SA 383 (LAC) para 14.
22 Kylie v CCMA 2010 4 SA 383 (LAC) para 15.
23 Kylie v CCMA 2010 4 SA 383 (LAC) para 16.
24 S v Jordan 2002 6 SA 642 (CC).
25 S v Jordan 2002 6 SA 642 (CC) para 20.
26 NEHAWU v University of Cape Town 2003 24 ILJ 95 (CC).
27 SANDU v Minister of Defence 1999 4 SA 482 (CC).
28 State Information Technology Agency (Pty) Ltd v CCMA 2008 29 ILJ 2234 (LAC).
29 Denel (Pty) Ltd v Gerber 2005 26 ILJ 1256 (LAC).
30 NEHAWU v University of Cape Town 2003 24 ILJ 95 (CC) para 40.
31 That section provides that every worker has the right-(a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union; and (c) to strike.
32 SANDU v Minister of Defence 1999 4 SA 482 (CC) para 21.
33 Kylie v CCMA 2010 4 SA 383 (LAC) para 26.
34 Kylie v CCMA 2010 4 SA 383 (LAC) paras 21-28.
35 Kylie v CCMA 2010 4 SA 383 (LAC) para 53.
36 Kylie v CCMA 2010 4 SA 383 (LAC) para 57.
37 Kylie v CCMA 2010 4 SA 383 (LAC) paras 1-15.
38 There is absolutely no doubt that the main issue before the Court was jurisdiction. The other aspect, namely the protection of the constitutional rights, was simply an ancillary matter.
39 Kylie v CCMA 2010 4 SA 383 (LAC) para 15.
40 Kylie v CCMA 2010 4 SA 383 (LAC) para 16.
41 NEHAWU v University of Cape Town 2003 24 ILJ 95 (CC) para 40; SANDU v Minister of Defence 1999 4 SA 482 (CC) 481 para 22; Hannah v Government of the Republic of Namibia 2000 4 SA 940 (NmLC).
42 Kylie v CCMA 2010 4 SA 383 (LAC) para 28.
43 Kylie v CCMA 2010 4 SA 383 (LAC) para 28.
44 Kylie v CCMA 2008 29 ILJ 1918 (LC) paras 28-37.
45 Ewing McDonald & Co Ltd v M & M Products Co 1991 1 SA 252 (A) 256G.
46 S v Jordan 2002 6 SA 642 (CC) para 30. See also Makhanya v University of Zululand 2010 1 SA 62 (SCA) 70 para 22.
47 Theophilopoulos 2010 Stell LR 132.
48 48 Pistorius Jurisdiction 4.
49 That section provides as follows: "If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the court or the arbitrator may- (a) order the employer to reinstate the employee from any date not earlier than the date of dismissal; (b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or (c) order the employer to pay compensation to the employee."
50 Subsection (2) provides that the Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless- (a) the employee does not wish to be reinstated or re-employed; (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or (d) the dismissal is unfair only because the employer did not follow a fair procedure.
51 Kylie v CCMA 2010 4 SA 383 (LAC) para 51.
52 Kylie v CCMA 2010 4 SA 383 (LAC) para 52.
53 Kylie v CCMA 2010 4 SA 383 (LAC) para 53.
54 Kylie v CCMA 2010 4 SA 383 (LAC) paras 59-60.
55 NUMSA v Bader Bop (Pty) Ltd 2003 3 SA 513 (CC).
56 NUMSA v Bader Bop (Pty) Ltd 2003 3 SA 513 (CC) para 52.
57 NEHAWU v University of Cape Town 2003 24 ILJ 95 (CC) para 14.
58 NAPTOSA v Minister of Education, Western Cape 2001 2 SA 112 (C) 123I-J.
59 Minister of Health v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign as Amici Curiae) 2006 2 SA 311 (CC); see also SANDU v Minister of Defence 2007 5 SA 400 (CC) 420 para 51.
60 The employee's argument appears in the judgment as recounted by the court in paras 14-15.
61 Chirwa v Transnet Ltd 2008 4 SA 367 (CC) para 54.
62 NEHAWU v University of Cape Town 2003 24 ILJ 95 (CC) para 30.
63 NEHAWU v University of Cape Town 2003 24 ILJ 95 (CC) paras 14 and 30; NAPTOSA v Minister of Education, Western Cape 2001 2 SA 112 (C) 123I-J; Chirwa v Transnet Ltd 2008 4 SA 367 (CC) para 54.
64 That section provides that "[i]f any conflict, relating to the matters dealt with in this Act, arises between this Act and the provisions of any other law save the Constitution or any Act expressly amending this Act , the provisions of this Act will prevail".
65 Schierhout v Minister of Justice 1926 AD 99 109, as quoted by Cheadle J in Kylie v CCMA 2008 29 ILJ 1918 (LC) para 28.
66 Kylie v CCMA 2008 29 ILJ 1918 (LC) para 30.
67 Kylie v CCMA 2008 29 ILJ 1918 (LC) para 32.
68 Kylie v CCMA 2010 4 SA 383 (LAC) para 20.
69 S v Jordan 2002 6 SA 642 (CC).
70 S v Jordan 2002 6 SA 642 (CC).
71 S v Jordan 2002 6 SA 642 (CC) para 28.
72 S v Jordan 2002 6 SA 642 (CC) paras 30-31, and the order of the court in para 32.
73 Kylie v CCMA 2010 4 SA 383 (LAC) para 43.
74 Kylie v CCMA 2010 4 SA 383 (LAC) para 44.
75 SeetheCourt's rejection of the prevailing authority as set by the Supreme Court of Appeal, and the reasons for that rejection, at para 50 of the judgment. Admittedly, and as the Court correctly noted, those judgments were delivered before the present Constitution came into operation but, nevertheless, it is submitted that the new constitutional dispensation, and more specifically section 23(1), did not take away the fundamental rules of procedure regarding the determination of jurisdiction for the courts.
76 Le Roux 2010 www.mg.co.za.
77 Kylie v CCMA 2010 4 SA 383 (LAC) para 57.
78 Section 213 of the LRA defines an employee as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration.
79 Section 2 of the LRA expressly excludes from its application the members of the South African National Defence Force, the National Intelligence Agency, and the South African Secret Services.
80 Section 157(2) of the LRA.
81 Section 186(2) of the LRA defines Unfair Dismissal as follows: "'Unfair labour practice' means any unfair act or omission that arises between an employer and an employee involving - (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No 26 of 2000), on account of the employee having made a protected disclosure defined in that Act."

