Annual Report – 1995

Annual Report

Freedom of Expression Institute


1995- the second year of the FXI’s existence – was an extraordinarily busy year, stretching our human and physical resources to the limit. Not only has the FXI reacted to numerous violations of freedom of expression, but it has also spent an enormous amount of energy on proactively developing policy to ensure that freedom of expression is further entrenched.

In 1995, the activities of the organisation broadened substantially from the single-issue campaigning that was carried on with extremely limited budgets by the FXI s founding organisations, namely the Campaign for Open Media, the Campaign for Independent Broadcasting, the Anti-Censorship Action Group and the Media Defence Trust. The transformation of these organisations into a single Institute has not only allowed the FXI to become a more effective and vibrant organisation but has also attracted funding on a much wider scale and has enabled us to expand our activities.



During 1995, the Executive Committee consisted of Raymond Louw (Chairperson), Mandla Seleoane (Deputy Chairperson), Willie Currie, Gerry Davidson, Clive Emdon, JP Louw, Norman Manoim, Japan Mthembu, Andries Oliphant, Joe Thloloe, Mathatha Tsedu, Hugh Lewin, Ruth Muller and Connie Molusi. These members were elected by the Annual General Meeting. During the course of the year, the Executive accepted with regret the resignations of Hugh Lewin, Ruth Muller and Connie Molusi. The Executive Committee met on average once a month to discuss practical and policy matters relating to the FXI.


During 1995 the staffing capacity and administrative infrastructure of the FXI was increased. Jeanette Minnie continues to serve as the Executive Director and Jane Duncan as the Publications Coordinator. An Office Manager who doubles up as the Media Defence Fund Coordinator, Alex Kuhn, was appointed in March 1995. Two development posts were created as an appropriate way of addressing the problem of the increased volume of work being undertaken by the Directorate and as part of the FXI s affirmative action programme. Raashied Galant was appointed as an Assistant Publications Coordinator and Mpho Masilo as Junior Administrative Officer in September 1995. The FXI has two part time employees, an accountant, Gerry McIntyre, and a librarian, Winnie Nyabeni.


Energy and resources have gone into improving the FXI s administrative capacity, so that the deadlines we work under could be met more effectively. Computers, printers, photocopier and furniture were upgraded, and the board room was refurbished. More office space was leased due to the increase in the number of FXI staff.


The FXI envisages substantial training for staff in development posts, some of which has already been undertaken. The existing staff also constantly require further training and development. In particular, advances in technology often require skills training. A number of educational as well as skills based and technical training courses and workshops have been attended by the staff.


The FXI has received funding from a number of funders over the past year: the Royal Danish Embassy, the Swedish International Development Authority (SIDA), the European Union, the Open Society Foundation and a donation from an anonymous donor. The generous support of these funders has meant that the FXI has been able to expand its activities, and employ the necessary staff to do this. In addition, funds have been raised by charging registration fees at conferences, preparing commissioned work, and also making the FXI publication Update subscription based. Please see the attached audited financial statement by Douglas and Velcich for further details.


The need for the FXI is rooted in the belief that South Africa is in the early stages of building a democracy and strong institutions are required to campaign for and uphold freedom of speech and expression. The FXI undertakes a wide range of activities, and its work involves monitoring, research, lobbying, litigation, educational activities, campaigns, and publicity. For the full text of FXI submissions made during the year, please see the FXI s Web site at



Four submissions were made to the Independent Broadcasting Authority (IBA) for the Triple Inquiry: on the protection and viability of public broadcasters (two submissions), cross-media ownership and local content regulation. The IBA in turn made a comprehensive report to Parliament recommending various policy and practical changes to broadcasting and the Parliamentary Portfolio Committee on Communications held its own public hearings to receive comment on the IBA s recommendations. The FXI again made a submission in writing and testified before the Committee.

The FXI s main focus was on the political protection of public broadcasters against undue government interference and the influence of political parties. In this regard, it pointed out that the detailed process of public hearings which had been recommended by the Campaign for Independent Broadcasting (CIB) for the appointment of SABC Board members. The FXI also recommended a range of mechanisms to improve public participation in the decisionmaking processes of the SABC and to make the deliberations of the Board more transparent to the public. FXI also recommended measures to minimise the possibility of political interference with the Board and a new method of multiparty state funding of the public broadcaster as well as a mechanism for raising the finance required from the public. None of these recommendations were accepted by either the IBA or the Portfolio Committee.


The FXI has made a written submission on the draft Public Services Broadcasting Bill, many of our proposals reinforcing what we had stated to the IBA in its Triple Inquiry. This Bill represents the culmination of a very long process of reregulating public service broadcasting in South Africa and it is critical that our vision on the political protection of public broadcasters be included in it.


The FXI chairperson, Raymond Louw, met with the former Minister of Posts, Telecommunications and Broadcasting, Dr Pallo Jordan, during 1995 to discuss broadcasting matters with him, in particular, the FXI s position on funding of the SABC. The FXI believes that the State (not the controlling political party or parties) should fund the SABC and that the SABC should not carry advertising. This would release advertising revenue for private broadcasters with the effect that a greater diversity of voices will be heard. We believe that advertising has a significantly negative influence on the programming content of the SABC, and that State funding of the public broadcaster is no different to funding of essential services such as roads, electricity and water and health services. As is the case with the judiciary and the IBA which are both independent and state funded, the independence of the public broadcaster need not be compromised by state funding.


