South Africa’s Constitutional Court has upheld a ruling finding three school pupils guilty of defaming their deputy principal in a doctored gay sex picture.

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

They were later found guilty of defamation and ordered to pay R45,000 to Dey, who said that the picture suggested that he masturbated in public, was gay and had low morals.

The pupils challenged the ruling in the Constitutional Court citing their right to freedom of expression but, on Tuesday, the court ruled against them.

The court, however, reduced the payout to R25,000 and ordered the boys to apologise unconditionally to Dey and to pay his High Court costs.

The majority of judges agreed that the image was defamatory, but openly gay judge Edwin Cameron along with judge Johan Froneman disagreed, saying that the image was clearly fake and no-one would have taken it literally.

Importantly, Cameron and Froneman noted that both the High Court and the Supreme Court of Appeal had indicated that the issue of sexual orientation in the picture was irrelevant and rejected one of the deputy headmaster’s claims – that being depicted as homosexual is grounds for defamation.

“It… cannot be actionable simply to call or to depict someone as gay even though he chooses not to be gay and dislikes being depicted as gay – and even though stigma may still surround being gay,” Cameron and Froneman said.

Ultimately, they ruled that while they believed that the image was not defamatory, it did infringe on Dey’s dignity and they agreed with the R25,000 payout and other penalties imposed.

A third dissenting judge, Zac Yacoob, argued that Dey’s case and claims should have been rejected outright.

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