FXI Law Clinic Cases

The FXI has contributed to the body of knowledge on freedom of expression in South Africa through cases undertaken by the FXI Law Clinic. The FXI Law Clinic has intervened in over 200 freedom of expression related matters since its inception. 

Brief history of the FXI Law Clinic

The Media Defence Trust was established in 1989 in response to the wave of state action against the media, such as the closure of newspapers and detention of journalists. In its six years of establishment the Media Defence Trust was the sole supporter and defender of independent media and journalists. The Media Defence Trust was incorporated into the FXI in 1994, at the request of its administrators, and became the Defence Fund of the FXI. The Defence Fund was re-launched as the Freedom of Expression Defence Fund in 1997 to reflect the broadening of its role to include all cases involving freedom of expression and access to information. The Freedom of Expression Institute Law Clinic was established in 2005 and is accredited by the Law Society of South Africa.


The Citizen and McBride
The Citizen 1978 (Pty) Ltd. v. McBride (CCT 23/10) [2011] ZACC 11 (8 Apr. 2011)
The Citizen newspaper printed a number of articles, dubbing Robert McBride (the respondent) a "murderer" and "criminal" for his role in the bombing of civilian locales as part of the ANC militant wing, Umkhonto we Sizwe. During the apartheid regime, McBride had been tried and convicted of murder, but later received amnesty as South Africa moved past apartheid and towards reconciliation. In 2003, McBride became a candidate for the position of chief of Ekurhuleni Metro Police and the Citizen responded with the allegedly offensive articles in opposition of his candidacy. McBride brought suit against the newspaper for defamation.
The newspaper faced a potential obstacle because of the grant of amnesty afforded to McBride, which according to the Reconciliation Act, expunged his conviction "for all purposes, including the application of any Act of Parliament or any other law." McBride contested the reference to him as a "murderer" as contravening the Act. The court thus considered the effect that the provision (which recognized that a conviction is deemed "for all purposes" not to have taken place) has on the law of defamation as well as public discussion of the conviction in newspapers or other mediums.
The FXI and SANEF intervened as amici curiae, arguing that the potential suppression of such speech violates the section 16 right to free expression and works against the primary objective of the Reconciliation Act: to promote truth-telling. The court agreed that the granting of amnesty did not shield the respondent from the public discussion of his former conviction; a grant could not erase the past and did not "change" historical facts. The court pointed to the DuToit decision to buttress their finding in the present case. The court also significantly suggested that South Africa was still exploring the concept of reconciliation and what it exactly entailed.
Once it established this portion of the case (that the newspaper could, in fact, print information about McBride's former conviction without contravening the Reconciliation Act), the Court next turned to the defamation claim levied by the respondent. While the Court believed that the Citizen's reporting was distasteful, it recognized that the coverage was generally not defamatory as a legal matter. However, the Court did take issue with the claim that McBride was not "contrite," pointing to McBride's testimony to the contrary. The demonstrable falsity of the allegations made the statement defamatory. In coming to this decision, the court weighed McBride's right to dignity (section 9) with the right to freedom of expression (section 16). The Court also rebuffed the notion that an apology was the appropriate remedy since it minimized the chilling effect of defamatory law had on free speech. Accordingly, it awarded a modest amount of R 50 000 to McBride.
Open/View PDF (The-Citizen-v-McBride.pdf)
April 08 2011 By Freedom Of Expression Institute the citizen , mcbride


Le Roux and Dey
This case concerns a sexually suggestive image created by one of the applicants and distributed by the others. The image involves two male bodybuilders sitting in a sexually explicit manner with the likenesses of the respondent, Dr. Dey (vice principal of the applicants' school), and the principal superimposed over the original faces. Dr. Dey brought suit against the applicants, all school children, for defamation. The boys countered that the picture was clearly meant as a joke, and thus, did not constitute defamation.

The Supreme Court of Appeals ruled against the applicants, upholding the judgment of the trial court. The court advanced a two-prong test for prima facie defamation: first, the court must consider the ordinary meaning-express or implied-of the defamatory depiction by a reasonable person; and second the judge must decide whether such a meaning is defamatory in nature (i.e., that it could injure the good esteem of an individual as determined by a reasonable person). Based on this test, applicants' image was found to be defamatory since a reasonable person would associate Dr. Dey with the image, subjecting him to potential ridicule. Though authority figures, such as teachers, should expect some jokes to be made at their expense, the image crossed a line in the eyes of the court. The court did not buy applicants' defense that a reasonable person would consider the picture to be a joke, stating that defamation and jokes were not mutually exclusive. Accordingly, a joke can still be defamatory.