The FXI provided the Directors of Communication of the nine provinces with a legal opinion at a seminar held in April 1995 as to whether these provinces are entitled to start up regional public broadcasters of their own. The FXI is not opposed to regional public broadcasters in principle if citizens of those regions truly want them, but we would demand that the broadcasters are independent and that journalists and producers will have the right to independently decide programming and content without any interference from the regional governments. For practical reasons, however, we pointed out that we supported the merger of all existing public broadcasters into one service.


The FXI submitted a lengthy opinion to the IBA, at its request, on whether its existence can be legally challenged on the grounds that it per se restricts the right to freedom of speech and expression, and whether it should clarify its position by seeking to introduce a clause into the final constitution which would protect it from constitutional challenge. The FXI asserted that the IBA’s right to regulate broadcasting amounts to a curtailment of freedom of speech and expression (albeit one which would currently be permissible in terms of the limitations clause of the constitution) and should therefore be exercised with the utmost caution. It concluded that it was undesirable to seek constitutional protection for the IBA s regulatory powers.

We believe that it is important for the FXI to place before bodies such as the IBA arguments in favour of freedom of expression and speech, which could influence policy making or implementation. It is particularly important to do so in cases like this, where constitutional amendments may be sought to restrict freedom of speech and expression.



In 1994 the FXI began the process of convening meetings, workshops and seminars of concerned individuals to discuss the need for a Freedom of Information Act in South Africa, which would govern how access to government information is regulated, including the situations in which the government is entitled to withhold information.

A Task Group consisting only of lawyers, was appointed by Deputy President Thabo Mbeki towards the end of 1994 to draft the bill. During 1995, the FXI tried to persuade it either to extend its numbers to include representatives of civil society or to agree to the establishment of a complementary group to represent the views of civil society. The FXI with the Task Group s support convened three seminars in Johannesburg at which the formation of such an advisory group was discussed and eventually established in the middle of 1995. The forum is called the Open Democracy Advisory Forum (ODAF) and consists of both civil society groups as well as representatives of various provincial and national government departments. ODAF s activities have resulted in significantly raising public awareness of the existence of this draft Bill and its contents.


In summary, it has taken over a full year of consistent lobbying and campaigning on the FXI s part to ensure that civil society will be able to play a role in the shaping and development of the Open Democracy Act in South Africa. The FXI remains the main co-ordinating force in ODAF and supports it administratively and financially. The FXI Executive Director is a member of its executive committee and also function as its liaison officer.


Since its formation the ODAF executive has met eight times and three plenary meetings have been held. At the last plenary in April the ODAF executive tabled a document for discussion by the Forum which will form the basis of a submission to the Parliament ary Portfolio Committee on Communications.It is expected that this committee will hold public hearings on the Bill. The ODAF submission is based on discussion by its Executive Committee and the reports of working groups comprising delegates which attended a conference convened by the FXI at the end of January this year. CONFERENCE ON THE OPEN DEMOCRACY BILL

The FXI convened a major conference attended by over 100 delegates called The Open Democracy Bill: Central Controversies at Mabula Game Lodge in January 1996 specifically so that central controversies around the Bill could be debated by competing interest groups. Prime among these is labour and business. This conference was addressed by speakers from Australia, Sweden, Malawi and South Africa, and a representative of the Open Democracy task group. This conference is the only one so far which has tackled issues of substance arising out of the draft Bill. Recommendations from working groups for the improvement of the Bill have been forwarded to the Task Group. MEDIA BRIEFING

The Executive Director of the FXI, on an ODAF mandate, arranged a briefing session on the Bill for a variety of media editors, representatives of community media and human rights organisations, which resulted in some further print media and radio publicity about it.



The first written submission, in which an oral hearing was requested (to which we never received a reply), objected to section 23 of the Draft Constitution, which deals with access to official information. It confers on the public the right to official information only on a need to know and not a right to know basis. The clause is further limited by Section 33, the limitations clause. The FXI supports an unqualified right to know, and therefore campaigned to have the clause amended by the Constitutional Assembly.

Section 15, which deals with the independence of media under the control of the state is also problematic and was dealt with in the FXI s first submission. One of the FXI s predecessor organisations, the Campaign for Independent Broadcasting , fought very hard to establish the independence of the public broadcaster, the SABC as well as campaigning for the establishment of an Independent Broadcasting Authority (IBA). The FXI therefore recommended that the words under the control of the state be removed from the clause.


The second and third submissions were made consecutively in relation to the working draft of the new Constitution released in November 1995. An opinion by Lene Johannessen of the CALS Media Project on international instruments was forwarded to the CA as well as submission by the FXI itself. The FXI submission focused on the dangers of outlawing hate speech and gave examples from countries, including colonial and apartheid South Africa, where such laws have been used to suppress the freedom of speech of less powerful groups in society.