^rND^sTheophilopoulos^nC^rND^sLe Roux^nM^rND^1A01^nSJ^sCornelius^rND^1A01^nSJ^sCornelius^rND^1A01^nSJ^sCornelius

NOTES

 

Commercial appropriation of a person's image: Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009)

 

 

SJ Cornelius^*

Steve Cornelius. BIuris LLB (Unisa) LLD (UP). Professor in Private Law, University of Pretoria (steve.cornelius@up.ac.za)

 

 

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SUMMARY

Our modern society has become transfixed with celebrity. Business people and marketers also endeavour to cash in on the popularity enjoyed by the stars and realise the value of associating merchandise or trademarks with the rich and famous. This leads to difficulties when the attributes of a person are apparently used without consent, which poses new questions to the law: should the law protect the individual against the unlawful use of his or her image? If so, to what extent should such protection be granted? These were some of the questions which the court had to answer in Wells v Atoll Media (Pty). The judgment in Wells has redefined the right to identity and provided some clarity on what the infringement of that right would amount to. When the attributes of a person are used without consent, the right to identity can be violated in one of four ways. A person's right to identity can be infringed upon if the attributes of that person are used without permission in a way which cannot be reconciled with the true image of the individual concerned, if the use amounts to the commercial exploitation of the individual, if it cannot be reconciled with generally accepted norms of decency, or if it violates the privacy of that person.

Keywords: Identity; image rights; publicity rights; personality rights; delict; tort

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1 Introduction

Our modern society has become transfixed with celebrity. The mass media lap up every sordid little snippet of news about actors, music stars, sport stars, politicians, royals, socialites and other famous people and sell it to consumers who eagerly await the next celebrity scandal. Business people and marketers also endeavour to cash in on the popularity enjoyed by the stars and realise the value of associating merchandise or trademarks with the rich and famous.

This leads to difficulties when the attributes of a person are apparently used without consent, which poses new questions to the law: should the law protect the individual against unlawful use of his or her image? If so, to what extent should such protection be granted? These were some of the questions which the court had to answer in Wells v Atoll Media (Pty) Ltd.¹

 

2 Facts

The plaintiff, as legal guardian of her minor daughter, launched an application against the defendants, as owner/publisher and as editor of a surfing magazine ZigZag, for a claim of damages arising out of the publication of a photograph of her daughter and causing the offending photograph to be displayed on national television.

The photograph was presumably taken while the plaintiff and her family were on vacation in Cape St Francis and published in the April 2006 edition of the magazine, without the plaintiff's knowledge, authority or consent. The girl was 12 years old at the time the photograph was presumably taken. It appeared in a section of the magazine entitled "dishing up the photo feast" and, as it was published, was stamped bearing the word "filth" as well as a caption at the foot of the photograph reading "all-natural Eastern Cape honey". The cover of the magazine proclaimed "100% pure filth photos inside". The photograph was also screened as part of an advertisement on national television.

Although the photograph was taken from behind and the girl's face was obscured by the angle at which it was taken as well as by her hair, many people apparently recognised the girl in the photograph. A consequence of this was that disparaging remarks were made about the girl in mobile text messages, as well as electronic chat-rooms and communities, where she was called a "slut" and "PE's little porn star". The girl was also distressed to learn that the picture had been put up as a pinup poster in such public places as a craft shop at a local casino and a local boys' school.

 

3 Judgment

The plaintiff based her case primarily on two issues: firstly, the publication of the words "Pure Filth" in conjunction with the photograph was defamatory and secondly, the publication of the photograph without consent amounted to an invasion of the girl's privacy. As a result, the court had to determine whether the girl could be recognised by reasonable readers of the magazine, whether the language used in conjunction with the photograph was defamatory and whether the girl's dignity and rights to privacy had been infringed.

Davis J concluded that the girl could be identified and that publication of the photograph and the accompanying words were indeed defamatory. He held that publication of the photo concerned was not reasonable as

[t]he manner in which the photograph was published without any regard to the context or implications for a twelve year old girl ... does not, in my view, satisfy the test of reasonable publication ... .

Davis J found support for his conclusion in section 28(2) of the Constitution, which provides that a child's best interests are of paramount importance in every matter concerning the child. He found that publication of the photograph without any attempt to obtain consent and with the clear purpose of including it to increase the attraction of a commercial publication was not in the best interest of the girl and constituted a failure of the standard of the reasonable publisher in the position of the defendants.

On the questions pertaining to the invasion of privacy and the infringement of dignity raised by the plaintiff, he added that

[i]n Grütter v Lombard and another 2007 (4) SA 89 (SCA), at para 8 Nugent JA, in a most carefully researched judgment, noted that it was generally accepted academic opinion that features of a personal identity are capable and indeed deserving of legal protection. In the context of this case, therefore, the appropriation of a person's image or likeness for the commercial benefit or advantage of another may well call for legal intervention in order to protect the individual concerned. That may not apply to the kinds of photographs or television images of crowd scenes which contain images of individuals therein. However, when the photograph is employed, as in this case, for the benefit of a magazine sold to make profit, it constitutes an unjustifiable invasion of the personal [sic] rights of the individual, including the person's dignity and privacy. In this dispute, no care was exercised in respecting these core rights.

In the context of this case, therefore, the appropriation of a person's image or likeness for the commercial benefit or advantage of another may well call for legal intervention in order to protect the individual concerned. That may not apply to the kinds of photographs or television images of crowd scenes which contain images of individuals therein. However, when the photograph is employed, as in this case, for the benefit of a magazine sold to make profit, it constitutes an unjustifiable invasion of the personal [sic] rights of the individual, including the person's dignity and privacy. In this dispute, no care was exercised in respecting these core rights.

As a result, on this ground as well, Davis J ruled in favour of the plaintiff. However, he did not base this aspect of his judgment on the invasion of privacy and the reliance on Grütter² is significant here. In the context of this case, it means that the way the photograph was published constituted both defamation and an unlawful appropriation of the girl's image. It was this unlawful appropriation which resulted in the violation of her privacy.