Similar to the Afri-Forum v Malema decision, in which the Equality Court considered the reaction of the audience to weigh heavily in favor of a finding of hate speech, the Supreme Court of Appeals decided that the reaction of the defamed, in this case Dr. Dey, tipped the scale in favor of a finding of defamation. The intention of the accused defamer mattered little in comparison. Such a legal formulation is potentially problematic because it restricts free speech based on the reactions of others, which can be varied and unpredictable.
Open/View PDF (Le-Roux-v-Dey.pdf)
March 08 2011 By Freedom Of Expression Institute


Smit and 94.7 Highveld Stereo [2010] JOL 26581 (BCCSA)
The broadcaster was accused of perpetuating indirect hate speech by broadcasting a song using the word "moffie." Complainant lodged a suit against 94.7 Highveld Stereo before the Broadcasting Complaints Commission, claiming that it contravened section 16.3(c) of the Commission's Code, which protects against hate speech. Complainant was concerned that the song would lead to a rise in negative attitudes towards homosexuals, including "homophobic jokes, physical attacks, discrimination in the workplace and media representation." Smit was also apprehensive about the effect that the broadcast would have on children.

The tribunal disagreed with complainant, holding that contextual factors pointed to a lack of hate speech. The song was sung in a celebratory, jovial manner and used the term "moffie" in an "endearing" manner. Furthermore, the intention of the song and its broadcasting was "not to offend the listener" or to "perpetuate hostility." The target audience of the broadcaster was not children (most of whom would be at school during the broadcast) so concerns about their reactions was not legitimate.

The tribunal finally emphasized the broadcaster's section 16(1) right to free expression, which protects the content of broadcasting, as long as it does not constitute hate speech as defined in section 16(2)(c) and reflected in the Code.
June 20 2010 By Freedom Of Expression Institute


Albutt and Centre for the Study of Violence and Reconciliation and Others 2010 (5) BCLR 391 (CC)
In November 2007, President Mbeki instituted a special dispensation process to handle pardon applications for those individuals who did not participate in the Truth and Reconciliation Commission. The Centre for the Study of Violence and Reconciliation (with other NGOs) brought an application to delay the process since the participation of victims had not been secured. The High Court found in favor of the NGOs, deciding that the victims of the offences were entitled to tell their side of the story before pardon could be granted. The court based its decision on section 84(2)(j) of the Constitution, which it claimed required "procedurally fair requirements" set out in the Promotion of Administrative Justice Act, 2000 (PAJA)."

Mr. Albutt, who had sought pardon through this procedure, appealed the decision of the High Court to the Constitutional Court. The President and the Minister for Justice and Constitutional Development supported Mr. Albutt's case, stating that victims were not necessarily entitled to make representations before pardon was granted. The respondents (the NGOs) contended that like the Truth and Reconciliation Commission (TRC), the special dispensation process was based on the ideals of national unity and truth-telling. Accordingly, both sides of the story must be told.

The Court again found in favor of the NGOs, holding that the purported objectives of the special dispensation process aligned with those of the TRC. Victims should thus have the opportunity to make representations before pardon could be dispensed. The court decided this case on a unanimous basis.
Open/View PDF (Albutt-v-Centre-for-the-Study-of-Violence-and-Reconciliation.pdf)
February 23 2010 By Freedom Of Expression Institute


SOUTH AFRICAN HUMAN RIGHTS COMMISSION AND JON DABULA QWELANE, CASE NUMBER: 44/2009 EQ JHB
The Qwelane hate speech case is underway in the Johannesburg South Gauteng High Court wherein the respondents of the initial case have made an application to the high court challenging the constitutionality of Section 10 of the Equality Act, on which the case against Mr Qwelane was founded. Mr Qwelane was initially taken to court by the South African Human Rights Commission for hate speech. (FXI Amicus)FXI takes particular interest in this matter because it stands to define the very contentious parameters of hate speech in South Africa.
Open/View PDF (Qwelane-v-Minister-of-Justice-and-Constitutional-Development.pdf)
December 10 2009 By Bongani Phiri SAHRC, 44/2009


Johncom Media Investment Ltd. v. M (CCT 08/08) [2009] ZACC 5 (17 Mar. 2009)
This case addressed the constitutional validity of section 12 of the Divorce Act of 1979 (hereinafter, "the Act"), which related to the "publication of information that comes to light during a divorce action." The application was initiated by the owners of the Sunday Times newspaper in response to an order preventing them from publishing a report from a divorce case (involving a man suing his ex-wife for damages for concealing the fact that he was not the biological father of her child). In reviewing the case, the High Court had found in favor of the applicant, in the process holding that section 12 of the Act was indeed constitutionally impermissible.