Copies of the last two submissions were faxed directly to two members of the theme committee and together with a submission prepared by Adv Gilbert Marcus for the Conference of Editors, were posted to all Members of Parliament. After February 20, the FXI continued to monitor the CA and various MP s were lobbied telephonically and in writing. A critical opinion piece was also published in the Sunday Times early in March.


The FXI expended enormous energies in testifying to this Commission of Inquiry in 1994 and the beginning of 1995. It afforded one of the first opportunities in the new South Africa to test the Government s commitment to Section 23 of the Constitutional Bill of Rights (Access to Official Information) as well as to set precedents for open administrative procedures. The Commission of Inquiry was set up by the President to investigate arms sales by Armscor to other countries, particularly those that were embargoed, and to recommend appropriate policy in this regard.

Briefly, the FXI testified to the Commission on the importance of the hearings being open to the public and the media, and the Commission ruled in favour of this principle. The FXI also argued before the Commission that a classified SANDF pamphlet Log 17, that disclosed which countries South Africa was prepared to sell arms to should be made public. Again, the Commission ruled in the FXI s favour, and finally, we testified in the case of whether a particular witnesses testimony should be allowed to be held in camera, arguing that it should not. The Commission agreed with the FXI s position, but held an open hearing in Switzerland.


The main import of the work done by the FXI before the Cameron Commission was to empower the Commission to make rulings in favour of procedural openness and transparency which provides access to official information. Without the FXI s testimony we believe that the Commission would have found it very difficult to make the rulings that it did. We also believe that this Commission has set a standard for transparency unmatched so far in South Africa. The Truth and Reconciliation Commission would benefit from studying Judge Cameron s rulings in this regard, as well as the public procedures he adopted to test whether witnesses had sufficient cause for being granted in-camera hearings.

It is important for the FXI not only to be involved with the legal and constitutional development of Access to Official Information, but also to promote the substantive application of these values in the life of the Government and society in general. The Cameron Commission of Inquiry was an important project for the FXI from this point of view.


In May 1995, the Cameron Commission held public hearings to recommend new arms export trade policy to the Government. The FXI made both written and oral submissions and made recommendations about transparency and accountability in arms trade policy.



After the Task Group redrafting the Publications Act published its Film and Publication Bill in March 1995, the FXI was one of few organisations to make a submission to it calling for less restriction on freedom of expression rather than more. The Chairperson of the Task Group, Prof Kobus van Rooyen, classified the FXI s contribution as one of 15 to 20 constructive responses out of 450 submissions made to the Task Group. He said that because of the high calibre of the report he had dealt with 90 percent of the points raised in it in a report to Parliament.

A second version of the bill was published on 9 May 1995. The FXI again made a submission on the bill, which was not substantially altered. The bill was discussed by the Parliamentary Portfolio Committee on Home Affairs, and represented by Professor Dennis Davis, Director of CALS, the FXI made oral representations to the committee in February 1996. Given the scarcity of opinion that there should be less censorship rather than more, we think it is crucial that the FXI expressed itself strongly on this matter.


A conference was organised to provide theoretical and analytical insights into the pornography and hate speech debate, with particular focus on freedom of expression.

High profile overseas and South African speakers addressed the conference, including Ursula Owen, the Editor and Chief Executive of the London-based Index on Censorship publication, and the Honourable Mr Justice John Sopinka, a judge of the Supreme Court of Canada. Delegates to the conference included the Chief Justice of the Appellate Division, Chief Justice Corbett, and the Deputy Minister of Home Affairs, Penuel Maduna.

In our opinion, the conference was a success, both in that it was attended by a number of policy makers and lobbyists on the pornography issue and that the calibre of the speakers was very high. The FXI, in conjunction with Idasa, has since published a book of the speeches made at the Conference, Between Speech and Silence: Hate Speech, Pornography and the New South Africa .


In April 1995, the FXI was alarmed to see that the South African Government was reestablishing diplomatic ties with Iran in spite of the fact that the country still maintains the fatwa against Salman Rushdie. With the advent of the new Film and Publications Bill, it is possible that the book may be unbanned in South Africa: if this is the case (and this is by no means a fait accompli, given that the Bill makes provision for the restriction for possession and distribution of materials that promote religious hatred), then South African nationals need to be assured that they will be safe from the fatwa.

The FXI wrote to the Minister of Foreign Affairs to raise these concerns, and received a response from the Minister, Alfred Nzo who stated that South Africa is in the process of de-ideologizing relationships with other countries, and that if countries are guilty of human rights abuses, these will be raised in the course of diplomatic contact.

Immediately after this response, the FXI was invited by the Joint Rushdie Defence Committees to a meeting in Norway (sponsored by the Norwegian Government) in June 1995 to report on local and international developments on the Rushdie issue. Countries attending included Holland, the United States of America, Sweden, Norway, Germany, Italy, Spain, England, Ireland, France and South Africa.

The FXI has since decided that it would prefer to focus on the Rushdie issue in relation to the unbanning of his book in South Africa. This has led us to focus on the passage of the draft Film and Publications Bill.


The Media Project based at the Centre for Applied Legal Studies (CALS) and the FXI submitted a report to the SANDF in July 1995 on the proposed changes to the Defence Act as they related to access to information. The Minister of Defence is in the process of investigating the current Defence Act 44 of 1957, with a view to amending it, specifically certain sections of the Act which deal with communications. We criticised the draft proposals as placing too wide a limitation on the media, and not taking into account any public interest arguments in favour of publishing classified material in certain circumstances.


