20
Expression
Gilbert Marcus
Derek Spitz
20.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) The structure of analysis . . . . . . . . . . . . . . . . . . . . . .
(b) The drafting history of s 15 . . . . . . . . . . . . . . . . . . . . .
(c) The impact of s 15(1) on existing law . . . . . . . . . . . . . . .
(d) Section 16 of the final Constitution . . . . . . . . . . . . . . . . .
(e) Freedom of speech in Parliament and the provincial legislatures .
20.2 The value of freedom of speech and expression . . . . . . . . . . . . .
(a) Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) The search for truth through free exchange of ideas . . . . . . . .
(c) Individual self-fulfilment and autonomy . . . . . . . . . . . . . .
(d) The necessary conditions of self-government: the political process
rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) The South African historical context . . . . . . . . . . . . . . . .
20.3 A bifurcated guarantee . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) Political core and protected periphery . . . . . . . . . . . . . . .
(b) The meaning of ‘free and fair political activity’ . . . . . . . . . .
20.4 Comparison with relevant international and domestic instruments . . .
(a) Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Comparison with the First Amendment to the Constitution of the
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) Comparison with s 2(b) of the Canadian Charter of Rights and
Freedoms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) Comparison with art 21 of the Constitution of Namibia . . . . . .
20.5 The application of s 15(1) . . . . . . . . . . . . . . . . . . . . . . . .
(a) Every person . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Common-law rules invoked in private disputes . . . . . . . . . . .
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20.6 The meaning of the guarantee . . . . . . . . . . . . . . . . . . . . . . .
(a) Freedom of speech and expression . . . . . . . . . . . . . . . . . .
(b) Freedom of the press and other media . . . . . . . . . . . . . . . .
(c) Freedom of artistic creativity . . . . . . . . . . . . . . . . . . . . .
(d) Section 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20.7 Limitations upon s 15(1) . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) Prior restraints . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Time, place and manner restrictions . . . . . . . . . . . . . . . . .
20.8 The substance of freedom of speech and expression . . . . . . . . . . .
(a) Political expression and state security . . . . . . . . . . . . . . . .
(b) Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) Contempt of court and access to court . . . . . . . . . . . . . . . .
(i) Scandalizing the court . . . . . . . . . . . . . . . . . . . . .
(ii) Contempt and the right to a fair trial . . . . . . . . . . . . . .
(iii) Access to courts . . . . . . . . . . . . . . . . . . . . . . . .
(d) Sexually explicit expression . . . . . . . . . . . . . . . . . . . . .
(e) Hate propaganda . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) Commercial expression . . . . . . . . . . . . . . . . . . . . . . . .
(g) Picketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(h) Access to public property . . . . . . . . . . . . . . . . . . . . . . .
(i) Access to private property . . . . . . . . . . . . . . . . . . . . . .
20.9 Freedom of expression in terms of s 16 of the final Constitution . . . . .
(a) The differences between IC s 15 and FC s 16 . . . . . . . . . . . .
(b) The structure of freedom of expression analysis under the final
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) The application of FC s 16 . . . . . . . . . . . . . . . . . . . . . .
(d) The enumerated exclusions in FC s 16(2) . . . . . . . . . . . . . .
(i) Propaganda for war . . . . . . . . . . . . . . . . . . . . . . .
(ii) Incitement of imminent violence . . . . . . . . . . . . . . . .
(iii) Advocacy of hatred that constitutes incitement to cause harm
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EXPRESSION
20.1 INTRODUCTION
Section 15, which protects freedom of speech and expression, provides:
‘(1) Every person shall have the right to freedom of speech and expression which shall
include freedom of the press and other media, and the freedom of artistic creativity and scientific
research.
(2) All media financed by or under the control of the state shall be regulated in a manner which
ensures impartiality and the expression of a diversity of opinion.’
(a)
The structure of analysis
REVISION SERVICE 2, 1998
1The right to freedom of speech and expression, like the other fundamental rights which are
guaranteed by Chapter 3 of the Constitution, is not absolute. The exercise of the right to
freedom of expression is made subject to the provisions of s 33(1), the limitation clause.
Those limitations upon free expression which satisfy the standards of justification set out in
s 33(1) will therefore survive constitutional scrutiny.
Judicial review of any purported limitation of the right to freedom of speech and
expression will involve a ‘two-stage’ approach.1 At the first stage of the inquiry the courts
will have to determine whether the expressive activity in question falls within the ambit of s
15 and, if so, whether such expressive activity has been restricted or limited. The party
alleging that there has been a violation of the right to freedom of expression must demonstrate
that there has indeed been a restriction of constitutionally protected expressive activity. The
inquiry into ambit will depend upon the development by our courts of a value-based or
purposive definition of s 15 to determine whether the activity in question furthers the values
which underpin the guarantee of freedom of expression. In order to demonstrate that
protected expressive activity has been restricted it is submitted that either an intention to limit
expression or a limiting effect on expression will be sufficient. Even in the absence of an
intention to limit expressive activity a prima facie violation of s 15 can nevertheless be
established if it can be shown that the effect of a statute, rule of common law, or executive
act is to limit expressive activity.2 Thus, if the expressive activity at issue falls within the
ambit of s 15, and if there has been a restriction of such activity, then there has been a prima
facie infringement of the right to freedom of expression.
The second stage of the inquiry is necessary only if the prima facie infringement has
been demonstrated. At this stage the courts will consider whether the prima facie infringement constitutes a justifiable limitation upon the exercise of the constitutional guarantee.3
Different standards of justification will apply, depending on the nature of the expressive
1
S v Zuma & others 1995 (2) SA 642 (CC) at 654G, 1995 (4) BCLR 401 (CC); S v Makwanyane & another 1995
(3) SA 391 (CC), 1995 (6) BCLR 665 (CC) para 100. For elaboration of the two-stage structure of constitutional
analysis, see above, Kentridge & Spitz ‘Interpretation’ § 11.10 and Woolman ‘Limitation’ §§ 12.1, 12.2.
2
See e g R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 (SCC) at 350; Irwin Toy Ltd v Quebec (A-G)
(1989) 58 DLR (4th) 577 (SCC) at 610--11 (either an unconstitutional purpose or an unconstitutional effect
may invalidate legislation which limits the freedom of expression); see also In re Munhumeso & others 1995 (1)
SA 551 (ZS) at 561D--E, 1995 (2) BCLR 125 (ZS); Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation
1996 (1) SA 847 (ZS) at 861H--J.
3
For consideration of the nature of the limitation clause inquiry, see above, Woolman ‘Limitation’ §§ 12.1,
12.2 and 12.6.
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activity in question. Where expression relates to free and fair political activity, any limitation
must be reasonable and necessary, as well as justifiable in an open and democratic society
based on freedom and equality, if it is to survive judicial scrutiny. In addition, the limitation
may not negate the essential content of s 15. Where the expression does not relate to free and
fair political activity, any limitation must be reasonable (but not necessary) as well as
satisfying the other requirements of s 33(1). In this manner political expression is afforded
greater constitutional protection than non-political expression. Consequently, freedom of
expression jurisprudence will develop a political core and a protected periphery.1 If a
particular limitation of protected expression cannot be justified in accordance with the
requirements of the limitation clause, then there has been an unconstitutional violation of
the right to freedom of expression.2 Conversely, if the limitation satisfies the standards
of justification, then the statute, rule of law, or executive act is not unconstitutional, notwithstanding the fact that it limits the exercise of the s 15 right.
(b)
The drafting history of s 15
2 s a matter of interpretive principle, it is inadvisable to ground the enterprise of constitutional
A
interpretation upon a search for an elusive drafters’ intention.3 The brief account of the
drafting history of s 15 which follows provides contextual background, but ought not to form
the foundation for interpretation of the guarantee.
The Progress Reports of the Technical Committee on Fundamental Rights During the
Transition provide limited assistance in ascertaining the purpose of the guarantee itself and
the reasons behind particular linguistic choices.4 The several reports of the Technical
Committee and the minutes of the Ad Hoc Committee meetings contain little in the way of
substantive commentary upon s 15 and do not form a complete record of discussions which
must have taken place during the process of drafting the clause.5
As the First Progress Report of the Technical Committee makes clear,6 ‘freedom of speech
and expression which shall include freedom of the press and other media’ is considered to
be one of the essential rights and freedoms which required accommodation during the
transition period. Some indication that the drafters were motivated by the values and
1
D Spitz ‘Eschewing Silence Coerced by Law: The Political Core and Protected Periphery of Freedom of
Expression’ (1994) 10 SAJHR 301.
2
On the effect of a finding of unconstitutionality, see above, Klaaren ‘Judicial Remedies’ § 9.5.
3
For consideration of the proper approach to constitutional interpretation, including a comparison between
constitutional and statutory interpretation, and a critique of the search for original intention, see above, Kentridge
& Spitz ‘Interpretation’ §§ 11.4 and 11.7--11.9. See also G Marcus ‘Interpreting the Chapter on Fundamental Rights’
(1994) 10 SAJHR 92; D Davis ‘Democracy ---- Its Influence upon the Process of Constitutional Interpretation’ (1994)
10 SAJHR 103; Davis, Chaskalson & De Waal ‘Democracy and Constitutionalism: The Role of Constitutional
Interpretation’ in Van Wyk et al (eds) Rights and Constitutionalism: The New South African Legal Order (1994) 1.
4
L Johannessen ‘Freedom of Expression and Information in the New South African Constitution and its
Compatibility with International Standards’ (1994) 10 SAJHR 216 at 225.
5
Johannessen ‘Freedom of Expression and Information’ 224--5.
6
14 May 1993.
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EXPRESSION
imperatives of a well-functioning political process is reflected in the Second Progress
Report, where freedom of expression is classified as one of the rights directly concerned with
the transitional political process.1
A brief explanatory note to the Fourth Progress Report offers some insight into the
Technical Committee’s understanding of freedom of expression. The note provides that
freedom of expression
‘includes the right to gather information preparatory to its expression. The right to freedom of
speech and expression, when read together with the equality clause, may include the notion of equal
and equivalent use of State-supported electronic media.’2
3 his note is of interest for two reasons. First, it suggests that although access to information
T
held by the state is separately enshrined in s 23 of the Chapter, the right to receive information
is also an integral part of the right of freedom of expression and may operate in wider contexts
than those envisaged by s 23.3 Secondly, the note suggests that a completely laissez-faire
attitude to expression may come into conflict with the right to equality enshrined in s 8. The
harmonious development of both rights, at least in the arena of publicly owned media, may
impose affirmative obligations on the state. This relationship between freedom of expression
and equality apparently found textual recognition in the Tenth Progress Report, which added
to the freedom of expression clause the following:
‘All media financed by or under the control of the State shall be regulated in a manner which ensures
the expression of a diversity of opinion.’4
In final form, as embodied in s 15(2) of Chapter 3, the words ‘impartiality and’ have been
inserted after the words ‘manner which ensures’.
Finally, and without explanation, the Tenth Progress Report adds to the text of s 15(1) the
phrase ‘and the freedom of artistic creativity and scientific research’. In its final form,
therefore, freedom of the press and other media, artistic creativity, and scientific research are
singled out for explicit enumeration, and perhaps for special protection.
(c)
The impact of s 15(1) on existing law
At present both criminal and civil law regulate the exercise of free speech and expression.
Numerous statutory provisions and common-law rules regulate, restrict, or limit speech and
expression. The guarantee contained in s 15(1) makes it possible to subject to constitutional
1
21 May 1993. As part of the process of removing unnecessary restraints upon political debate the Abolition of
Restrictions on Free Political Activity Act 206 of 1993 was passed and came into effect on 28 January 1994. The
Act repealed s 47(2)(c), (d) and (e) of the Publications Act 42 of 1974, which had placed various restrictions upon
political expression.
2
3 June 1993.
3
In Virginia State Board of Pharmacy v Virginia Citizens Consumer Council 425 US 748 (1975) at 762 the
US Supreme Court recognized a right to receive information as part of the freedom of speech. And in Richmond
Newspapers, Inc v Virginia 448 US 555 (1980) the First Amendment was interpreted to include a right of access to
information, at least in the context of criminal trials.
4
5 October 1993.
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scrutiny those statutory provisions1 and common-law rules2 which impact upon freedom of
expression.
(d)
Section 16 of the final Constitution
4 he Constitution of the Republic of South Africa, Act 108 of 1996 (‘the final Constitution’,
T
or FC) came into effect on 4 February 1997. All proceedings which were pending before a
court before 4 February 1997 must be disposed of as if the final Constitution had not been
enacted, unless the interests of justice require otherwise.3 In general, therefore, freedom of
expression issues which are raised in matters which were pending before 4 February 1997
will be determined with reference to s 15 of the interim Constitution (IC). Section 16 of
FC Chapter 2 embodies the new guarantee of freedom of expression. Freedom of expression
issues which arise in matters which were not pending prior to 4 February 1997 will be
governed by FC s 16. This provision differs, in important respects, from the guarantee of
freedom of expression embodied in IC s 15.
1
The following list is not exhaustive but provides examples of certain statutes which may now be scrutinized
for their consistency with freedom of speech and expression: the Public Safety Act 3 of 1953; the Criminal Procedure
Act 56 of 1955 (s 319(3), dealing with statutory perjury); the Riotous Assemblies Act 17 of 1956 (in particular s 17
(incitement to public violence)); the Defence Act 44 of 1957 (in particular s 101 (empowering the State President
to censor postal, telegraphic, telephonic or radio communications); s 118 (prohibiting the improper disclosure of
defence-related information); s 119 (prohibiting the taking of photographs or making of sketches of military
premises); the Police Act 7 of 1958 (s 27A); the Post Office Act 44 of 1958; the Trespass Act 6 of 1959; the
Correctional Services Act 8 of 1959 (s 44(1)(e) and (g)); the Trade Marks Act 62 of 1963; the Armaments
Development and Production Act 57 of 1968 (in particular s 11A (prohibiting disclosure of certain information));
the National Supplies Procurement Act 89 of 1970; the Companies Act 61 of 1973 (in particular s 417 and various
disclosure requirements); the Petroleum Products Act 120 of 1977; the Copyright Act 98 of 1978; the National Key
Points Act 102 of 1980; the Intimidation Act 72 of 1982 (s 1A); the Internal Security Act 74 of 1982 (in particular
s 4(1) (permitting the declaration of certain organizations as unlawful) and ss 13(1) and 54 (governing terrorism
and related offences)); the Protection of Information Act 84 of 1982; the Nuclear Energy Act 92 of 1982; the Nuclear
Energy Act 131 of 1993 (s 69); the Regulation of Gatherings Act 205 of 1993 (in particular s 3 (the notice
requirement); s 5 (the power of prohibition); s 7 (demonstrations in the vicinity of courts)); the Films and
Publications Act 65 of 1996. For a detailed consideration of the statutory regulation of expressive conduct, see
K Stuart The Newspaperman’s Guide to the Law 5 ed (1990).
2
Our courts have not yet determined the extent to which common-law rules will be subject to constitutional
scrutiny. It is relatively uncontroversial that Chapter 3 will apply to common-law rules regulating public relationships. It is suggested below, § 20.5(b) and above, Woolman ‘Application’ § 10.4, that common-law rules regulating
private relationships are equally subject to constitutional scrutiny. Examples of common-law rules which may
constitute infringements of the constitutional right to freedom of expression include the following: the crime of
sedition, i e of gathering with intent (not necessarily hostile) to defy or subvert the authority of the state (see e g S v
Twala & others 1979 (3) SA 864 (T) at 869G--H; S v Zwane & others (1) 1987 (4) SA 369 (W) at 374 (violence or
forcible conduct is not an essential element of the offence)); the crime of treason (S v Hogan 1983 (2) SA 46 (W) at
57C (the overt act necessary for treason can manifest itself in perfectly legal behaviour); S v Mayekiso & others
1988 (4) SA 738 (W) at 751D (violence, actual or contemplated, against the state is not a necessary element of the
crime of treason); S v Zwane & others 1989 (3) SA 253 (W) at 256J--257B (hostile intent distinguishes treason from
sedition and should not be confused with motive); S v Banda & others 1990 (3) SA 466 (B) (any overt
act accompanied by the requisite hostile intent is sufficient)); the common-law rules of defamation and injuria
(see below, § 20.8(b)); the common law of trespass (see Hefer v Van Greuning 1979 (4) SA 952 (A) (the owner of
land is entitled to sue for trespass under the actio legis Aquilia)); and the principles governing unlawful competition
(see below, § 20.8(f)).
3
Section 17 of FC Schedule 6.
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EXPRESSION
FC s 16, which protects freedom of expression, provides:
‘(1) Everyone has the right to freedom of expression, which includes ---(a) freedom of the press and other media;
(b) freedom to receive and impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to ---(a) propaganda for war;
(b) incitement of imminent violence;
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.’
REVISION SERVICE 5, 1999
5 Some of the analysis of freedom of expression contained in this chapter depends on the
specific wording of IC s 15. Much of the analysis, however, does not depend on the specific
language of the guarantee and is therefore of equal application to both IC s 15 and FC s 16.
We have decided to deal with FC s 16 in a separate section at the end of this chapter. We have
done so in order to retain the coherence of the existing analysis, because IC s 15 will retain
its relevance for some time to come, and so as to enable the reader to have convenient
reference to FC s 16 in a single section. Consequently we identify, in § 20.9 below, the
important differences between IC s 15 and FC s 16. In reading the earlier sections of this
chapter readers are advised to bear in mind the differences considered below in § 20.9.
Readers are therefore referred to § 20.9 for consideration of the guarantee of freedom of
expression as it is formulated in the text of the final Constitution.
(e)
Freedom of speech in Parliament and the provincial legislatures
Both the interim Constitution and the final Constitution confer special protection on freedom
of speech in Parliament1 and the provincial legislatures.2 This topic is discussed elsewhere
in this volume.3
20.2 THE VALUE OF FREEDOM OF SPEECH AND EXPRESSION
(a)
Generally
In most democratic societies freedom of expression is recognized as being absolutely central
to democracy. Nevertheless, in no country is freedom of expression absolute. The outcome
of disputes turning on the guarantee of free expression will depend upon the value the courts
are prepared to place on freedom of expression and the extent to which they will be inclined
to subordinate other rights and interests to free expression. Rights of free expression will
have to be weighed against many other claims, including the rights to equality, dignity,
privacy, political campaigning, fair trial, economic activity, workplace democracy, and
property.
1
IC s 55(2) and FC ss 58(1)(a) and 71(1)(a).
2
IC s 135(2) and FC s 117(1)(a).
3
See above, Chaskalson & Klaaren ‘National Government’ § 3.3(i)(i).
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The commitment to freedom of expression is founded on the often inarticulate premise
that expression is more deserving of immunity from governmental regulation than are other
forms of social practice. Freedom of expression is viewed as being central to the enterprise
of open democracy.1
6 In its first judgment dealing with freedom of expression a unanimous Constitutional Court
articulated the values underlying the guarantee of freedom of expression in the following
way:
‘Freedom of expression lies at the heart of democracy. It is valuable for many reasons, including
its instrumental function as a guarantor of democracy, its implicit recognition and protection of the
moral agency of individuals in our society and its facilitation of the search for truth by individuals
and society generally. The Constitution recognises that individuals in our society need to be able
to hear, form and express opinions and views freely on a wide range of matters.’2
The court recognized that freedom of expression is one of a ‘web of mutually supporting
rights’ closely related to freedom of religion, belief and opinion, the right to dignity, the right
to freedom of association, the right to vote and to stand for public office and the right to
assembly.
‘These rights taken together protect the rights of individuals not only individually to form and
express opinions, of whatever nature, but to establish associations and groups of like-minded people
to foster and propagate such opinions. The rights implicitly recognise the importance, both for a
democratic society and for individuals personally, of the ability to form and express opinions,
whether individually or collectively, even where those views are controversial. The corollary of the
freedom of expression and its related rights is tolerance by society of different views. Tolerance, of
course, does not require approbation of a particular view. In essence, it requires the acceptance of
the public airing of disagreements and the refusal to silence unpopular views.’3
1
See e g S v Turrell & others 1972 (1) SA 248 (C) at 256G (‘Freedom of speech and freedom of assembly are
part of the democratic rights of every citizen of the Republic and Parliament guards these rights jealously for they
are part of the very foundations upon which Parliament itself rests.’); Mandela v Falati 1995 (1) SA 251 (W) at
259F, 1994 (4) BCLR 1 (W) at 8E--F (‘In a free society all freedoms are important, but they are not all equally
important. Political philosophers are agreed about the primacy of the freedom of speech. It is the freedom upon
which all others depend; it is the freedom without which the others would not long endure.’); Gardener v Whitaker
1995 (2) SA 672 (E) at 687H--I, 1994 (5) BCLR 19 (E) at 33I--J (‘In democracies with guarantees of fundamental
rights the right to free speech and expression has found general acceptance, but its content has not been free of
controversy.’); In re Munhumeso & others 1995 (1) SA 551 (ZS) at 557C--D, 1995 (2) BCLR 125 (ZS) (‘The
importance attaching to the exercise of the right to freedom of expression and freedom of assembly must never be
underestimated. They lie at the foundation of a democratic society and are ‘‘one of the basic conditions for its
progress and for the development of every man’’, per European Court of Human Rights in Handyside v United
Kingdom (1976) 1 EHRR 737 at para 49.’); Palko v Connecticut 302 US 319 (1937) at 326--7 (‘freedom of thought
and speech . . . is the matrix, the indispensable condition of nearly every other form of freedom’); Retail, Wholesale
and Department Store Union, Local 580 v Dolphin Delivery Ltd (1986) 33 DLR (4th) 174 (SCC) at 174 (‘Freedom
of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the
basis for the historical development of the political, social and educational institutions of western society.
Representative democracy, as we know it today, which is in great part the product of free expression and discussion
of varying ideas, depends upon its maintenance and protection.’). See also New York Times v Sullivan 376 US 254
at 269--71, 84 SCt 710 (1964); Whitney v California 274 US 357 at 375--6, 47 SCt 641 (1927) (Brandeis J concurring).
2
South African National Defence Union v Minister of Defence & another 1999 (4) SA 469 (CC), 1999 (6) BCLR
615 (CC) at para 7.
3
At para 8.
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EXPRESSION
Definable clusters of substantive values and normative commitments have been articulated in democratic societies in order to justify the commitment to freedom of expression
and also to draw its limits.1 Although the set of values which underpins freedom of expression
is not closed, the most widely shared freedom of expression values believed to underlie an
open and democratic society are the search for truth through the free exchange of ideas, the
pursuit of individual autonomy and self-fulfilment, and the demands of the political process.2
Most other goals and values which are furthered by protecting speech and expression may
be understood as elaborations of these well-known values.
6A
1
For more detailed consideration of the philosophy of freedom of expression in the United States, see Tribe
American Constitutional Law 2 ed (1988) 785--9; Stone et al Constitutional Law (1986) 931--8; Emerson The System
of Freedom of Expression (1970). For a brief consideration of the values underpinning freedom of expression in
Canada, see Hogg Constitutional Law of Canada 3 ed (1993) sec 40.4. See also Greenawalt ‘Free Speech in the
United States and Canada’ (1992) 55 Law and Contemporary Problems 5. Contributions to the developing debate
in South Africa include Van der Westhuizen ‘Freedom of Expression’ in Van Wyk, Dugard, De Villiers & Davis
(eds) Rights and Constitutionalism (1994) 264; Meyerson ‘ ‘‘No Platform for Racists’’: What Should the View of
Those on the Left Be?’ (1990) 6 SAJHR 394; Suttner ‘Freedom of Speech’ (1990) 6 SAJHR 372; Sachs ‘Towards
a Bill of Rights in a Democratic South Africa’ (1990) 6 SAJHR 13.
2
See e g Irwin Toy Ltd v Quebec (A-G) (1989) 58 DLR (4th) 577 (SCC) at 612 (‘(1) seeking and attaining the
truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and
encouraged; and (3) the diversity in forms of individual self-fulfilment and human flourishing ought to be
cultivated’); Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation 1996 (1) SA 847 (ZS) at 856F--G,
857C--858D.
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6B
EXPRESSION
(b)
The search for truth through free exchange of ideas
REVISION SERVICE 2, 1998
The argument that it is necessary to protect expression in order to foster the discovery of
truth has a classical liberal pedigree in the work of John Milton1 and John Stuart Mill,2 as
well as a more modern idiom.3 The imperfections of human knowledge and the fallibility of
judgment require a sceptical approach to accepted orthodoxy.4 The suppression of unfavourable arguments and opinions in an assertion of infallibility may frequently mean the
suppression of truth. The search for truth requires openness to competing or opposing
opinions. Continuing criticism ensures that received opinion remains open to development,
revision and change. Restricting dissident knowledge and opinion impoverishes the search
for truth. For these reasons distinguishing between the constitutional protection afforded to
ideas on the basis of their truth or falsity is illegitimate.5 Dissident opinion, false propositions,
and even those ideas which appear to have been fully and finally discredited may be highly
valuable and require constitutional protection.6
7 The search-for-truth rationale has also been articulated in terms of the famous, if
controversial, ‘marketplace of ideas’ metaphor, which suggests that truth will emerge out of
the free competition of ideas. According to this view, ‘the best test of truth is the power of the
thought to get itself accepted in the competition of the market’.7 While there may be real
truth in the notion that competition assists the discovery of truth, markets are also known to
fail and to require corrective state intervention.8
(c)
Individual self-fulfilment and autonomy
Democratic societies have placed a high value on ensuring the conditions under which
individuals may develop their capacities, participate in their own self-definition, and exercise
independent judgment as to the meaning and content of the good life. The development
of individual autonomy and the value placed upon self-fulfilment require that a range of
1
A Speech for the Liberty of Unlicensed Printing (1644).
2
On Liberty (1859).
3
See e g Gardener v Whitaker 1995 (2) SA 672 (E) at 687I--J, 1994 (5) BCLR 19 (E) at 34A (the advancement
of knowledge and truth is a fundamental value underlying freedom of expression).
4
See e g Meyerson ‘ ‘‘No Platform for Racists’’ ’ at 397--8 (arguing that, while conservative thought often relies
upon ‘revealed truth and the infallibility of authority’, progressives require ‘truth by demonstration’).
5
New York Times v Sullivan 376 US 254 at 271 (1964).
6
Handyside v The United Kingdom [1976] 1 EHRR 737 at 754 (freedom of expression is also applicable to ideas
‘that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism and
broadmindedness without which there is ‘‘no democratic society’’.’). See also R v Keegstra [1990] 3 SCR 697 at
729, 3 CRR (2d) 193 (freedom of expression extends to all expression, ‘however unpopular, distasteful or contrary
to the mainstream’).
7
Abrams v United States 250 US 616 at 630, 40 SCt 17 (1919) (Holmes J dissenting). See also Mandela v Falati
1995 (1) SA 251 (W) at 259E, 1994 (4) BCLR 1 (W) at 8D (referring with approval to the role of the marketplace
of ideas in a free society).
8
For criticism of the marketplace of ideas metaphor, see e g Ingber ‘The Marketplace of Ideas: A Legitimizing
Myth’ (1984) Duke LJ 1 (like commodity markets, the marketplace of ideas is subject to market failure and requires
corrective state intervention); Van der Westhuizen ‘Freedom of Expression’ 268 (the ‘marketplace of ideas’ metaphor
risks the consequence that ‘false and malicious propaganda could thus be allowed to go very far and to result in
much harm before its fallacy is exposed by the mechanisms of a supposedly free market’); Suttner ‘Freedom of
Speech’ 372.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
expressive activities, wider than those related to ensuring the integrity of the political process,
enjoy constitutional protection.1 Freedom of expression permits the exercise of fundamental
creative capacities and therefore nurtures self-respect and autonomous self-determination.