 

4 Discussion

This case is of little significance in so far as it relates to the common law of defamation. However, the restatement of the law laid down in Grütter v Lombard³ in respect of the appropriation of an image is of much significance. Of particular interest is Davis J's apparent conclusion that appropriation of a person's image constitutes an unjustifiable invasion of the personality rights of the individual, where a photograph is published for the benefit of a magazine sold to make profit. It invites the question if all magazines and newspapers are not sold for profit and if every photograph published in newspapers and magazines is not published "with the clear purpose of including it to increase the attraction of a commercial publication".⁴ It also seems to suggest that the media may not display or publish a photograph depicting an individual subject unless that subject has consented to such display or publication.

If this is indeed how Davis J interpreted the law, the interpretation holds far-reaching implications for the media. The possibility of such an interpretation demands a deeper analysis of the law in so far as it relates to the unauthorised use of a person's image. Such an analysis requires some understanding of the historical foundations of the law in this regard, as well as some reflection on the law in other jurisdictions to determine if they can assist in making sense of this judgment. In particular, since this case raises the issue of privacy in the context of the unauthorised use of a person's image, it may be worthwhile to pay particular attention to Dutch law and the laws in various jurisdictions in the United States of America. As I will illustrate below, in Dutch law and the laws in many of the US states, the infringement of a person's right to identity invariably raises issues of privacy.

 

5 Historical development

Ancient legal systems already recognised certain personality rights, but were generally concerned with protection of individuals against physical assaults only. For instance, the Twelve Tables of early Roman law provided for a variety of physical impairments for which predetermined compensation could be claimed in delict.⁵ These principles would eventually form the basis on which the actio iniuriarum would develop during the Roman Republic.⁶ During this period, the focus in the Roman law of personality rights shifted from physical assault to contumelia or insult as the basis for unlawfulness.⁷ Eventually Roman law reached the stage where any insult through word, act or conduct could be actionable. The form of the insult ranged from physical assault to cases of insult where no physical attack took place.⁸ Eventually, it was decreed that

[t]he Praetor outlaws that which could lead to insult for another. So whatever one does or says to embarrass someone else that gives rise to the actio iniuriarum.⁹

Roman law consequently reached the stage where a variety of personality rights was recognised and any infringement of a person's body, honour or dignity could in principle found a claim with the actio iniuriarum.¹⁰ And, more significantly from a modern perspective, the scope of the actio iniuriarum could be extended on the strength of the general boni mores test to cover situations not previously envisaged under that remedy.¹¹ However, it seems that in Roman law the unauthorised use of another person's name or image was actionable only if such use would also amount to an insult, as when someone wrote, published or performed a poem or song that ridiculed someone else.¹² For some time it seemed that our modern law would follow suit. In Kidson v SA Associated Newspapers Ltd,¹³ a photo of three nurses appeared next to a newspaper article in which the headline and introductory text stated that lonely nurses were looking for boyfriends to provide (probably more than) company. Here the court steadfastly held on to the requirement of insult, with the result that two of the plaintiffs failed with their claims. One of the plaintiffs succeeded on the grounds that she was married and therefore apparently insulted by the insinuation that she was potentially unfaithful. The courts in Grütter¹⁴ and Wells¹⁵ have, however, now established that our modern law has moved beyond the requirement of insult in this kind of case.

The actio iniuriarum was also received into medieval European legal systems.¹⁶ Voet¹⁷ explains that iniuria consisted of any infringement of a person's good name or reputation. It could be committed through acts, words, writings or collusion with another. But it seems that insult was still a requirement if someone wished to succeed with a claim for the unauthorised use of his image.¹⁸ The focus was solely on privacy and dignity, rather than a concern with unfair appropriation of economic value derived from the image of another. From these concepts the modern concepts of privacy and dignity developed in the private or civil law of many modern legal systems.¹⁹ From there only a small adjustment in focus was required to deal with commercial exploitation of an individual's image.

On the other hand, in early English law, royal justice was a favour which had to be specifically granted by the King. A party who wished to originate a suit in the King's courts consequently first had to obtain a royal writ from the King's Chancery to authorise commencement with the action.²⁰ As a result, early English law followed a procedural approach as opposed to the principles-based approach that was followed in other European systems.

Where one person suffered a wrong at the hands of another, this was in certain cases seen as a disturbance of the King's peace and the wronged party could obtain the writ of trespass. Initially, three kinds of trespass were recognised: battery or assault, taking goods, and entering land or a house.²¹ Trespass was soon modified to extend its scope to various other wrongs.²² The effect of this was that different writs or actions were developed for different wrongs.²³ The Anglo-American law of torts in the modern sense developed from this in the nineteenth century.²⁴

Towards the end of the eighteenth century in the United States of America, the Fourth Amendment, which dealt with unreasonable searches and seizures, introduced the concept of personal sovereignty.²⁵ This in turn gave rise to the systematic protection of domestic privacy in various state courts and the imposition of penalties for criminal trespass, which in turn gave rise to civil remedies against intrusions by strangers.²⁶ In 1880 this process gained substantial momentum with the publication of an article in which Warren and Brandeis²⁷ sought to extract a right of privacy from the protection afforded by common law copyright, on the grounds that the protection afforded to the expression of thoughts merely amounted to enforcement of the more general right of each individual to be left alone.²⁸ The right to privacy at common law was first recognised by the Supreme Court of Georgia in Pavesich v New England Life Insurance Co²⁹ and this provided the impetus for courts in other states to follow suit.³⁰ Significantly, many of the early cases on the right to privacy in the United States dealt with the unauthorised taking or publication of photographs depicting the aggrieved parties. This provided the logical basis, then, for the eventual protection of identity in various US states today.

 

6 Comparative analysis

Most legal systems today recognise identity as a personality interest which deserves protection. The level of protection, however, differs substantially from one jurisdiction to the next.

Dutch law provides elaborate protection against unauthorised use of an individual's image. The Auteurswet protects the individual against unauthorised publication of his or her portrait. The explanatory memorandum to the Auteurswet explains that the concept "portrait" can be defined as any depiction of a person's face with or without any other parts of the body, irrespective of how the depiction was made. Section 21 of the Auteurswet provides that publication of the portrait is not authorised if the subject or, after demise of the subject, one of his or her surviving dependants has a reasonable interest in opposing publication.