The FXI has commissioned two expert legal opinions on the Promotion of National Unity and Reconciliation Act, in terms of which the Truth and Reconciliation Commission functions. The Commission itself has pointed out that certain persons testifying before it will not enjoy privilege and could be sued for defamation. Media who in turn report such defamatory allegations could also be sued for defamation. This may result in certain proceedings of the Commission taking place in camera, until evidence has been investigated and verified. Legal opinion has confirmed this interpretation of the Act, and the FXI is lobbying for urgent amendments so that privilege can be extended to all parties concerned. This is to ensure that proceedings of the Commission will be as open and transparent as possible.


The idea behind the media in education project is our belief that freedom of expression issues are best raised in the context of a broader campaign around creative education generally, and media education specifically. Media education (or media-in-education or media awareness) is a growing movement worldwide, where media is used in the classroom to encourage critical and creative thinking, while teaching students about the role of media in a democratic society. We can therefore draw on a wealth of international material and experience to enrich the campaign.

The FXI has negotiated a publishing schedule of a series of eight eduadvertisements with the South African Council for Higher Education (SACHED), to be published weekly in the Sowetan. The eduads deal with various issues pertaining to freedom of expression. Among the issues dealt with are: pornography, hate speech, freedom of expression and religion, media diversity and the public broadcaster.


The FXI is a member of the Gauteng NGO Coalition, a broadbased organisation which meets to consider matters of importance to NGOs. The Coalition is currently considering the importance of the proposed NGO Bill and problems with funding. In addition, by virtue of our membership at the Gauteng level, we are also members of the National NGO Coalition.


The SANDSG is a coalition of nongovernmental organisations formed in November 1995 following the Nigerian government s execution of nine human rights activists including writer and playwright Ken SaroWiwa. The FXI sits on the SANDSG steering committee, participating specifically in activities that heighten freedom of speech and expression abuses in Nigeria. In February 1996, the FXI, the Congress of South African Writers and the Foundation for Global Dialogue cohosted the Ken SaroWiwa Memorial Lecture at which Nigerian Nobel laureate Wole Soyinka spoke. FXI Executive Committee member Andries Oliphant participated in a panel discussion. The FXI also contributed substantially towards an exploratory meeting between Nigerian pro-democracy groups and South African civil society.


SABC had pulled this American documentary off the air shortly before its screening in July 1995 and then announced that it would reschedule the screening for the first week of November. As this date grew closer, certain Muslim organisations in the country became very vocal in opposing the screening. The FXI s publication, Update, invited Imam Rashid Omar from the Institute for Comparative Religions in Southern Africa to share his thoughts on the issue in the October/November Update. This led to an interesting collaboration between the FXI and the congregation of the Claremont Main Road Mosque in Cape Town, of which Imam Rashid is the spiritual leader. To practically demonstrate their opposition to censorship and encourage rational debate, the congregation agreed to screen the film in the mosque and hold a discussion about the issue. The FXI Chairperson gave an input at the screening, which was a successful protest against censorship and a constructive means of addressing the problem of religious hate speech. The FXI Chairperson later appeared on a special televised debate on this issue.


The first case involving section 15 of the Constitution (the freedom of expression clause) has been referred to the Constitutional Court. The matter to be decided concerns the constitutionality of the Indecent or Obscene Matter Act of 1967 (the Obscenity Act). The case was referred to the Constitutional Court for a decision on whether the provisions of the Act are constitutional and in accordance with, inter alia, the provision relating to freedom of expression.

The FXI and the Centre for Applied Legal Studies based at the University of the Witwatersrand submitted an amicus curiae brief arguing that while pornography is indeed an area in which the state can legitimately regulate freedom of speech (with regard to child pornography, for example), the Obscenity Act is too broad and overinclusive. Being the first case involving section 15 of the draft Constitution makes it very important that organisations like the FXI are involved in trying to persuade the Court to strike a reasonable balance between freedom of expression and freedom of equality and human dignity. The Court has yet to rule on the matter.


During the course of 1995, the FXI responded to countless requests for assistance and information: these instances are too numerous to list comprehensively, but a few of the incidents are referred to below:

  • The FXI responded to a request for assistance from an Executive Committee member and SA Press Association journalist Connie Molusi when he was asked to leave a Constitutional Assembly meeting for what we felt was an unsatisfactory reason. We protested to the Chairperson, the Secretary General of the Assembly and the Chairperson of the relevant Theme Committee. The General Secretary responded with regret at the incident and the Chairperson of the Theme Committee apologised both to us and to Mr. Molusi personally.
  • The FXI protested against the withdrawal of the documentary Jihad in America from the scheduled lineup of programmes on NNTV in response to threats and protests from certain Muslim groupings in South Africa. Later, the FXI Chairperson appeared on a special programme on SABC devoted to the issue.
  • The FXI intervened on behalf of a Eastern Cape newspaper called Grocott s Mail, when its editor was severely criticised and placed under pressure to reveal her sources, at a meeting of the Grahamstown Transitional Local Council (TLC). Members of the TLC objected to the fact that her newspaper had run an article on alleged corruption in the city council, implicating TLC members. The FXI protested to the mayor of Grahamstown, who responded within an hour of the protest being lodged.

