Semester Test 1 Notes including practical questions and answers by lecturer PDF

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Study Theme 1: The Constitutional Right to Freedom of ExpressionSection 16 of the Constitution→ This section consists of two parts: subsection(1)consists of the guarantees,and sub-section(2)contains the exclusions→ (1)(a)-(d)guarantees:o freedom of press and other media;o receiving and imparting inf...

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Study Theme 1: The Constitutional Right to Freedom of Expression Section 16 of the Constitution → This section consists of two parts: subsection(1)consists of the guarantees, and sub-section(2)contains the exclusions → (1)(a)-(d)guarantees: o freedom of press and other media; o receiving and imparting information and ideas; o artistic creativity; o academic freedom and o scientific research; → (2)(a)-(c)protection excludes: o propaganda for war ; o incitement of imminent violence; o advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm Rationales For the Protection Of The Right To Freedom Of Expression 1. Proper functioning of democracy; 2. Search for the truth; 3. Individual self-fulfilment and autonomy

1. Proper Functioning of Democracy The Citizen 1978 ( Pty) Ltd v Mc Bride “ Freedom of expression is especially important to our constitutional democracy, which is both representative and participatory… Free expression of opinion, including critical opinion, is essential to the proper functioning of our constitutional democracy”. “it is good for democracy, good for social life and good for individuals to permit maximally open and vigorous discussion of public affairs” 2. Search For the Truth South African National Defence Union v Minister of Defence and Another → Case dealt with the constitutionality of legislation which prohibited members of the Armed Forces from participating in public protests → “Freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including the 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

3. Individual Self –Fulfilment and Autonomy Case v Minister of Safety and Security; Curtis v Minister of Safety and Security: → Dealt with a criminal prohibition on possessing sexually explicit material → “the most commonly cited rationale[for freedom of expression] is that the truth is best facilitated in a free‘ market place of ideas’…But of more relevance here…is the consideration that freedom of speech is as sine qua non for every person’s right to realise her or his full potential as a human being, free of the imposition of heteronomous power”. Scope of section 16 (1) (a) → Freedom of the press and media → Khumalo v Holomisa: “ the media are key agents in ensuring that government is open, responsive and accountable to the people as the founding values of the Constitution require….. Scope of section 16 (1) (b) → Freedom to receive or impart information or ideas → NB!! Does not amount to a positive right of access to information e.g section 32 of the Constitution , the right to information, and the legislation enacted pursuant to that right, the Promotion of Access to Information Act(PAIA); → Protection not only extends to factual content or basis but also ideas or any expression of creative thought; and the protection extends to offensive information and ideas → e.g Handyside v The United Kingdom“ held that freedom of expression extends to information or ideas‘ that offend, shock or disturb…Such are the demands of…..pluralism, tolerance and broadmindedness… Scope of section 16 (1) (c-d) → Freedom of artistic creativity, academic freedom and freedom of scientific research → E.g President Jacob Zuma’s famous defamation action against the political cartoonist Jonathan Shapiro for the Rape Justice cartoon published in the Sunday Times in September 2008…. → E.g The Spear → Brown, Governor of Carlifornia v Entertainment Merchants Association; court held freedom of expression also extends to video games….. Section 16 (2) exclusions 1st Category: Propaganda for war 2nd Category: Incitement of imminent violence“ encouraging or pressuring others to commit a violent act” e.g Enoch Mthembu remarked that Brett Murray “the Spear artist” should best one to death; also applicable is section17 of the Ritous Assemblies Act(criminalises the incitement of public violence, inter alia by publication)

3rd Category: relates to hate speech…expression that advocates hatred based on race, ethnicity, gender or religion and constitutes incitement to cause harm….” The Films and Publications Act effectively bans and criminalises the publication of any of the three unprotected expression discussed above Test “ determining the unconstitutionality of a limitation of freedom of

