A case in which school pupils allegedly defamed their principal by suggesting that he is gay has reached the Constitutional Court.

On Thursday, three former learners from Waterkloof High School in Pretoria began their bid to reverse previous rulings by the Pretoria High Court and the Supreme Court of Appeal, which found them guilty of defamation.

In 2006, Hennie le Roux, Christiaan Gildenhuys, and Reinhard Janse van Rensburg – who were all under 18 at the time – doctored a picture with two naked men masturbating on a couch to include the faces of headmaster Christo Bekker and deputy headmaster Louis Dey, which they distributed at the school.

Two years later Dey – who claimed that the picture suggested that he masturbated in public, was homosexual and had low morals – was awarded R45,000 for defamation; the Pretoria High Court ruling that his former students had humiliated and insulted him.

Now the Constitutional Court must address questions of freedom of speech and whether suggesting that someone is gay is indeed grounds for defamation.

The boys’ advocate Gilbert Marcus told the court that they “…intended nothing less and nothing more than to make a joke. A reasonable person would not take it seriously.”

She also argued that the three had the right to freedom of speech and the right to make satirical comments, and deserved more latitude because of their age at the time.

Openly gay Constitutional Court Justice Edwin Cameron commented that the amateurish picture was clearly fake. “Any reasonable reader would have seen it was not Dr Dey … the defamation would then fall away,” he said.

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