Nevertheless, in order to qualify for protection expression which furthers self-fulfilment must
contain a communicative purpose in order to distinguish it from other self-fulfilling activity,
such as economic activity, which is not accorded constitutional protection on the basis of
freedom of expression.2
(d)
The necessary conditions of self-government: the political process rationale
8 he exercise of democratic self-government, both in its direct and representative forms,
T
requires of the citizenry the capacity to make informed judgments about the manner in which
they are to be governed. Extensive and participatory debate in turn requires free and open
access to all available and relevant ideas and policies.3 Any defensible democratic political
process sustains and is regulated by the protection of expression.4 In order to secure and
protect a functional and well-regulated political process constitutional protection ought to
be extended beyond discussions of government policy to embrace philosophical, literary,
artistic and scientific forms of expression. These activities further the democratic process
primarily through the contribution they make to the formation of an informed citizenry.5
Integral to a political process justification for freedom of expression are two functional
arguments. First, freedom of expression is a check upon the abuse of power and a form of
resistance to totalitarian control.6 Secondly, social stability is furthered by freedom of expression,
1
See e g Gardener v Whitaker 1995 (2) SA 672 (E) at 687I--J, 1994 (5) BCLR 19 (E) at 34A (‘the free
development of an individual’s intellect, interests, tastes and personality’ is a fundamental value underlying freedom
of expression); Woods v Minister of Justice, Legal and Parliamentary Affairs 1995 (1) SA 707 (ZS), 1995 (1) BCLR
56 (ZS) (holding that the guarantee of freedom of expression prevents the state from restricting the number of letters
which prisoners serving terms of life imprisonment may write and receive).
2
Hogg Constitutional Law of Canada sec 40.4. See also Bork ‘Neutral Principles and Some First Amendment
Problems’ (1971) 47 Indiana LJ 1 at 25 (there are no neutral grounds, on the basis of the self-fulfilment rationale,
for protecting speech-acts above other self-fulfilling activities).
3
Meiklejohn Free Speech and its Relation to Self-government (1948); Roth v United States 354 US 476 at 484,
77 SCt 1304 (1957) (referring to the need for ‘unfettered interchange of ideas for the bringing about of political
and social changes desired by the people’).
4
This argument from democracy is adverted to by Froneman J in Gardener v Whitaker 1995 (2) SA 672 (E) at
687H--I, 1994 (5) BCLR 19 (E) at 33J--34A.
5
Meiklejohn ‘The First Amendment is an Absolute’ (1961) Supreme Court Review 245. See also below, § 20.3(b).
6
See e g Blasi ‘The Checking Value in First Amendment Theory’ 1977 American Bar Foundation Research
Journal 521; New York Times v Sullivan 376 US 254, 84 SCt 710 (1964); Kalven ‘The New York Times Case: A
Note on the Central Meaning of the First Amendment’ (1964) Supreme Court Review 191 (seditious libel is an
impossible concept in a democracy and fundamental criticism of the state is at the core of freedom of expression);
Rubenfeld ‘The Right to Privacy’ (1989) 102 Harvard LR 737 (freedom of expression is a crucial form of resistance
to disciplinary power enabling individuals to frustrate or roll back creeping totalitarianism). See also Mandela v
Falati 1995 (1) SA 251 (W) at 260C--D, 1994 (4) BCLR 1 (W) at 9B--C (‘It is a matter of the most fundamental
importance that . . . criticism [of politicians] should be free, open, robust and even unrestrained. This is because of
the inordinate power and influence which is wielded by politicians, and the seductive influence which these
attributes have upon corrupt men and women. The most appalling crimes have been committed by politicians
because their baseness and perversity was hidden from public scrutiny.’); Government of the Republic of South
Africa v ‘Sunday Times’ Newspaper & another 1995 (2) SA 221 (T) at 227I--228A, 1995 (2) BCLR 182 (T) at
188G--H; Indian Express Newspapers (Bombay) v Union of India (1985) 2 SCR 287 (what is at stake is the people’s
right to know); Lingens v Austria, Judgment of 8 July 1986, Series A No 103, (1986) 8 EHRR 407 (political defamation).
20--8
[REVISION SERVICE 2, 1998]
EXPRESSION
permitting the articulation of dissent and offering a method of working through social conflict
instead of acting it out in a destructive manner.1
(e)
The South African historical context
9 egard to the history of our society does not necessarily generate freedom of expression
R
values additional to those considered above. Nevertheless, it does serve to inflect the process
of constitutional interpretation, the content of ‘speech and expression’, and the nature of
justifiable limitations upon s 15(1) in a particular manner.2 One approach to historical context
is to suggest that political activity was not inhibited by the citizenry but by state repression.
On the basis of this historical understanding it has been suggested that the drafters of the
Constitution sought, by means of s 15(1), exclusively to combat the evil of state repression
of expression, and, accordingly, that Chapter 3 is exclusively of vertical application.3 It is
undeniable that censorship laws and security legislation were the primary vehicles for
restricting expression. However, the effects of such repression permeated the entire social
and political life of the society, distorting political, cultural and also purely individual
expression.4 Censorship, moreover, has a far wider reach than state repression.5 Freedom of
expression ought properly to be understood as integral to the transformation not merely from
state repression to democracy but from an authoritarian culture to one of justification,
openness, and accountability.6 Our historical context does not provide justification for the
doctrine of vertical application.
In the context of Namibia the essential role of freedom of speech in ridding that country
of apartheid and its attendant consequences has been recognized.7 This recognition is of
even greater application in the South African context.
1
Whitney v California 274 US 357 at 375, 47 SCt 641 (1927) (Brandeis J concurring) (suppressing expression
substitutes force for rational discussion and reduces society’s ability to adjust to change); Stromberg v California
283 US 359 at 369, 51 SCt 532 (1931) (reflecting upon the importance of ‘free political discussion to the end that
government may be responsive to the will of the people and that changes may be obtained by lawful means, an
opportunity essential to the security of the Republic’). See also In re Munhumeso & others 1995 (1) SA 551 (ZS)
at 557E--F, 1995 (2) BCLR 125 (ZS) (in addition to other purposes, freedom of expression ‘provides a mechanism
by which it would be possible to establish a reasonable balance between stability and social change’).
2
Van der Westhuizen ‘Freedom of Expression’ 273 (‘Today we strive for equality and freedom, openness,
reconciliation, and tolerance, and aim to become a truly exemplary democracy in Africa and the world. In doing so
we are conscious of a history of denial of these values, of race discrimination, sexism, an obsession with secrecy
in the face of perceived onslaughts, and state censorship aimed not only at preserving white minority rule but also
at enforcing the morality of a small group by the instrument of the law.’).
3
De Klerk v Du Plessis 1995 (2) SA 40 (T) at 50D, 1994 (6) BCLR 124 (T) at 132I (concluding on the basis,
in part, of this account of the historical context, that the bill of rights in general, and s 15(1) in particular, apply
vertically only).
4
As noted in Gardener v Whitaker 1995 (2) SA 672 (E) at 688A--C, 1994 (5) BCLR 19 (E) at 34B--D.
5
Marcus ‘The Wider Reaches of Censorship’ (1985) 1 SAJHR 69.
6
Mureinik ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 SAJHR 31 at 32; cited with
approval in Khala v Minister of Safety and Security 1994 (4) SA 218 (W) at 223E--H, 1994 (2) BCLR 89 (W) at
93E--G and Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 634B--C, 1994 (1) BCLR 75
(E) at 80G--H.
7
Kauesa v Minister of Home Affairs & others 1996 (4) SA 965 (NmS) at 982J.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
20.3 A BIFURCATED GUARANTEE
(a)
Political core and protected periphery
Expression which ‘relates to free and fair political activity’ enjoys a higher level of constitutional protection than other non-political forms of expression.1 The structure of Chapter 3
therefore elevates political process arguments over other rationales for protecting speech and
expression by requiring a heightened level of judicial scrutiny of restrictions upon political
expression.2
10 In adopting the ‘reasonable’ and ‘reasonable and necessary’ distinction in s 33(1), and in
applying to freedom of expression a political principle of differentiation, our commitment
to freedom of expression acquires a distinctive constitutional colour by making textually
explicit what has been judicially developed elsewhere.3 As a consequence, in part, of
the structure of the text our freedom of expression jurisprudence will develop a core
of high-value political expression and a protected periphery of lower-value expression.4
Attributing meaning to the phrase ‘free and fair political activity’ in connection with freedom
of expression will involve our courts in defining the scope of the political process rationale
underpinning s 15.5
1
Section 33(1)(bb) provides that any limitation to ‘a right entrenched in s 15 . . ., in so far as such right relates
to free and fair political activity, shall, in addition to being reasonable as required in paragraph (a)(i), also be
necessary.’ As O’Regan J points out in S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665
(CC) at para 339: ‘The requirement of reasonableness and justifiability . . . clearly envisages a less stringent
constitutional standard than does the requirement of necessity.’
2
For a persuasive example of an interpretive project which advocates a two-tier theory of the First Amendment
on the basis of a political principle of differentiation, see Sunstein The Partial Constitution (1993) 236--9. Without
the advantage of the explicit textual materials of our Constitution, Professor Sunstein argues that free speech
jurisprudence may best be understood and most fruitfully developed on the basis of a political approach which views
political speech as residing at the core of the guarantee.
3
Section 1 of the Canadian Charter, by contrast, does not distinguish between different levels of protection to
be afforded to different forms of expression. See also Irwin Toy Ltd v Quebec (A-G) (1986) 32 DLR (4th) 641
(Que CA) at 652 (‘It is not for the court to accord more prestige to political, artistic or cultural expression than to
commercial expression, or to find that the nature and scope of one is greater than that of another since the Charter
makes no such distinction.’). But see Rocket v Royal College of Dental Surgeons of Ontario (1990) 71 DLR (4th)
68 (SCC) at 78: ‘While the Canadian approach does not apply special tests to restrictions on commercial expression
[as opposed e g to political expression], our method of analysis does permit a sensitive, case-oriented approach to
the determination of their constitutionality. Placing the conflicting values in their factual and social context when
performing the s 1 [limitation clause] analysis permits the courts to have regard to the special features of the
expression in question. As Wilson J notes in Edmonton Journal v Alberta (A-G) (1989) 64 DLR (4th) 577 . . ., not
all expression is equally worthy of protection. Nor are all infringements of free expression equally serious.’ This
judicial development of a core and a periphery of protected expression is referred to in RJR-MacDonald Inc v
Canada (A-G) (1995) 127 DLR (4th) 1 (SCC) at 53--6, 31 CRR (2d) 189 at 270--2.
4
Spitz ‘Eschewing Silence Coerced by Law: The Political Core and Protected Periphery of Freedom of
Expression’ (1994) 10 SAJHR 301.
5
The scope and meaning ascribed to ‘free and fair political activity’ may vary depending upon the particular
fundamental right which has been invoked.
20--10
[REVISION SERVICE 2, 1998]
EXPRESSION
(b)
The meaning of ‘free and fair political activity’
The scope of the political process rationale and the meaning assigned to ‘free and fair
political activity’ will be the focus of important jurisprudential debate. A narrow view of
self-government, which would recognize the resonance of the above phrase most strongly in
the arena of electoral and policy-making activities, would seek to confine the meaning of
‘free and fair political activity’ to the requirements of universal suffrage.1 A narrow understanding of the political process rationale would also provide the requisite jurisprudential
device for judges who presuppose a vertical application of Chapter 3 and who are reluctant
to trench too deeply on the powers of the legislature. The narrower the definition, the greater
the degree of judicial deference to the legislature.
10A
A wider view of the political process rationale, by contrast, would extend the scope of
‘free and fair political activity’ beyond the narrow confines of electoral activity and social
policy debates. It would argue that ‘voting is merely the external expression of a wide and
diverse number of activities by which citizens attempt to meet the responsibilities of making
judgments, which the freedom to govern lays upon them’, that the imperatives of selfgovernment require that ‘voters acquire the intelligence, integrity, sensitivity, and generous
devotion to the general welfare that, in theory, casting a ballot is assumed to express’.
Consequently, all forms of thought and expression ‘within the range of human communications from which the voter derives the knowledge, intelligence, sensitivity to human values’
would form part of the political process rationale,2 and would relate to free and fair political
activity, qualifying, in consequence, for maximum constitutional protection.
A generous approach to the scope of ‘free and fair political activity’ does not mean that
all expressive activity which generates political effects qualifies for maximum constitutional
protection. If expression was evaluated simply on the basis of its political effects, the principle
of differentiation set out in s 33(1)(bb) would be eviscerated since all expression may be said
to have political effects.
In defining the scope of ‘free and fair political activity’ a purposive interpretation is
co-extensive with a liberal and generous approach. For several reasons a wide and generous
definition of ‘free and fair political activity’ is to be preferred in crafting the legitimate scope
of the political process rationale and in circumscribing the core of freedom of expression.3
1
This approach would rely on certain early formulations of the political process rationale which suggested that
freedom of expression could be deduced from the principles of universal suffrage. See Meiklejohn Free Speech and
its Relation to Self-government (1948) 39; Bork ‘Neutral Principles’ 26--8 (only speech that is explicitly political
ought to qualify for First Amendment protection).
2
Meiklejohn ‘The First Amendment is an Absolute’ (1961) Supreme Court Review 245 at 255--7.
3
Our courts may be guided by Justice Brandeis’ famous concurring opinion in Whitney v California 274 US 357
at 375, 47 SCt 641 (1927): ‘Those who won our independence . . . valued liberty both as an end and as a means . . .
They believed that freedom to think as you will and speak as you think are means indispensable to the discovery
and spread of political truth; that without free speech and assembly discussion would be futile; that with them,
discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest
menace to freedom is an inert people; that public discussion is a political duty . . . Believing in the power of reason
as applied through public discussion, they eschewed silence coerced by law ---- the argument of force in its
worst form.’
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20--10A
10B
EXPRESSION
ORIGINAL SERVICE, 1996 First, many expressive activities do indeed reproduce and alter both the form and content
of the deliberative processes of political life. Secondly, many forms of discourse, extending
far beyond the confines of legislative policy and electoral practice, play an important
educative role in shaping the type of citizens who may constructively participate in democratic self-governance. The daily life of politics rests, in other words, on a broad array of
communicative activities. If these are not adequately protected, the political process would
soon ossify. Thirdly, our collective fallibility suggests that in order to secure and to safeguard
a well-functioning democratic process it is necessary to provide a large breathing space for
political speech. It may be necessary to overprotect high-value speech in order to reduce the
risk of narrow line-drawing by the majoritarian institutions of state, which would not be
susceptible of easy correction through the ordinary political process.1
11 One plausible approach to defining political expression would be to treat, as related to
free and fair political activity, expression which is both intended and received as a contribution to public deliberation about some issue.2 Application of this test would not require an
inquiry into subjective motivation. An objective standard, based upon reasonable inference,
is likely to suffice. Taken together, a requirement of political purpose and political reception
avoids the unacceptably wide-ranging consequences of a ‘political effects’ test while affording generous protection to political expression at the core of the guarantee.3
20.4 COMPARISON WITH RELEVANT INTERNATIONAL AND DOMESTIC INSTRUMENTS
(a)
Generally
Section 35(1) enjoins our courts, when interpreting the provisions of Chapter 3, to ‘have
regard to public international law applicable to the protection of the rights entrenched in this
Chapter’4 and permits them to ‘have regard to comparable foreign case law’.5 A rich body
of freedom of expression jurisprudence has been developed in the United States. Provided
that adequate attention is paid to the structural differences between the First Amendment and
our Chapter 3, US case law will be of great value in developing substantive areas of freedom
of expression doctrine under s 15.
Although the Canadian Charter does not apply where common-law rules are invoked in
disputes between purely private parties,6 structural parallels as well as the currency of
1
See Sunstein Partial Constitution 238--43.
2
See Sunstein Partial Constitution 236.
3
See Sunstein Partial Constitution 241: ‘For purposes of the Constitution, the question is whether the speech is
intended and received as a contribution to political deliberation, not whether it has political effects or sources.’
4
Relevant provisions in international instruments include: art 19 of the Universal Declaration of Human Rights;
art 19 of the International Covenant on Civil and Political Rights; art 10 of the European Convention on Human
Rights; art 9 of the African Charter on Human and Peoples’ Rights; arts 13 and 14 of the American Convention on
Human Rights.
5
Relevant freedom of expression provisions in domestic instruments include the First Amendment to the
US Constitution; s 2(b) of the Canadian Charter of Rights and Freedoms; art 5 of the German Basic Law; art 21 of
the Constitution of Namibia; art 19 of the Constitution of India; art 6 of the Constitution of Ireland.
6
Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd (1986) 33 DLR (4th)
174 (SCC).
[ORIGINAL SERVICE, 1996]
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CONSTITUTIONAL LAW OF SOUTH AFRICA
freedom of expression decisions under the Charter make Canadian jurisprudence an important point of reference. Freedom of speech decisions under international law will also prove
useful.
(b)
Comparison with the First Amendment to the Constitution of the United States
In the United States freedom of speech is protected by the First Amendment to the
Constitution, which provides that ‘Congress shall make no law . . . abridging the freedom of
speech, or of the press’.1
12 While the First Amendment guarantees freedom of ‘speech’, s 15(1) protects both ‘speech
and expression’. Section 15(1) therefore embraces within its ambit a wider range of
expressive activities than does the First Amendment.2
Unlike s 15, which is subject to the limitation clause, the First Amendment is cast in
absolute terms and is not subject to textual limitation. The impossibility and undesirability
of a completely absolutist guarantee has meant that justifiable limitations upon freedom of
speech have had to be fashioned by US courts on the basis of implied constitutional purpose
and structure. A great deal of interpretive energy was initially focused on applying normative
arguments primarily as principles of categorical exclusion at the threshold of the guarantee.
Thus a bright line was drawn between protected and unprotected speech. Speech which fell
within the ambit of the guarantee enjoyed near absolute protection, while speech outside this
ambit ---- fighting words, obscenity, defamation and commercial speech ---- was originally
considered to form ‘no essential part of any exposition of ideas’.3 Consequently, relatively
large classes of speech were defined as ‘non-speech’ and received no constitutional protection
at all. More recently, and without an explicit textual warrant, the US Supreme Court has
developed doctrines which afford some constitutional protection to all the classes of speech
considered above, except obscenity.4
1
For analysis of and commentary on freedom of speech under the First Amendment, see Tribe American
Constitutional Law 785--1062; Stone et al (eds) Constitutional Law 925--1361.
2
The US Supreme Court has interpreted ‘speech’ under the First Amendment to include symbolic speech, such
as certain forms of expression consisting of solely non-verbal actions. See e g Stromberg v California 283 US 359,
51 SCt 532 (1931) (holding unconstitutional a state statute prohibiting the display of a red flag as a symbol of
opposition to organized government); Texas v Johnson 491 US 397, 109 SCt 2533 (1989) (holding unconstitutional
a Texas statute prohibiting desecration of the national flag). Nevertheless, US courts have occasionally resorted to
a controversial and ideologically laden distinction between ‘pure’ speech, which is entitled to full protection, and
‘speech plus conduct’, which is more easily regulable. Thus certain forms of political protest have been denied full
First Amendment protection on the grounds that the expression at issue was mixed with conduct. See e g Cox v
Louisiana 379 US 559, 85 SCt 476 (1965) (refusing First Amendment protection to a peaceful picket across the
street from a courthouse on the grounds that the expression was not ‘free speech alone’). The inclusion of ‘speech
and expression’ in s 15(1) prevents resort to comparable distinctions in South Africa. Symbolic speech will clearly
be protected as a form of expression.
3
Chaplinsky v New Hampshire 315 US 568 at 571--2, 62 SCt 766 (1942).
4
Cohen v California 403 US 15, 91 SCt 1780 (1971) (profane slogan on jacket protected); New York Times v
Sullivan 376 US 254, 84 SCt 710 (1964) (false and defamatory statement protected); Virginia State Board of
Pharmacy v Virginia Citizens Consumer Council 425 US 748, 96 SCt 1817 (1976) (commercial advertising
protected). See also Hogg Constitutional Law of Canada sec 40.4n25.
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EXPRESSION
(c)
Comparison with s 2(b) of the Canadian Charter of Rights and Freedoms
Sections 1 and 2(b) of the Canadian Charter of Rights and Freedoms provide:
‘1. The Canadian Charter of Rights and Freedoms guarantees the rights set out in it subject only
to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic
society.
2. Everyone has the following fundamental freedoms:
...
(b) freedom of thought, belief, opinion, and expression, including the freedom of the press and
other media of communication.’1
REVISION SERVICE 2, 1998
13 Section 2(b) of the Canadian Charter groups together ‘thought, belief, opinion, and
expression’. By contrast, s 15(1) of our interim Constitution confines itself to ‘speech and
expression’, while Chapter 3 protects ‘thought, belief and opinion’ separately as part of the
guarantee of freedom of religion in s 14(1). While speech and expression enjoy the highest
level of constitutional protection only in so far as they relate to ‘free and fair political activity’,
thought, belief and opinion enjoy maximum constitutional protection regardless of their
content.2 This split between speech and expression, on the one hand, and thought, belief and
opinion, on the other, is arbitrary and anomalous.3
Since even totalitarian regimes cannot regulate thought, belief and opinion, little is
likely to turn on their omission from s 15(1) provided that ss 14(1) and 15 are judicially
interpreted to avoid absurdity. Alternatively, this arbitrariness can be remedied when the final
Constitution is drafted.
Section 15(2) has no parallel in the Canadian Charter. It serves to emphasize the
affirmative obligations cast upon the state in enhancing the quality of public debate and
furthering the interests of democratic government. Section 15(2) may constitute an internal
limitation on s 15(1).4
The Canadian limitation clause, s 1 of the Canadian Charter, provides a single standard
of justification5 for all limitations upon freedom of expression. All expression falling within
the ambit of s 2(b) is afforded the same level of constitutional protection regardless of its
content.6 The absence of a principle of differentiation has been the source of some difficulty
in Canadian freedom of expression jurisprudence. Canadian courts have struggled to establish principled guidelines for determining how much protection to afford different forms of
1
For analysis of and commentary on s 2(b) of the Canadian Charter, see Hogg Constitutional Law of Canada
sec 40; Beaudoin & Ratushny (eds) The Canadian Charter of Rights and Freedoms 2 ed (1989) ch 6.
2
Section 33(1)(aa).
3
Mureinik ‘A Bridge to Where? Introducing the Interim Bill of Rights’ 34: ‘Freedom of speech and expression
merge seamlessly with those freedoms [of thought, belief and opinion], and it is difficult to see why a line should
be drawn between them, or how it can be. What is the point of protecting freedom of thought if one is unfree to
speak one’s thoughts? And is opinion really being protected if it cannot be expressed?’
4
For a discussion of internal limitations, see above, Woolman ‘Limitation’ § 12.2(b).
5
See R v Oakes (1986) 26 DLR (4th) 200; Hogg Constitutional Law of Canada sec 35.3.
6
See e g Irwin Toy Ltd v Quebec (A-G) (1989) 58 DLR (4th) 577 (SCC). This structure resembles that of art 10
of the European Convention on Human Rights, which contains no distinction between political and non-political
expression. Article 10(1) establishes the contours of the guarantee. Article 10(2) sets out the nature of justifiable
limitations, which must be narrowly construed. See Sieghart The International Law of Human Rights (1983) 35, 91.
[REVISION SERVICE 2, 1998]
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CONSTITUTIONAL LAW OF SOUTH AFRICA
expression.1 A bifurcated guarantee based upon a distinction between political core and
protected periphery avoids this difficulty. Political expression, because of its foundational
role in protecting and developing an open and democratic society, must be jealously protected
by our courts. Non-political expression does not require the same level of constitutional
protection.
(d)
Comparison with art 21 of the Constitution of Namibia
Article 21(1) of the Constitution of Namibia provides that:
‘All persons shall have the right to:
(a) Freedom of speech and expression, which shall include the freedom of the press and other
media;
(b) Freedom of thought, conscience and belief, which shall include academic freedom in institutions of higher learning . . ..’
Article 21(2) provides that the fundamental freedoms in art 21(1)
14
‘shall be exercised subject to the law of Namibia, in so far as such law imposes reasonable
restrictions on the exercise of the rights and freedoms conferred by the said sub-article, which are
necessary in a democratic society and are required in the interests of the sovereignty and integrity
of Namibia, national security, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence’.
In Kauesa v Minister of Home Affairs & others the Namibia Supreme Court held that
art 21(1)(a) guaranteed the right to freedom of speech and expression, while art 21(2)(b)
imposed limitations on that right so as not to interfere with the rights and freedoms of others.
A limitation on the exercise of a right has to be reasonable, necessary in a democratic society,
and required in the interests of one or more of the objects listed in art 21(2).2 The onus of
justifying a limitation on freedom of speech and expression is on the party who seeks to limit
the right.3 The court also held that limitations to rights should be strictly interpreted so that
individuals were not unnecessarily deprived of the enjoyment of their rights.4
1
See e g Irwin Toy Ltd v Quebec (A-G) (1989) 58 DLR (4th) 577 (SCC) at 624--30. Irwin Toy was concerned
with the question of whether a statutory prohibition upon commercial advertising directed towards children
constituted a reasonable limit on the right to freedom of expression. The Supreme Court of Canada was required to
determine how strictly to interpret the second leg of the Canadian limitation clause test which had been set out in
R v Oakes (1986) 26 DLR (4th) 200, namely the requirement that a limitation of a Charter right ‘impair as little as
possible’ the exercise of the right in question. The Canadian court’s efforts to answer this question and to grapple
with the proper scope of judicial review are abstract and formalistic, and consequently unpredictable. Note that
the relationship between this ‘minimal impairment’ test and the problem of judicial review is adverted to by
Chaskalson P in S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 107. For
arguments in favour of the textual specification of different levels of judicial scrutiny in accordance with a political
principle of differentiation, see Spitz ‘Eschewing Silence Coerced by Law’ (1994) 10 SAJHR 301 at 313--15;
Woolman ‘Riding the Push-Me Pull-You: Constructing a Test that Reconciles the Conflicting Interests which
Animate the Limitations Clause’ (1994) 10 SAJHR 60 at 66--7. See also above, Woolman ‘Limitation’ § 12.6.
2
1996 (4) SA 965 (NmS) at 976A--D.
3
At 979J--980B.
4
At 980F--H.
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The structure of the Namibian guarantee of freedom of speech and expression is therefore similar to the structure of the guarantee under both the interim and final Constitutions.
There are two important differences. First, all limitations on freedom of speech under the
Constitution of Namibia must be justified according to the standard of necessity. Under the
interim Constitution, by contrast, only limitations on freedom of expression which relate to
free and fair political activity must satisfy the test of ‘necessity’. Other limitations on
expression must be reasonable, but need not be necessary. Under the final Constitution no
explicit textual distinction is drawn between the level of justification applicable to different
types of expression. All limitations on free expression must be justified according to the
standard of reasonableness. Secondly, art 21(2) of the Constitution of Namibia expressly
enumerates the objects which any permissible limitation is required to serve.1 By contrast,
neither IC s 33(1) nor FC s 36 enumerates the permissible objects of any limitation of
fundamental rights.
20.5 THE APPLICATION OF SECTION 15(1)
15 question of the reach of Chapter 3 generally is considered in detail in a separate chapter.2
The
Three issues, however, must be considered here. First, which natural persons are protected?
Secondly, do juristic persons enjoy the freedom of speech and expression? Thirdly, may
s 15(1) be invoked in disputes between private parties where the cause of action is based
upon a rule of the common law?
(a)
Every person
Section 15(1) extends freedom of expression to ‘every person’. In our view, therefore,
government employees ---- including members of the SA Police Service and National Defence
Force ---- and civil servants, such as teachers, will enjoy the benefits of freedom of expression.3 In South African National Defence Union v Minister of Defence & another4 the
Constitutional Court held that members of the armed forces do not forfeit their rights to
freedom of expression. The case concerned a prohibition on members of the Defence Force
from participating in any ‘act of public protest’.5 The prohibited conduct covered a wide
range of activity including attendance at any meeting whose purpose was to criticize or
support any government policy or action, whether it be the South African Government
1
The court in Kauesa v Minister of Home Affairs & others suggested at 979C--D, without deciding, that criteria
other than those enumerated in art 21(2) may form the basis for a restriction on the protected right.
2
See above, Woolman ‘Application’ § 10.3--10.4.
3
See, for example, Kauesa v Minister of Home Affairs & others 1996 (4) SA 965 (NmS) (police); Vereinigung
Demokratischer Soldaten Österreichs and Gubi v Austria Judgment of 19 December 1994, Series A No 302, (1994)
20 EHRR 56 at para 36 (military servicemen); Vogt v Germany Judgment of 26 September 1995, Series A No 323
(permanent civil servant and teacher); Ross v New Brunswick School District No 15 (1996) 133 DLR (4th) 1 (SCC)
(teacher).
4
1999 (4) SA 469 (CC), 1999 (6) BCLR 615 (CC).
5
An ‘act of public protest’ was defined in s 126B(4) of the Defence Act 44 of 1957 in a 255-word definition
which, according to O’Regan J, defied simplification.