First question: is the expression excluded in terms of section16(2)?,if not is it protected in terms of section16(1)? Second question: does common law or a statutory provision in question limit the protection of freedom of expression? Third question: is the limitation of freedom of expression reasonable and justifiable in South Africa’s democracy which is established by a test in terms of section 36 of the Constitution, the general limitation clause? expression” Section 36 limitations analysis and the balancing of competing rights → Any limitation on freedom of expression other than the limitations expressly justified in terms of section16(2) must be tested in terms of the general limitations clause of the Constitution namely, section 36 → The first requirement is that the limitation must be in terms of a law of general application-this means that a law that limits constitutional rights such as freedom of expression must be stated clearly and in an accessible manner-Laws that are vague and over broad will not comply with this requirement → The rest of the section 36 analysis effectively‘ involves the weighing up of competing values and ultimately an assessment based on proportionality Section 36 Analysis-Johncom → In Johncom the Sunday Times challenged section 12(1) of the Divorce Act. This section provided as follows; → “Except for making known on publishing the names of the parties to a divorce action, or that a divorce action between the parties is pending in a court of law, or the judgment or order of the court, no person shall make known in public or publish for the information of the public or any section of the public any particulars of a divorce action or any information which comes to light in the course of such action” → Section12(1)held unconstitutional on the basis that the chosen method was not particularly effective in achieving the purpose of the limitation…..

Primedia v Speaker of the National Assembly Appeal Judgment 2016 4 All SA 793 → On 12 February 2015 during SONA, journalists and MP’s were rendered unable to use their cell phones in order to inform members of the public not in attendance about the happenings in parliament; → Section 59 and 72 of the Constitution provides that the business of the National Assembly must be conducted in an open manner and that the public and media have the right to access, subject to reasonable measures regulating that right. → Section 21 of the Powers and Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 provides for the regulation of the broadcast feed; → “it limits the right to broadcast by stating that that broadcasting may be done only in accordance with the rules determined by the speaker” → Appellants “Primedia” challenged the constitutional validity of the above → Test: The approach to limitation is to determine the proportionality between the limitation of the right considering the nature and importance of the right on the one hand and the purpose, importance and effect of the infringing provision taking into account the availability of less restrictive means available to achieve that purpose; disruption proceedings; → Decision: held that the limitation was futile as journalists informed the public about the scuffles in any event, and in fact the restriction led to in accurate reporting when the public has a clear right to accurate reports Practical Question 1

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There has been challenges relating to the spread of fake news pertaining to Covid 19 information, this resulted in the creation of regulations such as Section 11(5) of the Disaster Management Regulations The abovementioned section 11 (5) of the Disaster Management Act creates several content related offences with respect to publishing statements surrounding covid-19; In terms of Article 19 (19) of the International Covenant on Civil and Political Rights (ICCPR) any legislation restricting the right to freedom of expression must meet the test of legality, necessity, and proportionality even in light of a public health pandemic Prepare a legal opinion on the constitutionality of section 11 (5) of the Disaster Management Regulations and whether it justly restricts the right to freedom of expression; Read the following authority in preparation of your legal opinion; o 1. Johncom Media Investments Ltd v M 2009 BCLR 751; o 2. Albertus L “Has a balance been struck? The decision in Johncom Media Limited v M 2009 4 SA 7 (CC)” 2011(14) PER/PELJ 216

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3. Economic Freedom Fighters and Another v Minister of Justice and