The requisite interest can take one of two forms. Firstly, there is the interest in privacy. A subject can oppose publication of a portrait if the subject can show that such publication will infringe on his or her right to privacy. By the nature of things, famous people such as politicians and film and sport stars must endure invasion of privacy to a greater extent than others, but there are limits, and when the limits are exceeded this excess can form the basis for a claim. Therefore, when a magazine stated on the cover that a football player had a homosexual relationship with a singer but the article in the magazine declared the opposite, it was held that there had been a breach of the football player's privacy.³¹

Secondly, there is a commercial interest. Dutch law recognises the fact that the image of a famous person has become a commodity.³² In the 't Schaep met de Vijf Pooten case, ³³ the Hooge Raad laid down two requirements before an individual could claim a commercial interest. Firstly, the individual concerned must already have obtained some fame from practising his or her profession. The concept "profession" is interpreted broadly, so that even amateur sports people, who do not strictly speaking practise sport as their profession, are included here if they have gained some fame from participation in their sports.³⁴ Secondly, there must be a commercial exploitation of such fame. This aspect was clearly explained in the De slag om het voetbalgoud case. ³⁵ A book, entitled De slag om het voetbalgoud, filled with photographs of the players in the Dutch football team which played in the final of the 1974 World Cup tournament, was published. This in itself did not violate any of the players' rights as it merely amounted to a factual report on a contemporary matter of public interest. However, the publishers sold the entire print run of the book to a company which used the book as part of its marketing campaign. The Rechtbank Haarlem held that this latter aspect amounted to commercial exploitation, with the result that it infringed on the players' portrait rights.

In the United States of America, various states protect identity under the broader concept of privacy. The Second Circuit Court of Appeals in New York laid the foundation in Haelan Laboratories Inc v Topps Chewing Gum.³⁶ The appellant contracted with various baseball players for the exclusive right to use their images in the marketing of the appellant's chewing gum. The respondent did the same in the marketing of its chewing gum, but did not obtain the consent of the players concerned. The court held that, apart from the statutory right to privacy in the New York Civil Rights Law, a right to publicity could also be derived from the common law of New York.

The Second Circuit Court of Appeals eventually held in Pirone v MacMillan³⁷ that the court had erred in Haelan Laboratories³⁸ since the right to identity was recognised only by statute in the New York Civil Rights Law and that there was no distinguishable common law right to identity in New York.³⁹ By this time, however, Haelan Laboratories⁴⁰ had already served repeatedly as authority and led to the recognition of a common law right to publicity in more than thirty of the US states.⁴¹

In Allison v Vintage Sports Plaques,⁴² Kravitch J of the federal appeals court for the Eleventh Circuit summarised the common law position succinctly.⁴³ She explained that in Alabama, as in various other jurisdictions in the United States, the right to the use of a person's image is protected under the tort of invasion of privacy. This tort can be committed in any one of four ways. Firstly privacy is violated through access to the plaintiff's physical and intimate secludedness, secondly through publication in conflict with generally accepted norms of decency, thirdly through publication which places the plaintiff in a false light, and fourthly through unauthorised use of the plaintiff's image for commercial gain. The third category is also known as the "tort of false light publicity", while the fourth category is also known as the "tort of commercial appropriation".

The basis for the protection of the right to identity in terms of these measures is the financial interest of the individual and not merely human dignity, as one would expect with the invasion of privacy. To succeed with a claim under commercial appropriation, the plaintiff must prove that the respondent used the plaintiff's identity, that the purpose of the use of the plaintiff's identity is commercial or other gain for the respondent, that the plaintiff's image was used without consent and that the plaintiff will suffer loss or prejudice as a result. In this regard, a court would look at the commercial damage to the business value of the human identity or the extent to which the plaintiff is deprived if he or she does not receive money for authorising the use of his or her image.

Some jurisdictions in the United States of America follow a twofold approach where both statutory and common law measures are applied to provide extensive protection against the unauthorised use of an individual's image.⁴⁴ In California section 3344 of the Civil Code provides that it is unlawful for one person to use the name, voice, autograph, photo or likeness of someone else for purposes of advertising, trade, or solicitation of customers or clients, without consent. An injured party may, in terms of this provision, cumulatively claim damages consisting of the profit which the wrongdoer gained from the use of the person's image, as well as punitive damages.⁴⁵ The protection is not limited to famous people, but is at the disposal of anyone whose image is used without consent.⁴⁶ Section 1449 of the Oklahoma Statutes contains essentially the same provision.

Apart from the extensive statutory provisions to protect the individual against unauthorised use of his or her image, common law protection is also recognised in California⁴⁷ and Oklahoma.⁴⁸ In Porten v University of San Francisco⁴⁹ the court explained that the right to identity can also be protected by means of the tort of invasion of privacy. This tort can be committed in one of four ways. Firstly, privacy is breached through violation of the plaintiff's physical and intimate seclusion, secondly through publication contrary to generally accepted norms of decency, thirdly through publication which places the plaintiff in a false light and fourthly, by using the image of the plaintiff for commercial gain without consent.

 

7 South African law

In South Africa the common law approach has thus far been followed where the attributes of a person have been used without consent for commercial purposes. After some uncertainty, the Supreme Court of Appeal in Grütter v Lombard⁵⁰ at last recognised an image as an aspect of personality which demands protection, and this has now been confirmed by the Western Cape High Court in Wells v Atoll Media (Pty) Ltd.⁵¹

In Grütter⁵² the Supreme Court of Appeal had to decide if the name of the appellant could still be used in the name of a law firm even though his relationship with the firm had come to an end. The appellant did not claim any exclusive right to use the name, nor did he allege that the respondents made themselves guilty of passing off. The appellant merely made the case that it was well-known that he was one of the persons to whom the name referred and that he no longer wished to be associated with the firm now that his relationship with them had ceased.

In a unanimous judgment, Nugent JA held that privacy is merely one of a variety of interests that enjoy recognition in the concept of personality rights in the context of the actio iniuriarum. The interest which a person has to protect his or her identity against exploitation cannot be distinguished therefrom and is similarly encompassed by that variety of personality rights which is worthy of protection.