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or another government or the policy or action of any public authority or parastatal organization, whether South African or otherwise. It also covered attendance at any meeting to
demonstrate public or private support for or opposition to any principle, demand or interest,
whether public or private. The court held that the prohibition clearly curtailed the right to
hear and express opinions on a wide range of issues whether in public or at private gatherings.
While accepting that it was important that members of the Defence Force ‘act in a manner
which encourages confidence and trust in their dispassionate observation of their duties’, the
scope of the prohibition suggested ‘that members of the Defence Force are not entitled to
form, air and hear opinions on matters of public interest and concern’. The Constitutional
Court stated that a conception of the Defence Force which suggested that ‘enrolment in the
Defence Force requires a detachment from the interests and activities of ordinary society and
of ordinary citizens’ cannot be correct. Members of the Defence Force ‘remain part of our
society, with obligations and rights of citizenship’. The prohibition in question could not be
justified ‘by reference to the need to ensure that uniformed military personnel do not engage
in politically partisan conduct’.1
16 Juristic persons may invoke the protection of s 15(1) ‘where, and to the extent that, the
nature of the rights permits’.2 ‘[F]reedom of the press and other media’ is explicitly protected
by s 15(1). Since the press almost always has juristic personality, it is clear that these juristic
persons may invoke s 15(1). A contrary view would eviscerate the freedom of the press. This
does not compel the conclusion that all juristic persons will enjoy s 15(1) rights in every
instance. A purposive interpretation of s 15(1) suggests that the press and other media are
afforded explicit constitutional protection precisely because of the crucial role they perform
in furthering the values which underpin the guarantee.3 Companies and close corporations
can and do speak and express themselves. In general, therefore, it would appear that the
nature of the right to freedom of speech and expression permits application to juristic persons
such as corporations.4 While not free of doubt, it is submitted that a principled approach to
s 15(1) would focus on the nature and value of the speech itself, and not on the identity of
the speaker.5
1
At paras 11--13.
2
Section 7(3).
3
See e g Government of the Republic of South Africa v ‘Sunday Times’ Newspaper & another 1995 (2) SA 221
(T) at 227I--228F, 1995 (2) BCLR 182 (T) at 188G--189D.
4
See, for example, Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation 1996 (1) SA 847 (ZS)
at 854I--J.
5
See e g First National Bank v Bellotti 435 US 765 at 777, 98 SCt 1407 (1978): ‘The inherent worth of the
speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether
corporation, association, union, or individual.’ See also Tribe American Constitutional Law 795: ‘Speaker-based
restrictions on speech may amount to impermissible censorship of the flow of ideas and information regarding the
relevant set of listeners even if the speakers subject to restriction cannot complain that their rights as speakers have
been violated.’
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EXPRESSION
(b)
Common-law rules invoked in private disputes
The vexed question as to whether the common law was subject to direct constitutional attack
in a private dispute under the interim Constitution was authoritatively settled in Du Plessis
v De Klerk.1 A divided Constitutional Court held that the Constititution may not be invoked
directly in a dispute between private parties concerning a rule of common law. This did not
mean, however, that the common law was beyond constitutional scrutiny. The court held that
s 35(3) of the Constitution, which enjoined all courts to develop the common law in
accordance with the ‘spirit, purport and objects’ of the Chapter on Fundamental Rights,
permitted the ‘indirect application’ of the Constitution to rules of common law. Section 35(3)
‘ensures that the values embodied in Chapter 3 will permeate the common law in all its
aspects, including private litigation’.2 The task of developing the common law was one which
fell on all courts, including the Appellate Division. The role of the Constitutional Court was
limited. It had to ‘ensure that the provisions of s 35(3) in relation, inter alia, to the
development of the common law are properly interpreted and applied, otherwise it is not
discharging its duty properly in relation to the enforcement of the provisions of the
Constitution’. Hence the Constitutional Court had jurisdiction ‘to determine what the ‘‘spirit,
purport and objects’’ of Chapter 3 were and to ensure that, in developing the common law,
the other courts had ‘‘due regard’’ thereto’.3
16A
1
Du Plessis & others v De Klerk & another 1996 (3) SA 850 (CC), 1996 (6) BCLR 658 (CC). See also above,
Woolman ‘Application’ § 10.3.
2
Per Kentridge AJ in Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (6) BCLR 658 (CC) at para 60.
3
Per Kentridge AJ in Du Plessis v De Klerk (supra) at para 63.
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20.6 THE MEANING OF THE GUARANTEE
(a)
Freedom of speech and expression
REVISION SERVICE 3, 1998
The inclusion of both ‘speech and expression’ in the language of s 15(1) makes it clear that
17
constitutional protection is afforded to a wider range of activities which convey meaning than
the purely verbal articulation of ideas. Symbolic speech, including acts intended to convey
an idea, such as flag-burning,1 wearing a symbolic armband,2 and even nude dancing,3 have
been held, in US jurisprudence, to fall within the meaning of ‘free speech’. Since ‘expression’
is wider than ‘speech’, such expressive conduct would clearly fall within the ambit of s 15(1).4
There is also, it is submitted, no room for a constitutional distinction between ‘pure speech’
and ‘speech mixed with conduct’ ---- both forms of expressive activity would qualify for s
15(1) protection.
The guarantee protects not only the freedom to express oneself but also the means of that
expression. A restriction upon or interference with the means of communication, whatever
form it may take, abridges the guarantee. A monopoly over operating a mobile cellular
telephone service therefore infringes freedom of expression.5
Nevertheless, because all human activity embodies expressive dimensions, a purely literal
definition of ‘expression’ would be too wide. Section 15(1) is not self-defining and must be
given content through interpretation. There are at least two possible approaches to this task.
One method of defining the ambit of ‘freedom of speech and expression’ would begin
with the literal meaning of the words and would apply a content-neutral approach to
determining whether particular expressive conduct falls within the guarantee. The Canadian
courts have favoured content-neutrality. According to this approach, it would be illegitimate
to distinguish, at the threshold of the right itself, between forms of expressive conduct on the
basis of their content. To the extent that content-based distinctions are permissible, it is only
in the narrow context of evaluating whether the expressive conduct in question ‘relates to
free and fair political activity’ under the limitation clause. At the first stage of the analysis,
however, ‘speech and expression’ ought to be broadly defined so that ‘activity is expressive
if it attempts to convey meaning’.6 Consequently, the content of a statement cannot deprive
1
See Texas v Johnson 491 US 397, 109 SCt 2533 (1989) (Texas statute criminalizing desecration of the national
flag unconstitutional).
2
See Tinker v Des Moines Independent Community School District 393 US 503, 89 SCt 733 (1969) (prohibition
upon school students wearing black armbands to protest the Vietnam conflict violates their rights to free expression).
3
See Schad v Borough of Mount Ephraim 452 US 61, 101 SCt 2176 (1981).
4
In In re Chikweche 1995 (4) SA 284 (ZS), 1995 (4) BCLR 533 (ZS) the Supreme Court of Zimbabwe held that
the refusal of the High Court to allow a follower of the Rastafarian movement to take the oath of admission as a
legal practitioner on the grounds that he was wearing his hair in ‘dreadlocks’ violated the applicant’s right to freedom
of conscience. In light of this conclusion it became unnecessary for the court to decide whether the applicant’s right
to freedom of expression was also infringed. Nevertheless, Gubbay CJ considered and acknowledged that the
wearing of dreadlocks was a form of symbolic expression of a Rastafarian religious and philosophical world outlook
(at 287F--289I).
5
Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation 1996 (1) SA 847 (ZS) at 858D--E, 860B--D;
Autronic AG v Switzerland (1990) 12 EHRR 485. But see South African Post Office Ltd v Van Rensburg & another
1998 (1) SA 796 (E), a failed attempt to apply the ratio of Retrofit in a challenge to the postal service monopoly
enjoyed by the South African Post Office.
6
Irwin Toy Ltd v Quebec (A-G) (1989) 58 DLR (4th) 577 (SCC) at 606.
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it of constitutional protection, no matter how offensive it may be.1 ‘If the activity conveys or
attempts to convey a meaning, it has expressive content and prima facie falls within the scope
of the guarantee.’2 This does not mean that all activity which attempts to convey meaning is
absolutely protected. Rather, a content-neutral approach means that as long as the activity
attempts to convey meaning it falls within the ambit of s 15(1). Any limitation of such
expressive conduct must therefore satisfy the standards of justification set out in the limitation
clause. According to this approach, the definition of ‘expression’ turns upon the presence or
absence of a communicative purpose. What falls outside the ambit of freedom of expression
is therefore that which is ‘purely physical and does not convey or attempt to convey
meaning’.3 Consequently, violent expression such as assault would generally fall outside
s 15(1).4 The content-neutral approach sets a low threshold which expressive conduct must
satisfy in order to qualify for constitutional protection. Almost all the analysis is therefore
located within the limitation clause inquiry. For example, commercial advertising and
fraudulent misrepresentation would both fall within the ambit of s 15(1) and the focus of the
inquiry would concern limitations of such expressive conduct.
18 The content-neutral approach has certain advantages. It reduces the scope for value-based
exclusions of forms of expression at the threshold of the right. It extends protection very
broadly over almost all forms of expressive conduct. It reduces the burden of establishing a
prima facie infringement of s 15(1) because it requires applicants to demonstrate no more
than that the expressive conduct at issue constituted an attempt to convey meaning, and that
such conduct has been restricted. It stays close to the common-sense meaning of ‘speech and
expression’ and avoids the paradoxical results of a process which would define certain forms
of expressive conduct as ‘non-speech’. On its face, it would appear to protect a wider array
of expressive conduct.
A second possible approach, which might be called the definitional approach, would
invoke a higher threshold at the first stage of the analysis. This approach would point to the
language used in both s 33(1), where limitations are at issue, and in s 35(1), which enjoins
our courts to interpret the provisions of Chapter 3 in a manner ‘which shall promote the
values which underlie an open and democratic society based on freedom and equality’. It
would suggest that this reiteration of language would be superfluous unless the injunction
contained in s 35(1) were applied to define the boundaries of ‘freedom of speech and
expression’. Thus ‘freedom of speech and expression’ would acquire meaning through an
interpretive process which excavates the values underpinning the guarantee. Giving content
to s 15(1) is therefore also an exercise in demarcating the ambit of the right. If any form of
expression is to be denied constitutional protection altogether, then such a decision would
have to be justified on the basis that the expressive activity in question plays no role in
furthering any of the values which underpin the guarantee.
1
R v Keegstra [1990] 3 SCR 697, 3 CRR (2d) 193.
2
Irwin Toy v Quebec (A-G) at 606--7.
3
Irwin Toy v Quebec (A-G) at 607.
4
This is the position in Canada. See Irwin Toy v Quebec (A-G) at 606--7.
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REVISION SERVICE 5, 1999
19 The definitional approach would exclude from the protection of s 15(1) certain expressive
activities, notwithstanding the fact that they attempt to convey meaning, on the grounds
that such activities further none of the values which underpin freedom of expression.
These activities would not qualify for constitutional protection at all, and their restriction
would not require justification in terms of the limitation clause. Thus, for example, while
commercial expression would fall within the ambit of the guarantee on the grounds, at least,
that it furthered the values of individual self-fulfilment and autonomy and perhaps the search
for truth, fraudulent misrepresentation might not qualify for protection at all.
The advantages of the definitional approach are that it generates a principled debate as to
the values furthered by particular forms of expressive conduct before embarking on the more
ad hoc, pragmatic and unpredictable task of balancing expressive interests with other
interests. In setting a higher threshold at the first stage of analysis it avoids burdening the
courts with frivolous litigation and seeks to ensure that s 15(1) is not interpreted in a manner
which extends protection to conduct beyond the purpose of the right.1 If an overgenerous
definition of ambit extends protection to expressive activities which are outside the purpose
of the guarantee, the courts will endeavour to uphold legislation limiting such activities, even
at the risk of weakening the standards of justification set out in the limitation clause.2 If, for
example, commercial advertising and fraudulent misrepresentation were afforded the same
degree of constitutional protection, the danger is that the effort to uphold almost all regulation
of the latter might end up by weakening the standard of justification applied to the former,
so that all forms of expression at the periphery of the guarantee would become too easily
regulable.3
The definitional approach bears its own risk, namely that too many classes of expressive
activity will be denied protection altogether. The wider latitude for judicial value-judgments
may grant licence to the courts to exclude valuable expression from constitutional protection.
This risk may be reduced, but not eradicated, provided the values underpinning freedom of
expression are generously elaborated.
(b)
Freedom of the press and other media
20
Freedom
of the press is a necessary concomitant of freedom of expression.4 An important
part of freedom of the press is the right to report on matters of public interest, however
1
For further discussion of the advantages of a definitional approach at the first stage of constitutional analysis,
see above, Woolman ‘Limitations’ § 12.2 and Kentridge & Spitz ‘Interpretation’ § 11.10.
2
See Hogg Constitutional Law of Canada sec 33.7(b): ‘Freedom of expression may be the most obvious example
of the connection between the scope of a right and the stringency of s 1 justification. It is obvious that any attempt
to regulate political debate should have to face a stringent standard of justification under s 1. But if the court decides,
as it seems to have done, that every communicative act, no matter how trivial, false or harmful, enjoys constitutional
protection, then it is inevitable that the court will relax the standard of s 1 justification in order to accommodate
laws that are generally approved.’
3
See Hogg Constitutional Law of Canada sec 35.3.
4
Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of South West Africa 1987 (1) SA 614
(SWA) at 623G: ‘If freedom of speech is to have any significance in a democratic country, its concomitant, freedom
of the press, must be recognised because it is only by reaching a large number of people and rallying their support
that their freedoms can be utilised for the benefit of society.’ See also G Marcus ‘Freedom of Expression Under the
Constitution’ (1994) 10 SAJHR 140 at 141.
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controversial or offensive, without inappropriate interference by the courts.1 Nevertheless,
the specific textual enumeration of the press and other media in s 15(1) signals the importance
which the guarantee ascribes to the role of these institutions in protecting and contributing
to an open and democratic society.2 In Holomisa v Argus Newspapers Ltd Cameron J gave
explicit recognition to the independent guarantee of the press in s 15(1):
‘In a system of democracy dedicated to openness and accountability, as ours is, the especially
important role of the media, both publicly and privately owned, must in my view be recognized.
The success of our constitutional venture depends upon robust criticism of the exercise of power.
This requires alert and critical citizens. But strong and independent newspapers, journals and
broadcast media are needed also, if those criticisms are to be effectively voiced, and if they are to
be informed with the factual content and critical perspectives that investigative journalism may
provide . . . It is for this very reason that the Constitution recognizes the especial importance and
role of the media in nurturing and strengthening our democracy. This recognition is obvious in
s 15(1), which expressly states that freedom of speech and expression ‘‘shall include freedom of
the press and other media’’.’3
1
See, for example, Jersild v Denmark, Judgment of 23 September 1994, (1995) 19 EHRR 1. Jersild’s case arose
out of a decision by the Danish National Television to broadcast, in its news and current affairs programme, an
interview with members of a youth group which articulated extremist and racist views including support for eugenics
and apartheid. The interviewer and the editor intended the programme to be informative and to stimulate public
awareness of the existence of and dangers posed by the group. The interviewer and editor were subsequently charged
and convicted of complicity in making racist statements public. The convictions were upheld on appeal, the court
finding that their freedom of expression did not outweigh the legitimate interest in protecting minority groups against
racist propaganda. The European Court of Human Rights, however, held that the convictions violated the right to
freedom of expression protected by Article 10 of the ECHR and concluded that the infringement was not necessary
in a democratic society and was therefore not justified. The judgment of the court made clear that it found no value
in the racially offensive speech itself, which would not have been protected by Article 10. However, the focus of
the decision was on the rights of the media to publish matters of public interest, including racially insulting speech,
in the exercise of journalistic responsibility for a news broadcast. Consequently, the matter was decided on the basis
of principles of press freedom, including the right to impart and receive information and ideas on matters of public
interest, and not on principles prohibiting hate speech under the UN Convention on the Elimination of All Forms
of Racial Discrimination (as would have been the case if the applicants had been the members of the youth group
itself). For a more complete analysis of Jersild’s case and its implications for South African free speech
jurisprudence, see L Johannessen ‘Judgment of the European Court of Human Rights, 23 September 1994: Jersild
v Denmark’ (1995) 11 SAJHR 123.
2
Government of the Republic of South Africa v ‘Sunday Times’ Newspaper & another 1995 (2) SA 221 (T) at
227I--228A, 1995 (2) BCLR 182 (T) at 188G--H: ‘The role of the press is in the front line of the battle to maintain
democracy. It is the function of the press in a democratic society to ferret out corruption, dishonesty and graft
wherever it may occur and to expose the perpetrators. The press must reveal dishonest mal- and inept administration.
It must also contribute to the exchange of ideas already alluded to. It must advance communication between the
governed and those who govern. The press must act as the watchdog of the governed.’
3
1996 (2) SA 588 (W) at 608J--609D. While recognizing the independent guarantee of the press, the court
nevertheless rejected the contention that the section conveyed special protection upon journalists. At 610C--D
Cameron J stated: ‘It does not follow, however, from the special constitutional recognition of the importance of
media freedom, or from the extraordinary responsibilities the media consequently carry, that journalists enjoy special
constitutional immunity beyond that accorded ordinary citizens.’
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EXPRESSION
20A
This passage was cited with approval by the Supreme Court of Appeal in National Media
Ltd & others v Bogoshi.1 This decision expressly recognizes ‘the democratic imperative that
the common good is best served by the free flow of information and the task of the media in
the process’.2
Similarly, if this language is not to be redundant, the organized media might be entitled
to greater s 15(1) protection than are other members of the public.3 Recognition of the role
1
1998 (4) SA 1196 (SCA), 1999 (1) BCLR 1 (SCA).
2
At 1210H.
3
Neither US nor Canadian jurisprudence has yet formally attributed independent constitutional significance to
similar ‘press clauses’ in their constitutional instruments. Nevertheless, one member of the US Supreme Court,
Justice Stewart, has taken the view that the press clause does indeed have independent constitutional significance.
See Stewart (1975) 26 Hastings LJ 631 at 633--4 (stating that the purpose of the press clause was ‘to create a fourth
institution outside the government as an additional check on the three official branches’).
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EXPRESSION
of the media in furthering the values which underpin freedom of expression may translate
into an independent, constitutionally protected position in comparison with other juristic
persons, and possibly also in comparison with natural persons.
REVISION SERVICE 2, 1998
21 Such independent constitutional significance might find concrete doctrinal expression in
constitutional or statutory rules creating a journalistic privilege in respect of governmental
demands for information, including the disclosure of sources, from the media.1 The press
clause in s 15(1) may also afford the media a distinct right of access to information within
the government’s possession or control in order to ensure public supervision of the operations
of government. Unlike s 23, which requires a demonstration that the information at issue ‘is
required for the exercise or protection’ of a particular right,2 s 15(1) may, without further
demonstration, already embody an implicit right of access to information as a necessary
precondition for the exercise of the freedom of expression. The organized media are most
favourably positioned to assert and make use of such a s 15(1) right in addition to but distinct
from the s 23 right.3 Prior restraints upon media publication where matters of public interest
1
In Nel v Le Roux 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) the validity of s 205 of the Criminal Procedure
Act 51 of 1977, which compels persons to reveal information in relation to suspected offences, was upheld. This
section has frequently been used to compel journalists to reveal their sources of information. It permits witnesses,
however, to refuse to answer any question provided they have a ‘just excuse’ for such refusal. The court expressly
left open the question as to what constitutes a just excuse and stated that previous decisions on this question might
have to be reconsidered in the light of the constitutional guarantees. There is accordingly scope for the argument
that the refusal by a journalist to reveal sources may constitute a ‘just excuse’ in appropriate circumstances. It is
submitted that where the disclosure of sources would unjustifiably infringe the freedom of the press, reliance on
this right would constitute a ‘just excuse’. The recent decision of the European Court of Human Rights in Goodwin
v United Kingdom, Judgment of 27 March 1996, (1996) 1 BHRC 37 (ECt HR) offers support for this argument. In
Goodwin a journalist was ordered by a domestic court to disclose the source of certain information on the grounds
that disclosure was necessary ‘in the interests of justice’. The journalist’s appeal against the order was dismissed
by the Court of Appeal and this decision was confirmed by the House of Lords. After refusing to comply with the
order, the journalist was held to be in contempt of court and was fined. He complained to the European Commission
of Human Rights (which referred the case to the European Court of Human Rights) that the disclosure order violated
his freedom of expression as protected by Article 10 of the Convention for the Protection of Human Rights and
Fundamental Freedoms. The majority of the European Court of Human Rights held that a court order requiring a
journalist to reveal his source of information and the fine imposed on him for refusing to do so violated the
journalist’s right to freedom of expression. The majority further held that the violation could not be justified as
being necessary in a democratic society because there was no reasonable relationship of proportionality between
the legitimate aim pursued by the disclosure order and the means used to achieve that aim. The court emphasized
at 95e that the ‘protection of journalistic sources is one of the basic conditions of press freedom.’ But see Branzburg
v Hayes 408 US 665, 92 SCt 2646 (1972) (there is no journalistic qualified privilege to refuse to disclose the identities
of confidential sources or the information received from them in grand jury proceedings or criminal trials); Zurcher
v Stanford Daily 436 US 547, 98 SCt 1970 (1978) (rejecting qualified privilege by holding that there is no need to
depart from ordinary rules governing ex parte search warrants where the premises of a newspaper were to be
searched); CBC v Lessard [1991] 3 SCR 421, 67 CCC (3d) 517; CBC v NB [1991] 3 SCR 459, 85 DLR (4th) 57
(the issuing of search warrants to police to obtain television footage of a crime from premises of television station
is not a violation of s 2(b) of the Canadian Charter).
2
See below, Klaaren ‘Access to Information’ § 24.3.
3
See e g Richmond Newspapers, Inc v Virginia 448 US 555, 100 SCt 2814 (1980) (absent an overriding
governmental interest the First Amendment requires that criminal trials must be open to the public; in his concurring
opinion Brennan J suggested that this is just one instance of a general First Amendment right of access to information
about governmental operations). See also Edmonton Journal v Alberta (A-G) [1989] 2 SCR 1326 at 1337, 64 DLR
(4th) 577 (freedom of the press also includes the right of the press and the public to be present in court). But see
New Brunswick Broadcasting Co v Nova Scotia [1993] 1 SCR 319 (ban on television cameras in legislative chamber
part of parliamentary privilege and not subject to Charter).
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are concerned may be rendered presumptively unconstitutional.1 Gag orders and sub judice
rules prohibiting the press from publishing certain types of information about trials before
they have commenced may be unconstitutional.2
22 The centerpiece of post-apartheid regulation of the broadcast media is the Independent
Broadcasting Act.3 The statutory scheme regulates, inter alia, the granting of broadcast signal
licences to public, private and community broadcasters. Various limitations apply to the
granting of private broadcast licences. The first set of limitations relates to questions of
ownership and control. Foreign control of private broadcasters is restricted;4 the number of
licences which may be held by one person in the television and radio sectors of the industry
is limited, as is cross-media control of private broadcasting.5 The second set of limitations
may be described as content-based. These include a prohibition on granting licences to
political parties;6 requirements for minimum local content;7 provisions regulating the manner
of presenting news, comment and issues of public importance;8 and the monitoring of
programme content by the Broadcasting Monitoring Committee.9 Both the control and
content limitations raise s 15(1) issues. Constitutional scrutiny will clearly require the
balancing of property rights, equality, and freedom of expression under s 33(1).
(c)
Freedom of artistic creativity
The freedom of artistic creativity is clearly implicit in the general guarantee of freedom of
expression. Nevertheless, perhaps because of our history of draconian censorship of the arts,
artistic creativity has received specific textual enumeration. One commentator has suggested
that it is possible to infer from the specific mention of ‘artistic creativity’ that modes of
expression
‘which cannot readily be described as ‘‘speech’’ could be specifically protected as artistic creativity . . . Matter which would otherwise not seem to qualify for constitutional protection because of
its content may indeed be protected within the context of artistic creativity and scientific research
if the nature and the manner of presentation thereof merit such a conclusion.’10
Viewed from this perspective, the specific mention of artistic creativity offers a safeguard
against too narrow an interpretation of the meaning of ‘speech and expression’.
1
Mandela v Falati 1995 (1) SA 251 (W), 1994 (4) BCLR 1 (W); Government of the Republic of South Africa
v ‘Sunday Times’ Newspaper & another 1995 (2) SA 221 (T), 1995 (2) BCLR 182 (T); Near v Minnesota 283 US
697, 51 SCt 625 (1931); New York Times Co v US 403 US 713, 91 SCt 2140 (1971).
2
The US position is stated in Nebraska Press Association v Stuart 427 US 539, 96 SCt 2791 (1976) (gag orders
are almost never constitutionally permissible because they violate the First Amendment). See also Edmonton Journal
v Alberta [1989] 2 SCR 1326, 64 DLR (4th) 577 (statutory prohibition on press reporting of matrimonial litigation
violates s 2(b) and is not a reasonable limit; courts must be open to public scrutiny and to public criticism of their
operation). But see R v Canadian Newspapers Co [1988] 1 SCR 122 (statute making provision for issuing of court
orders prohibiting media disclosure of the identity of complainants in sexual assault cases is a justifiable limitation
of freedom of the press).
3
4
Act 153 of 1993.
Section 48 of Act 153 of 1993.
5
6
Sections 49 and 50 respectively.
Section 51.
7
8
Section 53.
Schedule 1 of the Act.
9
Section 62.
10
Van der Westhuizen ‘Freedom of Expression’ in Rights and Constitutionalism 286. As Van der Westhuizen
points out, the protection of ‘artistic creativity’ as opposed to ‘works of art’ suggests that experimental and
unsuccessful attempts at producing art will enjoy protection.
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23 It is notoriously difficult to produce a satisfactory definition of ‘art’ and, by extension, of
‘artistic creativity’.1 A wide definition of ‘artistic creativity’ is necessary as a safeguard
against censorship because ‘neither the government nor private pressure groups should be
able to mandate standards of content or taste’.2 The advantage of a broad definition of ‘artistic
creativity’ is that it reduces the danger of judges having to decide whether something is indeed
art for purposes of constitutional protection. The wider the definition, however, the more one
is compelled to determine the appropriate level of constitutional protection on a case-by-case
basis. In other words, it becomes increasingly difficult to contend that ‘artistic creativity’, as
a category or class of expressive conduct, ‘relates to free and fair political activity’ and
therefore enjoys maximum constitutional protection. Artistic creativity is valuable not only
for its contribution to the political process but also because of the role it plays in furthering
individual self-fulfilment, autonomy, and dignity. The level of scrutiny afforded to particular
forms of artistic creativity will have to be determined by assessing the extent to which
particular works of art relate to free and fair political activity.
The case-by-case approach would acknowledge that artistic expression frequently
embodies the most radical challenges to orthodox values, is very often a reflection upon
political life and society, and may impact significantly upon the values and character of the
members of society and upon the nature of the culture they inhabit. In short, it may be
accepted that artistic expression can contribute, in fundamental ways, to the formation of a
democratic citizenry and consequently to the furtherance of the fundamental political values
underpinning s 15(1). Furthermore, artistic expression which attracts a regulatory impulse
will often embody valuable political dimensions.
1
As the US Supreme Court has noted, ‘one man’s vulgarity may be another’s lyric’: Cohen v California 403 US
15 at 25, 91 SCt 1780 (1971).
2
Heins Sex, Sin and Blasphemy: A Guide to America’s Censorship Wars (1993) 4--5: ‘[Artistic expression] should
include books, movies, painting, posters, sexy dancing, street theatre, graffiti, comics, television, music videos ---anything produced by creative imagination, from Shakespeare to sitcoms, from opera to rock. Freedom of expression
may mean that we have to tolerate some art that is offensive, insulting, outrageous, or just plain bad. But it’s a small
price to pay for the liberty and diversity that form the foundation of a free society.’
