Freedom of Expression

Dignity v Freedom Of Expression → NB point

e.g. The Spear

NATURE AND SCOPE OF THE RIGHT

Section 16:

Firstly: everyone has the right

1. Freedom of the press and other media

2. Freedom to receive or impart information or ideas

3. Freedom of artistic creativity

4. Freedom of academic or scientific research

“Which includes…” → OPEN LIST

s16(1)(b) makes it clear that there is a right to receive information → he made a pretty shady
reference to the fact that ‘the protestors’ may be infringing ‘our’ right to receive information.

- Many cases deal with line between FoE and hate speech (Islamic Unity case NB) → S16 has
an internal limitation that is not a limitation that derives from s36, but comes from within
the right itself
INTERNAL LIMITATION → ss2 and thus, ss1 does not extend to:

a. Propaganda for war

b. Incitement of imminent violence
c. Advocacy of hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm → hate speech

AKA: these are the forms of speech that do not enjoy protection by section 16 → strictly
speaking, only ‘c’ = hate speech

HISTORY OF FOE

Free speech → long history as one the leading civil and political rights, derives from international
law (from articles 19 and 20 of the International Covenant on Civil and Political Rights)

Its origins are essentially liberal → liberals regard the right to express yourself freely and fully as a
preeminent expression of humanity.
 FOE especially NB in light of SA’s history → Kriegler J’s view in S v Mamabolo “having regard to
our recent past of thought control, censorship, and enforced conformity to government theories,
FoE, the free and open exchange of ideas, is no less important than it is in the USA. It could
actually be contended, with much force, that the public interest in the open market-place of
ideas, is all the more important to us in this country because our democracy is not yet firmly
established, it must feel its way”

Also, O’Regan in Khumalo re defamation at para 33: “the intensity” of the right to FoE, para 21 “FoE
is integral to a democratic society for many reasons”

Not only is FoE an important, free-standing right, it is also what is called a ‘leverage right’ and forms
part of the “web of mutually supporting rights” – e.g. protests make use of the right to assembly,
association. Would be hard to imagine giving effect to those rights, without the right to FoE. The
same goes for SER.

De Vos outlines the key functions/rationalities behind FoE

- The instrumental function → very hard to claim other rights without FoE, if you can’t
express yourself
- A moral agency element → very hard for individuals to be human, to act as individuals,
powerfully and with full dignity, if speech is limited
- A search for truth → hard to imagine a society capable of uncovering truth, or examining
issues critically and effectively, and with real honesty, if the ability of individuals within
that society is constrained to the point where they cannot express themselves and be part
of the search for truth
Summed up by O’Regan J in South African National Defence Force v Minister of Defence →
meaning and scope of the right: instrumental function, guarantor of democracy, implicit
recognition and protection of moral agency of individuals, facilitation of the search for truth by
individuals and society

PRIOR RESTRAINT

Prior restraint → prior restraint is where, typically, a newspaper or media organisation is

interdicted from publishing something ahead of publication. To deny someone the right to free
speech, before they have spoken, is a particularly potentially damaging intrusion on freedom,
and therefore on democracy.

The SCA, in Midi TV (Nugent JA) handed down an important judgment with a ‘high threshold’ test
clarifying when ‘prior restraint’ might be a permissible limitation of the right.

Nugent: reminds us that the approach by SA courts has been different from the approach of US
courts → Kriegler J in Mamabolo “our constitution ranks the right to freedom of expression
differently to the first amendment [of US constitution], with us it is not a preeminent freedom
ranking above all others. It is not even an unqualified right. The first amendment declaims an
unequivocal and sweeping commandment. Section 16(1) is wholly different in style and
significantly different in content.”
Nugent says even in jurisdictions that do not recognise the degree of protection that is afforded by
the first amendment, the test to be overcome before publication will be susceptible to prior
restraint, has always been considerable.

Prior restraint, whilst sometimes necessary, is a drastic infringement of freedom of speech, and
should only be ordered where there is a 1) substantial risk of 2) grave injustice (as opposed to a
remote possibility) → prior restraint is a drastic step, so there has to be a high standard to meet if it
will be justified in law. In para 16 “what is required by all these tests, implicitly if not always
expressed – before a ban on publication will be considered is a 3) demonstrable relationship
between the publication and the prejudice that it might cause to the administration of justice.
Substantial prejudice if it occurs, and a real risk that prejudice will in fact occur. Prior restraint
must be no more than is necessary to achieve its permitted purpose.”

The test in sum: a publication will be unlawful, and thus susceptible to prior restraint only if the
prejudice that the publication might cause to the administration of justice, is demonstrable,
substantial, and that there is a real risk that the prejudice will occur if publication takes place.
Mere speculation that prejudice might occur will not sufficient. Court must be satisfied that
curtailing right to freedom of expression is outweighed by the harm that may be caused. Doesn’t
just look at the freedom of the publication, but also of those who have to right to receive
information as well. The restraint is curtailed by what is necessary to prevent that harm from
occurring.

