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.

Adrian Sissing and SA News Blog
Two news articles were published on the SA News Blog concerning Mr Adrian Sissing's alleged illegal business practice as a business broker. After the publishing of the two article Mr Sissing sent messages to the author of the articles threatening the author with legal action if the two articles are removed from the blog site. No official documents have been served yet.
FXI Objective: Media and Free Press
January 27 2017 By Freedom Of Expression Institute

Andile Nomabhunga (The Informer) and Nontsikelelo Matubatuba
This matter involves a defamation. The FXI was approached by the defendant (Andile Nomabhunga) in this matter. The Applicant claims that the defendant had defamed her in an article published in the local newspaper called the Informer.
The matter was heard before the Press Tribunal, a judgement was handed down and the defendant was compliant with the judgement. However the Applicant pursuit with a civil claim against the Defendant.
The defendant received legal counsel from Shepstone and Wylie.

FXI Objective: Anti-Censorship
January 27 2017 By Freedom Of Expression Institute

Protesting Diro Mine Workers
Miners from Khathu had not been paid in 5 months by their employer Diro. The miners organised a march on the 6th of September against the employer, who is situated in Centurion.
The employer subsequently issued an interdict against the miners, on the 13th of September 11 employees got arrested for public violence, malicious damage to property and contravention of the court interdict.

The group was due to appear on the 14th, however the matter was not put on the roll as there was not sufficient evidence to prosecute.

FXI Objective: Anti-Centorship
January 27 2017 By Bongani Phiri

Tom Nkosi ( Ziwaphi) and The Mpumalanga Legislature
The Ziwaphi Newspaper published an article on the 22nd of the September 2016. The article was about Mr Linda Mwale and his involvement in awarding tenders as the Secretary of the Mpumalanga Legislature.

Mr Mwale through his lawyers demanded that Ziwaphi must print a retraction and an apology and failure to do so would result in legal action.
FXI Objective: Freedom to Expression
Media and a free press
January 27 2017 By Bongani Phiri

Our client, the defendant, Heidi Lee Smith was served summons from Southern Palace Investments for defamation and damages to the amount of R850 000.00, based on a publication in our clients community newspaper, Kruger2Canyon. The matter had reached a trial ready stage when the plaintiffs seemed to stop pursuance of the matter.

The matter is of particular interest to the FXI given the continually growing trend of the use of frivolous litigation by persons to censor community media i.e. newspapers from publishing matters that concern them, that they do not want known.
December 05 2016 By Freedom Of Expression Institute

Monametse/Mokotho Relocated Community
Moshabi Selowa ( FXN Limpopo) contacted us in November 2016 noting the difficulties he was facing from the resoponisble officer in the municipalaity. He notes that the group was attempting to arranage a protest and she was refsuing to release the notice form. She also took to attempt to mediate the matter ( which is not her role). Severals meetings were had with the min against whom the group souaght to protest howvere we await further instrauctions from moshabi on the way forward.
Freedom of Expression
November 20 2016 By Bongani Phiri

Tom Nkhosi (Ziwaphi) and Eddy Mabuza
Tom had written a publication in November 2016. He received a Phone call from one of the individuals mentioned in the article requesting proof that he did in fact request he answer questions( right of reply). Tome forwarded the proof, nothing further came of this.
November 10 2016 By Bongani Phiri

Assmang (Pty) Ltd and P Moseki and 3 others
Certain individuals of the community based organisation CCG have been interdicted from encouraging and participating in unlawful protests among other things after organizing and participating in protest action against the mine (Assmang). The FXI Law clinic is assisting with legal representation and defending the CCG against what we consider to be a violation of the constitutional right to protest. The Matter was heard in the opposed role on the 27th of October 2016 with judgement delivered on the 18th of November 2016 against our clients. After consultation with counsel the application for leave to appeal was filed on the 7th of December 2016.

