In South Africa everyone has the right to assemble, demonstrate, picket and present petitions. The Gatherings Act defines the practical effects to this fundamental right, like the shape, size and location of protests.
A worrisome trend is that local authorities and police officers appear to be ignorant of the Gatherings Act, or abuse the Act to prevent people from protesting and marching in public.

The Law Clinic actively supports the right of communities throughout South Africa to express their grievances through peaceful, unarmed protest. The FXI has made a number of interventions through litigation, letters to authorities and press statements 

Case study: The acquittal of two Soweto activists on a charge of Illegal Gathering
"Taming the toyi-toyi"
"Telkom 'does not understand' Gatherings Act"
Regulation of Gatherings Act 205 of 1993 [PDF]
Residents of Foreman Road settlement in Durban shot by police during peaceful and unarmed march
Court victory for shack dwellers
Cape Town gathering on 10 November 2005 [PDF]
Amandla! Protest in South Africa
Establishing a Historical Record of Violations of the Regulation of Gatherings Act & the Right to Freedom of Assembly Amongst Social Movements in Johannesburg [PDF]

PROTECTION OF JOURNALISTS' SOURCES

There is no absolute privilege afforded to communications between informant and journalist such as may be said to apply between attorney and client. Almost no jurisdiction in the world provides such a privilege to journalists. In South Africa a journalist may thus be compelled to reveal her sources on pain of imprisonment although no such sentence has been handed down since the adoption of the Constitution. Nevertheless, there is, emerging from case law, and an interpretation of the Constitution and the term “just cause” in section 189 of the Criminal Procedure Act, a suggestion that communications between source and reporter may enjoy a partial or qualified privilege under South African law. Presently, an agreement exists that purports to restrain the state in making use of section 205 but these restraints are purely procedural.

The FXI's policy position is that:

1. to compel a journalist to reveal her confidential sources creates a situation in which the free flow of information and freedom of expression is inhibited not only to a from the journalist so compelled but within the profession generally;
2. to compel a journalist to testify against participants in events that she was covering similarly inhibits the free flow of information and has the additional effect of placing the safety of journalists at risk; and
3. it is in the public interest that there is as free a flow of information as possible and that journalists are able to operate freely, especially in controversial, momentous areas like politics and crime where many informants speak only on condition of anonymity and where some journalists are tolerated only on condition that they are not potential witnesses.

The FXI is lobbying the Ministry of Justice and Constitutional Development for an amendment to section 205 of the Criminal Procedure Act
to protect journalists and their sources.

A landmark case on protection of journalistic sources has recently been brought to the Johannesburg High Court which presents the FXI with the oppportunity of making important policy contributions:

Case No. 05/16077: Imvume Management (Pty) Ltd vs M & G Media Ltd and 4 Others 

A Johannesburg-based small independent newspaper called the Mail & Guardian has recently run a series of articles detailing how the ruling ANC party has been funded to the tune of R11 million in its election campaign by a private company called 'Imvume', using public funds which should have been used to buy oil. Read Mail & Guardian story.

The so-called 'Oilgate' saga has now landed up in court, with Imvume suing the Mail & Guardian for, amongst other things, an order forcing the paper to reveal the sources of its journalist's information. The case will probably be argued in court by the end of this month.

The FXI, together with other media freedom & journalist-support NGOs will make an application for intervention as an amicus curiae and will submit policy and legal arguments in support of the principle of protection of sources, specifically on the implications of journalists being forced to disclose their confidential sources.

Related documents - Imvume case

Press release
FXI notice of motion [PDF]
FXI founding affidavit [PDF]
Berger and Brand affidavit [PDF]

BALANCING EXPRESSION AND PRIVACY RIGHTS

The FXI made written and verbal submissions to the Constitutional Court recently in a case which has important ramifications for both individual and media defendants.

Case CCT 69/05 NM and Others vs Charlene Smith and Others

On Tuesday 9 May 2006 the South African Constitutional Court reserved judgment in the application of three HIV-positive women for leave to appeal against a judgment of the Johannesburg High Court.
 