The Constitutional Court upheld this position since this provision limited the section 16 right to free expression unjustifiably and not in accordance with the section 36 justification clause of the Bill of Rights. Section 12 also did not fall within any of the explicit exceptions to freedom of expression delineated in section 16(2) of the Constitution (e.g., limitation on free expression, if it constitutes propaganda for war).
March 17 2009 By Bongani Phiri


Out in Africa: South African Gay and Lesbian Film Festival v. Film and Publication Board (Jan. 2009)
The Out in African: South African Gay and Lesbian Film Festival (hereinafter, the "Film Festival") made an application to the Film and Publication Board to show a film entitled XXY. The film told the (fictional) story of Alex, an intersex individual with both male and female genitalia. At some point in the film, there is a simulated depiction of anal intercourse between Alex and a love interest, both of whom are under the age of eighteen in the film. A committee at the Film and Publication Board held that this portion of the film constituted child pornography, and accordingly, ordered all copies to be destroyed or turned over to the police.

The Film Festival approached the Board to rule on whether the film, in fact, constituted child pornography. The Board thus considered the definition of child pornography, considering Constitutional Court precedent in the De Reuck case, the language of the Film and Publication Act (outlawing the distribution of child pornography) and other relevant legislation. It concluded that the scene did not constitute child pornography. In its opinion, the Board issued some guidelines for assessing whether a film, photo or other expressive activity was child pornography, mandating that one should assess whether it was created primarily for aesthetic or erotic purposes. If created for erotic reasons, then the creation almost always constitutes child pornography; but if created for aesthetics, then contextual factors should be considered before qualifying a creation as pornographic.

In this case, the contextual factors pointed to this not being categorized as child pornography since the film was clearly aimed at fostering discussion, acceptance and tolerance.
January 01 2009 By Bongani Phiri


Mazibuko and City of Joburg
In this case, the applicants consisted of residents of Phiri, Soweto, who challenged the City of Johannesburg's policy of supplying six kilolitres of water per month for free. They argued that this policy violated section 27 of the Constitution, protecting the right of access to "sufficient" water. The applicants also questioned the legality of the installation of pre-paid water meters in lower income households.

The Constitutional Court did not find for applicants on either front. Justice O'Regen concluded that the right of access to sufficient water does not impose an obligation on the State to provide immediate access to water. Instead, the State is required to take reasonable legislative (and other) measures, based on its current resources, to achieve access to water progressively. The case thus turned on the "reasonableness" of the City's water policy.
The court found that under the circumstances, the City had acted reasonably in instituting its policy, despite obvious flaws (e.g., six kilolitres were dispersed regardless of household size, meaning that households with 1 person or 20 people received the same amount of free water). However, as Justice O'Regen pointed out, policy perfection is not the constitutional standard. The City must simply take reasonable steps to realize the right of access to sufficient water and continually evaluate its progress. The court judged the City as acting reasonably by (1) attempting to provide some sort of access to water to all residents and (2) by providing persuasive and intelligible reasons for not expanding this access. The introduction of pre-paid water meters was also found to be lawful for various reasons.

In its judgment, the Constitutional Court recognized the primacy of the legislative and executive branches in terms of policy-making. Though the judiciary retains the power to decide whether a certain policy is reasonable (or unreasonable), it generally may not formulate a replacement policy. Thus, the court seemed to suggest that even if it had found in favor of applicants, it would not have instituted a policy of providing 50 litres per person per day as requested.

