The Common Law’s Cool Ideas for Dealing with MS Hubbard

by | Oct 22, 2019 | SALJ, SALJ V132 I4 2015

The Common Law’s Cool Ideas for Dealing with MS Hubbard

Authors Malcolm Wallis

ISSN: 1996-2177
Affiliations: Judge of the Supreme Court of Appeal
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 940 – 970

Abstract

The article addresses the problem of reconciling the Constitution with the common law in the light of the decisions in Hubbard v Cool Ideas 1186 CC 2013 (5) SA 112 (SCA) and Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC) and proposes a structure within which to approach the common law from a constitutional perspective.

Old and New Learning in the Law of Amende Honorable

by | Oct 22, 2019 | SALJ, SALJ V132 I4 2015

Old and New Learning in the Law of Amende Honorable

Authors Eric Descheemaeker

ISSN: 1996-2177
Affiliations: Reader in European Private Law, University of Edinburgh; Honorary Research Associate, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 909 – 939

Abstract

One remarkable feature of the South African law of defamation or iniuria is how it has retained a historical form of redress still known under its French name as amende honorable. After a long period of eclipse, the remedy has recently been revived (albeit to an extent which remains uncertain), at least in part under the influence of ideas of restorative justice and ubuntu. In that new context, it has been suggested that the remedy — a form of retraction of the offending words coupled with an apology for their utterance — could redress injuries to reputation, dignity or feelings better than monetary damages would, and also help mend relationships between the parties. This paper offers a sceptical note on those various counts. Tracing the history of amende honorable in Roman-Dutch law and beyond, it argues that the gist of the action, both historically and doctrinally, lies in a now largely overlooked dimension, namely, the public humiliation of the offender. It is this dimension, unpalatable though it might be to us, which accounts for the potency of the remedy; if we lose sight of it, we find ourselves left with a court-imposed retraction and apology which is incapable of meeting any of the hopes placed by the moderns in the revival of the ancient remedy.