Johncom Media Investments Ltd v M 2009 BCLR 751 Brief facts; Section 12 of the Divorce Act 70 of 1979 (the Divorce Act) seeks to protect divorcing parties’ rights (and those of their children) to privacy and dignity by prohibiting publication of information that comes to light during a divorce action, including information which emerges during proceedings related to the enforcement or variation of such order. On 11 February 2008, the High Court in Johannesburg declared the section invalid on the basis that it was inconsistent with the right to freedom of expression enshrined in section 16 of the Constitution. The prohibition contained in section 12 does not fall within any of the exceptions listed in section 16(2) of the Constitution. Yet, it prohibits publication of any information which comes to light during a divorce action or any proceedings related thereto. This constitutes a limitation of the media’s right to impart information. It brings us to the second leg of the enquiry, namely, whether the limitation is reasonable and justifiable as envisaged in section 36 of the Constitution. The process of determining whether a limitation is reasonable and justifiable within the contemplation of section 36 involves the balancing of competing interests. It entails taking account of the considerations enumerated in section 36. This process has been described as a proportionality analysis. The chosen method of protecting the rights of children, quite apart from going too far, is also not particularly efficient in achieving the purpose. The legislature, almost thirty years ago, chose to allow the publication of the identities of children as well as of parties to a divorce action and, at the same time, prohibited the publication of any evidence at a divorce trial, whether or not the prohibition of publication was necessary to protect the relevant privacy and dignity interests. Yet as will be shown below, another way to protect children and parties would, in my view, be to prohibit publication of the identity of the parties and of the children. If that were to be done, the publication of the evidence would not harm the privacy and dignity interests of the parties or the children, provided that the publication of any evidence that would tend to reveal the identity of any of the parties or any of the children is also prohibited. The purpose could be better achieved by less restrictive means

Correctional Services and Another (CCT201/19) [2020] ZACC 25; 2021 (2)

Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another The thrust of the charges, based on section 18(2)(b) of the Riotous Assemblies Act, is that Mr Malema incited EFF members and other persons to commit an offence of occupying land registered in the names of others without lawful permission or lawful reason. The offence others have allegedly been incited to commit is said to be trespass in terms of section 1(1) of the Trespass Act. Section 18(2)(b) of the Riotous Assemblies Act criminalises the “incitement” of another person to commit “any offence”. The contention is that the crime it creates, offends against the constitutional right to freedom of expression [30] The applicants in this matter contended that section 18(2)(b) is unconstitutional by reason of its over breadth. This is grounded on its criminalisation of incitement of others to commit “any offence”. The constitutionality of this section is challenged on the basis that it infringes Mr Malema’s right to freedom of expression; [68] The criminalisation of incitement to commit “any offence” overshoots the mark of crime prevention that is free expression sensitive. To ensure that section 18(2)(b) shoots within the confines of a constitutionally-permissible range, and thus constitutes a less restrictive means of limiting free expression, “serious” is the word that must be inserted between “any” and “offence”. And the insertion of “serious” would serve the purpose of constraining the over breadth in the interim.

Has the balance been struck? The decision in Johncom Media Investments Limited v M 2009 4 SA 7 (CC) Although the CC declared section 12 of the Divorce Act unconstitutional, it is felt that the judgment did not do justice to the issues involved in striking a balance between the competing rights involved. It is unfortunate that the CC did not address the matter fully, as this omission now leaves room for possible litigation in respect of an issue which the CC should have addressed. If the legislature fails to intervene, a piecemeal approach in striking a balance between the conflicting rights will be the end result, and it may be a long wait before a balance between rights is finally struck.

How to answer this question: First question: is the speech/expression prohibited in terms of section 16 (2) of the Constitution?

Second question: is the right to freedom of expression as guaranteed in terms of section 16 (1) of the Constitution restricted by the legislation/ regulation? Act of parliament? Is the restriction justifiable in terms of section 36 of the Constitution? 1. Purpose of restriction speech/expression e.g. to combat hate crimes/commission of crimes motivated by hate 2. Does the restriction achieve the above purpose? 3. Is there a less restrictive means that can be employed in order to achieve the above purpose e.g. is the section of the applicable legislation too broad? Practical Question 2

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The ANC’S announcement that it will hold former President Jacob Zuma’s daughter Duduzile Zuma-Sambudla accountable for her tweets shows that the governing party has woken up to the power of cyberspace. Her posts embedded video and calls for “let it burn”. Furthermore four other ANC member are also being reprimanded for their online conduct; This brings into focus that as we exercise our right to freedom of expression through social media we must be aware of our responsibilities Provide legal advise on whether the utterance of the words “let it burn” by Duduzile Zuma-Sambudla constitutes a legal exercise of the right to freedom of expression or whether she can be reprimanded and on what legal basis? o Refer to the following legal authority in preparation for answering the above question; 1. Price DSA “Regulating expression in the media” 2019 (136) South African Law Journal 51