Additionally, the judgment is important because the court recognized the democratic value of litigation on social and economic rights for holding the State accountable to its citizenry. While the present litigation was ultimately unsuccessful, it still forced the City of Johannesburg to re-evaluate and re-fashion its policies surround water rights.
Open/View PDF (Mazibuko-v-City-of-Joburg.pdf)
October 08 2008 By Freedom Of Expression Institute City of Joburg, Mazibuko


Independent Newspapers and Minister of Intelligence Services
The Independent Newspaper (Pty) Ltd. sought disclosure of procedural records in the Masetlha v. President of the Republic of South Africa matter. The newspaper attempted to join the Masetlha matter in order to gain access to written arguments filed by both parties; the Minister of Intelligence Services opposed to release of the documents citing national security concerns. Thereafter, the Independent Newspaper Ltd. brought an interlocutory appeal requesting copies of restricted document for the "limited purpose" of preparing its case, but the Minister again opposed this action.

The Constitutional Court, after careful consideration, denied the newspaper's interlocutory appeal. The majority of the Court acknowledged the right to "open justice." However, this right was not considered absolute since limitations could be levied on it, especially when balanced against national security concerns. The majority did release the whole of Mr. Masetlha on-camera affidavit, but denied the other requested documents.

There were a number of dissenting judgments, which favored release of the restricted documents over national security concerns. First, Yacoob J. ruled that the documents should be released to the public since the information which they contained was in the public interest. National security concerns could be effectively mitigated through further redaction of the documents. Second, Sachs J. emphasized the constitutional ideal of open justice to support his position to release the documents. He additionally warned against encouraging the secretiveness of intelligence agency, which marked the apartheid era. Third, Van der Westhuizen J. reached the same conclusion as Sachs J. and Yaccob J., but advocated for the use of the section 36 limitation clause of the Constitution to guide analysis of the limitation of the right to open justice.
Open/View PDF (Independent-Newspapers-v-Minister-of-Intellgience-Services.pdf)
May 22 2008 By Freedom Of Expression Institute


Manuel v. Crawford-Browne (2471/08) [2008] ZAWCHC 13 (3 Mar. 2008)
Mr. Manuel brought a defamation suit against Mr. Crawford-Browne, a prominent campaigner against an arms deal completed by Mr. Manuel in his role as Minister of Finance. The defamatory comments alleged extreme misconduct, including tax evasion and corruption, and stated that Mr. Manuel had "prostituted himself for the sake of political perks and power."

The Court noted that, as in all defamatory cases, two rights had to be balanced-dignity (section 10 of the Constitution) and freedom of expression (section 16 of the Constitution). While the Judge emphasized that freedom of expression should not be limited lightly, the Minister was still entitled to protect his reputation. The repetitive nature of the respondent's attacks seemed to sway the Court towards finding Mr. Crawford-Browne's statements as defamatory. The Court rejected the notion that an apology constituted sufficient remedy pointing to the aggressiveness and repetitiveness of the respondent in his attacks against the appellant. The Court ordered the respondent to cease making similar statements and to remove all allegations from his website accusing appellant of corruption or other criminal conduct.
March 03 2008 By Bongani Phiri


Kerr Luzoko Hoho and the State
Mr Hoho was convicted of criminal defamation in 2005 in the Bhisho High Court. This was confirmed by the SCA in 2008. Mr Hoho would however like to appeal the conviction and has approached FXI to assist. We approached counsel to prepare a legal opinion on the viability of such an action.
Anti-Censorship
January 05 2008 By Bongani Phiri


MEC for Education: Kwazulu-Natal v. Pillay (CCT 51/06) [2007] ZACC 21 (5 Oct. 2007)
Sunali Pillay, a student at Durban Girls' High School and a practicing Hindu, wore a small nose stud to school. Her school concluded that she should not be allowed to wear the stud since it was allegedly disruptive and against the dress code. Thereafter, Pillay brought suit before the Equality Court, alleging unfair discrimination, which violated her cultural and religious rights.

The Equality Court disagreed with Pillay, finding that the school's conduct did not constitute unfair discrimination. On appeal, the High Court overturned the Equality Court's decision, holding that the prohibition on nose students in school was null-and-void as the rule was discriminatory to Hindu/Indian students. The MEC for Education appealed the decision to the Constitutional Court, which upheld the position of the High Court. The Court decided that the rule against nose studs comprised indirect discrimination because it "allowed certain groups of students to express their religion/culture freely while denying that same right to others."

Though the wearing of nose studs was voluntary in the Hindu religion/Tamil culture, both obligatory and voluntary practices qualified for protection under the Equality Act. Schools (and similar institutions) should foster and allow for diversity in this case by permitting nose studs to be worn. Such acceptance would not lead to unnecessary disruption in learning environments as contended by critics.
October 05 2007 By Freedom Of Expression Institute


Masetlha v. President of the Republic of South Africa
The President unilaterally removed Mr. Masetlha, the former Director-General of the National Intelligence Agency (NIA), was removed from this position, sparking a constitutional challenge to such unilateral removal.