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Nevertheless, one might be sceptical about the competence of judges to engage in such a
process of neutral line-drawing between political and non-political artistic expression. One
might also be concerned that courts will draw inadequately protective lines in this area. It
should be remembered, however, that the search for political meaning would not be a pretext
for regulation, but its purpose would be to extend greater protection. The remaining dangers
may be minimized in two ways. First, our courts ought to adopt a wide and generous
understanding of free and fair political activity when determining whether particular works
of art qualify for the higher or lower level of protection.1 We submit that artistic creativity
which embodies characteristics of social commentary relates to free and fair political
activity.2 Secondly, the specific mention of ‘artistic creativity’ in s 15(1) enables the courts
to develop a constitutional presumption in favour of maximum constitutional protection for
artistic creativity. On analogy with the First Amendment doctrine of the presumptive
unconstitutionality of prior restraints,3 a rebuttable presumption that artistic creativity relates
to free and fair political activity might provide both the necessary flexibility of a case-by-case
approach and extensive protection for artistic creativity.4
(d)
Section 15(2)
24 affirmative obligations imposed by s 15(2) operate both in the interests of equality of
The
access and of substance, and aim to enhance the quality of public discourse.5 Privately funded
or controlled media are not subject to s 15(2). The section may operate as a specific internal
limitation upon s 15(1) rights because it places constraints upon the use of state media.6
The inclusion of s 15(2) reflects a ‘more than ordinary level of concern to enrich and
unshackle public debate’ and to ‘cultivate an ethic of persuasion’.7 It also recognizes that the
marketplace of ideas, like most markets, is subject to market distortions and even failure.
Section 15(2) offers a partial corrective to the tendency for free expression to become a
function of economic and political power. It conceives the relationship between the government of the day and the state-financed or -controlled media in terms of the rights and
obligations of trustees or custodians on behalf of the general public, and not on the model of
1
See Sunstein Partial Constitution 242: ‘We might include materials that would not, in a world with perfect
prosecutors and judges, receive protection ---- simply because without such protection, people in positions of
authority will, in our world, draw lines in a way too threatening to the system of free expression.’
2
For a more detailed elaboration of these arguments, see Sunstein Partial Constitution 240 and 244.
3
See below, § 20.7(a).
4
The status of primary picketing, as a class of category of expressive conduct, raises similar difficulties of
classification. Are our courts to recognize the structural role of picketing in the institutional fabric of our society
and, on this basis, to conclude that the entire class of expressive conduct relates to free and fair political activity
and qualifies for the highest level of protection? Alternatively, is the level of protection afforded to primary picketing
to be a function of the substance or content of particular pickets, considered on a case-by-case basis? Whenever
particular classes of expressive conduct are placed in issue the principled nature of classification and generalization
will compete with the countervailing flexibility of individualized decisions. In these situations too, constitutional
presumptions may offer a via media.
5
For consideration of the relationship between freedom of expression and the Independent Broadcasting Act
153 of 1993, see Wendland ‘Tightroping Freedom of Expression and Broadcasting Regulations: The New Bill of
Rights and the Independent Broadcasting Act 1993’ (1994) 10 SAJHR 280.
6
For consideration of the effect of internal limitations upon the structure of constitutional litigation, see above,
Woolman ‘Limitation’ § 12.2(b).
7
Mureinik ‘A Bridge To Where?’ (1994) 10 SAJHR 31 at 35.
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EXPRESSION
private ownership. Defensible regulation of state media to enhance the quality of public
discourse requires careful consideration and articulation in a statutory scheme. Case-by-case
constitutional consideration is necessary to ensure that regulation does indeed ensure
impartiality and diversity.
20.7 LIMITATIONS UPON SECTION 15(1)
25 this section we discuss the major jurisprudential devices which have been used to limit
In
freedom of speech and expression.
(a)
Prior restraints
Prior restraints impose restrictions upon expression before it enters the public domain. Such
restraints may be contrasted with systems of subsequent punishment, either by criminal or civil
sanction. The conventional antipathy to prior restraints upon expression is rooted in the abhorrence
of the old English licensing system, which required prior approval before publication.
There are two primary forms of prior restraint: licensing or permit schemes which subject
expression to prior authorization,1 and government orders or court interdicts prohibiting
certain exercises of speech and expression. A number of powerful objections have been raised
to the employment of prior restraints upon speech and expression. First, prior restraints
replace speech with state sanctioned silence. Secondly, and with particular reference to
interdicts upon expression, the very personalized quality of prior restraints has a chilling
effect both upon individuals who are brought under the gaze of a judicial censor and also
upon other potential speakers who may be moved to self-censorship.2 Thirdly, interdicting
expression is a form of abstract adjudication. Prior to publication courts might be engaged
in guesswork and may enjoin more expression than is necessary because of overcautious or
incorrect assessments of hypothetical harms. Fourthly, affording adequate protection to
expression, particularly political expression, ought to involve placing as many hurdles as
possible in the path of regulation. Prior restraints have the opposite effect. Fifthly, violation
of the terms of an interdict is punishable with criminal contempt. The collateral bar rule
means that an individual charged with contempt for having violated an injunction may not
raise as a defence to his or her conduct the unconstitutionality of the original order.3 A person
1
See e g Lovell v Griffin 303 US 444, 58 SCt 660 (1938) (a city ordinance prohibiting the distribution of literature
of any kind, at any place, and in any manner, without a permit from the City Manager, strikes at the very foundation
of freedom of the press by subjecting it to licence and censorship). See also Freedman v Maryland 380 US 51, 85
SCt 734 (1965) (on the standards necessary to safeguard the constitutionality of a licensing system in relation to
film censorship). See also, in the African context, Re Munhumeso & others 1995 (1) SA 551 (ZS); Mulundika v The
People (1996) 1 BHRC 199 (Sup Ct Zambia) (requirement to obtain prior permission for public gatherings infringes
the freedom of speech and assembly).
2
See Kalven ‘Even When a Nation is at War’ (1971) Harvard LR 3; Blasi ‘Towards a Theory of Prior Restraint:
The Central Linkage’ (1981) 66 Minnesota LR 11.
3
GTE Sylvania v Consumers Union 445 US 375 at 380, 100 SCt 1194 (1980); Walker v City of Birmingham 338
US 307 at 321, 87 SCt 1824 (1967) (invoking the collateral bar rule to uphold contempt convictions for violations
of temporary restraining orders prohibiting expression). For invocation in South Africa of a doctrine comparable
with the collateral bar rule, see Culverwell v Beira 1992 (4) SA 490 (W) at 493--4 (all orders of this court, whether
correctly or incorrectly granted, have to be obeyed until they are properly set aside; respondents may not defy court
orders contending that they believed such orders to be wrong; the resultant chaos is not difficult to imagine).
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who believes that a statutory limitation of expression was unconstitutional would be in a
position to express him- or herself in the knowledge that the constitutionality of the statute
may be challenged if subsequent punishment should ensue. The violation of an interdict, by
contrast, carries an effective elimination of arguments regarding the constitutionality of its
issue. The chilling effect upon expression is potentially immense.
26 The view that restraints upon speech are especially burdensome has led, in First
Amendment jurisprudence, to the rule that prior judicial restraints are presumptively unconstitutional and can seldom be justified.1 In certain limited circumstances, however, a prior
restraint may survive scrutiny.2 Nevertheless, the plurality of justices in the New York Times
case3 makes clear that even national security interests will not justify a judicial prior restraint
upon expression unless the state can prove that publication would result in direct, immediate
and irreparable damage to the nation and its people.4
Some South African courts have begun to accept the doctrine that prior restraints upon
speech are presumptively unconstitutional. In Mandela v Falati5 the court discharged an
interim interdict against the holding of a press conference by the respondent at which,
according to the applicant, defamatory statements would be published.
In Government of the Republic of South Africa v ‘Sunday Times’ Newspaper6 the
government sought an interdict preventing the publication of the findings of a commission
of inquiry into the award of a State tender for textured vegetable products. The applicant
based its argument upon a governmental regulation which prohibited publication of the
findings of a commission of inquiry until the State President had released the commission’s
report for publication. The Sunday Times challenged the constitutional validity of this
regulation as infringing s 15(1). In dismissing the application Joffe J concluded, with
1
Near v Minnesota 283 US 697, 51 SCt 625 (1930) (a state statute permitting the government to enjoin as a
public nuisance any malicious, scandalous or defamatory newspaper or periodical constitutes an unconstitutional
prior restraint which is of the essence of censorship); New York Times Co v United States 403 US 713, 91 SCt 2140
(1971) (any system of prior restraints upon expression bears a heavy presumption against constitutional validity
and the government carries a heavy burden of showing justification for the imposition of such a restraint); Nebraska
Press Association v Stuart 427 US 539, 96 SCt 2791 (1976) (a court order prohibiting the reporting of the existence
or nature of any confessions or other information implicating an accused murderer is an unconstitutional prior
restraint on reporting news about crime).
2
Near v Minnesota 283 US 697 at 714--16, 51 SCt 625 (1930) (highly exceptional circumstances may justify a
prior restraint, for example, to prevent publication of sailing dates of transports or the number and location of troops,
when a nation is at war). It may be that in the context of invasions of rights to privacy which do not implicate matters
of public interest the presumption against prior restraints on expression will be weaker and that some such restraints
may be saved by s 33(1). In Canada prior restraints have occasionally been upheld. See e g Re Southam and The
Queen (No 2) (1986) 53 OR (2d) 663 (CA); R v Canadian Newspapers Co [1988] 1 SCR 122. See also Hogg
Constitutional Law of Canada sec 40.6(a).
3
Better known as the ‘Pentagon Papers’ case.
4
New York Times Co v United States 403 US 713 at 730, 91 SCt 2140 (1971) (Stewart J, joined by White J,
concurring). In the concurring formulation of Brennan J at 726--7: ‘Only governmental allegation and proof that
publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the
safety of transports already at sea can support even the issuance of a temporary restraining order.’ But see US v
Progressive Inc 467 FSupp 990 (WD Wis 1979) (Federal Court in Wisconsin holding that interdict on publication
of information about the manufacture of an H-bomb not unconstitutional). In the Progressive case it appears that
the magnitude of the potential harm, should it eventuate, allowed the court to weaken the requirement that such
harm also be imminent.
5
1995 (1) SA 251 (W) at 259G--260D, 1994 (4) BCLR 1 (W) at 8G--9C.
6
1995 (2) SA 221 (T), 1995 (2) BCLR 182 (T).
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EXPRESSION
reference to First Amendment doctrine, that the regulation in question constituted a prior
restraint. He rejected the applicant’s contention that irreparable harm would result from
publication without consent, finding it to be speculative and without foundation. The court
concluded that there were no circumstances present in the case that would justify a prior
restraint.1
(b)
Time, place and manner restrictions
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Instead of regulating the content of speech or expression, time, place and manner restrictions
27
regulate the context in which speech and expression take place. These regulations are
therefore content-neutral: they do not regulate speech because of its content, but do so in
order to achieve other objectives. Where such content-neutral regulations are subjected to
scrutiny on the grounds that they infringe s 15(1) our courts will balance the competing
interests of governmental regulation for purposes unrelated to the content of the expression,
on the one hand, with the interests of the speaker in disseminating a message, on the other.
This balancing of interests will take place under the limitation clause.
In America the US Supreme Court has developed a set of rules which such regulations
must satisfy if they are to pass constitutional muster. Content-neutral regulations must
be justified without reference to the content of the regulated speech.2 Furthermore, the
provisions in question must be ‘narrowly tailored to serve a significant government interest’.3
The ‘narrowly tailored’ requirement does not require the state to choose the least restrictive
or least intrusive means of achieving its objective, but imposes an obligation that the
means--end fit must be close, and the means chosen must not be ‘substantially broader than
necessary to achieve the government’s interest’.4 Finally, time, place and manner restrictions
must also leave open ample alternative channels of communication.5
Canadian jurisprudence also distinguishes between content-based and content-neutral
restrictions upon expression. Under the Canadian limitation clause the courts will, in
assessing the state’s interest in regulation, consider the extent to which the state legitimately
seeks to control the consequences of expressive activity on public property. When balancing
1
Government of the Republic of South Africa v ‘Sunday Times’ Newspaper & another 1995 (2) SA 221 (T) at
229A--J, 1995 (2) BCLR 182 (T) at 189H--190G.
2
See e g US v Grace 461 US 171 at 177, 103 SCt 1702 (1983) (although content-neutral, a statutory prohibition
on the display of any flag or banner on the grounds of the Supreme Court was nevertheless unconstitutional because
it prevented speech on public sidewalks in front of the court, which are traditionally places open for expressive activity).
3
Clarke v Community for Creative Non-Violence 468 US 288, 104 SCt 3065 (1984) (a national ban on sleeping
in public parks does not violate First Amendment rights of demonstrators seeking to dramatize plight of the homeless
because such expressive interest is outweighed by governmental interest in maintaining city parks in attractive and
intact condition and the ban furthers this interest); Grayned v Rockford 408 US 104, 92 SCt 2294 (1972) (upholding
validity of ordinance which barred noisy demonstrations on streets abutting schools while classes were in session).
But see Schneider v State 308 US 147, 60 SCt 142 (1939) (purpose of keeping streets clean insufficient to justify
ban on all public distribution of handbills). Depending upon the circumstances, a significant government interest
might include, for example, traffic safety, sanitation, public peace and order, noise control, and personal privacy.
4
Ward v Rock Against Racism 491 US 781, 109 SCt 2746 (1989) (New York City requirement that performers
use only city-provided sound equipment to cut down on complaints by citizens that rock concerts in city parks were
too loud was upheld despite the availability of less restrictive means of solving the problem).
5
Metromedia, Inc v San Diego 453 US 490, 101 SCt 2882 (1981) (a ban on all billboards containing
non-commercial messages was struck down in part because it did not leave open adequate alternative channels).
But see Cox v New Hampshire 312 US 569, 61 SCt 762 (1941) (upholding an ordinance requiring parade permits
where official discretion was limited exclusively to considerations of time, place and manner).
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the interests at stake the courts consider the suitability of the location for effective
communication of the message; the symbolic significance of the property in question; the
availability of other public arenas for dissemination of expression; the effect on the applicant
of being denied the opportunity to disseminate the message in the form and in the time and
place asserted.1
20.8 THE SUBSTANCE OF FREEDOM OF SPEECH AND EXPRESSION
(a)
Political expression and state security
28 have already noted that the structure of Chapter 3 affords special protection to political
We
expression, and we have argued that a wide and generous definition of ‘free and fair political
activity’ is required in order to protect such high-value expression at the core of s 15(1).2
Prior restraints upon political expression must satisfy the highest level of justification to
pass constitutional muster. Other prohibitions upon political expression, in particular the
pillars of the statutory regime of censorship and secrecy, ss 4 and 5 of the Protection of
Information Act,3 the Internal Security Act,4 s 178 of the Defence Act,5 and the common-law
criminalization of expression under the rubric of treason and sedition,6 are unlikely to survive
constitutional scrutiny.7
Subversive advocacy, that is expression advocating the overthrow of the state, often by
violent means, is political expression at the core of s 15(1). It provides symptomatic evidence
of deep social conflict and dissatisfaction and often contains valuable outlines for desirable
reform. This conjunction of high-value expression with potentially great danger often calls
forth a regulatory impulse which itself carries the danger of long-term damage to our
developing democratic institutions. US courts have developed the ‘clear and present danger’
test to protect subversive advocacy. This test provides that ‘the constitutional guarantees of
free speech and free press do not permit a state to forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is directed to inciting or producing
1
Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385 (McLachlin J). For further
consideration of time, place and manner restriction on expression, see below, Woolman ‘Assembly’ § 21.4(b).
2
3
See above, § 20.3.
Act 84 of 1982.
4
Act 74 of 1982. Many of the other statutes listed above, 20-4n1 restrict information and expression in relation
to defence and state security. Such statutes clearly limit free political expression. If these restrictions are to survive
constitutional scrutiny, it will have to be demonstrated that they are both reasonable and necessary in an open and
democratic society.
5
Act 44 of 1957.
6
Cf R v Sekhonyana 1998 (5) BCLR 640 (Les) at 651I--652C, where the Lesotho High Court concluded (without any
apparent reasons) that the Sedition Proclamation 44 of 1938 (Les) was a constitutionally permissible limitation of
freedom of expression. For the reasons set out in this section, it is submitted that Sekhonyana was wrongly decided.
7
With regard to the regulation of speech and expression critical or even defamatory of the government, see
Kalven ‘The New York Times Case: A Note on the Central Meaning of the First Amendment’ (1964) Supreme Court
Review 191 at 205: ‘Political freedom ends when government can use its powers and its courts to silence its critics.
My point is not the tepid one that there should be leeway for criticism of the government. It is rather that defamation
of the government is an impossible notion for a democracy. In brief, I suggest that the presence or absence in
the law of the concept of seditious libel defines the society.’ See also Hector v Attorney-General of Antigua
and Barbados (1991) LRC (Const) 237 (PC), [1990] 2 All ER 103 (PC), [1990] 2 AC 312 (PC) (striking down a
statutory provision making it an offence to publish matter which would undermine public confidence in the conduct
of public affairs).
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EXPRESSION
imminent lawless action and is likely to incite or produce such action’.1 This test provides a
valuable distinction between advocacy and incitement, affording constitutional protection to
the former. The teaching of abstract doctrine is therefore protected. And even in the context
of expression which would fall within the meaning of ‘incitement’, the clear and present
danger test imports a requirement that before such speech may be regulated the state must
satisfy the courts that lawless action is indeed imminent; the mere possibility of harm is
insufficient to justify regulation.
29 Our common law does not distinguish between advocacy and incitement.2 The Appellate
Division has adopted a very wide formulation of ‘incitement’ so that ‘the decisive question
in each case is whether the accused reached and sought to influence the mind of the other
person towards the commission of a crime’.3 This definition is certainly wide enough to
embrace advocacy, including the teaching of abstract doctrine. Moreover, our law specifically
does not require that incitement be accompanied by imminent lawless action before it may
be prescribed.4 These common-law rules would not survive constitutional scrutiny under US
jurisprudence.
Although the clear and present danger test is admirably protective, it is deficient in one
important respect: it does not define, with sufficient precision, the nature of the harms or
threats which might justify regulation. ‘Imminent lawless action’5 or ‘the probability of
serious injury to the state’6 may be too vague to provide sufficient protection. Furthermore,
and in light of s 34, which provides for derogation from the fundamental rights contained in
Chapter 3 in cases of emergency, it is necessary to specify precisely the nature of the harm
and the nature of the circumstances, if any, that might, short of invoking the provisions of
s 34, justify the regulation of subversive political expression.7
1
Brandenburg v Ohio 395 US 444, 89 SCt 1827 (1969). The first formulation of the test was by Holmes J in
Schenck v United States 249 US 47 at 52, 39 SCt 247 (1919): ‘The question in every case is whether the words used
are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.’ The
formulation was developed by Holmes J in Abrams v United States 250 US 616 at 628, 40 SCt 17 (1919): ‘[T]here
must be a present danger of immediate evil or an intent to bring it about . . . Congress certainly cannot forbid all
effort to change the mind of the country.’ See also Whitney v California 274 US 357 at 378, 47 SCt 641 (1927)
(Brandeis J dissenting). Van der Westhuizen points out that the clear and present danger doctrine is not unknown in
South Africa and has often been raised before the Publications Appeal Board. See Van der Westhuizen ‘Freedom
of Expression’ 278. For a summary of the development of the clear and present danger doctrine, see Marcus
‘Freedom of Expression Under the Constitution’ 145--6; Van der Westhuizen ‘Freedom of Expression’ 278--80.
2
See e g R v Sibiya 1957 (1) SA 248 (T).
3
S v Nkosiyana & another 1966 (4) SA 655 (A) at 658H: ‘[A]n inciter is one who reaches and seeks to influence
the mind of another to the commission of a crime. The machinations of criminal ingenuity being legion, the approach
to the other’s mind may take various forms, such as suggestion, proposal, request, exhortation, gesture, argument,
persuasion, inducement, goading, or the arousal of cupidity. The list is not exhaustive.’
4
Nkosiyana at 659B: ‘[T]here may be an incitement irrespective of the responsiveness, real or feigned, or the
unresponsiveness, of the person sought to be so influenced.’
5
The Brandenburg formulation.
6
Whitney v California 274 US 357 at 378, 47 SCt 641 (1927).
7
Rawls Political Liberalism (1993) 353--5: ‘Free political speech cannot be restricted unless it can be reasonably
argued from the specific nature of the present situation that there exists a constitutional crisis in which democratic
institutions cannot work effectively and their procedures for dealing with emergencies cannot operate . . . A
constitutional crisis must exist requiring the more or less temporary suspension of democratic political institutions,
solely for the sake of preserving these institutions and other basic liberties.’
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30 In a democratic society, of course, the vast majority of political expression will relate to
matters of public importance or concern, and will further values at the core of the guarantee
of freedom of expression without threatening state security.1 Such political expression will
enjoy significant protection.2 In Kauesa v Minister of Home Affairs & others,3 for example,
the Supreme Court of Namibia invalidated a regulation which made it an offence for a
member of the police force to comment ‘unfavourably in public upon the administration of
the force or any other Government Department’. The court acknowledged the need to
balance the interests of the citizen (who was a serving member of the Namibian Police) in
commenting upon the lack of affirmative action in the force with the needs of the police force
in maintaining discipline, efficiency and obedience.4 The court held that the regulation was
not a justifiable limitation on freedom of speech because the extent of the limitation was not
ascertainable, the regulation was not rationally connected with its objective but was arbitrary
and unfair, its objective being ‘obscured by its overbreadth’, and it was not proportional to
the objective of maintaining discipline in the police force.5 Moreover, the court emphasized
that the right to freedom of speech and expression ‘cannot be frustrated by mere indiscretions
of a speaker’. What was important was to examine whether the speech at issue furthered the
purpose of the right itself.6
1
The relationship between freedom of expression and state security has been considered by the European Court
of Human Rights in several important judgements. See, for example, The Observer and the Guardian v United
Kingdom, Judgment of 26 November 1991, Series A No 216, (1992) 14 EHRR 153; The Sunday Times v United
Kingdom (No 2), Judgment of 26 November 1991, Series A No 217, (1992) 14 EHRR 229 (better known as the
Spycatcher cases); Vereniging Weekblad ‘Bluf’v The Netherlands, Judgment of 9 February 1995, Series A No 306-A,
(1995) 20 EHRR 189.
2
But see Mutasa v Makombe NO 1998 (1) SA 397 (ZS), where the Zimbabwean Supreme Court upheld a
reprimand imposed by Parliament on one of its members as a punishment for contempt of Parliament. The contempt
was committed when the applicant, at a meeting outside Parliament, publicly criticized the calibre of unnamed
members of Parliament and suggested that much of what took place in Parliament had become ‘meaningless’. The
decision turned on the wording of s 20(2)(b)(iii) of the Zimbabwean Constitution, which excluded from the
protection of freedom of expression, laws made for the purpose of ‘maintaining the authority and independence
of . . . Parliament’. The Powers and Privileges of Parliament Act, which conferred on Parliament the jurisdiction to
punish contempts of Parliament, was held to be such a law, and the case was accordingly treated as one falling
outside the ambit of the constitutional protection of freedom of expression.
3
1996 (4) SA 965 (NmS).
4
At 985B.
5
At 979H, 980H--I. See also Vereinigung Demokratischer Soldaten Österriechs and Gubi v Austria, Judgment
of 19 December 1994, Series A No 302, (1994) 20 EHRR 56 (the European Court of Human Rights recognized that
preserving order in the armed forces was a legitimate aim. However, a refusal by the Ministry of Defence to distribute
a particular journal, critical of the military, in the barracks (although the Ministry distributed other journals at its
own expense) and an order that the second applicant (a soldier) cease distribution of the journal were held to be
disproportionate to the legitimate aim. This was so particularly because the editions of the journal concerned did
not call into question the duty of obedience or the purpose of service in the armed forces); Vogt v Germany, Judgment
of 26 September 1995, Series A No 323 (a teacher and civil servant who had engaged in various political activities
on behalf of the German Communist Party was dismissed from her employment for failure to comply with her duty
of political loyalty. The European Court of Human Rights considered the balance to be struck between freedom of
expression and the legitimate interests of the state in requiring civil servants to be loyal towards the Constitution.
The court held that the dismissal of the teacher was a severe sanction which had not been demonstrated to be
necessary. It was therefore disproportionate to the state’s legitimate aim.).
6
At 982G.
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EXPRESSION
(b)
Defamation
REVISION SERVICE 5, 1999
Until recently the common-law rules of defamation placed severe restrictions on freedom of
expression and the press.1 The press was held strictly liable for the publication of defamatory
matter.2 The courts refused to afford the press any special privileges in reporting matter which
may be defamatory.3 All defendants were burdened with a full onus and not merely an
evidentiary burden when proving defences which negative unlawfulness.4 Finally, the ‘public
interest’ was defined narrowly.5 Several of these rules have been subjected to both reconsideration and challenge under the Constitution.
31 United States constitutional doctrines developed in New York Times Co v Sullivan6 and
its progeny prohibit liability without fault. These rules require that before public officials
and public figures7 may recover damages for defamation they must prove that defamatory
matter was published with actual malice, that is in the knowledge of its falsehood or with
reckless disregard as to whether such matter was true or false.8 And in Rosenbloom v
Metromedia, Inc9 the US Supreme Court shifted the focus of inquiry from the nature of the
plaintiff to the nature of the speech at issue. The court held that the rules set out in the Sullivan
case apply regardless of whether the plaintiff is a public or private figure as long as the
allegedly libelous statements were made about a matter of public or general interest.10 This
approach is at odds with the common-law rules relating to onus in respect of defences going
to unlawfulness.11
1
Certain long-standing principles of the common law were held to have been wrongly decided by the recent
decision of the Supreme Court of Appeal in National Media Ltd & others v Bogoshi 1998 (4) SA 1196 (SCA), 1999
(1) BCLR 1 (SCA), discussed in more detail below.
2
Pakendorf en andere v De Flamingh 1982 (3) SA 146 (A).
3
Neethling v Du Preez & others 1994 (1) SA 708 (A).
4
Neethling v Du Preez 1994 (1) SA 708 (A).
5
Financial Mail (Pty) Ltd & others v Sage Holdings Ltd & another 1993 (2) SA 451 (A).
6
376 US 254, 84 SCt 710 (1963).
7
Curtis Pubishing Co v Butts 388 US 130, 87 SCt 1975 (1967).
8
See also Gertz v Robert Welch Inc 418 US 323 at 340, 94 SCt 2997 (1974) (allowing the media to avoid liability
only by proving the truth of all injurious statements does not accord adequate protection to First Amendment
liberties; the First Amendment requires that we protect some falsehood in order to protect speech that matters:
Powell J).
9
403 US 29, 91 SCt 1811 (1971).
10
Marshall J dissented in the Rosenbloom case at 79 on the grounds that all human events were arguably of
public interest, and that the courts were not competent to judge ‘what information is relevant to self-government’.
This dissent was later accepted in the Gertz case, and the majority decision in the Rosenbloom case was not followed.
Nevertheless, whatever its fate in the US, the focus by courts on the nature of the discussion and communication at
issue, and the relation of such speech to public interest, comports well with the structure of the guarantee in our
Constitution. Our courts are explicitly enjoined to evaluate expression on the basis of its relation to free and fair
political activity.
11
See e g Philadelphia Newspapers Inc v Hepps 475 US 767, 106 SCt 1558 (1986): the plaintiff has the onus
not merely of demonstrating falsity but also of proving fault; the common-law presumption that defamatory speech
is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.
[REVISION SERVICE 5, 1999]
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CONSTITUTIONAL LAW OF SOUTH AFRICA
We have already noted the incompatibility of seditious libel with an open and democratic
society, and have discussed the political process imperatives which provide important
underpinnings for s 15(1).1 These factors enable us to suggest that certain categorical
exclusions may be constitutionally developed. Thus the common-law rule that the state does
not have an action for damages arising from defamation will remain unchanged.2 Notwithstanding difficulties of definition, the interests of democracy will be greatly enhanced by a
constitutional rule which overturns Argus Printing and Publishing Co Ltd v Inkatha Freedom
Party,3 and which consequently prevents political parties from bringing actions for defamation. Furthermore, we suggest that public officials including judicial officers should not be
permitted to sue for damages for defamation in the absence of convincing proof that the
matter was published with actual malice in the sense defined in New York Times Co v
Sullivan.4
32 In Du Plessis & others v De Klerk & another5 the Constitutional Court expressly refrained
from giving any indication as to how the law of defamation might be developed in the light
of the spirit, purport and objects of Chapter 3 of the Constitution. The court contented itself
with observing that ‘in the development of the common law of defamation a multitude of
choices is available’.6 It was not, however, within the powers of the Constitutional Court ‘to
choose between competing versions of the common law, all of which may be consistent with
the Constitution. That choice on appeal is for the Appellate Division, at least in the first
place.’7
Precisely how the common law should develop is now a matter of competing decisions
in the Supreme Court. The major constitutional challenges to the common-law rules of
defamation all occurred before the landmark decision of the Supreme Court of Appeal in
National Media Ltd & others v Bogoshi.8 Hence the provincial division decisions all proceed
from an assumption as to the state of the common law which has now been held to be
erroneous.9 In Gardener v Whitaker10 the court considered the impact of s 15(1) on the onus
of proof in defamation cases. Froneman J concluded that the common-law rules of defamation were subject to constitutional scrutiny in the light of their impact upon freedom of speech
1
See above, §§ 20.8(a) and 20.2(d). See also Lingens v Austria, Judgment of 8 July 1986, Series A No 103,
(1986) 8 EHRR 407 (private prosecution for criminal defamation brought by Austrian Chancellor against publisher
who had accused him of protecting former members of the Nazi SS held to be an unjustifiable violation of freedom
of expression).