The FXI is approached on an ongoing basis by students, local and foreign researchers, writers and journalists for information about freedom of expression, access to official information, freedom of the press and diversity of the media issues. The FXI chairperson, Mr Raymond Louw, is often consulted by various diplomatic representatives including foreign press attaches, ambassadors and a similar range of journalists, students and researchers. Requests for information and comment on freedom of expression issues have resulted in both the chairperson, the Executive Director and the FXI being quoted in a range of overseas and local publications and electronic media.


The FXI is frequently invited to conferences and seminars. Some attended in the past year are-

  • Community Media 2000: Facing the Challenges held in Cape Town from 10 14 May, 1995. The Executive Director chaired the a session and assisted as a resource person throughout the conference.
  • Regional Southern African Workshop on Freedom of Expression and Information in a Democratic Society funded by the British Council, held in Lusaka, Zambia from May 30 June 1, 1995. The Executive Director moderated a paper focusing on the adequacy of press freedom provisions in various African constitutions and charters.
  • Joint Rushdie Defence Committees meeting in Norway attended by FXI Coordinator Jane Duncan.
  • Article 19 National Security Conference held from September 28 to October 1 at Mabula Lodge, Northern Province. Attended by the FXI Chairperson, Raymond Louw.
  • Institute for Defence Policy Seminar held on August 17, 1995 in Midrand, attended by FXI Executive Committee member Connie Molusi.
  • Rhodes University Conference on Freedom of Information held in February 1995. The FXI Chairperson chaired one of the sessions and the Executive Director participated as a delegate.
  • Article 19 Conference in Belgrade on Measures to protect the Independent Media in former Yugoslavia during June 1995. The FXI chairperson delivered a paper and on request provided a special briefing on South African media after the conference.
  • Seminar on the Ethics and Conduct of Journalists held by the Maputo-based NordicSADC Centre of Journalism in Malawi. The FXI chairperson participated as a tutor.
  • The Media Institute of Southern African (MISA) Annual Congress in Zanzibar was attended by the Executive Director as a member of the committee of the South African MISA chapter.
  • Article 19, the London-based International Freedom of Expression organisation held a two day conference on media law immediately following the MISA Annual Congress. Lawyers from various countries in the region attended and it was decided that a freedom of expression newsletter, aimed at lawyers in the region, should be jointly published by Article 19, the FXI and MISA. (See section on publications)
  • Government conference of communicators held in Arniston from August 25 27, 1995. The FXI chairperson chaired a session of the conference and the Executive Director participated as a resource person.
  • Conference held in Reunion hosted by the Dept of Communication of the local university. The FXI chairperson delivered a paper, participated in several panel sessions and was specifically invited to make a presentation on behalf of the South African delegates at closing time.
  • Ethnic Violence and the Role of the Media : Conference held in Vienna hosted by Unesco and RAI (Italian Broadcasting Corporation) during September 1995. The FXI Chairperson was a rapporteur for one of the panel discussions.
  • Communication Students of South Africa: The Media Defence Fund Coordinator gave a short input before UNISA COMSA students for a debate on the topic of pornography and freedom of expression. UNISA Communications Faculty: Chairperson gave a lecture on the future of freedom of expression.


Representatives of the FXI, mainly the chairperson, the deputy chairperson and the executive director, participated in a wide range of television and radio interviews during the year. These include:

  • Two appearances on GMSA on the Open Democracy Bill and the publication of the FXI/Idasa book entitled Between Speech and Silence: Pornography, Hate Speech in the New South Africa .
  • Two appearances on Future Imperfect, the panel discussion hosted by Prof Denis Davis around the development of the Constitution. The topics were the clause on freedom of expression and the Truth and Reconciliation Commission.
  • One appearance on Agenda/Newsline on the topic of the Film and Publication Bill
  • One appearance on a panel discussion on NNTV in a programme called The Search for Common Ground on issues around pornography
  • Two appearances in the TV talk show, Two Way, about freedom of expression in relation to pornography and decisions of the SABC not to flight or to postpone the broadcast of various programmes following public objections;
  • A programme on CCV portraying the point of view of women on pornography
  • A special debate on the screening of Jihad in America .
  • An appearance on the Tuesday night debate on hate speech and the constitution
  • An appearance on Between the Lines on the topic of impartiality.

Many radio interviews were conducted, mainly on the actuality programmes of SAFM, Afrikaans Stereo and news broadcasts on Radio 702 in relation to freedom of speech issues. The executive director was also recently a panellist on the Microphone In programme on SABC on the Film and Publication Bill. Interviews with a few community radio stations and Radio Ciskei have also taken place as well as many press interviews. Most of these are in the form of responses to developments with implications for freedom of speech or access to information. A profile article on the executive director was recently published inDie Beeld, and the Sunday Times recently published a feature article written by her on the freedom of expression tests to be faced by the ANC-led government in the near future. FXI opinion has also been published in Constitutional Talk, the newsletter of the Constitutional Assembly and in Democracy in Action, Idasa’s newsletter.