Price DSA “Regulating expression in the media” 2019 (136) South African Law Journal 51 The ambit of free expression protected by s 16 of the Constitution does not, however, extend to propaganda for war, incitement of imminent violence, and advocacy of hatred based on a prohibited ground that constitutes incitement to cause harm; Courts have started to apply traditional common-law rules to resolve disputes among Internet users, with recent cases having addressed the position of social media users. Courts have also issued interdicts ordering persons to remove defamatory postings from Facebook, and to remove specific information from such postings. Furthermore, convictions under the common-law crime of crimen iniuria — namely the non de minimis intentional and unlawful impairing of the dignity or privacy of another — may result from online statements that invade privacy or are abusive insulting, or degrading Traditional legal mechanisms, including delictual claims, interdicts, and the common-law crime of crimen iniuria, have been applied to Internet communications According to the mentioned source “Price DSA “Regulating expression in the media” 2019 (136) South African Law Journal 51 ,the right to freedom of expression is guaranteed except for in instances where the speech/expression incites hate, propaganda for war and etc.; Furthermore it is provided that courts have resorted to common law remedies when dealing with violations in social media pertaining to for instance the infringement on one’s right to privacy or a violation of one’s dignity; In as far as the right to freely express one self is permitted on social media if such expression is found to be in violation of privacy, dignity or hate speech then the alleged perpetrator will be persecuted ( legal remedies and applicable charges will be dealt with under specific themes covering defamation, privacy and hate speech), ( it is only crucial at this stage to point out that one’s right to freedom of expression may be restricted as per section 16 (2) of the Constitution and furthermore that any limitation on the right to freedom of expression must be constitutional as per section 36 of the Constitution

Practical Question 3

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Dr Susan Vosloo a leading heart surgeon posted a video in which she makes controversial claims about covid-19 vaccines which have been met with dismay;  In the video Vosloo claims that the risk of the vaccine is worse than the risk of the virus and that covid-19 disease is the first medical condition to be predominantly mismanaged by politicians, bureaucrats and academics; Dr Susan is a leading South African medical expert and was the country’s female heart surgeon and she did her first heart transplant at the age of 33 years old; Complaints have as a result been laid against the leading heart surgeon after her problematic video on covid-19 vaccines Give advise on Dr Susan Vosloo’s conduct and on whether she had exercised her right to freedom of expression legally; Use the following legal sources in your legal advise; 1. Barrie G “Freedom of

Barrie G “Freedom of expression and campus protests 2017 (38) Obiter 623 Section 16(1) of the Constitution, which mandates that everyone has the right to freedom of expression and section 16(2), which states that section 16(1) does not extend to advocacy of hatred that is based on race or ethnicity and that constitutes incitement to cause harm; Applying the above legal exposition regarding protest action to the facts of the case Wallis JA in essence held: (a) The blocking of the road on the UCT campus caused great inconvenience and could have contributed to confrontations arising and led to threatening behaviour; (b) the spray painting and defacing of UCT property and the war memorial and the burning of portraits and photographs constituted the criminal offence of malicious injury to property; (c) slogans on the war memorial and on T-shirts went beyond a passionate expression of feelings and views and became the advocacy of hatred based on race or ethnicity and constituted an incitement to cause harm. It thereby lost its constitutional protection. expression and campus protests 2017 (38) Obiter 623

How to answer the question: The mentioned source to be read Barrie G “Freedom of expression and campus protests 2017 (38) Obiter 623, although deals with freedom of expression in the context of protests, could still be applied to the third practical case study and the following points are crucial: • Assessing whether Dr Susan’s speech constitutes hate spe...