HATE SPEECH? → USING S16 TO INVALIDATE LEGISLATION

Islamic Unity Convention case → helps us understand why the hate speech sub-section relates to
the section as a whole, to section 16, and to the whole design of the Constitution regarding free
speech.

- The case turned on whether or not a provision of the then-code-of-conduct relating to

broadcasting was constitutional.

- ‘Dr. Zaki’ made assertions that were extremely offensive and hurtful

Clause 2(a) of the then-code of conduct said that “broadcasting licensees (i.e. media
organisations) shall not broadcast any material which is indecent or obscene, or offensive to
public morals, or offensive to the religious convictions or feelings of any section of the
population or likely to prejudice the safety of the state or the public order or relations between
sections of the population.”

- Contrast that wording with the precise wording of the subsection relating to hate-
speech in section of the Constitution

- Strictly speaking, hate speech is only the 3 rd element of section 16 ((c)): “advocacy of hatred
that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause
harm” → Code = much broader than Hate Speech provision.
- “The right in subsection 1 does not extend to” implies that the categories of expression
innumerate in section 16(2) are not to be regarded as constitutionally protected speech
- Section 16(2) therefore defines the boundaries, beyond which the right to freedom of
expression does not extend, in that sense the subsection is definitional, implicit in its
provisions is acknowledgment that certain expressions does not deserve protection because
 among other things, it has the potential to impinge adversity on the dignity of others and
cause harm. The Constitution, said Langa DCJ (as he then was) was founded on the principles
of dignity, equal worth and freedom, and these adjectives should be given effect to.

Court says, in essence, that any legislation, which seeks to censor or regulate free speech, is
justified constitutionally (i.e. a permissible limitation of the Constitutional right,) provided it
falls within the walls of subsection 2 of 16 (and ito hate speech, specifically within 16(2)(c))

- Para 33: the prohibition against broadcasting material that is “likely to prejudice relations
between sections of the population,” self-evidently limits the right in section 16 of the
Constitution. The phrase ‘section of the population’ in this part of clause 2(a) of the code of
conduct, is less specific than race, ethnicity, gender or religion as spelled out in section
16(2)(a).”
The prohibition clearly goes beyond the categories of expression enumerated in section 16(2)
(in other words, it is wider than section 16(2))

The real question is therefore is whether the clause, in prohibiting that which is not
excluded from protection by the Constitution (section 16(1)), does so in a manner which is
constitutionally impermissible

- Then the court turns to a section 36 enquiry, having found that the code of conduct in clause
2(a) goes broader, wider than the internal limitation of s16(2)

- Unconstitutional

SO BASICALLY
The way the court went about this is important because we must understand the definitional
role of s16(2) and its relationship with the protective right of section 16
- Therefore, it creates the approach that would need to be undertaken in any constitutional
review of any law or regulation, which purports to constrain free speech

- Either that provision would fall squarely within section 16(2) → the provision would be
constitutionally permissible (because it regulate that which is not protected by the
constitution)

- Or it would not, in which case it would have to stand up against the test of s36

AFRIFORUM v MALEMA CASE → HATE SPEECH ITO PEPUDA

Equality Court

Court had to grapple with whether words issued by Julius Malema and the song containing the
words “shoot the Boers, shoot the farmers they are rapist/robbers” constituted hate speech

- Historical context of the phrase “shoot the Boers”

- Potentially very inflammatory and could constitute hate speech
- Afriforum brought an application through the PEPUDA (principle of subsidiarity) claiming
that the words spoken did constitute hate speech
Section 10 of PEPUDA has the following prohibition of hate speech: “no person may publish,
propagate, advocate or communicate words based on or more of the prohibited grounds against
any person that could reasonably be construed to demonstrate a clear intention to be hurtful,
harmful, or to incite harm, promote of propagate hatred”

10 Prohibition of hate speech

(1) Subject to the proviso in section 12, no person may publish, propagate, advocate or
communicate words based on one or more of the prohibited grounds, against any person, that
could reasonably be construed to demonstrate a clear intention to-

1. (a) be hurtful;
2. (b) be harmful or to incite harm;
3. (c) promote or propagate hatred.

(2) Without prejudice to any remedies of a civil nature under this Act, the court may, in
accordance with section 21 (2) (n) and where appropriate, refer any case dealing with the
publication, advocacy, propagation or communication of hate speech as contemplated in
subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of
criminal proceedings in terms of the common law or relevant legislation.

12 Prohibition of dissemination and publication of information that unfairly

discriminates

No person may-

1. (a) disseminate or broadcast any information;

2. (b) publish or display any advertisement or notice,

that could reasonably be construed or reasonably be understood to demonstrate a clear intention

to unfairly discriminate against any person: Provided that bona fide engagement in artistic
creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or
publication of any information, advertisement or notice in accordance with section 16 of the
Constitution, is not precluded by this section.