Nugent JA further referred to Neethling⁵³ who explains that

[i]dentity is that uniqueness which identifies each person as a particular individual and as such distinguishes him from others. Identity manifests itself in various indicia by which the person involved can be recognised: that is, facets of his personality which are distinctive or peculiar to him, such as his life history, his character, his name, his creditworthiness, his voice, his handwriting, his outward shape, etcetera. A person has a definitive interest that the unique nature of his being and conduct must be respected by outsiders. Similarly, identity is infringed upon if indicia thereof is used without consent in a way which is not compatible with the image of the right holder.

On the basis of these principles, Nugent JA ruled that the appellant was entitled to insist that there should be no potential for error and ordered the respondents to desist from using his name and rectify the matter within a period of 30 days.

Neethling⁵⁴ is apparently of the opinion that the right to identity is infringed only if the attributes of a person are used without consent in a way which cannot be reconciled with the actual image of the individual concerned. To succeed with a claim where the attributes of a person are used without permission, it therefore seems to be a requirement that the person concerned should indicate that there was some misrepresentation of his or her personality. In this regard, it may be sufficient if the unauthorised use of a person's attributes could create the impression that the person concerned consented to such use or has been compensated for such use.

This approach is also followed in Grütter,⁵⁵ but there is also a second seminal principle intertwined in the judgment of Nugent JA which concerns the unjustified use of an individual's image for commercial gain. Nugent JA indicated that the interest of a person in protecting his or her image from commercial exploitation cannot qualitatively be distinguished from and is equally encompassed by the variety of personality rights which are protected under the concept of dignity.⁵⁶ He further indicated that in casu that there was no justification for the respondents to use the appellant's name for their own commercial benefit.⁵⁷ This would then mean that the right to identity can in this context be violated in one of two ways.

Firstly, a person's right to identity is violated when the attributes of that person are used without permission in a way which cannot be reconciled with the true image of that person. Apart from the unauthorised use of a person's image, this kind of infringement also entails some kind of misrepresentation concerning the individual, such as that the individual approves of or endorses a particular product or service or that an attorney is a partner in a firm, while this is not the case. The unlawfulness in this kind of case is found in the misrepresentation concerning the individual and, consequently, in the violation of the right to human dignity.

Secondly, the right to identity is violated if the attributes of a person are used for commercial gain without authorisation by another person. Apart from the unauthorised use of the individual's image, such a use also primarily entails a commercial motive, which is exclusively aimed at promoting a service or product or to solicit clients or customers. The unlawfulness in this case is found mainly in the infringement of the right to freedom of association and the commercial exploitation of the individual.

This is not stated explicitly in Grütter,⁵⁸ but can be deduced from a careful analysis of the judgment. The significance of the judgment by Davis J in Wells⁵⁹ is that this interpretation of the judgment in Grütter⁶⁰ has now received judicial confirmation. Davis J clearly interpreted the judgment in Grütter⁶¹ as holding that the appropriation of a person's image or likeness for the commercial benefit or advantage of another calls for legal intervention in order to protect the individual concerned.

Thirdly, the judgment in Wells v Atoll Media (Pty) Ltd⁶² highlights an important aspect of the law of personality to which the court in Grütter⁶³ also referred, and that is the interrelation between the various manifestations of personality rights. Wells⁶⁴ simultaneously involved the right to a good name, the right to privacy and the right to identity. I have previously criticised the approach in various jurisdictions in the United States, which views the unauthorised use of a person's image as a violation of the right to privacy, as jurisprudentially less sound than an approach which bases the unauthorised use of a person's image on the infringement of dignitas.⁶⁵ Privacy in this context is usually violated through access to a person's physical and intimate secludedness, or through publication in conflict with generally accepted norms of decency.⁶⁶ The criticism was based on the argument that the unauthorised use of a person's image would generally not involve either of these aspects.

However, Wells v Atoll Media (Pty) Ltd⁶⁷ has clearly illustrated how the unauthorised use of a person's image could also negatively impact on that person's privacy. In the first instance, no matter how one looks at the matter, the publication of a provocative photograph of a twelve-year-old girl simply cannot be reconciled with generally accepted norms of decency. It would be hard to reconcile it, even if the girl and her parents or guardian had consented to such use. Without consent, such publication should simply not be tolerated. Secondly, the publication of the photograph exposed the girl to disparaging mobile text messages sent to her telephone. This latter fact clearly illustrates how the unauthorised use of an image can also draw unwelcome attention and affect the private life of the individual concerned. As a result, the criticism of the American approach may be unfounded.

But what is the implication of all of this for media freedom? With any action for the infringement of a subjective right, a variety of conflicting interests must be weighed against one another. With the use of a person's image, the rights to identity, human dignity and freedom of association of the individual must often be weighed against the user's right to the freedom of expression and the freedom of the media. This important question relating to the right to identity is only touched upon as an aside in the Grütter⁶⁸ and Wells⁶⁹ cases. In both instances the courts made it clear that the right to identity is not absolute, but did not discuss this issue much further.

It goes without saying that the use of a person's attributes must be unlawful before a plaintiff will succeed with any claim in delict. In other cases where satisfaction or damages were claimed due to the infringement of dignitas, the courts have already recognised certain grounds of justification which would mean that the apparent violation of personality rights would indeed be lawful.

Neethling⁷⁰ correctly states that public policy can justify an apparent violation of the right to identity, but it would also make sense to consider the other grounds on which the infringement of dignitas can be justified. These grounds include consent,⁷¹ truth and public interest,⁷² fair comment⁷³ and jest.⁷⁴ In addition Neethling⁷⁵ also indicates that the public interest in art can in appropriate cases justify the use of a person's image.

 

8 Conclusion

Because the South African approach is derived from a common law based on general principles, the law as laid down and contemplated in Grütter⁷⁶ and restated in Wells⁷⁷ is open and receptive to change, so that current developments in commerce can be accommodated. This approach provides broader scope for protection than most statutory or codified provisions dealing with the right to identity. On the one hand the South African law avoids discrimination based on fame or the lack thereof, which seems to beset Dutch law in this regard. On the other hand, it seems as if South African law now recognises a variety of attributes that are worthy of protection, in contrast to statutory or codified provisions which, by definition, can protect only specifically-listed attributes.