The Media Defence Fund s predecessor, the Media Defence Trust, established a number of years ago a Media Project at CALS, based at the University of the Witwatersrand. Since 1994 it has been staffed by researcher Lene Johannessen. A research assistant, Tracy Cohen, was appointed in March 1996. The Project was set up with the objective of building up legal resources and documentation in the field of freedom of expression and was instituted to conduct research into issues surrounding freedom of expression with a view to instituting legal and other campaigns for the removal of censorship and other restrictive provisions of South African law. Among other projects, the Media Project did work in the following areas in 1995:


With the publication of the draft Constitution in 1995, research was done into the prohibition on hate speech and other forms of expression. A submission was made to the Constitutional Assembly.


Ms Johannessen is also an executive member of the Open Democracy Advisory Forum (ODAF) Executive, and together with faculty members of the Wits Law School, the Media Project has been involved in extensive comparative research aimed at drafting a Freedom of Information Act for South Africa. The Media Project co-authored an article published in the South African Law Journal, and presented a paper on the scope of such legislation to a major conference on the subject, hosted by Rhodes the courts have an important effect upon freedom of speech and expression, and particularly freedom of the press. Substantial damage has been done to press freedom by the South African courts. While litigation can be expensive, the MDF only funds lawyers at a human rights tariff, which is substantially lower than rates charged in other cases.


The MDF is comprised of seven members who meet once a month to deal with new applications for funding and to assess cases which have already received funding. The MDF Coordinator administers the fund. During 1995 its members were Raymond Louw (in the chair), Mathatha Tsedu, Amanda Armstrong and David Dison. The last two members have subsequently resigned, and in January 1996, the MDF was infused with new life when six new members agreed to serve on it. They are Urmilla Bhoola, Clive Emdon, Malcolm Fried, Moira Mokuena, Mafika Sihlali and Claire Wright.


5.2.1 RAU V LEAL

In this case, the Rand Afrikaans University charged the editor of the official student newspaper, Louis Leal, with contravening the university s disciplinary code by publishing material in the newspaper that the university council considered to be obscene.

The MDF paid for Mr Leal s defence at the university disciplinary enquiry, in which the disciplinary committee found Mr Leal guilty. He has since appealed to the University Council. The MDF believe that this is a serious matter, since many of the traditionally conservative, mainly Afrikaans speaking campuses have similar provisions in their rules, which should be challenged, and we believe that this case, should it be taken further, could have an important impact on the way in which these universities view freedom of speech and expression.


The Media Defence Trust started funding the defence in this crucially important case, which has since the MDT s closure been funded by the MDF. The trial court ruled that public interest may be a defence to a defamation action even where certain factual statements are shown to be untrue. Lieutenant General Lothar Neethling thus failed in his R1.5 million defamation suit against Vrye Weekblad and the Weekly Mail for their publication of allegations that he had supplied poison for the sedation and killing of political activists.

The matter went on appeal to the Appellate Division, where Neethling unfortunately succeeded in having the extremely progressive judgement of the trial court overturned. The Supreme Court has since quantified damages to be paid, the amount of which is substantially less than what Neethling had asked for. Clearly, the Neethling case is a critical case, for although the Appeal Court overruled the trial court, the judgement in that court set the tone for further development of the arguments presented there, arguments which, if accepted, would certainly defend and strengthen the right to freedom of expression and freedom of the press.


Once again, the Media Defence Trust began funding the defence of this case, and since the closure of the MDT, funding has been assumed by the MDF. In this case, Mail & Guardian editor Anton Harber was charged with crimen injuria for having bugged CCB operative Staal Burger s office at the Breaker s Hotel. The defence in this matter tried to show that under certain circumstances, it is justified to breach an individual’s right to privacy where there is overwhelming public interest to do so. The court, however, convicted the accused, but imposed a minimal fine.

Again, the case is important particularly in the South African context, where attempts to expose so called third force activities have been hindered. It is believed that if Harber’s defence had been accepted in this case, it would be an important step forward for the advancement of freedom of the press, and is clearly one which would have ramifications for the press and the government and its security establishment in the future. For this reason, the FXI continues to support the case.


The Mail & Guardian is being sued for defamation arising out of an article that appeared in the Weekly Mail (as it was then called) alleging corruption and nepotism in a department of the DET. Since the case was initiated, an important judgement was handed down by Judge Cameron in the Witwatersrand Local Division stating that a defamatory statement which related 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. The MDF is supporting the Mail & Guardian in this case in the hope that this judgement will be approved in this case which is being heard in another provincial division (the Transvaal), and freedom of the media will thereby be substantially strengthened.


Martin Welz is the editor of Noseweek, a small independent publication well known for its investigative journalism and biting style. Dr Robert Hall, born and reared in America, but who describes himself as a detribalised South African convert claims that he was defamed by an article printed in Noseweek, in which it was alleged, among other things, that he is treated by the South African Reserve Bank as a nonresident and was therefore allowed to do repeated finrand deals which, by law, are denied to permanent residents.