2
Die Spoorbond v SAR 1946 AD 999.
3
1992 (3) SA 579 (A) (political parties are entitled to bring actions for defamation).
4
376 US 254, 84 SCt 710 (1964). On this basis decisions such as Argus Printing & Publishing Co Ltd v Esselen’s
Estate 1994 (2) SA 1 (A) would, by reason of the constitutional guarantee of freedom of expression, no longer
reflect the state of our law.
5
1996 (3) SA 850 (CC), 1996 (6) BCLR 658 (CC).
6
Per Kentridge AJ at para 58.
7
This was the standpoint of the unanimous judgment in Gardener v Whitaker1996 (6) BCLR 775 (CC) at
para 16.
8
1998 (4) SA 1196 (SCA), 1999 (1) BCLR 1 (SCA).
9
The most significant features of National Media Ltd & others v Bogoshi (supra) are the conclusion that at
common law the media are not strictly liable for the publication of defamatory matter and the availability to the
media of the defence of ‘reasonable publication’. See generally J Burchell ‘Media Freedom of Expression Scores
as Strict Liability Receives the Red Card: National Media Ltd & others v Bogoshi’ (1999) 116 SALJ 1.
10
1995 (2) SA 672 (E), 1994 (5) BCLR 19 (E).
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EXPRESSION
and expression.1 The court concluded that the case presented a ‘clash between the fundamental right of free speech and expression, on the one hand, and the right to a good name or
reputation (as part of the fundamental right to human dignity), on the other’. Contrary to the
position at common law in terms of which a defendant raising common-law defences of
justification, privilege and fair comment bears a full onus of proof,2 the court held that the
Constitution had brought about a fundamental change. The plaintiff ‘now bears the onus of
showing that the defendant’s speech or statement is, for example, false; not in the public
interest; not protected by privilege; unfair comment, and the like’.3
32A
1
When the matter went on appeal to the Constitutional Court the only issue was whether or not the Constitutional
Court or the Appellate Division had jurisdiction to develop the common law in terms of s 35(3). The Constitutional
Court, however, noted that it was ‘not altogether easy to discern whether, in reaching his conclusion on the
constitutional issues which he himself had raised, the judge was applying s 15 of the Constitution . . . directly
horizontally as between private parties, or whether he was merely having due regard to the ‘‘spirit, purport and
objects’’ of Chapter 3, in terms of s 35(3)’. The court concluded that he was doing the latter. The judge was ‘balancing
one fundamental right (dignity, including reputation) against another (freedom of speech) and developing (or
altering) a common-law rule in a manner which in his opinion struck the correct balance.’ See Gardener v Whitaker
1996 (6) BCLR 775 (CC) at para 9.
2
Neethling v Du Preez & others; Neethling v The Weekly Mail & others 1994 (1) SA 708 (A).
3
Gardener v Whitaker 1995 (2) SA 672 (E), 1994 (5) BCLR 19 (E) at 691F--I (SA).
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32B
EXPRESSION
REVISION SERVICE 2, 1998
33 The most significant development of the common law of defamation in the light of the
‘spirit, purport and objects’ of Chapter 3 of the Constitution is the judgment of Cameron J
in Holomisa v Argus Newspapers Ltd.1 In that case the plaintiff was the Deputy Minister of
Environmental Affairs, who, prior to the coming into operation of the Constitution, was the
military ruler of Transkei. He issued summons for defamation in August 1994 in respect of
an article published in The Star on 27 May 1993 in which it was alleged that he was ‘directly
involved’ in the infiltration into South Africa of a ‘hit squad’ with the aim of ‘killing whites’.
An exception was taken to the particulars of claim, invoking s 15 of the Constitution. The
court approached the matter on the basis that s 35(3) required a reconsideration of the
traditional common-law rules of defamation. The court was confronted, however, with a
divergent array of possibilities for developing the common law in the light of the constitutional guarantee. The excipient contended for the approach adopted by the US Supreme Court
in New York Times Co v Sullivan.2 The rule adopted by the US Supreme Court in New York
Times Co v Sullivan, it should be emphasized, did not present the extreme end of the spectrum
of possible approaches. The minority in New York Times Co v Sullivan, although concurring
in the result, would have gone further. They would have held that in cases involving the
defamation of public officials, the defendants have ‘an absolute, unconditional constitutional
right to publish’.3 Another possibility, which by agreement was also embraced within the
terms of the exception, was that offered by the majority of the Australian High Court in
Theophanous v Herald & Weekly Times Ltd.4 In that case a bare majority held that the implied
guarantee of freedom of communication in the Commonwealth Constitution (which has no
Bill of Rights) justified the striking down of provisions of the common law of defamation
which restricted debate about public and governmental affairs and political matters. The court
adopted a rule permitting the publication of false defamatory statements in circumstances
where it was reasonable to do so. At the other end of the spectrum was the decision of the
Supreme Court of Canada in Hill v Church of Scientology of Toronto.5 This decision,
characterized by Cameron J as having adopted a ‘more conservative approach to the question
of adapting common-law values to constitutional norms’,6 held that the Canadian Charter
merely represented a ‘re-statement of the fundamental values which guide and shape our
democratic society and our legal system’.7 Confronted with these options, Cameron J rejected
the rule in New York Times Co v Sullivan and opted for an approach more in accordance with
the High Court of Australia in Theophanous. He formulated the rule thus:
‘The approach of the plurality in the High Court of Australia in Theophanous seems to me to offer
a persausive precedent for resolving . . . the clash between . . . rivalling values. That resolution, it
seems to me, lies in affording constitutional protection to one who exercises his or her right of free
speech by publishing even false defamatory statements in the area of ‘‘free and fair political
activity’’, unless the plaintiff shows that the publisher acted unreasonably. In such a case, the
publisher would forfeit entitlement to the constitutional protection.
The reasonableness standard offers a powerful tool for resolving the difficulties inherent in
protecting reputation while at the same time giving recognition to the role the Constitution accords
free speech and expression. It will not be reasonable to publish most untrue statements of fact. Only
1
1996 (2) SA 588 (W).
3
Per Justice Black (Justice Douglas concurring) at 293.
5
(1995) 126 DLR (4th) 129.
7
2
376 US 254.
4
(1994) 124 ALR 1 (HC).
6
Holomisa’s case (supra) at 604E.
Hill v Church of Scientology of Toronto (supra) at para 92.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
due enquiry and the application of reasonable care will mark such conduct out for protection. A
further valuable feature of the reasonableness standard is that, as the plurality pointed out in
Theophanous’s case, ‘‘reasonableness is a concept with which the law is familiar’’.’1
34 In a brief judgment in Hall v Welz & others2 Conradie J agreed with Cameron J in
Holomisa v Argus Newspapers Ltd that the interim Constitution valued free and fair political
activity very highly. The judge said that ‘the law of defamation should be shaped to encourage
free and fair political activity’.3 However, Conradie J understood the decision in Holomisa’s
case to apply ‘only to participants in political activity in South Africa’.4 The judge was
not persuaded that the common-law rules of defamation had not survived the test of the
interim Constitution ‘where an ordinary citizen is concerned’.5 We submit that Hall v Welz
misinterprets the rule in Holomisa’s case and also the relevant provisions of the interim
Constitution. As was clearly recognized in Holomisa’s case,6 IC s 15(1) read with
IC s 33(1)(bb) focuses attention on the nature of the speech or expression at issue and its
relation to ‘free and fair political activity’. The appropriate level of constitutional protection
depends in the first instance on the nature of the speech itself, and not on whether the plaintiff
is a participant in political activity or an ordinary citizen.
In Rivett-Carnac v Wiggins7 Davis AJ applied IC s 35(3) and held that the test for
determining what constitutes defamatory material has itself been affected by the principles
embodied in the interim Constitution. It is important, said the judge, not to equate robust
criticism with defamatory material.8 Whether a statement lowers the plaintiff in the estimation of reasonable members of the community (and therefore amounts to an actionable
defamation) must now be assessed in the context of a post-constitutional community:
‘The community must be construed as one which is interested and concerned with transparency
and deliberation and which, unlike its counterpart during the authoritarian past, is interested in
debate and such information which is required for debate. The reasonable reader is prepared to draw
a distinction between a robust exchange of views and material which goes further and damages a
person’s reputation and dignity. The potential for conflicts between parties must be resolved so as
to promote openness and transparency while protecting dignity and privacy.’9
1
Holomisa’s case (supra) at 617C--E. At 618E Cameron J concluded that a ‘defamatory statement which relates
to free and fair political activity is constitutionally protected, even if false, unless the plaintiff shows that, in all the
circumstances of its publication, it was unreasonably made’.
2
3
1996 (4) SA 1070 (C).
At 1072F.
4
5
At 1072C--D.
At 1072G.
6
Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 609G--I, 617C--D, 619G, 620A--B.
7
8
1997 (3) SA 80 (C), 1997 (4) BCLR 562 (C).
At 91B--C.
9
At 89J--90B. Davis AJ’s judgment is also important because it recognizes the obligations imposed by IC s 35(3)
on every court. The judge said at 86E--F that consideration of common-law rules and their development, if necessary,
so as to render them congruent with constitutional principles is ‘mandatory for every court’. What is required,
Davis AJ held, is a ‘form of constitutional audit’ which involves a ‘careful examination of the existing principles
which underpin the common-law rules and a comparison thereof with the key principles of the Constitution’ (at
87E). Davis AJ’s consideration of the impact of IC s 35(3) is not, however, entirely satisfactory. It is open to
misunderstanding and is apt to confuse. In Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) Cameron J held
(at 603G) that what is required by the directive in IC s 35(3) is ‘the fundamental reconsideration of any common-law
rule that trenches on a fundamental rights guarantee’. At 87F--G Davis AJ referred with approval to precisely this
passage from Holomisa’s case. However, at 87D, and immediately before his endorsement of the approach adopted
in Holomisa’s case, Davis AJ asserted that the interim Constitution ‘could never have envisaged such a fundamental
rejection of precedent so as to empower an individual Judge to overturn decades of precedent developed by the
[continued on page 20--35]
20--34
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EXPRESSION
REVISION SERVICE 3, 1998
34A
Possibly the most interesting judgment to build on Holomisa v Argus is that of Thirion J
in Buthelezi v South African Broadcasting Corporation.1 In this case the plaintiff was the
Minister of Home Affairs. His complaint related to a radio broadcast in which his name was
linked with certain evidence being heard in a murder trial in the Durban Supreme Court.
Again, exceptions were taken to the particulars of claim as not disclosing a cause of action
based upon the guarantee of freedom of expression in the interim Constitution. The court
accepted the basic proposition that the interim Constitution ‘introduces the indirect application of the fundamental rights provisions to private law’. The court stated further:
‘If therefore this court, in developing the law of defamation so as to make it conform to the spirit,
purport and objects of the fundamental rights provisions, were to depart from decisions which
ante-date the coming into operation of the Constitution, it would not offend against the stare decisis
rule.’2
The court then proceeded to consider the correctness of the Holomisa decision. In one respect
it developed the law further, and in another adopted a more restrictive approach. Thirion J
stated:
‘The test as formulated by Cameron J seems to me to have but limited utility. It applies only to
statements related to ‘‘free and fair political activity’’. There are, however, defamatory statements
which would be equally deserving of protection, even though they do not relate to free and fair
political activity. For example, a statement relating to a fraudulent manipulation of the stock market
might be of greater public concern that one relating to ‘‘free and fair political activity’’. The manner
in which the affairs of public companies are conducted is, generally speaking, a matter of public
concern.
In my view the law of defamation could best be developed along incremental lines . . . if the
concept of ‘‘public interest’’ as it is understood in the law of defamation were to be broadened or
replaced by the concept of ‘‘public concern’’ (Philadelphia Newspapers Inc v Hepps 475 US 767
(1986)), and if the requirement that the defamatory statement has to be true, were to be replaced
by the requirement that the defendant should have taken reasonable steps to ascertain whether it is
true or false.’3
With regard to the onus of proof, however, the court rejected the approach in Holomisa’s
case and followed the plurality in Theophanous, holding that ‘it would be for the defendant
to allege and prove circumstances which made it reasonable for the defendant to publish the
defamatory statement’.4
1
1997 (12) BCLR 1733 (D).
2
At 1738J.
3
At 1740A--C.
4
At 1744G.
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34B
EXPRESSION
REVISION SERVICE 5, 1999
35 Three Supreme Court judgments stand out in marked contrast to those discussed above.
In both Bogoshi v National Media Ltd & others1 (at first instance) and Potgieter en ’n ander
v Kilian2 it was held that the Constitution has left the common-law rules of defamation
essentially unaffected. In the first of these two cases Eloff JP, in an extremely short and largely
unmotivated judgment, assumed that s 35(3) permitted him to develop the common law of
defamation in the light of the Constitution. He concluded, however, that the common law
struck an appropriate balance between freedom of expression and the right to reputation.3
The decision in Potgieter v Kilian concludes that the Constitution has no ‘horizontal’
application in a dispute between private parties concerning the law of defamation. The
judgment, however, makes no reference at all to the application of s 35(3) to the development
of the common law in the light of the spirit, purport and objects of the Chapter on
Fundamental Rights. It is respectfully submitted, however, that the decision is plainly wrong
for reasons which have nothing to do with the Constitution. The appellants in this case were
respectively the Sheriff and Deputy Sheriff of Vryheid. The appellants had obtained a rule
nisi prohibiting the respondent from instructing any newspaper or magazine to publish a
document or any other report referring to an incident involving the respondent and the
appellants. The rule nisi was discharged by the magistrate, whereupon the appellants
appealed to the Supreme Court. What was at issue, therefore, was whether or not the
magistrate ought to have discharged the interim interdict. The matter was conducted before
the magistrate entirely by way of affidavit evidence.4 There is no mention in the judgment
of the Supreme Court of the special rules, fashioned over the last sixty years, relating to
interdicts in defamation cases. In 1931 Greenberg J (as he then was) in Heilbron v Blignaut
5
laid down the rule that
‘if the injury which is sought to be restrained is said to be a defamation then [the applicant] is not
entitled to the intervention of the court by way of interdict, unless it is clear that the defendant has
no defence. Thus if the defendant sets up that he can prove truth and public benefit, the court is not
entitled to disregard his statement on oath to that effect, because if his statements were true it would
be a defence, and the basis of the claim for an interdict is that an actionable wrong, i e conduct for
which there is no defence in law, is about to be committed.’6
Appellate Division’. This assertion was entirely unnecessary to the decision reached. In Rivett-Carnac’s case
Davis AJ was doing no more than re-interpreting the content of the test for determining what constitutes a defamatory
statement. A rule of common law may, however, trench on a fundamental right in a manner which is not amenable
to mere ‘interpretation’. That rule may require ‘development’, even far-reaching development, in order to render it
congruent with constitutional principles. We submit that the process of ‘interpretation’ referred to in IC s 35(3) is
similar to the process of reading down envisaged by the presumption of constitutionality in IC s 35(2). In certain
circumstances, by contrast, ‘development’ of the common law may necessitate a process similar to the striking down
of a statutory provision. As Davis AJ himself recognized, IC s 35(3) extends to all courts the jurisdiction to interpret
and develop the common law in accordance with constitutional principles. However, his incompletely reasoned
invocation of precedent may mislead other courts into construing the directive embodied in IC s 35(3), and the
jurisdiction it affords, as merely permissive or optional.
1
1996 (3) SA 78 (W), now overruled in National Media Ltd & others v Bogoshi 1998 (4) SA 1196 (SCA), 1999
(1) BCLR 1 (SCA).
2
1996 (2) SA 276 (N), 1995 (11) BCLR 1498 (N).
3
Cameron J in Holomisa v Argus Newspapers Ltd (supra) alludes to the judgment of Eloff JP in Bogoshi, stating
at 620D--E that it was evident that his judgment was in conflict with that of Eloff JP, but considered it fairest to let
the disputed issues take their further course, if any. It is submitted that this was simply a polite way for Cameron J
to indicate that he considered the judgment of Eloff JP to be clearly wrong.
4
5
At 287F--G.
1931 WLD 167.
6
At 169.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
What precisely is required to ‘set up’ a defence on affidavit has been considered in subsequent
decisions.1 Instead of applying the well-established common-law rules concerning interdicts
in defamation cases,2 the court, it is submitted, conducted what amounted to a defamation
trial on affidavit. This approach was entirely misconceived. In any event, the court appears
to have been sidetracked by the debate on ‘horizontality’ and failed to consider whether IC s 35(3)
enjoined the court to consider the development of the common law in the light of the
Constitution.
36 In McNally v M and G Media Limited & others3 Du Plessis J dismissed exceptions taken
to the plaintiff’s particulars of claim. The plaintiff was an Attorney-General who had
instituted an action for damages on the basis of defamation. The facts of the case rendered
reconsideration of the common-law rules of defamation in light of constitutional values
particularly appropriate. The defendant had sought to develop the common law by introducing into it the rule formulated in New York Times Co v Sullivan4 or to introduce a
negligence test as the appropriate standard of culpability, and to contend that the onus to
prove unlawfulness rested with the plaintiff. Du Plessis J recognized that the strict liability
principle laid down in Pakendorf en andere v De Flamingh5 needs reconsideration in light
of the constitutional emphasis on the importance of freedom of speech in the context of free
and fair political activity. Nevertheless, the judge dismissed the exceptions. He pointed out
that the submissions advanced on behalf of the defendant were contrary to Appellate Division
authority. He declined to undertake a reconsideration of those authorities and concluded that
IC s 35(3) did not entitle him to depart from those precedents.6
It is respectfully submitted that the effect of this conclusion is significantly to eviscerate
the role which IC s 35(3) is designed to play in ensuring consistency between the common
law and constitutional values. Furthermore, it pays no or insufficient attention to specific
injunctions by the Constitutional Court. That court has recognized that IC s 35(3) means that
points of law, including the common law, hitherto regarded as settled, now stand to be
re-evaluated, including by the Supreme Court.7 Kentridge AJ, writing for a unanimous court,
has said in a different but equally apposite context that ‘[e]ven if a rapid resort to this court
were convenient that would not relieve the judge from making his own decision on a
constitutional issue within his jurisdiction. The jurisdiction conferred on judges of the
provincial and local divisions of the Supreme Court under section 101(3) is not an optional
1
See, for example, Buthelezi v Poorter & others 1974 (4) SA 831 (W). Cf Financial Mail (Pty) Ltd v Sage
Holdings Ltd 1993 (2) SA 451 (A) at 466F--G.
2
The validity of these rules was reaffirmed by the Appellate Division in Hix Networking Technologies v System
Publishers & others 1997 (1) SA 391 (A). In the Hix case Plewman JA emphasized at 402C that attempts to restrain
publication must be approached with caution and that the importance of freedom of speech should generally be
considered where the balance of convenience is determined.
3
1997 (4) SA 267 (W), 1997 (6) BCLR 818 (W).
4
376 US 254 (1964).
5
1982 (3) SA 146 (A).
6
McNally v M & G Media Limited & others 1997 (4) SA 267 (W) at 275H--276F, 1997 (6) BCLR 818 (W) at
824B--825G.
7
See Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 59--64; Nel v Le Roux NO &
others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at paras 8--9, 18.
20--36
[REVISION SERVICE 5, 1999]
EXPRESSION
jurisdiction. The jurisdiction was conferred in order to be exercised.’1 The same judge also
recognized that IC s 35(3) ‘may in some instances require the Supreme Court to give a new
turn to a branch of the common law’.2 It is submitted not only that the Supreme Court has a
role to play in the process of re-evaluation but a constitutional obligation to play that role.
37 These cases were all decided before the decision of the Supreme Court of Appeal in
National Media Ltd & others v Bogoshi.3 In this case the Supreme Court of Appeal
reconsidered a rule enunciated 16 years earlier that the editor, owner, printer and publisher
of a newspaper was strictly liable for the publication of defamatory matter. It held that
the decision to this effect in Pakendorf en andere v De Flamingh 4 did not correctly reflect the
position at common law:
‘If we recognise, as we must, the democratic imperative that the common good is best served by
the free flow of information and the task of the media in the process, it must be clear that strict
liability cannot be defended and should have been rejected in Pakendorf. Much has been written
about the ‘‘chilling’’ effect of defamation actions but nothing can be more chilling than the prospect
of being mulcted in damages for even the slightest error.’5
In reaching this conclusion the court recognized the ‘right’ and ‘vital function’ of the press
‘to make available to the community information and criticism about every aspect of public,
political, social and economic activity and thus to contribute to the formation of public
opinion. . . . The press and the rest of the media provide the means by which useful, and
sometimes vital, information about the daily affairs of the nation is conveyed to its citizens
---- from the highest to the lowest ranks.’6 The court recognized, for the first time, a defence
of reasonable publication. This permits the press to publish false defamatory statements of
fact if, in all the circumstances of the case, it is found to be reasonable. Protection is only
afforded to the publication of material in which the public has an interest, that is, which it is
in the public interest to make known, as distinct from material which is merely interesting
to the public.7 The court laid down certain guidelines for the determination of whether it is
reasonable to publish particular facts in a particular way and at a particular time. These
guidelines include the nature, extent and tone of the allegations, bearing in mind that greater
latitude is usually allowed in respect of political discussion and that ‘the tone in which a
newspaper article is written, or the way in which it is presented, sometimes provides
additional, and perhaps unnecessary, sting.’ The court stated further that ‘what will also figure
prominently is the nature of the information on which the allegations were based and the
reliability of their source, as well as the steps taken to verify the information’.8 In reaching
this conclusion the court considered the approach adopted by Cameron J in Holomisa v Argus
Newspapers Ltd and Thirion J in Buthelezi v South African Broadcasting Corporation. As
1
S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 10.
2
Du Plessis & others v De Klerk & another 1996 (3) SA 850 (CC) at para 65 (Kentridge AJ); para 87
(Mahomed DP).
3
1998 (4) SA 1196 (SCA), 1999 (1) BCLR 1 (SCA).
4
1982 (3) SA 146 (A).
5
Per Hefer JA at 1210H. The court held that Pakendorf was clearly wrong and must be overruled (at 1211B--C.
6
At 1209I--J.
7
At 1212B--C.
8
At 1212H--I.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
indicated above, these cases sought to develop the common law of defamation in accordance
with the spirit, purport and objects of the Constitution. The Supreme Court of Appeal,
however, expressly reached its conclusions without any revision of the common law.
Hefer JA emphasized that he had ‘not sought to revise the common law conformably to the
values of the interim Constitution’ but had ‘done no more than to hold that this Court stated
a common-law principle wrongly in Pakendorf’.1 Notwithstanding this conclusion, the court
recognized that its statement of the position at common law required an examination of its
constitutional compatibility by reason of s 35(3) of the interim Constitution. In this process,
the court differed from Cameron J on the question of the onus of proof and supported the
traditional common-law position (as endorsed by Thirion J) that the onus rested upon
the defendant to justify the lawfulness of the publication.2
38 National Media Ltd v Bogoshi does not represent a development of the common law in
the light of the Constitution. It is merely a statement of the position at common law which
the Supreme Court of Appeal has held to be compatible with IC s 35(3). It must be
emphasized, however, that since the matter was decided under the interim Constitution, no
direct challenge to any rule of common law was possible. Under the final Constitution,
however, with its wider reach, it seems clear that common-law rules of defamation, even in
a dispute between private parties, are subject to direct constitutional challenge. This means,
therefore, that the position as stated by the Supreme Court of Appeal is not necessarily the
last word. There is no reason in principle precluding further development of the common
law pursuant to the injunction contained in FC s 39(2) or direct constitutional attack on
existing rules of common law.
The decision of Cameron J is a significant advance on the restrictive rules of the common
law. In one respect the judgment of Cameron J goes further than New York Times Co v
Sullivan. In order to avoid what he perceived to be difficulties in determining who is or is
not a public official or figure Cameron J focused instead on the nature of the speech. Provided
the speech falls within the realm of ‘free and fair political activity’ it attracts constitutional
protection in the form of the rule he formulated. Moreover, although it was unnecessary for
the purposes of his judgment to determine whether the rule he formulated applies to
defamation unrelated to political activity, he considered that ‘as a matter of principle’ there
was ‘much to be said for the view that those who complain of injury to the right to reputation
should be in no better position than those who complain of the breach of any other right’.3
Of particular significance is Cameron J’s assertion of the relationship between free expression and democracy:
‘In a system of democracy dedicated to openness and accountability, as ours is, the especially
important role of the media, both publicly and privately owned, must in my view be recognized.
The success of our constitutional venture depends upon robust criticism of the exercise of power.
This requires alert and critical citizens. But strong and independent newspapers, journals and
1
At 1216E.
2
For a critical assessment of National Media Ltd & others v Bogoshi, see J Burchell ‘Media Freedom of
Expression Scores as Strict Liability Receives the Red Card: National Media Ltd v Bogoshi’ (1999) 116 SALJ 1 and
J R Midgley ‘Media Liability for Defamation’ (1999) 116 SALJ 211.
3
Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 611E--F.
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EXPRESSION
broadcast media are needed also, if those criticisms are to be effectively voiced, and if they are to
be informed with the factual content and critical perspectives that investigative journalism may
provide.’1
38A
It is respectfully submitted that, welcome though the judgment of Cameron J undoubtedly
is, there remains a substantial case to be made for the adoption of the rule in New York Times
Co v Sullivan. That rule, in our submission, strikes the appropriate balance when it comes to
criticism of public officials and to expression which relates to free and fair political activity.
(c)
Contempt of court and access to court
The contempt of court sanction has been used primarily in two contexts: against expressive
conduct which violates the dignity or authority of the court, and against expression which
prejudices the right to a fair trial.2
(i)
Scandalizing the court
38
Contempt
for scandalizing the court has been defined as being committed ‘by the publication
either in writing or verbally of allegations calculated to bring Judges, magistrates or the
administration of justice through the courts generally, into contempt, or unjustly to cast
suspicion upon the administration of justice.’3 The offence of contempt is, in this context, a
sanction for impairments of the dignity of the court, and has been described as an injuria
publica.4 Our pre-constitutional common law contains at least one expression of caution
against resorting too readily to the contempt in facie curiae sanction.5 Where contempt is
invoked to protect the dignity and authority of the courts the underlying principles are similar
to those which would underpin actions by the state for defamation. Where the dignity and
authority of the courts is at issue, as opposed to different and broader concerns about
protecting the effective administration of justice, the injuria publica resembles those rules
of common law which criminalize speech which is critical of or challenges state authority.
When contempt is invoked to protect the dignity of the courts we submit that what is really
at work is no less than a regime of punishment for sedition.
1
At 608J--609B.
2
A sanction for contempt may also operate to protect the dignity of and respect for other institutions, such as
Parliament. In Mutasa v Makombe NO 1997 (6) BCLR 841 (ZS) at 848G--J the Supreme Court of Zimbabwe held
that ‘any abridgement of the freedom of expression that permits this legislative body to commit its members for
contempt must be regarded as reasonably justifiable in a democratic society’.
3
Joubert (ed) LAWSA vol 6 para 201, cited with approval in Argus Printing & Publishing Co Ltd v Esselen’s
Estate 1994 (2) SA 1 (A) at 29D--E. Note that in the Esselen case the concepts of defamation and contempt by
scandalizing the court are considered in relation to their possible overlap.
4
Attorney-General v Crockett 1911 TPD 893 at 911--12, cited with approval in Ivger (Pty) Ltd v Engelbrecht &
another 1980 (4) SA 81 (T) at 84A--D. One may perceive in the notion of an injuria publica echoes of the offence
of seditious libel.