The judgment in Wells⁷⁸ is significant for various reasons. It is a restatement of the law laid down in Grütter⁷⁹ and provides a judicial interpretation of the judgment in the latter case. In the process, Davis J has also redefined the right to identity and provided some clarity on what infringement of that right would amount to.

It is now trite that everyone has a right to identity. For these purposes, identity includes the collection of specific congenital and acquired attributes which are unique to the individual and distinguish the individual from others. When the attributes of a person are used without consent, the right to identity can be violated in one of four ways. A person's right to identity can be infringed if the attributes of that person are used without permission in a way which -

a) cannot be reconciled with the true image of the individual concerned;

b) amounts to commercial exploitation of the individual;

(c) annot be reconciled with generally accepted norms of decency; or

(d) violates the privacy of that person.

From this analysis, it would seem that our law has now reached a level of development which is not very different from the common law tort of invasion of privacy which applies in most US states.

In the final analysis, though, Wells⁸⁰ should not be seen as a precedent to suggest that the media may not display or publish a photograph depicting an individual subject unless that subject has consented to such display or publication. The unique facts of the case and the fact that Davis J repeatedly qualified his judgment with reference to the context of the case mean that such an interpretation would be exaggerated. The user can therefore still, in certain appropriate cases, justify the unauthorised use of a particular person's attributes on the basis of public interest if such use takes place mainly in connection with public interest reporting, jest or art.

What is clear though is that the law in South Africa, because of the flexibility of a common law approach based on general principles, probably leads the way when it comes to the protection of an individual against the unauthorised use of his or her attributes.

 

Bibliography

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Register of cases

Abdul-Jabbar v General Motors Corp 75 F 3d 1391         [ Links ]

Allison v Vintage Sports Plaques 136 F 3d 1443         [ Links ]

Arnold Vanderlijde 1994 NJ 658         [ Links ]

Benally v Hundred Arrows Press Inc 614 F Supp 969         [ Links ]

Candebat v Flanagan 487S 2d 207         [ Links ]

Carson v Here's Johnny Portable Toilets Inc 698 F 2d 831         [ Links ]

Carson v National Bank of Commerce 501 F 2d 1082 Chimarev v TD Waterhouse Investor Services Inc 280 F Supp 2d 208         [ Links ]         [ Links ]

Cox v Hatch 761 P 2d556         [ Links ]

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Douglas v Hustler Magazine Inc 769 F 2d 1128         [ Links ]

Elvis Presley International Memorial Fund v Crowell 733 SW 2d 89         [ Links ]

Fergerstrom v Hawaiian Ocean View Estates Inc 441 P 2d 808         [ Links ]

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Foster-Milburn Co v Chinn 120 SW 364         [ Links ]

Freihofer v Hearst Corporation 65 NY 2d 135         [ Links ]

Gee v CBS Inc 612 F2d 572         [ Links ]

Gilham v Burlington Northern Inc 514 F 2d 660         [ Links ]

Grütter v Lombard 2007 4 SA 89 (SCA)        [ Links ]

Haelan Laboratories Inc v Topps Chewing Gum 202 F 2d866         [ Links ]

Haith v Model Cities Health Corp 704 SW 2d 684         [ Links ]

Harlow v Buno Co 36 Pa D&C 101         [ Links ]

Hirsch v SC Johnson and Sons Inc 280 NW 2d 129        [ Links ]

In re DoraP 418 NYS 2d 597         [ Links ]

Johnson v Boeing Airplane Co 262 P 2d 808         [ Links ]

Kidson v SA Associated Newspapers Ltd 1957 3 SA 461 (W)         [ Links ]

Kiss v County of Putnam 398 NYS 2d 729        [ Links ]

KNB Enterprises v Matthews 78 Cal App 4th 362         [ Links ]

Lawrence v AS Abell Co 475 A2d448         [ Links ]

Mabry v Kettering 117 SW 746         [ Links ]

Mapp v Ohio 367 US 643         [ Links ]

Martin Luther King Jr Center for Social Change Inc v American Heritage Products Inc 296 SE 2d 697         [ Links ]

Martinez v Democrat-Herald Publishing Co 669 P 2d 818         [ Links ]

McCormack v Oklahoma Publishing Co 613 P 2d 98         [ Links ]

Messenger ex rel Messenger v Gruner Jahr Printing and Publishing 94 NY 2d 436         [ Links ]

Michaels v Internet Entertainment Group Inc 5 F Supp 2d 823         [ Links ]

Myskina v Conde Nast Publications Inc 386 F Supp 2d 409         [ Links ]

National Bank of Commerce v Shaklee Corp 503 F Supp 533         [ Links ]

Novel v Beacon Operating Corporation 446 NYS 2d 118         [ Links ]

Olan Mills Inc v Dodd 353 SW 2d 22         [ Links ]

Pavesich v New England Life Insurance Co 50 SE 68         [ Links ]

People for the Ethical Treatment of Animals v Berosini Ltd 895 P 2d 1269         [ Links ]

Pirone v MacMillan 894 F 2d 579         [ Links ]

Porten v University of San Francisco 64 Cal App 3d 825         [ Links ]

Prudhomme v Proctor and Gamble Co 800 F Supp 390         [ Links ]

Reeves v United Artists Corp 765 F 2d 79         [ Links ]

Smith v Suratt 1926 WL 1024         [ Links ]

Staruski v Continental Telephone Co 581 A 2d 266         [ Links ]

't Schaep met de Vijf Pooten 1979 NJ 383         [ Links ]

Teddy Scholten 1961 NJ 160         [ Links ]

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Zim v Western Publishing Co 573 F 2d 1318         [ Links ]

 

Register of legislation

Auteurswet 1912 (Netherlands)         [ Links ]

California Civil Code Section 3344         [ Links ]

Florida Statutes Section 540.08         [ Links ]

Illinois Right of Publicity Act 765 ILCS 1075         [ Links ]

Kentucky Statutes Section 391.170         [ Links ]

Nebraska Revised Statutes Section 20-202         [ Links ]

Nevada Revised Statutes Section 597-770         [ Links ]

New York Civil Rights Act 1964         [ Links ]

Oklahoma Statutes Section 1449         [ Links ]

