The concept of iniuria

Yet ultimately, and perhaps most importantly, it is still the civilian concept of iniuria that determines the scope and range of application of the actio iniuriarum. Protection of a person's reputation has always been a particularly important objective of that remedy.²⁴⁴’ But neither in Roman law nor in the tradition of the ins commune down to the days of the Roman-Dutch authorities²⁴⁷ was contumelia iniuria synonymous with defamation.

Fama, it will be remembered,²⁴⁸ was only one of the objects of legal protection mentioned by Johannes Voet; corpus and dignitas were also included. Other authors referred to pudicitia, honor or existimatio;²⁴⁹ and while it is difficult to unravel the precise meaning in which the individual terms were used,²⁵" it is obvious that the delict of iniuria did not necessarily imply a lowering of the individual's esteem in the eyes of others. It covered a whole variety of situations of which the common denominator was an intentional disregard for another person's personality.²⁵¹ Unlike the English common law which is still essentially confined to the traditional number of specific torts,²⁵² South African law thus had at its disposal an instrument that could be adjusted suitably to cope with the problem of the ever-increasing potential for intrusions upon a person's sphere of privacy. "Of the desirability—indeed of the necessity—of (affording) some... protection", wrote Warren and Brandeis in a famous article,²⁵³

"there can... be no doubt. The press is overstepping in every direction the obvious bounds of propriety and decency. Gossip is no longer a resource of the idle and the vicious, but has become a trade, which is pursued with industry as well as effrontery.... The intensity and complexity of life, attending upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern ^[5657] ^{^[5658] enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily harm."}

Modern advertising methods contain similar dangers for the interests of private individuals, and so do, for example, computerized information networks or modern technological devices allowing the tapping of private telephone conversations.

In America these arguments have ultimately prompted the courts to recognize a general "right of privacy"."⁵⁴ For South Africa, on the other hand, the solution lay in the recognition of specific rights of personality on the basis, and within the confines, of the concept of iniuria. Innes CJ gave the decisive hint when he defined iniuria, as early as 1908, as

"a wrongful act designedly done in contempt of another, which infringes his dignity, his person or his reputation. If we look at the essentials of injuria we find... that they are three. The act complained of must be wrongful; it must be intentional; and it must violate one or other of those real rights, those rights in rem, related to personality, which every free man is entitled to enjoy."²⁵⁵

It took another 45 years, however, before the implications of this approach were fully grasped and the first systematic exposition of the doctrine of the rights of personality was undertaken.²⁵⁶

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The concept of iniuria

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