5
S v Nel 1991 (1) SA 730 (A) at 749G--H.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
38BIt has been held that justice is not a cloistered virtue and that respectful even though
outspoken criticism is permissible.1 Nevertheless, in drawing the line between mere criticism
of the administration of justice, which is not contempt, and violating the dignity or authority
of the courts, which is,2 our common law would criminalize expressive conduct which
imputes corrupt or improper or dishonest motives or conduct to a judge in the discharge of
his or her official duties; or which reflects on the administration of justice in an improper or
scandalous manner;3 or which lowers the authority of the court or unfairly or improperly
criticizes the court in relation to terminated proceedings or generally;4 or which scandalizes
the court by imputing bias, partiality or improper motives to a judge or the courts;5 or which
is calculated to bring into contempt a judicial officer in his or her judicial capacity.6
We submit that the offence of contempt by scandalizing the court implicates concerns at
the very core of freedom of expression; it reflects the workings of a regime of authority, not
a culture of justification, and undermines the values of an open and democratic society.
To the extent that the purpose of this form of contempt is ‘to protect ‘‘the fount of justice’’ ’7
the means chosen are not proportional to the objective and trench too deeply on freedom
of expression. Contempt by scandalizing the court is unlikely to constitute a justifiable limit
1
R v Torch Printing & Publishing Company (Pty) Ltd & others 1956 (1) SA 815 (C) at 821 (citing Ambard v
Attorney-General of Trinidad and Tobago [1936] 1 All ER 704 (PC) at 709).
2
S v Gibson NO & others 1979 (4) SA 115 (D) at 121.
3
In re Phelan (1877) Kotzé 5.
4
R v Torch Printing & Publishing Company (Pty) Ltd & others 1956 (1) SA 815 (C).
5
R v Hardy 1904 NLR 359; S v Van Niekerk 1972 (3) SA 711 (A).
6
S v Olivier 1964 (3) SA 660 (N).
7
Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) at 29.
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EXPRESSION
upon freedom of speech and expression.1 An enforced silence solely in the name of
preserving the dignity of the Bench would probably engender resentment, suspicion and
contempt much more than it would enhance respect.2
REVISION SERVICE 2, 1998
39 The Constitutional Court does not possess any inherent jurisdiction.3 Surprisingly, however, the court appeared to invoke a contempt jurisdiction in a particularly unfortunate manner
in the case of Executive Council, Western Cape Legislature, & others v President of the
Republic of South Africa & others.4 In the midst of litigation the third applicant in the case,
Mr Pieter Marais, was reported in the newspapers as having made a speech to the effect that
the Western Cape government had an outstanding chance of winning the case in the
Constitutional Court as long as the judgment was not going to be a political one (‘as die
uitspraak nie ’n politieke een gaan wees nie’). This report was drawn to the attention of the
court by counsel for the respondents. It was contended that the imputation of bias and judicial
dishonesty to the court if it were to find for the respondents was plain. It was submitted that
the reported statement constituted a serious contempt of court whether on the basis of a
contempt tending to prejudice the outcome of a case or one scandalizing the court. In dealing
with this issue Chaskalson P reproduced the authorities relied upon by counsel for the
respondents5 and Attorney-General v Times Newspapers Ltd.6 After observing that it went
without saying that the court had not been influenced in any way by the press report,
Chaskalson P considered that the report
‘undermines not only this court but constitutionalism itself, of which this court is a guardian. Having
regard to the high political office held by the third applicant, the consequences of a statement
impugning the integrity of this court might have been particularly harmful. All citizens are free
to attend court, to listen to proceedings, to comment on them and on the judgments given and to
criticize such judgments, even vigorously, where it is appropriate to do so, but it is irresponsible
to make unfounded statements which impugn the integrity of the court. I leave the matter there.’7
1
See e g R v Kopyto (1987) 62 OR (2d) 449 (CA). The only effect of a statement critical of the judicial system
was its general tendency to lower the reputation and authority of the court, since the statement was made after the
conclusion of judicial proceedings; the common-law contempt of scandalizing the court has not survived the
adoption of the Canadian Charter; criticism of the courts, however unrestrained, made after a decision has been
rendered, is constitutionally protected expression, and a law attempting to restrict such criticism cannot not be
justified under the limitation clause. See also Pennenkamp v Florida 328 US 331, 66 SCt 1029 (1946) (overturning
convictions for contempt by publication: articles critical of local judges’ reliance on ‘legal technicalities’ to turn
criminals loose are constitutionally protected speech); Craig v Harney 331 US 367, 67 SCt 1249 (1947); Landmark
Communications, Inc v Virginia 435 US 829, 98 SCt 1535 (1978) (attacks on a judge’s integrity or criticism of the
administration of justice generally are not punishable by contempt; protection of a judge’s reputation is not a strong
enough interest to justify suppression of free expression).
2
Bridges v California 314 US 252, 62 SCt 190 (1941) (disrespect for the judiciary is not a sufficiently serious
substantive evil that would justify censorship; the clear and present danger test developed in the subversive advocacy
context applied: there must be a clear and present danger of interference with the administration of justice: the
substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be
punished).
3
In Du Plessis & others v De Klerk & another 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) Kentridge AJ stated
at para 52 that the Constitutional Court’s jurisdiction derives only from s 98: ‘unlike the Supreme Court of the United
States, the Australian High Court or the Supreme Court of Namibia, it has no inherent or general jurisdiction’.
4
1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC).
5
Joubert (ed) The Law of South Africa vol 6 para 200; Hunt South African Criminal Law and Procedure vol II
2 ed (1982) at 199--204
6
7
[1973] 3 All ER 54 (HL).
At para 122.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
It is respectfully submitted that this issue was unsatisfactorily dealt with in a number of
respects. First, the court invoked what amounted to a summary procedure and imposed what
amounted to a conviction, albeit unattended by any sanction, notwithstanding the fact that
no formal charges had been preferred. Even at common law this procedure has been
deprecated.1 Of particular significance, however, was the uncritical attitude adopted by the
court concerning the existing common-law authorities relating to contempt of court. It is
submitted that the test for contempt at common law is substantially at odds with the guarantee
of freedom of expression. The reference by the court to the decision in the House of Lords
in Attorney-General v Times Newspapers Ltd is particularly unfortunate. That decision was
overruled by the European Court of Human Rights.2 Given the nature of its decisions, it is
inevitable that the Constitutional Court will attract criticism which will often be foolish and
misguided. It would be unfortunate if the speech of would-be critics of the court was chilled
into an uneasy silence out of a fear of contempt proceedings.
40 The Constitutional Court has now been vested with statutory power to deal with contempt.
Section 9 of the Constitutional Court Complementary Act3 provides:
‘9 (1) Any person who ---(a) during the sitting of the Court, wilfully insults any member of the Court or any officer of the
Court present at the sitting, or who wilfully hinders or obstructs any member of the Court or
any officer thereof in the exercise of his or her powers or the performance of his or her duties;
(b) wilfully interrupts the proceedings of the Court or otherwise misbehaves himself or herself in
the place where the sitting of the Court is held; or
(c) does anything calculated improperly to influence the Court in respect of any matter being or
to be considered by the Court,
may by order of the Court, be removed and detained in custody until the rising of the Court.
(2) Removal and detention in terms of sub-section (1) shall not preclude the prosecution in a
court of law of the person concerned on a charge of contempt of court.’
Although the obvious purpose of this jurisdiction is to deal with disruptions in facie
curiae, s 9(1)(c) is capable of being applied to criticism of the court or its members.
(ii)
Contempt and the right to a fair trial
Another form of contempt which relates to freedom of expression concerns prejudice to the
right to a fair trial.
‘The ratio of the crime of contempt is based on the broad principle that . . . it is necessary in the
interests of the State to safeguard the purity of the administration of justice.’4
The common-law test, in relation to a fair trial, is defined as whether ‘the statement or
document in issue tends to prejudice or interfere with the administration of justice in a
pending proceeding’.5 It is questionable whether this test would survive constitutional
1
2
3
4
5
See S v Nel 1991 (1) SA 730 (A).
Sunday Times v The United Kingdom 2 EHRR 245. The authorities are discussed in the section below.
Act 13 of 1995.
Ivger (Pty) Ltd v Engelbrecht & another 1980 (4) SA 81 (T) at 85F.
S v Van Niekerk 1972 (3) SA 711 (A) at 724H. See also S v Harber & another 1988 (3) SA 396 (A) at
419D--422H.
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EXPRESSION
challenge.1 Before expression may be restricted on the grounds that it may prejudice the right
to a fair trial, the US Supreme Court has required proof that the expression constitutes a clear
and present danger of interference with the administration of justice.2
41 The Canadian Supreme Court has emphasized that a common-law discretion to order a
publication ban must be formulated to reflect the principles of the Canadian Charter. In
Dagenais v Canadian Broadcasting Corp3 the Supreme Court of Canada held that the
pre-Charter rules governing publication bans had inappropriately emphasized the right to
a fair trial over the free expression interests of those affected by the ban. It held that a
publication ban in the interests of a fair trial is permissible only when the ban is necessary
to prevent real and substantial risk to the fairness of the trial because reasonably available
alternative measures will not prevent the risk, and the salutary effects of the ban outweigh
the deleterious effects to the freedom of expression of those effected by the ban. The court
emphasized that the objective of a publication ban is ‘to prevent real and substantial risks
of trial unfairness ---- publication bans are not available as protection against remote and
speculative dangers’.4
1
Marcus ‘Freedom of Expression under the Constitution’ (1994) 10 SAJHR 140 at 145. As Marcus points out,
the decision of the European Court of Human Rights in Sunday Times v The United Kingdom 2 EHRR 245 is more
protective of expression than our common-law test in relation to contempt. See also Marcus ‘Afterword: Freedom
of Speech and the Administration of Justice ---- Recent Developments’ in Van Niekerk The Cloistered Virtue (1987)
378--85; Cleaver ‘Ruling Without Reasons: Contempt of Court and the Sub Judice Rule’ (1993) 110 SALJ 530;
Van der Westhuizen ‘Freedom of Expression’ 286--7.
2
See e g Bridges v California 314 US 252, 62 SCt 190 (1941); Wood v Georgia 370 US 375, 82 SCt 1364 (1962)
(contempt citation for news release by sheriff ridiculing on-going grand jury investigation into alleged vote-buying
held to be an unconstitutional violation of freedom of speech; clear and present danger test applied); Cox
Broadcasting Corp v Cohn 420 US 469, 95 SCt 1029 (1975) (matters transpiring in open court and information
released to the public in official court records are by that fact alone made public and no penalty may be imposed
for publicizing them); Nebraska Press Association v Stuart 427 US 539, 96 SCt 2791 (1976) (a court order
prohibiting reporting in order to ensure a fair trial was struck down because it constituted a prior restraint; the harms
alleged were too speculative; there were alternative means short of an order restraining all publication, for reducing
the harmful effects of publicity, such as a change of venue, postponement, a careful voir dire of jurors panelled, and
sequestration of jurors ---- the case has come to stand for the proposition that ‘gag orders’ designed to protect the
right to a fair trial will almost never be constitutional); Landmark Communications, Inc v Virginia 435 US 829, 98
SCt 1535 (1978) (subsequent punishment for violation of statute forbidding release of information about investigation of judicial conduct violates First Amendment). Cf Gentile v State Bar of Nevada 115 LEd 2d 888, 111 SCt
2720 (1991) (state may constitutionally prevent legal representative from making a statement that would have a
substantial likelihood of materially prejudicing an adjudicative proceeding).
3
(1995) 120 DLR (4th) 12 (SCC), 25 CRR (2d) 1 (SCC). The Supreme Court of Canada invalidated a publication
ban ordered by a trial judge restraining the applicant from broadcasting a fictional programme concerning sexual
and physical abuse of children in an orphanage by members of a lay division of brothers until the completion of a
criminal trial of four respondents who were members of a Catholic religious order and who had been charged with
physical and sexual abuse of children.
4
At 39f. The court set out the following guidelines at 47f--48c for future application of the common-law rule for
publication bans: (a) at the motion for the ban the judge should give the media standing (if sought); (b) the judge
should, where possible, review the publication at issue; (c) the party seeking the ban bears the burden of proving
that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably
available and effective alternative measure, that the ban is as limited in scope as possible, and there is proportionality
between the salutary and deleterious effects of the ban; (d) the judge must consider all other options besides the ban
and must find that there is no reasonable and effective alternative available; (e) the judge must consider all possible
ways to limit the ban and must limit it as much as possible; (f) the judge must ensure proportionality between its
positive and negative effects.
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The summary procedure available to punish contempt without first affording the
person the opportunity to be heard has been criticized at common law,1 and may be an
unconstitutional infringement of ss 22 and 25(3) of Chapter 3.2
(iii) Access to courts
42 related topic concerns the extent to which s 15(1) affords a right of access to judicial
A
proceedings to the public and the media. In this context the freedom of expression and of
the press may also conflict with the right to a fair trial. At common law the public has, in
general, a right of access to judicial proceedings.3 Section 16 of the Supreme Court Act4
provides that all proceedings take place in open court unless the court orders otherwise. In
certain circumstances, however, the public may be excluded and the proceedings may be held
in camera.5 Access to courts may be inherent in the freedom of speech and expression,6
as well being a component of the right of access to information protected by s 23,7 and
1
S v Nel 1991 (1) SA 730 (A) at 749I--750C.
2
See e g In re Muskwe 1993 (2) SA 514 (ZH) (the right to be tried by an independent and impartial tribunal
enshrined by s 18 of the Constitution of Zimbabwe is denied where same judicial officer at whom the alleged
contemptuous conduct was directed presides at the contempt proceedings).
3
R v Maharaj 1960 (4) SA 256 (N); Financial Mail (Pty) Ltd v Registrar of Insurance 1966 (2) SA 219 (W) at
221 (in general the civil court never closes its doors to the public).
4
Act 59 of 1959.
5
For example, s 153(1) of the Criminal Procedure Act permits the presiding officer in judicial proceedings to
direct that a criminal trial be held in camera if it is in the interest of the security of the state or of good order, public
morals or the administration of justice, while s 153(3) empowers a judicial officer to hold a criminal trial in camera
where the offence relates to indecency or extortion. See also, in the context of Commissions, s 4 of the Commissions
Act 8 of 1947, which empowers the chairman of a commission to exclude persons whose presence is ‘not necessary
or desireable’. In the context of courts martial s 78(3) of the Military Discipline Code, which is Schedule 1 to the
Defence Act 44 of 1957, provides for in camera proceedings on grounds of good order or public morals or the
administration of justice or for reasons of security. Where there is a reasonable probability of prejudice arising from
particular evidence a witness may testify behind closed doors. See also S v Leepile 1986 (2) SA 346 (W); S v Pastoors
1986 (4) SA 222 (W).
6
See e g Cox Broadcasting Corp v Cohn 420 US 469, 95 SCt 1029 (1975) (broadcasting the name of a rape
victim protected expression where such information was learned from a reading of the public documents); Landmark
Communications, Inc v Virginia 435 US 829, 98 SCt 1535 (1978) (First Amendment protection afforded to
newspaper accurately reporting that a particular judge was under investigation by judicial review commission in
violation of state statute making it a crime to breach confidentiality of the commission’s proceedings); Government
of the Republic of South Africa v ‘Sunday Times’ Newspaper & another 1995 (2) SA 221 (T), 1995 (2) BCLR 182
(T) (interdict against publication sought on the basis of confidentiality provisions in respect of commission’s
proceedings; interdict refused as a prior restraint); Richmond Newspapers, Inc v Virginia 448 US 555, 100 SCt 2814
(1980) (public has First Amendment right of access to judicial proceedings, and ability of judges to resort to in
camera proceedings severely curtailed) followed in S v Leepile & others (4) 1986 (3) SA 661 (W) and Botha v
Minister van Wet en Orde en andere 1990 (3) SA 937 (W) at 941B--J. See also Edmonton Journal v Alberta [1989]
2 SCR 1326, 64 DLR (4th) 577 (statutory prohibition on reporting on matrimonial litigation violates freedom of
expression right of public to scrutinize and criticize operation of courts, and statutory ban wider than necessary to
safeguard individual privacy). Cf Re Southam and the Queen (No 2) (1986) 53 OR (2d) 663 (CA) (statutory provision
empowering judge, in exercise of discretion, to exclude press from attendance at trials of young offenders upheld
as reasonable limit upon s 2(b); however, non-discretionary absolute ban would not survive); Canadian Newspapers
Co v Canada (A-G) [1988] 2 SCR 122, 52 DLR (4th) 690 (a mandatory ban on publication of the names of
complainants in sexual assault cases violates s 2(b), but constitutes a reasonable limit in furthering the interest in
having complaints reported by protecting the identities of complainants).
7
See below, Klaaren ‘Access to Information’ § 24.3.
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EXPRESSION
a separately protected right under s 22. Restrictions upon the publication of judicial
proceedings may also limit s 15(1).1 Although certain restrictions on access may be reasonable, this will no longer be assumed. Such restrictions will require justification through a
balancing of the various interests at stake.
43 The leading Canadian decision in the area of public access to criminal proceedings is
Canadian Broadcasting Corporation v New Brunswick (Attorney-General).2 On application
by the state, and with the consent of the accused, the trial judge had excluded the public and
the media from parts of a sentencing hearing. The judge had made the order in terms of a
statutory provision which provided that proceedings against an accused shall be held in open
court. But the statute empowered a judicial officer, if he or she ‘is of the opinion that it is in
the interests of public morals, the maintenance of order or the proper administration of justice
to exclude all or any members of the public from the court room for all or part of the
proceedings . . .’. A broadcaster brought an application for judicial review of the order,
claiming that the statute infringed the guarantee of freedom of expression.
Because the order had been made in the interests of the ‘proper administration of justice’,
the constitutionality of the other grounds for exclusion of the public and the media, namely
public morals and the maintenance of order, were not considered by the Supreme Court of
Canada. The court held that the statute infringed the freedom of expression because its
purpose was to restrict expressive activity and the free flow of ideas and information. It said
that freedom of expression protects the freedom of the press to comment on the courts as an
essential aspect of a democratic society and the freedom of listeners to obtain information
that allows public criticism of the courts. Any competing considerations had to be considered
under the limitation clause of the Canadian Charter. The court then held that protecting the
proper administration of justice was a pressing and substantial objective, that there was a
rational connection between this objective and the discretionary power afforded to judicial
officers to exclude the public when necessary in the interests of the proper administration of
justice, that the discretion would serve to impair the right as little as possible, and that a
disproportionate order could be corrected by judicial review. The statute was consequently
saved as a reasonable and justifiable limit on the freedom of expression. This, however, did
not end the inquiry and the court then considered the manner in which the discretion had to
be exercised.
In order for an order excluding the public and the media from attendance to pass
constitutional scrutiny the court insisted on compliance with strict requirements. In
exercising his or her discretion the judge must conclude that the particular order is necessary,
that there are no reasonable and effective alternatives, that the order is as limited as possible,
and that its salutary effects are proportionate to its deleterious effects. The Supreme Court
of Canada also emphasized that the burden of displacing the general rule of openness lay on
1
See e g s 8(3) of the Child Care Act 74 of 1983, which prohibits publication without authorization by the
presiding officer of information relating to proceedings in a children’s court which may reveal the identity of any
child; clause 3(3) of Schedule 1 to the Independent Broadcasting Act 153 of 1993, which, as part of the Code of
Conduct to which licensees must adhere, provides that the identities of rape victims and other victims of sexual
violence shall not be divulged without the prior consent of the victim concerned.
2
(1996) 139 DLR (4th) 385 (SCC).
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the party making the application and that there must be a sufficient evidentiary basis for the
exercise of a judicial discretion. On the facts of the case the court found that the requirements
had not been satisfied and that the discretion had been improperly exercised. The exclusion
order was quashed and the media and the public were granted access to the transcript of the
in camera proceedings.
44 An important statutory limitation to the right of public access to judicial proceedings was
introduced in 1993 by the insertion of a new s 170A in the Criminal Procedure Act 51 of
1977.1 The section enables the court to appoint a competent person as an ‘intermediary’ where
it appears to the court that any witness under the age of 18 years would be exposed to undue
mental stress or suffering if he testifies at such proceedings.2 Where the court appoints an
intermediary it may direct that the witness give evidence at any place ‘which is so situated
that any person whose presence may upset that witness, is outside the sight and hearing of that
witness’.3 The constitutional validity of this section was considered by a Full Bench of the
Eastern Cape Division of the Supreme Court in K v The Regional Magistrate NO & others.4
The court considered that the constitutional entitlement to a public trial ‘ensures that secret
trials employed by totalitarian states will not be tolerated under the Constitution: but it does
not guarantee the right of the accused and the witness to be physically present in the same
room’.5 The court found that the section did not violate the accused’s right to a public trial
‘merely because the complainant gives evidence in a separate room’. Moreover, the provision
did not result in the infringement of any other constitutional right of an accused person to a
fair trial. The court observed that ‘a proper balance between the protection of a child witness
and the rights of the accused to a fair trial can . . . be achieved by permitting the witness to
testify in congenial surroundings and out of sight of the accused’.6
(d)
Sexually explicit expression
A variety of statutes and common-law rules regulate or prohibit expression which is ‘indecent
or obscene’.7 In finding the Indecent or Obscene Photographic Matter Act to be unconstitutional the majority of the Constitutional Court confined their finding to a violation of the
1
The section was inserted by s 3 of the Criminal Law Amendment Act 135 of 1991 and came into operation on
30 July 1993.
2
Section 170A(1).
3
Section 170A(3)(b).
4
1996 (1) SACR 434 (E), 1996 (3) BCLR 402 (SE). The parties consented to the jurisdiction of the Supreme
Court in terms of s 101(6) of the Constitution.
5
At 447c (SACR).
6
At 448d--e (SACR).
7
The two principle statutes in terms of which censorship was effected in the realm of indecency and obscenity
were the Publications Act 42 of 1974 and the now invalid Indecent or Obscene Photographic Matter Act 37 of 1967.
The Publications Act has been repealed and replaced by the Films and Publications Act 65 of 1996, Other statutes,
however, also touch upon the subject. Section 19(6) of the Sexual Offences Act 23 of 1957 and s 160(d)(i) of the
Liquor Act 27 of 1989 have been applied to various forms of ‘adult entertainment’. At common law the offence of
public indecency comprises unlawfully, intentionally and publicly performing an act which tends to deprave or
corrupt the morals of others or which outrages the public sense of decency. See, for example, S v W 1975 (3) SA
841 (T); S v K 1983 (1) SA 65 (C).
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right to privacy guaranteed in s 13 of the Constitution.1 Section 2 of the Act prohibited the
possession of ‘indecent or obscene photographic matter’, which was defined to include
photographic matter ‘depicting, displaying, exhibiting, manifesting, portraying or representing sexual intercourse, licentiousness, lust, homosexuality, lesbianism, masturbation,
sexual assault, rape, sodomy, masochism, sadism, sexual bestiality or anything of a like
nature’. Didcott J, speaking on behalf of the majority, found that the prohibition on the
possession of such material constituted an invasion of personal privacy. He stated that the
invasion was aggravated ‘by the preposterous definition of ‘‘indecent or obscene photographic matter’’ ’. The evil of the statute was its overbreadth. Didcott J observed that ‘so
widely has it been framed that it covers, for instance, reproductions of not a few famous
works of art, ancient and modern, that are publicly displayed and can readily be viewed in
major galleries of the world’.2
45 The constitutional validity of the Publications Act 42 of 1974 has been argued in the
Constitutional Court.3 However, the Act was repealed by the Films and Publications Act 65
of 1996 prior to the court delivering its judgment. Consequently the court, stating that a
declarator is a discretionary remedy, concluded that the questions raised were academic and
declined to grant a declaratory order.
US jurisprudence attempts to draw a line between sexually explicit expression and
obscenity, and affords no constitutional protection to the latter where it has no redeeming
social importance.4 The US Supreme Court has concluded that nude dancing is protected
expressive conduct at the outer perimeter of the First Amendment and is not obscene.5 The
state interests purportedly served by banning the sale and display of obscene materials
include responding to evidence of a link between obscenity and the commission of sex
crimes, preventing decline in the quality of life and the tone of commerce in city centers, and
upholding the general moral tone of society.6 The following forms of expression have been
1
Case & another v Minister of Safety and Security & others 1996 (3) SA 617 (CC), 1996 (5) BCLR 609 (CC).
In her minority judgment Mokgoro J concurred with the majority that s 2 of the Act infringed the right to privacy.
In addition, however, the judge held that the impugned provision also unjustifiably infringed s 15(1) of the
Constitution. Mokgoro J held that sexually explicit expression was protected by the guarantee of freedom of
expression. Moreover, she concluded that the freedom of expression includes the right to ‘receive, hold and consume
expression transmitted by others’: Case (supra) at para 25. Consequently, the possession of sexually explicit material
enjoyed protection under s 15(1). For comment on the court’s decision, see N Smith ‘Policing Pornography’ (1997)
13 SAJHR 292.
2
At para 91.
3
JT Publishing (Pty) Ltd v Minister of Safety and Security & others 1997 (3) SA 514 (CC), 1996 (12) BCLR
1599 (CC).
4
Roth v US 354 US 476, 77 SCt 1304 (1957) (Brennan J: First Amendment jurisprudence affords no constitutional
protection to obscenity which is utterly without redeeming social importance, and consequently not within the area
of constitutionally protected speech or press, but First Amendment concerns must and do limit the acceptable
definition of obscenity); Miller v California 413 US 15, 93 SCt 2607 (1973) (material may be banned as obscene
if (i) the average person, applying contemporary community standards, would find that the work, taken as a whole,
appeals to the prurient interest; and (ii) the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by applicable state law; and (iii) the work, taken as a whole, lacks serious literary, artistic,
political or scientific value.)
5
Barnes v Glen Theatre, Inc 115 LEd 2d 504, 111 SCt 2456 (1991).
6
Paris Adult Theatre I v Slaton 413 US 49, 93 SCt 2628 (1973). For a critique of the validity of these state
interests, and a more general discussion of obscenity, see Tribe American Constitutional Law 904--28.
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banned as being obscene in the United States: representations of children engaged in sexual
conduct1 and the private possession of child pornography.2 However, the private possession3
and mailing4 of other obscene material is protected.
46 The definition of obscenity has been subject to criticism on the grounds that it is difficult
to apply in practice, unstable, and even unintelligible.5 Attempts to define pornography for
constitutional purposes have been even less successful.6
In what will become a landmark judgment on the impact of regulation of the Internet on
freedom of expression, the US Supreme Court invalidated the Communications Decency
Act, which sought to protect minors from harmful (because ‘obscene’ or ‘indecent’) materials
on the Internet. In Reno v American Civil Liberties Union7 the majority of the court held that
the statutory phrases ‘indecent transmission’ and ‘patently offensive display’ abridged the
freedom of speech. The impugned provisions could not be analysed as a form of time, place
and manner regulation8 because they were a content-based blanket restriction on speech.
Although the court recognized that the government has a legitimate interest in protecting
minors from potentially harmful materials, it concluded that the impugned provisions, in
light of their vagueness and breadth, were not narrowly tailored to this legitimate end. Instead,
they suppressed a large amount of speech which adults were constitutionally entitled to
receive.9 It was also important that Congress had not made detailed legislative findings and
that less restrictive alternatives were available in the form of user-based software which
would enable parents to prevent their children from accessing material which they believed
was inappropriate.
Recent debates about the regulation of certain forms of sexually explicit expression
seek to locate pornography in the context of violence against women. Such arguments
attempt to demonstrate a causal link between pornography and sexual harm, and to
suggest that the graphic, sexually explicit subordination of women undermines equality
1
2
3
4
5
6
New York v Ferber 458 US 747, 102 SCt 3348 (1982).
Osborne v Ohio 495 US 103, 110 SCt 1691 (1990).
Stanley v Georgia 394 US 557, 89 SCt 1243 (1969).
US v Reidel 402 US 351, 91 SCt 1410 (1971).
See e g Tribe American Constitutional Law at 904--28.
The Oxford English Dictionary defines pornography as ‘description of the life, manners, etc of prostitutes;
hence, the expression or suggestion of obscene or unchaste subjects in literature or art’. See e g Jacobellis v Ohio
378 US 184 at 197, 84 SCt 1676 (1964) (Stewart J concurring: conceding that he may never be able to describe the
‘hard-core pornography,’ which could constitutionally be banned under the Roth test, but observing that ‘I know it
when I see it, and the motion picture involved in this case is not that’). As Heins points out in Sex, Sin, and Blasphemy:
A Guide to America’s Censorship Wars (1993) 139, ‘the term ‘‘pornography’’ . . . embraces a wide range of written
and pictorial aphrodisiacs’.