The Media Defence Fund believes that Mr Welz’s defence is a strong one, because the Noseweek article concerns matters of public interest which the public has a right to be informed of and which the public has the right to debate. The MDF is concerned that law suited such as the one in this case can have the effect of crippling smaller, outspoken members of the independent press with legal costs, and that they should, in cases such as this one, be protected from this. Headings on this case began in the Cape Supreme Court on 25 March 1996, accompanied by substantial media publicity.


In this case, Pippa Skotnes, a practising artist and senior lecturer in the Fine Art Department at the University of Cape Town is challenging a Cape Supreme Court decision ordering her to deposit with the South African Library a copy of a limited edition of books on San intellectual traditions. This book, calledSound from the Thinking Strings, is made in the medium of the artist’s book , a fine art tradition which has been flourishing in Europe and America, but is relatively underdeveloped in South Africa. The books produced in this medium include text and images, none of which are reproduced (as is usual in books), but all of which are handcrafted, original works of art, each of which was costly to produce.

The MDF is funding the appeal because it believes that Ms Skotnes, and any other artist who works in the medium of the artist s book is being denied the right to function as an artist, and to include text with her work, without then being subject to the provisions of the Legal Deposit Act. The medium in this case, that of printmaking, is one in which many hundreds of young artists are working, most notably those without access to expensive equipment and resources. We also believe the decision of the Supreme Court makes serious inroads into the constitutional right of artists to freedom of creative expression.


This is a case the MDF believes could have profound implications for freedom of expression in South Africa. The Attorney General of KwaZulu Natal, Tim McNally, has sued the Mail & Guardian for defamation, following its publication of an article on him. The Mail & Guardian alleged that a critical examination of his role as the senior public official in charge of prosecutions in KwaZulu Natal shows that he has not done enough to arrest and charge the perpetrators of violence in the province. The ongoing violence within the province is of central concern to the country as a whole.

The Mail & Guardian’s defence will argue that a critical analysis of his conduct and the stimulation of public debate in this regard is of paramount importance and is to be expected ofthe South African press, and that McNally should therefore not be entitled to damages for defamation even if the allegations they made cannot be proved in court, unless he can show that the allegations were made with actual malice on the part of the Mail & Guardian, which is clearly not the case. The Mail & Guardian’s defence will try to establish the New York Times vs. Sullivan principle in United States case law, which holds that the constitutional guarantee of freedom of speech precluded a public official from recovering damages for defamation unless s/he proved that the matter was published with actual malice should apply in South Africa

5.3 The Winding up of the Media Defence Trust

The MDF has assisted in the winding up of the Media Defence Trust, its predecessor, raising funds to cover its obligations and ensuring that the relevant reports were made to donors. An audit was also conducted of the Media Defence Trust.


6.1 Update

A large part of the work iof the publishing arm of the Freedom of Expression Institute is devoted to the monthly Update. The Update remains the most important regular mouthpiece of the FXI. Update was produced on a monthly basis from August 1994 onwards. The mailing list steading at approximately 1000 names, with a further 500 being distributed by hand or through bookshops. Demand grew during the course of the year for back copies: requests were made in particular by journalism and communications students, who made use of the Update for study purposes.

In April, the FXI commissioned a redesign of Update, both to increase its appeal and readibility, and to decrease production costs. It appeared as a four page tabloid and finally in November 1995, the Update changed to its current format of a 12-page, custom-sixed bulletin. We also took the decision to move the publication onto a paying subscriber base; at present complementary promotional copies are still being sent out and subscriptions are being received. Update is now available on the Internet via the FXI’s Web site, but the main means of distribution of the Update has been via mail and the single most important challenge currently facing the Update is to increase its subscription base.

Production of Update is undertaken mainly by the Assistant Publications Coordinator. Update is commissioning articles more frequently to elicit fresh viewpoints and stimulate debate. The issues covered in 1995 included the Truth and Reconciliation Commission Bill, the Interim Constitution, the IBA Triple Inquiry, the fatwa against Salman Rushdie, the quest for media diversity, the Film and Publication Bill, hate speech and the Constitution, the banning of the television documentary Jihad in America by the SABC, the Open Democracy Bill and the SABC. The Freedom of Expression Diary , a monthly chronicle of events relating to freedom of expression or censorship has begun to focus more on international issues than it had done previously. This expansion is possible because of the information available on the Internet and through the International Freedom of Expression eXchange (IFEX) Clearing House based in Canada.


The FXI has found that it needs to extend its publishing activities beyond Update, as it cannot adequately service our total publishing needs. We need to pay particular attention to nonlegal factors that impact heavily on freedom of expression, to develop a more wellrounded understanding on what freedom of expression is, and how it is to be achieved in a country with such deep social and economic problems. Lessons from other African countries have taught us that the most stinging censorship can take place in countries with seemingly progressive constitutional provisions and laws, and that our mission statement cannot be fully realised simply by focussing on legal provisions. Our publications should give us the room to analyse the state of freedom of expression in the country (and even the region) more fully, in the process challenging us to develop strategies to deal with nonlegal or social factors impeding freedom of expression. In 1995, we began to explore the possibilities of expanding our publishing activities, both independently and with other local and international organisations with similar objectives to the FXI and with publishing experience.