The majority of the Constitutional Court found the removal to be constitutionally permissible when reading section 209 of the Constitution together with section 3 of the Intelligence Service Act. However, the Court simultaneously held that Mr. Masetlha needed to be restored to the state he would have been in, if he had not been dismissed from his post. The breakdown in the relationship between the President and Mr. Masetlha-precipitating the removal-prevented reinstatement as a viable remedy. The President should trust and be secure in his political appointments.

The minority of the Court disagreed with the majority, holding that, under the Constitution, the President must act fairly which precludes him from dismissing the Head of the NIA before the end of his term. Nevertheless, the minority also recognized the futility of reinstatement at this point because of the fractured relationship between the President and the former Director-General.
October 03 2007 By Freedom Of Expression Institute


Timile and Radio 702
The complainant made a claim that a certain debate on radio regarding the canning of a controversial film from being broadcasted by the SABC. The complaint claimed that the debate that was had on the radio broadcast was unbalanced and biased. The complainant claimed that the since the matter of canning of the film was of importance, the debate that was had on radio should have balanced out by having conflicting views on the matter. The complainant claimed that there was only one view that was expressed and not alternative or contrary views were allowed on the show
The Commission held that the "canning" of the film was of interest of the public but not of public importance, secondly the complaint was not based on the "canning" of the film but of the debate that was had subsequent to the canning. The Commission held that different views was allowed on the show, as people could call in and stipulate their views. The Commission held that there was a sufficient balance of different views on the show and absolute balance would be impossible to achieve. The complaint was dismissed.
Open/View PDF (Timile-v-Radio-702.pdf)
June 21 2007 By Freedom Of Expression Institute radio 702, timile


NM/Others and Smith /Others (Freedom of Expression Institute as Amicus Curiae) 2007 (7) BCLR 751 (CC)
Three HIV-positive women brought suit against respondents for printing their names in a biography about Mrs. de Lille without proper consent. Applicants' names were published in a report (the "Strauss report"), which was circulated to a number of individuals including Mrs. de Lille; Mrs. Smith had then published the names in her book as found in the report. In publishing without explicit consent, applicants contended that respondents had violated their rights to privacy (section 14) and dignity (section 10). Though applicants originally pursued an interdict against further publication, they quickly dropped this request. Instead, they sought removal of their names from future versions and damages before the Johannesburg High Court.

The High Court refused to find for applicants on this point, holding that respondents were not negligent for publishing applicants' names in the first place. However, once the applicants' displeasure became known, respondents had acted unlawfully by continuing to publish their names, violating their rights to privacy and dignity. Damages were thus awarded for this offence.

Applicants appealed up to the Constitutional Court, which brought back a fragmented decision. The Freedom of Expression Institute intervened as amicus curiae, arguing that negligence as a ground for fault would limit the right to freedom of expression in violation of the section 36 constitutional justification clause. The Court disagreed with this argument (and respondents' other arguments), holding that respondents were aware of the lack of express consent. The fact that they had printed their names constituted an explicit violation of their right to dignity/privacy. Furthermore, the court decided that there was not a compelling public interest reason for doing so, and thus, the right to freedom of expression could not act as a "defence" of sorts. Essentially, unless public interest concerns were significant, publication of intimate details (like HIV status) should not be permitted without explicit consent.

Various other justices concurred and dissented in part with the majority's judgment. Significantly, O'Regan J. (dissenting) stated that the right to privacy in this context had to be balanced with the right to free expression. Based on the factual scenario, the publication of the names was neither negligent or intentional.
January 20 2007 By Freedom Of Expression Institute


Laugh it Off and SAB
This appeal stems from SAB claiming that Laugh It Off had infringed their trademark and more particularly dilution of trademark through tarnishment. Laugh it Off had created T shirts that had a similar mark to those of SAB's brands, however the marks provided by Laugh it Off had controversial taglines and slogans. Thus SAB claimed that their marks were diluted through tarnishment.