7
No 96-511. Unreported judgment, decided 26 June 1997.
8
On time, place and manner restrictions on expression, see above, § 20.7(b).
9
In his judgment Stevens J recognized that the universe of cyberspace included ‘the vast democratic fora of the
Internet’. The vagueness of the statute was of particular concern. The Act sought to regulate speech on the basis of
its content, with obvious ‘chilling effects’ upon speech. It was also a criminal statute with penalties including up to
two years of imprisonment.
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EXPRESSION
constitutes a form of gender discrimination and may constitute a form of group defamation
or hate speech.1
47 In 1983 two US feminists, Catherine MacKinnon and Andrea Dworkin, drafted a model
antipornography ordinance defining pornography as, inter alia, ‘the graphic sexually explicit
subordination of women, whether in pictures or in words’. The ordinance was implemented
in Minneapolis, Minnesota and Indianapolis, Indiana, but faced an immediate and successful
constitutional challenge.2
Canadian jurisprudence has also been concerned with the threat posed to freedom of
expression by attempts to prohibit representations of explicit sexual activity on the grounds
of obscenity.3
(e)
Hate propaganda
Hate propaganda may be defined broadly as expressive conduct which insults a racial or
ethnic group, whether by suggesting inferiority or by effecting exclusion.4 This definition
would include both the virulent personal epithet and political speeches, tracts or other media
1
See e g Itzin (ed) Pornography. Women Violence and Civil Liberties. A Radical New View (1992); Lahey ‘The
Charter and Pornography’ in Weiler & Elliot (eds) Litigating the Values of a Nation (1986) 265. A useful exposition
of the debate, together with references for further reading, is contained in Van der Westhuizen ‘Freedom of
Expression’ 283--5. See also Hogg Constitutional Law of Canada sec 40.11: ‘On this basis, what is offensive about
pornography is not the explicit portrayal of sex, nor the flouting of conventional morality, but rather the reinforcement of discrimination against women . . . Even on this basis, laws banning pornography raise major problems of
definition and create risks of the serious suppression of ideas. However, the advancement of the value of equality
does constitute a far more important objective than the protection of conventional morality, and greatly strengthens
the argument that can be made for s 1 [limitation clause] justification.’ For a rejection of arguments for restricting
pornography because it subordinates women, see Heins Sex, Sin, and Blasphemy 137--64.
2
American Booksellers Assoc, Inc v Hudnut 771 F2d 323 (7th Cir 1985), aff’d 475 US 1001 (1986) (striking
down the ordinance as an impermissible content-based regulation of speech that violated the First Amendment and
amounted to a form of thought control). It should be noted that the ordinance was vigorously opposed in an amicus
brief filed with the court by a coalition of anti-censorship feminist scholars and activists. See Heins Sex, Sin, and
Blasphemy 160.
3
The leading Canadian case in this area is R v Butler (1992) 89 DLR (4th) 449 (SCC). The operator of a sex
shop was charged under the Canadian Criminal Code with the sale and possession for sale of obscene material.
‘Obscenity’ was deemed under the Code to be ‘any publication a dominant characteristic of which is the undue
exploitation of sex, or of sex and any one or more of the following subjects, namely crime, horror, cruelty and
violence . . ..’ In challenging the constitutionality of the statutory provisions, the accused invoked s 2(b) of the
Canadian Charter. The Supreme Court of Canada unanimously held that the statutory provisions infringed s 2(b)
because they were clearly content-based restrictions of expression. In determining whether the restrictions were
justifiable in terms of the limitation clause the court had first to consider whether the definition of ‘obscenity’ in
the Code was not so vague that it failed to satisfy the threshold requirement that any limitation of a Charter right
be ‘prescribed by law’. The court had regard to judicial decisions interpreting ‘obscenity’ to refer not to prevailing
morality but to appreciable social harms, particularly to women. Only by ‘reading in’ what Hogg refers to as the
judicial ‘gloss of harmfulness’ (Constitutional Law of Canada sec 40.11) was the definition of ‘obscenity’ precise
enough to contain an intelligible standard and consequently to qualify as a ‘law’ for purposes of the limitation clause.
Finally, the court held that the restrictions were justifiable because they did not prohibit sexually explicit material
that was not accompanied by violence or degradation, did not effect the private possession of obscene materials,
and did not impact upon sexually explicit expression which was required by the ‘internal necessities’ of a serious
work of art.
4
Neisser ‘Hate Speech in the New South Africa: Constitutional Considerations for a Land Recovering from
Decades of Racial Repression and Violence’ (1994) 10 SAJHR 336 at 337. The article contains useful references to
US literature on hate speech (at 336n1).
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propaganda addressed to the public more generally.1 A narrower definition would view
hate propaganda as expression which constitutes an incitement, particularly to racial hatred.2
48 For over 60 years South Africa has had statutory provisions which criminalize the
fomenting of racial hostility.3 Section 62 of the Internal Security Act4 prohibited the causing,
encouragement or fomenting of feelings of hostility between different population groups.
The section was repealed by s 14(2) of the Regulation of Gatherings Act 205 of 1993, which
will come into effect on a date to be proclaimed.5 Section 8(5) of Act 205 of 1993 contains
a new racial hostility clause, which provides that ‘no person present at or participating in a
gathering or demonstration shall by way of banner, placard, speech or singing or in any other
manner incite hatred of other persons or any group of other persons on account of differences
in culture, race, sex, language or religion’. This provision accords with the narrower
definition of hate propaganda, prohibiting such expression only in the context of incitement.
This is one arena in which the conflict between freedom of expression and dignity and
equality will play itself out against the background of the constitutional commitment to
reconciliation. The contribution of hate propaganda to political debate will have to be
balanced against the ways in which such expression deters participation in public life, offends
human dignity, and consequently undermines equality.6
The need to prevent incitement of racial hatred is widely recognized in international
instruments.7 In the leading Canadian hate speech case of R v Keegstra8 the defendant had
been found guilty of violating the hate propaganda prohibitions of the Canadian Criminal
1
Neisser ‘Hate Speech in the New South Africa’ 337.
2
See Coliver (ed) Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination (1992). For
arguments against regulation of hate propaganda, see e g A Borovoy When Freedoms Collide (1988) at 40--53; Neier
Defending My Enemy (1979).
3
For a history of such laws, see Marcus ‘Racial Hostility: The South African Experience’ in Coliver Striking a
Balance 208--22.
4
Act 74 of 1982.
5
Section 47(2)(c) and (d) of the Publications Act 42 of 1974 also made it possible to prohibit expression which
brought any section of the inhabitants of the Republic into ridicule or contempt or which is harmful to relations
between any section of the inhabitants of the Republic. These subsections were repealed in the interests of free and
fair political activity by the Abolition of Restrictions on Free Political Activity Act 206 of 1993.
6
For examples of recent contributions to the debate around hate speech in South Africa, see Meyerson ‘ ‘‘No
Platform for Racists’’: What Should the View of Those on the Left Be?’ (1990) 6 SAJHR 394; Cockrell
‘ ‘‘No Platform for Racists’’. Some Dogmatism Regarding the ‘‘Limits of Tolerance’’ ’ (1991) 7 SAJHR 339; Van
der Westhuizen ‘Freedom of Expression’ 274--8 (‘To prohibit hate speech or propaganda mainly because it brings
a population ‘‘into ridicule or contempt’’ or because it is offensive to individuals or groups seems unreasonably
vague and restrictive. On the other hand, to require the advocacy of racial hatred to be intended or directed to invite
or produce imminent violence, lawless action, or other similar harm as well as the likelihood of in fact producing
such harm would be ineffective. To prohibit hate speech when it is intended to undermine or destroy the underlying
values justifying the protection of freedom of expression, namely the democratic process, the free and equal
co-existence of human beings and the enhancement of knowledge and exchange of ideas is not unreasonable or
unjustifiable in a democratic society based on freedom and equality’ (at 277, emphasis in original).)
7
See e g art 20 of the International Covenant on Civil and Political Rights; art 4 of the International Convention
on the Elimination of All Forms of Racial Discrimination. See also Jersild v Denmark, Judgment of 23 September
1994, Series A No 298, (1995) 19 EHRR 1 (on the distinction between hate speech itself, which is not protected,
and publication of such speech by journalists in the course of a news broadcast, which is protected). See also
L Johannessen ‘Jersild v Denmark’ (1995) 11 SAJHR 123.
8
[1990] 3 SCR 697, 3 CRR (2d) 193.
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EXPRESSION
Code for teaching that the Holocaust did not occur. A bare majority of the Supreme Court of
Canada held that hate propaganda was protected under s 2(b) because the guarantee of
freedom of expression covered all messages ‘however unpopular, distasteful or contrary to
the mainstream’.1 In accordance with this content-neutral approach the scope of s 2(b) could
not be narrowed by considering the impact of competing Charter rights such as equality, at
the first stage of the analysis. Nevertheless, in taking account of competing values at the
limitation clause stage of the inquiry, the majority upheld the impugned statutory provisions
as being demonstrably justified in a free and democratic society.2
49 Under the First Amendment, by contrast, hate propaganda and group defamation almost
certainly enjoy full constitutional protection, except where such expression amounts to
‘fighting words’.3 In RAV v City of St Paul 4 the US Supreme Court held that a hate speech
statute violated the requirement of content-neutrality and, therefore, violated freedom of
speech. Several teenagers had burned a cross inside the yard of a black family living across
the street. They were charged under a St Paul hate speech ordinance.5 The court was
unanimous in holding that the statute on its face violated the First Amendment. The majority
concluded that the statute could not stand because it was impermissibly content-based,
prohibiting otherwise permitted speech solely on the basis of the subjects the speech
addressed. The minority concluded that the statute was unconstitutional because it was
overbroad. In their view it reached words which not only tend to incite a breach of the peace,
and which may be constitutionally prescribed under the fighting words doctrine of Chaplinsky v New Hampshire,6 but also words which merely hurt feelings, albeit feelings based on
1
R v Keegstra at 729.
2
But cf R v Zundel [1992] 2 SCR 731, 95 DLR (4th) 202 (accused charged with spreading false news by
publishing a pamphlet claiming that the Holocaust was a fraud; the criminal offence of spreading false news violates
s 2(b); the doctrine of content-neutrality protects falsehoods as well as truths; furthermore, the false-news offence
could not be justified under s 1). As Hogg Constitutional Law of Canada sec 40.9 points out, the difference in
outcome relates to the fact that the hate-propaganda law in Keegstra was specifically aimed at wilful promotion of
racial hatred, whereas the false-news law in Zundel was overbroad.
See also Ross v New Brunswick School District No 15 (1996) 133 DLR (4th) 1 (SCC), 35 CRR (2d) 1 (SCC),
where the Supreme Court of Canada upheld as a reasonable and justifiable limit on freedom of expression a board
of inquiry order removing from the classroom a teacher who had published anti-Jewish writings outside the
classroom. However, the court invalidated an order prohibiting the teacher’s anti-Jewish writings while employed
in a non-teaching position. The court held that this order was unjustified because it did not minimally impair the
teacher’s freedom of expression. The latter order was severed from the former order, which survived independently.
3
In Beauharnais v Illinois 343 US 350, 72 SCt 725 (1952) a 5--4 majority recognised an action for group
defamation without requiring proof of a clear and present danger of breach of the peace. Although never explicitly
overruled, certain commentators suggest that the Beauharnais case is probably no longer good law in light of New
York Times v Sullivan 376 US 254, 84 SCt 710 (1964) and its progeny. See also Collins v Smith 578 F2d 1197
(7th Cir 1978) (even speech which undeniably causes psychic pain to listeners may not be suppressed where the
pain derives from the content of the speech itself; consequently, a local ordinance designed to neutralize a march
by an American Nazi group through Skokie, Illinois, a community with many Holocaust survivors, was held
unconstitutional on the grounds that the public expression of ideas may not be prohibited merely because the ideas
are themselves offensive to some of their hearers).
4
505 US 377, 112 SCt 2538 (1992).
5
The ordinance provided that ‘whoever places on public or private property a symbol, object, appellation,
characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has
reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, colour, creed, religion
or gender commits disorderly conduct and shall be guilty of a misdemeanour’.
6
315 US 568, 62 SCt 766 (1942).
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CONSTITUTIONAL LAW OF SOUTH AFRICA
race, colour or creed, which may not be prohibited. The minority approach therefore points
to a distinction between fighting words or the incitement of racial hostility, the ‘hurled
epithet’ situation, on the one hand, and hate propaganda, the racist discourse, on the other.
Although regulation of the former might pass constitutional muster, the latter would enjoy
protection as a contribution, however distasteful, to public debate.
The status of hate propaganda under s 15(1) raises certain difficulties. If it can be shown
that hate speech furthers the values underpinning freedom of expression, before recourse is
had to considering other constitutional rights and guarantees such as dignity and equality,
then the limitation clause will be the major focus of analysis.1 If our courts adopt a doctrine
of content-neutrality, as the Canadian courts have done, then hate propaganda, whether in
the form of the inciting epithet or the propagandistic tract, will fall within s 15(1) and
justifiable limitations will require consideration on a case-by-case basis.
50 Our bifurcated guarantee creates a particularly acute dilemma where hate speech is
concerned.2 The difficulty with regulating hate speech is that it relates, more often than not,
to politics. The propagandistic tract, no matter how hateful, will usually be intended and
received as a contribution to political deliberation. Often the same may be said about hurled
racial epithets, although it may be possible to argue that such expression carries insufficient
propositional content to qualify as an utterance which is intended to be and is received as
‘political’. Since political expression is afforded maximum protection, hate propaganda may
be extremely difficult to regulate. We submit that restrictions upon fighting words as forms
of incitement will be more easily justified under s 33(1) than would restrictions upon racist
propaganda.
(f)
Commercial expression
Commercial expression has been defined as speech which proposes a commercial transaction.3 This area of expression relates primarily to commercial advertising of goods or
services for profit, but is wide enough to include expression in the context of unlawful
competition, including disparagement and economic trade boycotts. Most, but not all,
commercial expression is at some remove from the core of freedom of expression4 and is
1
For an approach which would define the ambit of the right itself by recourse to the values underpinning it, and
then determine whether hate speech would fall within the ambit of freedom of expression, see Neisser ‘Hate Speech
in the New South Africa’ 345--8. Neisser argues that artistic, scientific and political expression involving racial
invective does indeed further the values underpinning the guarantee, but that the hurled racial epithet may fall outside
the ambit of the section, as furthering no speech-related values.
2
See Sunstein Partial Constitution 244 (the hardest case for a theory of freedom of expression which explicitly
grants primacy to political speech is hate speech).
3
Central Hudson Gas & Electric v Public Services Commission 447 US 557 at 562, 100 SCt 2343 (1980).
4
See, for example, RJR-MacDonald Inc v Canada (AG) (1995) 127 DLR (4th) 1 (SCC) at 53--6, 31 CRR (2d)
189 at 270--2.
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best located within the protected periphery of the guarantee.1 In America a reduced level of
constitutional protection is extended to commercial expression. The test for valid statutory
regulation of commercial advertising is set out in Central Hudson Gas v Public Services
Commission.2
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51 The leading Canadian case analysing commercial expression is Irwin Toy Ltd v Quebec
(A-G).3 The Canadian Charter both adopts a content-neutral approach to defining expression
and affords no greater protection to political, artistic or cultural expression than to commercial expression. Consequently, commercial expression is within the ambit of s 2(b). The
Supreme Court of Canada held, in Irwin Toy, that a statutory prohibition on all advertising
directed at children under 13 years of age reflected a governmental purpose to control or
restrict the intent to convey meaning; that is, the statute was a content-based regulation.4
Notwithstanding the prima facie infringement of s 2(b), the majority upheld the statutory
prohibition as a reasonable limitation.
In RJR-MacDonald Inc v Canada (A-G)5 the Supreme Court of Canada unanimously
held that federal legislation prohibiting the advertising of tobacco products infringed
freedom of expression. A bare majority of the court held that both the ban on the advertising
and promotion of tobacco products, and the requirement to place unattributed health
1
In Virginia State Board of Pharmacy v Virginia Citizens Consumer Council 425 US 748 at 762, 96 SCt 1817
(1976) the US Supreme Court for the first time extended First Amendment protection to pure commercial advertising
which did no more than propose a commercial transaction at a particular price. In reaching its conclusion the court
took the view that the dissemination of commercial information through advertising performs important public
interest functions of ensuring the free flow of information indispensable to proper resource allocation in a free
market. Thus after Virginia State Board of Pharmacy the state may not regulate truthful commercial information
about entirely lawful activities solely because it fears the harm that would result from the impact of the information
upon its recipients. See e g Linmark Associates Inc v Willingboro 431 US 85, 97 SCt 1614 (1977) (the state may
not decide that the ignorance of its citizens is preferable to the free flow of truthful information: a prohibition on
the display of ‘For Sale’ and ‘Sold’ signs on city real estate in order to prevent white flight could not be upheld
because the town had failed to demonstrate that the ordinance was necessary to achieve the objective of stable,
racially integrated housing); Carey v Population Services International 431 US 768, 97 SCt 2010 (1977) (a state
prohibition on advertising contraceptives is unconstitutional). But see Posadas de Puerto Rico Association v Tourism
Company of Puerto Rico 478 US 328, 106 SCt 2968 (1986) (since the state has the power to ban harmful activities
and products it has the lesser power to ban advertising of such products). Note that US jurisprudence affords no
constitutional protection to false or misleading commercial speech.
2
447 US 557, 100 SCt 2343 (1980). Provided that the commercial speech concerns lawful activity which is
neither false, deceptive or misleading, regulation of such speech will be upheld if the governmental interest in
regulating the commercial speech is substantial, if the regulation directly advances that governmental interest, and
if it does so in a manner that is no more extensive than necessary to serve the governmental interest. This last leg
of the test was diluted in Edenfield v Fane 123 LEd 2d 543, 113 SCt 1792 (1993) so that the means chosen need no
longer be necessary but must now be ‘tailored in a reasonable manner’ to serve the governmental interest. However,
in 44 Liquormart Inc v Rhode Island 134 LEd 2d 711 (1996) the US Supreme Court invalidated Rhode Island’s
complete ban on liquor price advertising. There was no agreement as to the proper standard for determining the
validity of the liquor price advertising ban. Nevertheless, the court was unanimous in holding that a total ban on
truthful, non-misleading price advertising about a lawful product violated the First Amendment.
3
(1989) 58 DLR (4th) 577 (SCC).
4
Irwin Toy Ltd v Quebec (A-G) at 610--11 (holding furthermore that either an unconstitutional purpose or an
unconstitutional effect might invalidate legislation).
5
(1995) 127 DLR (4th) 1 (SCC), 31 CRR (2d) 189.
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warnings on tobacco packages could not be justified under the limitation clause of the
Canadian Charter.1
52 In a decision which has ramifications beyond the field of commercial expression the
Zimbabwe Supreme Court considered whether the monopoly held by the Posts and Telecommunications Corporation over the operation of public telecommunications services and its
consequential inability under law to license the applicant to become a provider of a mobile
cellular telephone service violated freedom of expression. In Retrofit (Pvt) Ltd v Posts and
Telecommunications Corporation2 a unanimous court held that the monopoly granted to the
Corporation hindered the right of everyone to freedom of expression by restricting or
interfering with the means of expression.3 The infringement could not be justified under the
limitation clause because the legislative objectives were not sufficiently important to warrant
infringing the right, there was no rational connection between the monopoly and the stated
objectives, and the monopoly was not the least drastic means of attaining the stated
objectives.4 In reaching this conclusion the court noted that it is the effect of the monopoly,
and not its purpose, which was decisive,5 and that it was irrelevant to the determination of
the case that the applicant’s predominant motivation lay in prospective financial gain and not
so much in the desire to vindicate the right of freedom of expression.6
In South African Post Office Ltd v Van Rensburg & another7 the court rejected an attempt
by the respondent to apply the ratio of Retrofit in a challenge to the postal service monopoly
enjoyed by the South African Post Office. Lang AJ distinguished Retrofit on the facts by
pointing to the absence of evidence which suggested that the postal service monopoly in
South Africa interfered with freedom of expression to the extent that the telephone service
monopoly had in Zimbabwe. In particular, the respondent had not alleged that the South
African public postal service was failing to perform its statutory mandate.8 Another obvious
basis of distinction between the two cases was the fact that the South African legislation does
not create an absolute monopoly, but effectively authorizes the Minister of Posts and
Telecommunications to license private postal services where this is in the public interest.9
An appeal against this decision failed.10
1
The case provides a comprehensive analysis of the considerations raised by restrictions on commercial
expression. Nevertheless, comparable litigation under our Constitution would not necessarily lead to the same result.
In part this is because of the slender majority in the Supreme Court of Canada. More important, much of the Canadian
analysis concerned the question whether or not the legislation amounted to a minimal impairment of the exercise
of freedom of expression, which is a sine qua non of justification under the Canadian limitation clause. It is, however,
only one factor among several which must be considered under IC s 33(1) and FC s 36.
2
1996 (1) SA 847 (ZS).
3
At 860C.
4
At 862E--866A.
5
At 861H--J.
6
At 854G, 856C.
7
1998 (1) SA 796 (E).
8
At 809H--810F.
9
See s 90A of the Post Office Act 44 of 1958. This point was discussed in the judgment in the context of a
challenge based on the right to freedom of trade, occupation and profession, but was not used by Lang AJ as a basis
for distinguishing Retrofit. Compare the consideration of freedom of trade, occupation and profession at 804H--806B
of the judgment with that of freedom of expression at 809B--810F.
10
Van Rensburg v South African Post Office Ltd 1998 (10) BCLR 1307 (E).
20--52
[REVISION SERVICE 5, 1999]
EXPRESSION
REVISION SERVICE 3, 1998
52A
The Advertising Standards Authority is an independent body set up by the advertising
industry to ensure lawful, honest and informative advertising in South Africa. The object of
its Code of Advertising Practice is to regulate commercial advertising and to deal with
complaints from the public and from members.1 Its provisions may limit s 15(1). Various
South African statutes prohibit commercial expression that is false or misleading.2 If false
or misleading commercial advertising qualifies for constitutional protection, the above
statutory provisions will require justification under s 33(1).
1
Section 57 of the Independent Broadcasting Authority Act 153 of 1993 requires that all broadcasting licensees
adhere to the Code of Advertising Practice determined by the Advertising Standards Authority. It is accordingly
submitted that the Code has the status of delegated legislation and may accordingly be tested against the dictates
of the Constitution.
2
See e g ss 6 and 7 of the Merchandise Marks Act 17 of 1941 (prohibiting false and forged trade marks, and
false trade descriptions); s 18(2) of the Medicines and Related Substances Control Act 101 of 1965 (advertisement
must comply with prescribed requirements); s 5 of the Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972;
ss 37 and 39 of the Trade Metrology Act 77 of 1973; s 33 of the Plant Improvement Act 53 of 1976; s 9(1) of the
Trade Practices Act 76 of 1976; s 28 of the Livestock Improvement Act 25 of 1977.
[REVISION SERVICE 3, 1998]
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EXPRESSION
REVISION SERVICE 2, 1998
The common law of unlawful competition limits commercial expression in various
respects.1 Wrongfulness is an element of the delict of unlawful competition. It is determined
in light of the boni mores of society. Consequently, s 15(1) is likely to have an effect upon
the rules of unlawful competition either indirectly through s 35(3) of the Chapter, or directly
if Chapter 3 applies to the common law in suits between private parties. Truthful comparative
advertising, which may already be lawful at common law,2 is likely to enjoy constitutional
protection.
53 The regulation of advertising by the professions either by statute or through selfregulation by professional codes of conduct may now require justification under the limitation clause.3 Similarly, if s 15(1) includes within its ambit the right not to speak,4 compelled
speech in the form of mandatory health warnings on tobacco5 and alcohol products and the
listing of ingredients on product labels may also limit freedom of expression and require
justification.6
(g)
Picketing
Picketing obviously involves expressive conduct and qualifies for protection under s 15(1).7
The inquiry under our limitation clause will turn upon the relation between the picketing and
free and fair political activity. Where the content of the picket is political it will obviously
qualify for maximum protection. Certain forms of labour picketing will probably relate, as
a class of expressive activity, to free and fair political activity. To the extent that our courts
1
See e g Ebrahim v Twala & others 1951 (2) SA 490 (W) (direct infringement by harassing competitor’s
customers, employees or suppliers); Geary & Son Ltd v Gove 1964 (1) SA 434 (A) at 441 (unlawful competition
where defendant knowingly, by word or conduct or both, makes a false misrepresentation); Dun & Bradstreet (Pty)
Ltd v SA Merchants Combined Credit Bureau (Pty) Ltd 1968 (1) SA 209 (C) (direct infringement of rival’s goodwill
by publishing injurious falsehoods about competitor’s business); Brian Boswell Circus (Pty) Ltd & another v
Boswell-Wilkie Circus 1985 (4) SA 466 (A) (indirect infringement of goodwill by passing off); Schultz v Butt 1986
(3) SA 667 (A) (where there are no countervailing public interests, copying of design is unfair competition).
2
Post Newspapers (Pty) Ltd v World Printing & Publishing Co Ltd 1970 (1) SA 454 (W).
3
On regulation of advertising by the professions in the US and Canada see e g Ohralik v State Bar Association
436 US 447, 98 SCt 1912 (1978) (the state may prohibit contingency fee solicitation from accident victims in
hospital and at home); In re Primus 436 US 412, 98 SCt 1892 (1978) (ACLU solicitation letters offering free legal
services in public interest litigation protected as being in furtherance of attorney’s political goals); Edenfield v Fane
123 LEd 2d 543, 113 SCt 1792 (1993) (limited in-person solicitation by accountants permitted); Griffin v College
of Dental Surgeons (1989) 64 DLR (4th) 652 (BCCA) (limitation on advertising by dentists infringes s 2(b), but
constitutes reasonable limit in the interests of ensuring professional standards of competency and ethics); Rocket v
Royal College of Dental Surgeons of Ontario (1990) 71 DLR (4th) 68 (SCC) (overbroad restrictions on advertising
by dentists not reasonable limit); Prostitution Reference [1990] 1 SCR 1123 (prostitution lawful in Canada; statute
criminalizing communication in a public place for purpose of engaging in prostitution violates s 2(b), but constitutes
a reasonable limit).
4
See e g Podlas v Cohen NO & others 1994 (4) SA 662 (T), 1994 (3) BCLR 137 (T) (arguably accepting that
freedom of expression includes the right not to speak).
5
See e g RJR-MacDonald Inc v Canada (A-G) (1995) 127 DLR (4th) 1 (SCC), 31 CRR (2d) 189.
6
For a discussion of Canadian doctrine, see Hogg Constitutional Law of Canada sec 40.7(c).
7
In the Canadian context see Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery
(1986) 3 DLR (4th) 174 (SCC) at 105 (obiter dictum: recognizing the element of expression in picketing); BCGEU
v BC [1988] SCR 214 (an ex parte injunction issued by a judge on his own motion prohibited picketing the courts;
the injunction was held to infringe s 2(b) but to constitute a reasonable limit in the interests of unimpeded access
to the courts).
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CONSTITUTIONAL LAW OF SOUTH AFRICA
view the nature of industrial relations, and the conflicting interests of workers and employers,
as being fundamental to the political fabric of our society, justifiable limitations on labour
picketing will have to be both reasonable and necessary.1 Alternatively, if our courts adopt a
case-by-case approach based on the subject-matter of any particular labour picket, reasonable
time, place and manner restrictions on picketing will be upheld. Picketing may also be
assimilated to commercial expression.2
54 Secondary picketing will probably be analysed in the same manner, except that because
such picketing impacts upon third parties who are not immediate parties to the dispute, the
requirements of reasonable limitation will probably be more easily satisfied than in case of
primary picketing.3
(h)
Access to public property
In order to exercise their rights to freedom of expression and assembly individuals and
collectivities often require the use of public property. Although Chapter 3 protects freedom
of assembly4 separately from expression, our common law treats freedom of assembly as a
component of freedom of expression.5 In America freedom of assembly is treated as an
adjunct of freedom of expression, and access to public property is governed by the ‘public
forum’ doctrine.6 The focus upon classifying the nature of the forum, instead of balancing
the interests at stake, has been criticized on the grounds that it confuses the issues, is too
easily manipulable, and occasionally artificial.7
Canadian jurisprudence attempts to avoid the public forum doctrine in evaluating
the right to expression on public property. Canadian courts endeavour to balance the
interests without resort to labelling the forum where expression takes place. Thus in
1
See e g Thornhill v Alabama 310 US 88, 60 SCt 736 (1940) (picketing is protected because discussion of
conditions in industry and the causes of labour disputes is indispensable to popular government). But see
International Brotherhood of Teamsters v Vogt 354 US 284, 77 SCt 1166 (1957) (the court may enjoin peaceful
picketing which prevents the legislature from enforcing some public policy).
