Old and New Learning in the Law of Amende Honorable
Authors Eric Descheemaeker
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
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.