Section 34(1)(c) of the Trademarks Act 194 of 1993 provides that:

"the unauthorized use in the course of trade in relation to any goods or services of a mark which is identical or similar to a trade mark registered, if such trade mark is well known in the Republic and the use of the said mark would be likely to take unfair advantage of, or be detrimental to, the distinctive character or the repute of the registered trade mark, notwithstanding the absence of confusion or deception: Provided that the provisions of this paragraph shall not apply to a trade mark referred to in section 70 (2)."

One of the main question that is asked is whether if the trademark infringement claim is upheld, would impinge on the right to freedom of expression?
In order for infringement to be established the owner must prove that the mark was used with authority in the course of trade to any good and services, the mark must be identical or similar to the registered, the registered mark must be well known in the Republic and the use of the defendants mark would likely to take unfair advantage of the registered trademark. The appellant relied on the premise that his t-shirts were satirical and in that effect they did not constitute an infringement on the trademark.
In reaching their conclusion the court weighed up the freedom of expression and the trademarks owners tights of property and freedom of trade. The court held that the appellant did not have a justifiable reason to use the registered trademarks and the production of the t shirts cannot be said it was done under freedom of expression, the court held that the appellant abused that right and thus the appeal was dismissed with costs.
Open/View PDF (Laugh-it-Off-v-SAB.pdf)
August 16 2004 By Freedom Of Expression Institute SAB , Laugh it Off


Freedom Front and SA Human Rights Commission & another [2003] JOL 11698 (SAHRC)
Complaint that Broadcasters flighting a news report disclosing the identity and name of a minor, as well as his HIV/Aids status, without masking the minor's face or digitally fragmenting his image, amounts to a contravention of Clause 38 of the Broadcasting Code and an infringement of the minor's constitutional rights to privacy and dignity. Further, that the natural parents and legal guardians of the minor, in signing a waiver authorizing the relevant broadcast, did not fully appreciate the legal consequences of such waiver of the minor's rights, and that therefore the minor's best interest was violated. The Tribunal held that, since there was a compelling societal interest that the Aids pandemic be communicated to the public, and since the parents had granted their permission, the broadcasts had not contravened the Code. Insofar as the fundamental rights of the child were concerned, the invasion, even if it had occurred, had been reasonable in terms of section 36 of the Constitution.

The case was dismissed
January 04 2003 By Bongani Phiri freedom front , SAHRC


Hamata v Peninsula Technikon
This matter relates to the refusal of the applicant to use a lawyer of their choosing during a disciplinary hearing.

The rule has always stated that during a disciplinary hearing that the student may be represented by a fellow student or by member of staff. The rule did not expressly exclude the use of external counsel and the IDC had the discretion to allow outside counsel, however they did not use this discretion and did not allow external counsel.

The court held that the IDC is a The IDC is a legal construct and it can only exercise those powers which those who brought it into being intended it to have. A power to allow representation of a kind other than that which has been deliberately restricted to achieve a particular purpose may of course result in that purpose sometimes being frustrated and there is certainly no express conferment of such a power. The court held that IDC did not have discretion to exclude the use of external counsel.
Open/View PDF (Hamata-v-Peninsula-Technikon.pdf)
May 17 2002 By Bongani Phiri


Moreipuso Traditional council and Speaker Mahlake / any other person(s)
This matter related to a Heritage Day event in Bushbuckridge.
Open/View PDF (PLEADINGS.pdf)
June 12 2001 By Tusi Fokane


S v. Mamabolo
A spokesman for the Department of Correctional Services (Mr. Mamabolo) made a statement insinuating that a High Court Judge had acted improperly by granting bail to a prisoner, who would not be released. The Judge ordered the appellant to explain under what authority he published this statement. Before the High Court, the appellant was convicted of contempt of court for purportedly undermining the authority and dignity of the Judge and Court system.

Mr. Mambolo appealed up to the Constitutional Court, which considered the nature and effect of the offence of "scandalising the court." The case significantly turned on the balance that should be struck between this offence ("scandalising" and contempt of court) and the section 16 right to freedom of expression. The Court specifically addressed the question of the justification, if any, for the offence. Though the Constitutional Court did not find that this common law offence was unconstitutional, it did hold that the common law failed to address the limits of the offence, especially when it conflicted with the constitutionally-protected right to free expression. Even before authoritative bodies (like the Courts), South Africans still retained their right to free expression. In finding thus, the court reaffirmed the importance of freedom of expression in a democratic society.
Open/View PDF (S-v-Mamabolo.pdf)
April 11 2001 By Bongani Phiri