2
Hogg Constitutional Law of Canada sec 40.8: ‘Picketing is probably best regarded as a kind of commercial
expression, since its main purpose is to encourage employees not to work and consumers not to buy. However, like
other kinds of commercial expression, the picket line may also convey an implicit, or even explicit political message.
Of course, under the broad definition of ‘‘expression’’ established by the Supreme Court of Canada, it does not
matter whether the expression is characterized as commercial or political: both kinds are protected.’ Under our
limitation clause, of course, a great deal may turn on whether labour picketing is classified as commercial or political
expression.
3
See e g Giboney v Empire Storage and Ice Co 336 US 490, 69 SCt 684 (1949) (upholding a state ban on
secondary picketing made illegal by state anti-trust laws); NLRB v Retail Store Employees Union et al 447 US 607,
100 SCt 2372 (1980) (upholding NLRB decision that secondary picketing is an unfair labour practice); Retail,
Wholesale and Department Store Union, Local 580 v Dolphin Delivery (1986) 3 DLR (4th) 174 (SCC) (obiter
dictum: secondary picketing is protected expression, but the tort of inducing breach of contract is a reasonable limit
to prevent the spread of industrial conflict to third parties).
4
Section 16 ‘Assembly, demonstration and petition’. See below, Woolman ‘Assembly’ ch 21.
5
S v Turrell & others 1972 (1) SA 248 (C).
6
Hague v CIO 307 US 496, 59 SCt 954 (1939). Citizens have guaranteed access to streets, parks and other public
forums. Speech in such fora may only be regulated in content-neutral ways, and the government must demonstrate
that restrictions on speech are narrow and necessary to serve a significant governmental interest.
7
See Tribe American Constitutional Law 989--97.
20--54
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EXPRESSION
Committee for the Commonwealth of Canada v Canada1 the Supreme Court of Canada held
that an airport manager’s prohibition on the distribution of political leaflets at the Montreal
Airport violated freedom of expression and could not be saved under the limitation clause.
Although the result was unanimous, the court divided into three camps in attempting to define
the scope of freedom of expression.2 In Ramsden v Peterborough3 the Supreme Court of Canada
struck down a municipal by-law prohibiting the placing of posters on any public property.4
55 In In re Munhumeso & others5 the Supreme Court of Zimbabwe was called upon to
determine the constitutional validity of a statutory provision requiring the issue of a permit
by a regulating authority prior to holding a public procession.6 In interpreting s 11 of the
Constitution of Zimbabwe, which guarantees freedom of expression and assembly, the court
noted that a procession, an assembly in motion, is a highly effective means of communication
not provided by other media, stimulating public attention and discussion and bringing the
public into direct contact with those expressing an opinion.7 The court was of the view that
the impugned legislation infringed the freedoms of expression and assembly and that it did
not prima facie constitute a justifiable limitation thereof. Consequently a rule nisi was issued
calling upon the Minister of Home Affairs to show cause why the impugned legislation
should not be declared unconstitutional.
A different form of access to public property is dealt with by s 15(2). The section may
grant individuals a constitutional right of access to the publicly owned media, at least where
such access would implicate the concerns of impartiality and the expression of a diversity of
opinion.
(i)
Access to private property
To what extent may private property owners exercise their common-law right to determine
what forms of expression are permissible on their property? Conversely, do speakers have
any right to express themselves on private property without the consent of the owner? A
blanket denial of access to all private forums at all times may unconstitutionally limit freedom
of expression.8
In America the claims of private property owners have not always trumped the interests
of free expression. Most litigation has concerned rights of access to private shopping malls
1
[1991] 1 SCR 139 (SCC), 77 DLR (4th) 385 (SCC).
2
For analysis of the three different approaches to expression on public property articulated in the Committee for
the Commonwealth case, see Hogg Constitutional Law of Canada sec 40.12. See also S Woolman & J de Waal
‘Freedom of Assembly: Voting with Your Feet’ in Van Wyk, Dugard, De Villiers & Davis (eds) Rights and
Constitutionalism (1994) 292 at 308--14.
3
[1993] SCR 1084, 106 DLR (4th) 233.
4
While the governmental interests in reducing litter, aesthetic blight and traffic hazards would have made some
limitation upon postering justifiable, the complete ban failed the ‘least drastic means’ leg of the Canadian limitation
clause test.
5
1995 (1) SA 551 (ZS), 1995 (2) BCLR 125 (ZS).
6
The statute empowered a regulating authority to issue directions for controlling public processions, required
the issue of a permit before a procession may be conducted, and made it an offence to convene, direct or take part
in a public procession for which a permit had not been obtained.
7
In re Munhumeso & others 1995 (1) SA 551 (ZS) at 557G--H, 1995 (2) BCLR 125 (ZS).
8
In Canada the non-application of the Charter to private action means that the guarantee of freedom of expression
does not apply in the context of private property rights. See Hogg Constitutional Law of Canada sec 40.12.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
and the privately owned media. In Amalgamated Food Employees, Local 590 v Logan Valley
Plaza1 the US Supreme Court held that a privately owned shopping centre was the functional
equivalent of a public business district and that consequently the owner could not resort to
state trespass laws to prohibit peaceful union picketing.2 This rule was subsequently narrowed,3 and then overruled in Hudgens v NLRB,4 where the court held that no citizen had a
First Amendment right to free expression in a private shopping centre over the objection of
the owner.5 It is submitted that the commitment to a well-functioning democratic process
would support interpreting s 15(1) in a manner which granted rights of access to certain
private property, including privately owned shopping centres.
56 Certain access claims in relation to privately owned media have been recognized in the
US. No general First Amendment right of access to privately owned print media has yet been
recognized.6 Nevertheless, the public has been granted certain access rights to privately
owned broadcast media, in particular, according to the ‘fairness’ doctrine of the FCC, a right
to reply to personal attacks and station editorials.7 The traditional basis for distinction
between print and broadcast media is that the latter are limited by broadcast spectrum scarcity.
This rationale, however, is open to doubt.8 A more secure foundation for a ‘fairness’ doctrine
or a right to reply requirement would be in interpreting freedom of expression not merely as
a negative right but as imposing positive obligations to further democratic self-government.9
It is submitted that s 15(2) should not be read as excluding by implication all access claims by
members of the public to privately owned media. At present the Independent Broadcasting
Authority Act specifically requires the equitable treatment of political parties during election
periods. In this regard the Act grants a right of access in the form of a statutory right to reply.10
1
391 US 308, 88 SCt 1601 (1968).
2
The court cited Marsh v Alabama 326 US 501, 66 SCt 276 (1946) for the proposition that a company-owned
town is equivalent to public property.
3
Lloyd Corp v Tanner 407 US 551, 92 SCt 2219 (1972) (only speech that relates to the operations of the shopping
centre enjoys constitutional protection).
4
424 US 507, 96 SCt 1029 (1976).
5
But see Pruneyard Shopping Centre v Robins 447 US 74, 100 SCt 2035 (1980) (California’s wider interpretation of freedom of expression in its own constitution, which guaranteed access to shopping centres for
speech, was upheld and determined not to violate the owner’s free speech rights nor to constitute a taking of property
without compensation).
6
Miami Herald Publishing Co v Tornillo 418 US 241, 94 SCt 2831 (1974) (invalidating on the basis of the
owner’s right to freedom of expression a ‘right to reply’ statute in respect of the print media).
7
See e g Red Lion Broadcasting Co v FCC 395 US 367 at 389--92, 89 SCt 1794 (1969): ‘A licence permits
broadcasting, but the licensee has no constitutional right to be the one who holds the licence or to monopolize a
radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the
Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or
fiduciary with obligations to present the views and voices which are representative of his community and which
would otherwise, by necessity, be barred from the airwaves . . . It is the right of the viewers and listeners, not the
right of the broadcasters, which is paramount . . . It is the right of the public to receive suitable access to social,
political, esthetic, moral, and other ideas and experiences which is crucial here.’
8
See Sunstein Partial Constitution 213--14; Van der Westhuizen ‘Freedom of Expression’ 289.
9
See e g Sunstein Partial Constitution 209--13.
10
Act 153 of 1993, s 61. Furthermore, while s 2(n) of the Act protects private broadcasters from undue
interference, it also forms the platform for developing a more expansive fairness doctrine which might not be
restricted to political parties during election periods. For a fuller discussion of the impact of the Independent
Broadcasting Authority Act upon privately owned broadcasting media, see above, § 20.6(b).
20--56
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EXPRESSION
20.9 FREEDOM OF EXPRESSION IN TERMS OF SECTION 16 OF THE FINAL
CONSTITUTION
In this section we first highlight and examine the important differences between IC s 15 and FC s 16.
We then consider the structure of freedom of expression analysis under the final Constitution
and the application of the guarantee. Next we examine the meaning of FC s 16(2).
(a)
The differences between IC s 15 and FC s 16
There are at least five significant differences between the protection afforded freedom of
expression under the interim Constitution and under the final Constitution.
57 First, IC s 15(1) read with IC s 33(1) formed an expressly bifurcated guarantee.1 By
contrast, FC s 16(1) read with FC s 36 (the limitation clause) creates a uniform standard of
justification and does not explicitly distinguish between different levels of constitutional
protection afforded expression, depending upon its nature and content. However, the absence
of an express distinction between a political core and protected periphery is unlikely to mean
that all expression, regardless of its content, is treated the same for purposes of analysis under
FC s 36. In practice, we submit, the courts will appropriately develop a judicial distinction
between expression which forms part of the core of freedom of expression because it
implicates directly the most important values which the guarantee is designed to protect, and
expression which is at some remove from this core.2 The core values of freedom of expression
will include ‘the search for political, artistic and scientific truth, the protection of individual
autonomy and self-development and the promotion of public participation in the democratic
process’.3 The distinction between core and periphery will have a real impact on the manner
in which courts apply the factors listed as part of the limitation clause inquiry under FC s 36.
How the various applicable factors are weighed, the rigour with which the requirements of
the limitation clause are enforced, and the degree of judicial deference to the legislature will
all be influenced by whether the expression at issue is close to or further from the core of the
guarantee. A rigorous and searching scrutiny will be applied to restrictions on expression
which relate to core values. A lower standard of justification will probably be applied to
restrictions on expression which is at some remove from these core values.
Secondly, FC s 16(1)(b) expressly includes the freedom to receive and impart information
or ideas as part of the freedom of expression. IC s 15(1) was silent on this question, although
one judge of the Constitutional Court was prepared to conclude that IC s 15(1) embraced the
1
See above, §§ 20.1(a); 20.3; 20.4(c); 20.6(c); 20.8(b) and (e).
2
In this respect, our freedom of expression jurisprudence is likely to share common features with Canadian
freedom of expression jurisprudence. In the absence of an express content-based distinction between levels of
protection afforded to expression, the Canadian courts have developed a distinction between expression at the core
of the guarantee and that which is further removed from the core. This distinction has been an important factor,
particularly when the justifiability of limitations on free expression has been at issue. See above, § 20.3(a) n 3 and
cases there cited. See also R v Keegstra [1990] 3 SCR 697, 3 CRR (2d) 193 (SCC); Ross v New Brunswick School
District No 15 (1996) 133 DLR (4th) 1 (SCC) at 35--6, 35 CRR 1; Canadian Broadcasting Corp v New Brunswick
(Attorney-General) (1997) 139 DLR (4th) 385 (SCC) at 407--8.
3
RJR-MacDonald Inc v Canada (Attorney-General) (1995) 127 DLR (4th) 1 (SCC) at 54, 31 CRR (2d) 189.
See also above, § 20.2.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
right to ‘receive, hold and consume the expression transmitted by others’.1 The wording of
FC s 16(1)(b) thus endorses this conclusion.
58 Thirdly, although scientific research was considered under the interim Constitution to be
part of free expression, academic freedom was not. It was protected, rather anomalously,
under the freedom of religion, belief and opinion in IC s 14(1).2 This anomaly has now been
rectified and FC s 16(1)(d) expressly protects academic freedom alongside the freedom of
scientific research.
Fourthly, the express guarantee of impartiality and diversity of opinion in media financed
by or under the control of the state, protected by IC s 15(2), has been omitted from FC s 16.
IC s 15(2) was considered to be not merely appropriate for the period of transition but to
reflect a salutary effort to cultivate a culture of justification.3 It will now be left to legislation
to ensure impartiality and diversity. The absence of a provision akin to IC s 15(2) is
regrettable.
Fifthly, and perhaps of greatest significance, FC s 16(2) contains a set of enumerated
exclusions4 which were completely absent from IC s 15. These exclusions will alter both the
structure and substance of freedom of expression analysis. Depending on how our courts
treat the enumerated exclusions, their very enumeration may have a negative impact on the
content of our jurisprudence. IC s 15 left it to the courts to determine whether to adopt a
wholly content-neutral approach to the question of the meaning of ‘speech and expression’
for purposes of constitutional protection, or a definitional approach that would exclude
certain categories of expressive activity from constitutional protection altogether.5 In
FC s 16(2) the drafters have expressed their preference for a definitional approach in at least
three areas of expressive activity: propaganda for war, incitement of imminent violence, and
the advocacy of hatred based on various grounds where that advocacy constitutes an
incitement to cause harm. Several implications flow from this choice. It strongly suggests
that the proper approach to the interpretation of FC s 16 is to construe FC s 16(2) as
exhaustively enumerating the only exclusions from FC s 16(1). Consequently we submit that
all activity which attempts to convey meaning constitutes expressive activity6 which enjoys
constitutional protection under FC s 16(1), unless that expression falls into one or more of
the three categories of expressive activity set out in FC s 16(2). If it does, then the expression,
even though it may attempt to convey meaning, may not enjoy constitutional protection under
the freedom of expression guarantee. In short, the exclusions set out in FC s 16(2) are
exhaustive of the forms of expressive activity which may be unprotected.
1
Case & another v Minister of Safety & Security & others 1996 (3) SA 617 (CC), 1996 (5) BCLR 609 (CC) at
para 25.
2
See above, § 20.4(c).
3
See above, § 20.6(d).
4
Whether the term ‘enumerated exclusions’ is more accurate than either ‘internal limitations’ or ‘internal
modifiers’ is a matter of the proper interpretation of the relationship between FC s 16(1) and s 16(2). This is dealt
with below.
5
See above, § 20.6(a), where the differences between the content-neutral and definitional approaches were
outlined and the advantages and disadvantages of each were considered.
6
See the definition of expression adopted by the Supreme Court of Canada in Irwin Toy Ltd v Quebec
(Attorney-General) (1989) 58 DLR (4th) 577 (SCC) at 606, namely that ‘activity is expressive if it attempts to
convey meaning’. See also above, § 20.6(a).
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EXPRESSION
FC s 16(2) appears to be influenced by the definitional or categorical approach characteristic of some First Amendment analysis in the United States. However, whereas the First
Amendment was cast in absolute terms and the courts then carved out certain categories of
speech which did not qualify for its protection, our framers have done the carving by
legislative and not judicial means. FC s 16(2) may serve to define three categorical exclusions
from constitutional protection at the threshold of the right. This categorical approach is then
combined with a general guarantee embodied in FC s 16(1) which is made subject to a single
standard of justification under FC s 36.
59 In our submission the approach embodied in FC s 16(2) was unnecessary, given the
existence of an overarching limitation clause. Each of the exclusions could have been
the subject of justifiable limitation on a case-by-case basis in terms of FC s 36 analysis rather
than on the basis of a priori exclusion which may preclude the courts from balancing the
competing interests at stake in concrete factual situations. Unless the exclusions themselves
are properly and narrowly interpreted, so as to accord individuals the full measure and
enjoyment of the fundamental right,1 there is a danger that FC s 16(2) may dilute the scope
and efficacy of FC s 16(1) and weaken the constitutional protection of freedom of expression.
Furthermore, FC s 16(2) raises questions as to the party on whom the burden lies to
demonstrate that the expression at issue does not enjoy constitutional protection because it
is hit by one or more of the enumerated exclusions. In general, the party seeking to invoke
the protection of a fundamental right bears the burden of showing that his or her conduct is
protected by the right on which reliance is placed.2 We submit, however, that where
categorical exclusions such as those embodied in FC s 16(2) are concerned, the party seeking
the protection of FC s 16(1) should not be required to demonstrate that the expressive activity
in question does not fall foul of FC s 16(2). That task should properly rest with the party
seeking to rely on any of the exclusions.
There are at least two minor differences between IC s 15 and FC s 16 of the Constitution.
Whereas IC s 15(1) refers to the freedom of ‘speech and expression’, FC s 16(1) refers only
to the freedom of ‘expression’. Since ‘expression’ is of broader definition and wider reach
than ‘speech’, which relates primarily to the verbal articulation of ideas, nothing is likely to
turn on this difference. IC s 15(1) extended its benefits to ‘every person’, while FC s 16(1)
speaks of ‘everyone’. This linguistic distinction is also unlikely to have practical meaning.
In particular it is unlikely to provide support for an argument that juristic persons do not
enjoy the benefits of freedom of expression.
(b)
The structure of freedom of expression analysis under the final Constitution
As we pointed out above, analysis of freedom of expression issues under the interim
Constitution takes place in two stages.3 One of the effects of FC s 16(2) is to introduce a
possible extra stage into the analysis under the final Constitution. The first issue to be decided
in terms of FC s 16 is whether the expressive activity for which protection is sought is
1
See above, Kentridge & Spitz ‘Interpretation’ §§ 11.4 and 11.8.
2
See above, Kentridge & Spitz ‘Interpretation’ § 11.10(c).
3
See above, § 20.1(a).
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CONSTITUTIONAL LAW OF SOUTH AFRICA
governed by one or more of the exclusions enumerated in FC s 16(2). This is a threshold
question. If an FC s 16(2) exclusion applies, then, subject to what is suggested below, the
inquiry may be at an end and the expression will not enjoy constitutional protection at all.
Its restriction will not have to be justified in terms of the limitation clause. It is only if the
expression in question is not hit by an FC s 16(2) exclusion that the analysis will proceed
to the further stages. If the threshold is crossed, the analysis under FC s 16(1) read with
FC s 36 will have the same structure as the two-stage inquiry under the interim Constitution.
In the vast majority of cases it will be clear that none of the enumerated exclusions applies
to the expression for which protection is sought. However, there will be cases where it will
be difficult to determine whether or not FC s 16(2) applies.
(c)
The application of FC s 16
60 s 8 puts it beyond doubt that fundamental rights, including the right to freedom of
FC
expression, may be invoked in disputes between private parties which depend for their
determination on rules of common law.1
(d)
The enumerated exclusions in FC s 16(2)
There are two possible approaches to the enumerated exclusions in FC s 16(2). On the first
approach, FC s 16(2) insulates from constitutional scrutiny the regulation of propaganda for
war, incitement of imminent violence, and advocacy of hatred that constitutes an incitement
to cause harm. It decides in advance that an entire category of expression is not worthy of
constitutional protection. Not only are these forms of expression deprived of constitutional
protection altogether but the state is given a free hand in their regulation without having to
conform to the standards of justification established by the limitation clause. In an important
sense FC s 16(2) may be described as an ouster clause and a remnant of parliamentary
sovereignty. It deprives the courts of jurisdiction to measure government action in this area
against constitutional standards. If the court determines that the expression at issue is hit by
one of the enumerated exclusions, it has no further jurisdiction to review the constitutionality
of government conduct for conformity with the right to freedom of expression.2 For this
reason alone the enumerated exclusions ought to be restrictively interpreted.
There is another ground for adopting a restrictive interpretation: FC s 16(2) is a blunt
instrument for the regulation of hate speech. FC s 16(1) is not absolute. The drafters could
have chosen to regulate hate speech by carefully drawn and narrowly tailored legislation
designed to satisfy the requirements of FC s 36. Instead, FC s 16(2) gives the state two
opportunities to limit hate speech, first through the enumerated exclusions and, secondly,
1
See above, Woolman ‘Application’ ch 10.
2
See Johannessen ‘A Critical View of the Constitutional Hate Speech Provision’ (1997) 13 SAJHR 135 at 136
(‘This internal limitation removes an entire area of speech beyond the ambit of the right to freedom of expression
and consequently from the ambit of constitutional scrutiny. Thus the section essentially grants constitutional
immunity to Parliament . . .’); Govender ‘The Freedom of Speech’ (1997) 1 Human Rights and Constitutional Law
Journal of Southern Africa 20.
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EXPRESSION
if that fails, by recourse to FC s 36.1 In fact, there is a further tool available, at least with
respect to propaganda for war. FC s 37 envisages and regulates the declaration of states of
emergency and permits derogation, inter alia, from FC s 16 if the specified constitutional
requirements are satisfied. FC s 16(2) therefore poses a potential threat to constitutional
democracy. We submit that the role of the courts in a constitutional order compels them to
exercise particular vigilance with respect to FC s 16(2) and jealously to guard the freedom
of expression against government conduct which would be immune from scrutiny under
FC ss 16(1) and 36.
61 There is a second possible approach to the enumerated exclusions under FC s 16(2). If
one were to read the enumerated exclusions under FC s 16(2) as precluding any inquiry
whatsoever into questions of justification, the inevitable consequence would be that FC s 36
does not enter the inquiry at all. It is arguable that those who drafted the clause intended no
more than to identify certain categories of expression which may be limited by legislative
enactment, but that any limitation would nevertheless have to pass the requirements of the
limitations clause. FC s 16 is similar, although not identical, to IC s 26, dealing with the right
to economic activity. In S v Lawrence & others2 Chaskalson P interpreted the interrelationship between IC s 26(1) and (2) as not excluding the operation of IC s 33. In our submission,
a similar approach to FC s 16 would be desirable and may be available. On this approach,
for example, it would be competent to challenge the constitutionality of a statute which, in
simple terms, made it a criminal offence to propagate war if, for example, there was no scope
for defences such as legitimate debate on matters of public importance. Absent such a
defence, the kind of debate which took place in South Africa in 1939 concerning participation
in World War II would be rendered criminal without recourse to constitutional protection.
(i)
Propaganda for war
It will be extremely difficult for courts to give meaning to this phrase which, if used in an
ordinary statute, would be open to attack on grounds of vagueness and overbreadth. It is
submitted that the purpose of s 16(2)(a) cannot be to deprive of constitutional protection all
non-official expression which advocates the use of military force against a foreign country,
regardless of the circumstances surrounding that expression. We submit that the practical
role of this provision will be extremely limited. There is little if anything which may require
the invocation of FC s 16(2)(a) which would not be better achieved by recourse to
FC s 16(2)(b), which at least has certain built in safeguards.
1
As Johannessen argues, FC s 16(2) is ‘unnecessary, over-broad and goes beyond even the requirements
of international law’. While one may acknowledge the need to protect individuals and groups against racial
oppression, FC s 16(2) is an inappropriate tool to satisfy this need. It fails ‘to incorporate safeguards against
over-breadth and abuse’. Johannessen ‘A Critical View of the Constitutional Hate Speech Provision’ (1997) 13
SAJHR 135 at 136, 142.
2
1997 (4) SA 1176 (CC), 1997 (10) BCLR 1348 (CC).
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CONSTITUTIONAL LAW OF SOUTH AFRICA
(ii)
Incitement of imminent violence
62
Three
requirements must be established before expression may fall foul of FC s 16(2)(b).
First, the expression must itself amount to incitement.1 Secondly, the incitement must be of
violence.2 Thirdly, the violence cannot merely be possible in the future; it must be imminent.
FC s 16(2)(b) resembles the ‘clear and present danger’ test developed by US courts. That test
restricted the power of the state to proscribe advocacy of the use of force or of law violation
to those circumstances where such ‘advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action’.3 The formulation contains both
a subjective dimension and an objective dimension. There must be a subjective intention on
the part of the speaker to incite, and an objective likelihood or probability that imminent
lawless action will result. The combination of subjective intention and objective likelihood
make the clear and present danger test admirably protective. However, the reference to
‘imminent lawless action’ is too broad.4 FC s 16(2)(b) remedies the latter weakness by
specifying that the incitement must be of violence and not merely of any lawless action.
Whether the section embodies the requirements of both subjective intent and objective
probability is unclear. Clearly FC s 16(2)(b) is reasonably capable of bearing such an
interpretation. In our view that interpretation would also most closely comport with the
purpose of FC s 16 and the final Constitution as a whole. The strictest possible interpretation
of FC s 16(2)(b) is preferable particularly because expression which falls foul of the exclusion
may not be constitutionally protected and its regulation or prohibition may not be open to
scrutiny for consistency with the limitation clause. We submit that only expression which the
speaker subjectively intends to be an incitement to imminent violence and which objectively
and in the prevailing circumstances does indeed incite imminent violence may be denied
constitutional protection on the basis of FC s 16(2)(b).
(iii) Advocacy of hatred that constitutes incitement to cause harm
This exclusion applies only where the expression is based on race, ethnicity, gender or
religion. The advocacy of hatred on other grounds which amounts to incitement will be
subject to the normal two-stage analysis in terms of FC ss 16(1) and 36. Furthermore, the
exclusion does not apply to the advocacy of hatred per se. Expression that advocates hatred
must also constitute an incitement to cause harm. The drafters have therefore clearly
distinguished between mere advocacy of hatred, on the one hand, and advocacy which
amounts to incitement, on the other. For the reasons set out above5 we submit that the
incitement requirement embodies both subjective and objective elements.
1
We point out above, § 20.8(a) that our common-law definition of ‘incitement’ is disconcertingly wide and does
not distinguish between advocacy, including the teaching of abstract doctrine, and incitement.
2
FC s 16(2)(b) is limited to the incitement of ‘violence’. It is not a general exclusion of all forms of incitement
of ‘imminent lawless action’. In this sense its precision provides meaningful protection against overbreadth.
3
See above, § 20.8(a), and especially Brandenburg v Ohio 395 US 444, 89 Sct 1827 (1969).
4
See above, § 20.8(a).
5
See above, § 20.9(c)(ii).
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The Canadian Supreme Court has referred with approval to arguments which suggest that
the harm at issue in the context of hate speech embraces not only physical harm but also
psychological and social damage.1 However, these references are not persuasive precedent
for the interpretation of FC s 16(2)(c). The Canadian freedom of expression guarantee
contains no enumerated exclusions. Consequently, constitutional recognition of harms other
than physical harms does not automatically and by definition deprive the expression concerned of all protection. In Canada recognition of the harms at issue is therefore relevant in
locating hate speech at some distance from the core values of freedom of expression and as
a factor to be considered during the limitation clause inquiry.
63 Where, by contrast, the question is whether the expression at issue qualifies for protection
at all, the meaning of ‘harm’, in the constitutional sense, should be different. This is not to
say that social and psychological harms caused by hate speech are not real harms which can
and should be combatted. However, they may be combatted by legislation capable of
satisfying the requirements of FC s 36. We intend to say no more than that for the purpose
of defining the scope of the FC s 16(2)(c) exclusion, our courts should be wary of adopting
or importing a wide definition of harm from a very different kind of constitutional analysis.
Since FC s 16(2) deals with categorical exclusions we submit that it is preferable to confine
the constitutionally significant harm under the hate speech exclusion to physical harm and
to address other serious harms in the course of an inquiry under the limitation clause. It is
therefore preferable to have regard to the approach of the US courts concerning those
harms which are sufficient to deprive expression of constitutional protection altogether.2
Consistent with the generally restrictive approach which we have suggested is appropriate
in interpreting FC s 16(2), we submit that ‘harm’ for purposes of FC s 16(2)(c) should be
limited to mean physical harm only.3
1
R v Keegstra [1990] 3 SCR 697.
2
See, for example, Collins v Smith 578 F 2d 1197 (1978) (emotional and mental disturbance is insufficient to
deprive speech of protection); Terminiello v Chicago 337 US 1 (speech that stirs anger and creates dissatisfaction
if not deprived of protection).
3
For a contrary view, see Govender ‘The Freedom of Speech’ (1997) 1 Human Rights and Constitutional Law
Journal of Southern Africa 20 at 23.
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