Tennessee Code Section 47-25-1101         [ Links ]

Texas Property Code Section 26.001         [ Links ]

Utah Code Section 76-9-407         [ Links ]

Wisconsin Statutes Section 895.50         [ Links ]

 

List of abbreviations

HLR	Harvard Law Review
ISLRP	International Sports Law Review Pandektis
TSAR	Tydskrif vir die Suid-Afrikaanse Reg

 

 

* I thank Ms Elize Retief of the National Library in Pretoria and Ms Hannetjie Boshoff of the Oliver R Tambo Law Library at the University of Pretoria for their assistance with the research for this note. I also thank the anonymous referees who made some valuable comments on an earlier draft of this note. The views expressed are entirely my own.
1 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
2 Grütter v Lombard 2007 4 SA 89 (SCA).
3 Grütter v Lombard 2007 4 SA 89 (SCA).
4 Grütter v Lombard 2007 4 SA 89 (SCA): Davis J at para 45.
5 Tab VIII.1 -4. See also Zimmermann Obligations 1050 et seq.
6 Zimmermann Obligations 1050.
7 Borkowski Roman Law 348; Van Zyl History 343; Neethling Persoonlikheidsreg 51.
8 D 47.10.1.1 et seq.
9 D 47.10.15.27. Own translation. The original text reads: Generaliter vetuit Praetor quid ad infamiam alicuius fieri. Proinde quodcumque quis fecerit vel dixerit, ut alium infamet, erit a ctio iniuriarum.
10 D 47.10.1.2.
11 Neethling Persoonlikheidsreg 55.
12 D 47.10.15.27.
13 Kidson v SA Associated Newspapers Ltd 1957 3 SA 461 (W).
14 Grütter v Lombard 2007 4 SA 89 (SCA).
15 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
16 Voet Commentarius ad Pandectas 47.10.7; Pothier Traité des Obligations 116, 118; Lessius De Iustitia et Iure, Ceterisque Virtutibus Cardinalis Libri Quatuor 2.7.5.19; Durandus Speculum Iuris 4.4.2.15; Ubaldi Commentaria Corpus Iuris Civilis 9.2.41.
17 Voet Commentarius ad Pandectas 47.10.7.
18 Voet Commentarius ad Pandectas 47.10.7.
19 Zimmermann Obligations 1050 et seq.
20 Jenks History 47.
21 Reeves History 84 et seq.
22 Reeves History 88 et seq.
23 Lunny and Oliphant Tort 2.
24 Burdick Torts 1.
25 Originally the Fourth Amendment restricted the power of only the Federal Government, until the US Supreme Court ruled in Mapp v Ohio 367 US 643 that it was also applicable to state governments.
26 Glenn Privacy 47 et seq.
27 Warren and Brandeis 1890 HLR 193.
28 Beverley-Smith Personality 146 et seq.
29 Pavesich v New England Life Insurance Co 50 SE 68.
30 See eg. Smith v Suratt 1926 WL 1024 (Alaska); Mabry v Kettering 117 SW 746 (Arkansas); Thayer v Worcester Post Co 187 NE 292 (Massachusetts); Vassar College v Loose-Wiles Biscuit Co 197 F 982 (Missouri); Flake v Greensboro News Co 195 SE 55 (North Carolina); Harlow v Buno Co 36 Pa D&C 101 (Pennsylvania).
31 Vondelpark 1988 NJ 1000.
32 Teddy Scholten 1961 NJ 160.
33 't Schaep met de Vijf Pooten 1979 NJ 383.
34 Arnold Vanderlijde 1994 NJ 658.
35 De slag om het voetbalgoud 1974 NJ 415.
36 Haelan Laboratories Inc v Topps Chewing Gum 202 F 2d 866.
37 Pirone v MacMillan 894 F 2d 579.
38 Haelan Laboratories Inc v Topps Chewing Gum 202 F 2d 866.
39 See also Chimarev v TD Waterhouse Investor Services Inc 280 F Supp 2d 208; Myskina v Conde Nast Publications Inc 386 F Supp 2d 409; Messenger ex rel Messenger v Gruner Jahr Printing and Publishing 94 NY 2d 436; Freihofer v Hearst Corporation 65 NY 2d 135; Novel v Beacon Operating Corporation 446 NYS 2d 118; In re Dora P 418 NYS 2d 59; and Kiss v County of Putnam 398 NYS 2d 729.
40 Haelan Laboratories Inc v Topps Chewing Gum 202 F 2d 866.
41 See for instance Allison v Vintage Sports Plaques 136 F 3d 1443 in Alabama (the framing and resale of collectors' cards depicting sports stars are unlawful); Olan Mills Inc v Dodd 353 SW 2d 22 in Arkansas (the use of a person's image in an advertising brochure without consent is unlawful); Venturi v Savitt Inc 468 A 2d 933 in Connecticut (a claim by a golf player for the unauthorised use of his photograph in an advertisement fails because the plaintiff could not prove intent to cause harm); Vassiliades v Garfinckel's Brooks Bros 492 A 2d 580 in the District of Columbia (a plastic surgeon and publisher who published "before" and "after" pictures of patients violated the privacy of the patients, whether they were famous or not); Martin Luther King Jr Center for Social Change Inc v American Heritage Products Inc 296 SE 2d 697 in Georgia (the court prohibits the unauthorised sale of statuettes made to the image of King); Fergerstrom v Hawaiian Ocean View Estates Inc 441 P 2d 808 in Hawaii (a property developer may not use pictures of the purchaser and construction of a house in an advertising brochure without consent); Johnson v Boeing Airplane Co 262 P 2d 808 in Kansas (an employee who tacitly agreed to have a photograph taken next to an aircraft and for the photograph to be used in an advertising brochure forfeits a claim against the employer); Prudhomme v Proctor and Gamble Co 800 F Supp 390 in Louisiana (advertising showing an impersonator of a famous chef violates the privacy of the chef); Lawrence v AS Abell Co 475 A 2d 448 in Maryland (the use of newspaper clippings with pictures of babies in advertising for a newspaper does not violate the privacy of the mothers or the babies); Carson v Here's Johnny Portable Toilets Inc 698 F 2d 831 in Michigan (the unauthorised use of a famous person's name is unlawful if that person can be identified); Candebat v Flanagan 487 S 2d 207 in Mississippi (a reference to a particular person's motor vehicle collision without consent in advertising is unlawful); Haith v Model Cities Health Corp 704 SW 2d 684 in Missouri (an employer may not use the