....It is significant that the only portion of the judgment that is ascribed to by the whole court are the paragraphs of the judgment about apology. The court develops the Roman Dutch Common Law. They point out that at present the only claim for one who has suffered an infringement of a personality right is one of damages. The is no provision enabling one to claim an apology even if that apology would be the most effective way of restoring the dignity of that specific person. A person who is genuinely sorry about an infringement of another’s rights cannot raise and immediate apology and retraction as a defence to a claim for damages.
The court found that had our Roman Dutch law given due recognition to the value of an apology and retraction things might have turned out differently. Instead the matter went to court which deepened and steepened the conflict. The Court stated that ‘it is time for our Roman Dutch common law to recognise the value of this kind of restorative justice’ The court was of the view that this could be done in a way that draws from the shared values of fairness in both our common law and customary law systems.
The Court discusses the two Roman Dutch law remedies for injury, the amende honorable (honourable amends) and the amende profitable (profitable amends). The amende honorable which consisted of retraction and apology, seems to have fallen into disuse over the years, and the court did not reinstate it, but rather developed the law in accordance with equitable principles also rooted in Roman Dutch law. The court explains their reasons for doing so at para 202 as follows:
Respect for the dignity of others lies at the heart of the Constitution and the society we aspire to. That respect breeds tolerance for one another in the diverse society we live in. Without that respect for each other’s dignity our aim to create a better society may come to naught. It is the foundation of our young democracy. And reconciliation between people who opposed each other in the past is something which was, and remains, central and crucial to our constitutional endeavour. Part of reconciliation, at all different levels, consists of recantation of past wrongs and apology for them. That experience has become part of the fabric of our society. The law cannot enforce reconciliation but it should create the best conditions for making it possible. We can see no reason why the creation of those conditions should not extend to personal relationships where the actionable dignity of one has been impaired by another.