- To understand section 10, clearly one has to make reference to the prohibited grounds in
section 1 of PEPUDA (and which very closely relate to the grounds for unfair discrimination
set out in section 9 of the Constitution – “race, gender, sex, pregnancy, marital status, ethnic
or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth”- PEPUDA)
- Much as it was the case as it was claimed in Islamic Conventions case where the code of
conduct was successfully challenged on the grounds that it went broader and wider than
section 16(2), it may be argued that section 10 of PEPUDA goes wider and broader too,
and thus be unconstitutional (however, nobody has yet challenged the constitutionality of
section 10 read with section 12 of PEPUDA in court)
- But, on the assumption that it is constitutional, then (and this was the basis on which the
judge decided this case) the judge had to decide whether or not the words spoken by
Malema constituted hate speech as defined by PEPUDA.
- In para 55, he writes “the issues to be determined are as follows: what are the meaning of
the words in the appropriate context and audience, did it make a difference if the audience
was wider than the groups who heard the song at the time of singing, would it make a
difference if different audiences ascribe different meanings to the words, did the way in
which the song was repeatedly sung by Malema after its translation in the press make any
difference, do the words constitute hate speech, if the words do constitute hate speech does
 the fact that they have a place in our heritage vest and overriding right in the singer to sing
the song and make the gestures referred to below”
- Malema said, taking the historical context, I have every right to sing these struggle songs,
they’re not an incitement to violence, they are not racist, they are not hate speech, they
are struggle songs
- To answer those six questions that the court raised, we have to read the judgment (Calland
says there isn’t time to do all of them)
- The important aspect of it was that, at the end of it, having carefully considered all of those
questions, the court found that the words said did constitute hate speech as defined by the
Act
The court first acknowledged the “tension between the right of the
speaker to freedom of expression and the obligation of the speaker not
to use words constituting hate speech” (para 31); however, the court
clarified that whenever there are issues involving “majoritarian or
minoritarian positions,” the test to be applied “must always be
whether the measure under scrutiny promotes or retards the
achievement of human dignity, equality and freedom” (para 34).

- At para 108 and 109 (the crux of the case), the court said that the message which the song
conveys, namely destroy the regime and shoot the Boer, may have been acceptable while the
enemy (the Apartheid regime) remained the enemy of the singer.
- Pursuant to the agreements, which established the modern, democratic South African
nation, and the laws which were promulgation pursuant to those agreements, the enemy
has become the friend, the brother. Members of society are enjoined to embrace all citizens
as their brothers… it must never be forgotten that in the spirit of Ubuntu, this new
approach to each other must be fostered, hence, the Equality Act (PEPUDA) allows no
justification on the basis of fairness, for historical practices which are hurtful to the target
group, but loved by the other group. Such practices may not continue to be practiced when it
comes to hate speech. “I accordingly find that Malema published, and communicated words
which could reasonably be construed to demonstrate an intention to be hurtful, to incite
harm and promote hatred against the white Afrikaans-speaking community including the
farmers who belong to that group.” The words accordingly constitute hate speech.
- Then in para 109, the judge sums it up: “publication of words of the political rally must be
treated as publication to the nation. The intention of the person who utters the words is
irrelevant, the first question to be decided is what the words mean. What the words mean is
to be determined by applying the test of what the words would mean to the reasonable
listener having the common knowledge and skill attributed to an ordinary member of
society. The fact that portions of society do not know the meaning of words either because
they are unable to decode the words to find the meaning, or are not exposed to them is
irrelevant. If the words have a meaning to a portion of society that is sufficient… Words can
simultaneously have different meanings, mean different things to different people, if the
words have different meanings, then each meaning must be considered and be accepted
as a meaning. The search is not to discover an exclusive meaning but to find the meaning
the target group would reasonably attribute to the words. If the words mean different
things to different portions of society, then each meaning, for the reasonable listener, in each
portion of society, must be considered as an appropriate meaning.” → as De Vos argues in
the textbook, it dodges the very difficult legal question of how words can have different
meanings/perceptions to different groups within society by saying that if the words mean
different things to different portions of society then each meaning, for the reasonable
listener of each portion of society must be considered as the appropriate meaning.
- i.e. there is no objective test for the meaning of the words, because it depends very much on
 who is listening, on which portion of society they come from…
- The judge then goes on the say “once the meaning is ascertained, a decision must be made
as to whether or not the meaning is reasonably capable of demonstrating the intention
to commit hate speech. Words that constitute hate speech, cannot be justified on the basis
of a claim to the right to sing them. Justification is not a defence as it does not change the
character of the words as hate speech.”
- “The singing of the song my Malema constituted hate speech. The words, whether sung in
the original language or not, mean as follows: ‘shoot the Boer farmer, they rape us, they are
scared, the cowards, rob these dogs.’ The words are published of and concerning a
recognised if not precisely identified grouping in society. The words undermine their
dignity, are discriminatory and harmful. No justification exists allowing the words to be
sung, and the words in any event, were not sung on a justifiable occasion.”
- Judge found in favour of Afriforum, against Malema on the basis that the words impugned
did constitute hate speech
- Look very carefully at the judgment and the way the court applies the law in PEPUDA, which
(arguably → may go too wide, as in the Islamic Convention case) gives effect to the hate
speech provision in section 16(2)(c) of the Constitution
Hate speech is not protected by the right to freedom of expression, so if you are guilty of uttering
hate speech, the Constitution cannot help you