This is an appeal against the Johannesburg High Court’s finding in 2005 that the women's right to privacy, dignity and psychological integrity were not infringed by the publication of their names and HIV status in politician Patricia de Lille's biography.
 
The court found that it would place an intolerable burden on journalists if they had to obtain informed consent from people before publishing their names and HIV status. The court also found that De Lille, journalist Charlene Smith, who wrote the book, and the publishers, Africa Books, did not act unlawfully when they published the women's names.
 
The women took their case to the Supreme Court of Appeal, where the high court's decision was upheld without reasons. The women then appealed to the Constitutional Court.
 
The Freedom of Expression Institute (FXI) successfully applied to be admitted as amicus curiae in this case. The FXI is of the opinion that it is neither necessary nor desirable for the common law to be developed to include negligence as a ground for fault in these situations. Such an approach, the FXI submits, will unnecessarily and unjustifiably interfere with the right to freedom of expression and will have a chilling effect on the right to expression in South Africa.
 
The women, from Atteridgeville in Pretoria, took part in clinical trials run in 1999 and 2000 by the University of Pretoria testing certain drugs aimed at easing the condition of HIV/Aids sufferers.
 
Concerns were expressed about participants becoming severely ill and dying and the help of De Lille, leader of the Independent Democrats, was called in.
 
The complaints resulted in two investigations during which the university was cleared from any wrongdoing.
 
The reports drawn up during the investigations contained their names and HIV status.

Afterwards Africa Books contacted Smith to write De Lille's biography. The names and HIV status of the women were disclosed in the book.

In 2002 the women sent a letter to the publisher, requesting that their names be removed from the book. The publisher declined to do so and in December of that year the women sued De Lille, Smith and the publishers for an amount of R200 000 each for loss of dignity, privacy and psychological integrity and wellbeing.

De Lille and the other respondents offered the women a settlement of R35 000 each, but this was rejected and the case proceeded.

The women argued that they had never given express consent that their names and HIV status may be divulged. They also appealed to the High Court that the common law of privacy be developed to recognise a duty on those who publish confidential medical information, in particular a person's HIV status, to get the person's express informed consent.

The High Court found that the disclosure of the women's names in the book was not unlawful. It found that De Lille, Smith and the publisher had not been negligent in the publication and had done so without intent of unlawfulness.

The court further determined that the respondents had known at the time the initial interdict was sought that the women had given very limited consent and that they did not want their names and HIV status to be disclosed in the book.

With this in mind that court ordered that the publisher pay limited damages of R15 000 each to the women and also that their names be removed from the remaining books that had not yet been sold.

After the judgment was handed down the respondents informed the court that an offer to settle had been rejected by the women. The court then ordered that the publisher only pay the women's legal fees up to 14 April last year, the date the settlement offer was made. The women were ordered to pay the legal costs of the respondents from 17 April last year, the date on which the offer was refused.

Subsequent to this the women appealed to the appeal court to broaden the base of liability and increase the damages. The application was dismissed without reasons.

The women then approached the Constitutional Court on the grounds that the high court did not protect their constitutional rights to dignity, privacy and psychological integrity and wellbeing.

They also contend that the high court overemphasised the respondents' right to freedom of expression. They maintain that the common law of privacy should be broadened to include a duty of obtaining express informed consent when disclosing confidential medical information about a person, such as an HIV status. They also want the Constitutional Court to determine a more appropriate sum for damages.

De Lille, Smith and the publisher submitted that they were not negligent in publishing the women's names and that their argument pertaining to the development of the common law is without merit.

Related documents - Charlene Smith case

FXI founding affidavit [PDF]
FXI head of argument [PDF]

BALANCING EXPRESSION AND INTELLECTUAL PROPERTY RIGHTS

On 27 May 2005, in the 't-shirt parody' case of Laugh it Off v SABMiller, the Constitutional Court held gave judgment in favour of Laugh it Off, setting an important precedent with respect to freedom of expression and trademark law. The concurring judgment of Justice Sachs found particular favour with the amicus curiae submissions of the FXI.
Laugh it Off v SABMiller - Constitutional Court - 27 May 2005 [PDF]
Laugh It Off Heads of Argument [PDF]