names of medical practitioners whom it employs in advertising without their consent); Gilham v Burlington Northern Inc 514 F 2d 660 in New Jersey (where a company owns the copyright in a picture of an individual that company may consent to the use of that picture on the cover of a magazine); Benally v Hundred Arrows Press Inc 614 F Supp 969 in New Mexico (the publication of a photograph showing Navajo natives in a book on the life and work of a photographer is not unlawful); Reeves v United Artists Corp 765 F 2d 79 in Ohio (the right to publicity is not heritable and lapsed on the death of a famous boxer); Martinez v Democrat-Herald Publishing Co 669 P 2d 818 in Oregon (a picture of a student with a history of drug abuse in an article on drug use on campus does not violate the rights of the student); Gee v CBS Inc 612 F 2d 572 in Pennsylvania (where a record company owns the copyright in a musical performance it may use the name and image of the singer on the record cover); Staruski v Continental Telephone Co 581 A 2d 266 in Vermont (an employer may not use a picture of an employee in advertising without consent); Crump v Beckley Newspapers Inc 320 SE 2d 70 in West Virginia (a picture of a female coal miner in an article on women in coal mines is not unlawful).
42 Allison v Vintage Sports Plaques 136 F 3d 1443.
43 Under US law, when a federal court is deciding a common law issue, it is bound to follow the specific decisions of the state supreme court for the state whose common law applies. Thus, the federal court in Allison was predicting how the Alabama Supreme Court would define the scope of the tort of invasion of privacy.
44 The mixed approach is followed in California (compare s 3344 of the Civil Code and Michaels v Internet Entertainment Group Inc 5 F Supp 2d 823); Florida (compare S 540.08 of the Florida Statutes and Zim v Western Publishing Co 573 F 2d 1318); Illinois (compare the Illinois Right of Publicity Act and Douglas v Hustler Magazine Inc 769 F2d 1128); Kentucky (compare S 391.170 of the Kentucky Statutes and Foster-Milburn Co v Chinn 120 SW 364); Nebraska (compare S 20-202 of the Nebraska Revised Statutes and Carson v National Bank of Commerce 501 F 2d 1082); Nevada (compare S 597-770 et seq of the Nevada Revised Statutes and People for the Ethical Treatment of Animals v Berosini Ltd 895 P 2d 1269); Oklahoma (compare S 1449 of the Oklahoma Statutes and McCormack v Oklahoma Publishing Co 613 P 2d 98); Tennessee (compare S 47-25-1101 et seq of the Tennessee Code and Elvis Presley International Memorial Fund v Crowell 733 SW 2d 89); Texas (compare S 26.001 et seq of the Texas Property Code and National Bank of Commerce v Shaklee Corp 503 F Supp 533); Utah (compare S 76-9-407 of the Utah Code and Cox v Hatch 761 P 2d 556); Wisconsin (compare S 895.50 of the Wisconsin Statutes and Hirsch v SC Johnson and Sons Inc 280 NW 2d 129). Although the exact formulation of the various provisions differs from one state to the next, the underlying principles are essentially the same. As a result, I refer to a few examples only.
45 Subdivision (a) provides: (a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorised use, and any profits from the unauthorised use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.
46 KNB Enterprises v Matthews 78 Cal App 4th 362.
47 Michaels v Internet Entertainment Group Inc 5 F Supp 2d 823; Abdul-Jabbar v General Motors Corp 75 F 3d 1391.
48 McCormack v Oklahoma Publishing Co 613 P 2d 98.
49 Porten v University of San Francisco 64 Cal App 3d 825.
50 Grütter v Lombard 2007 4 SA 89 (SCA).
51 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
52 Grütter v Lombard 2007 4 SA 89 (SCA).
53 Neethling Persoonlikheidsreg 44 et seq.
54 Neethling Persoonlikheidsreg 308 et seq.
55 Grütter v Lombard 2007 4 SA 89 (SCA).
56 Grütter v Lombard 2007 4 SA 89 (SCA) 95D: "The interest that a person has in preserving his or her identity against unauthorised exploitation seems to me to be qualitatively indistinguishable and equally encompassed by that protectable 'variety of personal rights'''.
57 Grütter v Lombard 2007 4 SA 89 (SCA) 96B: "... I can see no such considerations that justify the unauthorised use by the respondents of Grütter's name for their own commercial advantage".
58 Grütter v Lombard 2007 4 SA 89 (SCA).
59 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
60 Grütter v Lombard 2007 4 SA 89 (SCA). See Cornelius 2008 TSAR; Cornelius 2008 ISLRP.
61 Grütter v Lombard 2007 4 SA 89 (SCA).
62 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
63 Grütter v Lombard 2007 4 SA 89 (SCA).
64 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
65 See Cornelius 2008 TSAR; Cornelius 2008 ISLRP.
66 See Allison v Vintage Sports Plaques 136 F 3d 1443.
67 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
68 Grütter v Lombard 2007 4 SA 89 (SCA).
69 Wells v Atoll Media (Pty) Ltd (unreported 11961/2006) [2009] ZAWCHC 173 (9 November 2009).
70 Neethling Persoonlikheidsreg 315.
71 Neethling, Potgieter and Visser Deliktereg 89.
72 Neethling, Potgieter and Visser Deliktereg 313.
73 Neethling, Potgieter and Visser Deliktereg 315.
74 Neethling, Potgieter and Visser Deliktereg 317.
75 Neethling Persoonlikheidsreg 315.
76 Grütter v Lombard 2007 4 SA 89 (SCA).
77 Wells v Atoll Media (Pty) Ltd (11961/2006) [2009] ZAWCHC 173 (9 November 2009).
78 Wells v Atoll Media (Pty) Ltd (11961/2006) [2009] ZAWCHC 173 (9 November 2009).
79 Grütter v Lombard 2007 4 SA 89 (SCA). See Cornelius 2008 TSAR; Cornelius 2008 ISLRP.
80 Wells v Atoll Media (Pty) Ltd (11961/2006) [2009] ZAWCHC 173 (9 November 2009).