A Southern African regional freedom of expression newsletter aimed at lawyers in the region is to be copublished by the FXI, the Media Institute of Southern African (MISA) and the London-based international freedom of expression organisation, Article 19. The first edition should be ready for distribution during May l 1996. The newsletter will reflect some of the most important press freedom judgements in the region and the legal argument which informed these judgements. Other international precedent-setting cases will also be recorded as well as the application of international instruments in promoting press freedom judgements.

The idea behind the newsletter is to appraise lawyers in the region of relevant legal argument through which to promote the cause of press freedom in the courts. An important adjunct to the newsletter is the establishment of a repository at the Centre for Applied Legal Studies at the University of the Witwatersrand in Johannesburg for important press freedom judgements in the region and other supporting legal documentation, so that lawyers in the region can also obtain access to the original legal material referred to in the newsletter for research purposes and the preparation of cases.

The FXI will contribute to the editorial content as well as take care of the production and printing of the newsletter. Article 19 and MISA will also contribute to the editorial and distribution will take place through both the FXI and MISA. The project w ill also be assisted editorially by the Media Project of CALS, with which the FXI has a close working relationship. The success of this newsletter will depend entirely on cooperation from lawyers in the region to alert the FXI of important cases taking place and forwarding the texts of judgements, the heads of legal argument produced by lawyers and any other necessary legal documentation.


The book arose from a high profile conference the FXI held on hate speech and pornography (see 3.5.2). A decision was made to publish the speeches given the topicality of much of what was said at the conference, coupled with the great demand for the speec hes after the conference. The FXI was also seeking to cut its teeth in the area of book publishing, and saw this as an ideal opportunity as the materials was already available. The book was edited, published, designed and laid out on an inhouse basis, and a copublishing arrangement was negotiated with the Institute for Democracy in South Africa (IDASA), which resulted in the book being distributed by IDASA s book distributer, Book Promotions. The FXI also generated printed promotional material in the form of a poster and a promotional leaflet, which are being distributed by Book Promotions at the moment. One thousand two hundred copies of the book were printed.

The launch was held on 7 March 1996, with over 120 people attending. The launch was also coupled with the launch of our World Wide Web site on the Internet.


The FXI has already undertaken electronic publishing in the form of a Gopher site containing an archive of general information about the FXI’s newsletter, plus the Annual Report for 1994. The Internet is becoming a very effective medium for communication and information sharing in South Africa and indeed in the rest of Africa. Access is becoming easier and more popular as there are a growing number of Internet service providers. The FXI is currently working with the Southern African Non-Governmental Network (SANGONeT), a nonprofit organisation working to promote the benefit of computer mediated communications as a tool for development.

The Minister of Posts and Telecommunications recognised the impact of the telecommunications infrastructure in a development environment when he said, “We cannot afford to become the information havenots of the 21st century”. In the recent White Paper on Telecommunications Policy, the Minister points to telecommunications as a means to building democracy through access to information and telecommunications services.

Internet access is widespread in South Africa. Virtually all of the universities and most of the technikons in South Africa are already connected to the Internet. Access to the Internet is now well within the range of the average person. Many nongovernmental organisations are also linked up to the Internet where it is used as a tool for communication, information sharing, networking and research. It is estimated that there are some 100 000 people with Internet access in South Africa at present. Networking throughout Africa is widespread. Internet access exists throughout Africa, from Algeria through to Zambia.


In 1995, SANGONeT provided the FXI with facilities to set up a Web site and training in the creation of Web resources. This training was undertaken with the intention of enabling the FXI, through HTML training, to take charge of creating its own Web resources. The site consists of sections on what the FXI is, FXI campaigns and press releases, electronic versions of the FXI Update and the book Between Speech and Silence. The book is one of the first locally produced publications to be launched simultaneously in hard copy form and on the Internet, and is available in electronic form in its entirety. The site has also been linked to other sites relevant to the FXI s work, like the Constitutional Assembly, the Government of National Unity and the African National Congress, all of which have started publishing information electronically on the Internet.

The FXI is now planning to expand the database section of the Web site, and include documents from the activities of its predecessor organisations, namely the Campaign for Independent Broadcasting, the Campaign for Open Media, the AntiCensorship Action Group, the Media Defence Trust and the Save the Press Committee. Documents of historical importance that literally trace the transformation of the media during South Africa’s transitional period are being selected for inclusion in the database. The rational e for doing this is to provide interested individuals and organisations internationally with raw information on the transformation of the media in South Africa: if we simply housed these documents in a library or resource centre, then access to them would be restricted to those with physical access to that centre.

Depending on how discussions proceed, this database may well become part of a larger international freedom of expression database involving the major organisations worldwide. This proposal is being driven by the Norwegian Freedom of Expression Forum, and the site may well be set up (funding permitting) this year. The FXI will then provide information on South Africa through its Internet site. This proposal is in its early planning stages, and discussion will still have to take place internationally on how the database should operate: the FXI is participating in these discussions at present.

The FXI has also applied for membership of the International Freedom of Expression Exchange (IFEX). Previously we have received and sent mail under the auspices of MISA, but we have now decided to opt for individual membership so that we can send out press alerts directly.

Copies of all FXI submissions referred to in this report are available on the Web site at