FXI Objective: Anti-Censorship
October 26 2016 By Freedom Of Expression Institute

HG Travelling Services CC and Impact News
Impact News had written a publication in October 2016. He then received a letter form one of the individuals mentioned in the letter requesting he issue a retraction. Impact news acknowledged incorrect procedures and agreed to rewrite the story with a fair and accurate reflection of HG Travelling Services.
October 01 2016 By Bongani Phiri

Moreipuso Traditional council and Speaker Mahlake / any other person(s) acting upon his instruction
The FXI represented the Defendant in this matter. The case involved the Moreipuso issuing an interdict against Speaker Mahlake from hosting a Heritage celebration event on the 24th of September 2016 at Wales
The interdicted only limited the defendant from using the venue on the 24th September, the defendant complied with the interdict and organized an alternative venue and proceeded with the event.
Since the interim was only for the 24th of September, it would have been defunct to have made the interdict final as the date had already passed.
The applicant's attorneys decided not to pursue the matter any further.
FXI Objective: Anti-Censorship
September 24 2016 By Bongani Phiri

The respondent Sylvia Vollenhoven had been commissioned by the SABC to produce and air a documentary titled "The spear", the SABC later decided not to air it however, in which instance Ms Vollenhoven sought to buy it from them and air it, which they still refused to do. The SABC then sought to interdict Vollenhoven from claiming any rights to the documentary and airing it.(FXI Amicus)

This depicts the censorship that goes on in the public broadcaster, which has a clear mandate in airing issues of public interest tailored for the South Africa public with absolute independence (without fear or favour) from any influence.
Open/View PDF (SABC-v-Via-Vollenhoven.pdf)
September 02 2016 By Bongani Phiri SABC

Tom Nkhosi ( Ziwaphi) and Linda Mwale
The Ziwaphi Newspaper published an article on the 22nd of the September 2016. The article was about Mr Linda Mwale and his involvement in awarding tenders as the Secretary of the Mpumalanga Legislature.

Mr Mwale through his lawyers demanded that Ziwaphi must print a retraction and an apology and failure to do so would result in legal action.
FXI Objective: Freedom to Expression
Media and a free press
September 01 2016 By Bongani Phiri

Solidarity and SABC
Four SABC journalists had been suspended and then summarily dismissed without disciplinary hearings because of their discomfort with the SABC "Protest Policy." This policy related to the SABC's refusal to broadcast footage of destruction of public property during protests. The journalists argued that they had been dismissed in violation of their employment contract since they were refused a hearing and in violation of their constitutional right to freedom of expression (section 16 of the Constitution). The constitutional piece of the case rested on the SABC's purported reason for their ultimate dismissal-that they had discussed their internal dissent in an external manner (i.e., to the press)-was constitutionally invalid. Applicants' counsel acknowledged that a regular employee generally could not voice opposition with his/her employers openly, the situation with the SABC was unique since its role as a public broadcaster meant that the public had a significant interest in learning about internal events.

The Labour Court of South Africa ultimately held the following: (1) that it had jurisdictional authority to hear the case, and (2) that the employment contract, when read with the SABC Disciplinary Code and Procedure, had been breached since a disciplinary hearing was in fact required prior to dismissal. The court accordingly granted the requested relief with "urgency," reinstating the employees to their previous positions. The "urgency" in deciding the case and granting relief interestingly stemmed from the SABC's role in the upcoming election and the journalists' specific responsibilities as well as the usual factors (e.g., convenience, clear right, etc.). The court did not explicitly rule on whether the journalists' constitutional right to free expression as enshrined in s16 was violated. However, it appeared to endorse applicants' position implicitly by recounting their argument and granting their requested relief.
Open/View PDF (Solidarity-v-SABC.pdf)
July 26 2016 By Bongani Phiri SABC

Vusi Mlaba Murder Case
This matter involves the progress of the alleged assassination of Vusi Mlaba from Warden.

Vusi Mlaba was a respected community activist and whistle blower whose apparent assassination occurred on the 29th of April 2016

FXI Objective: Access to Information
April 29 2016 By Bongani Phiri vusi mlaba

Muslim Views and Media 24
Muslim Views is one of the oldest community newspapers in Cape Town.In April 2016, Media 24 launched Modest Muse newspaper which targerts a very similar target group to Muslim Views. Muslim Views approached FXI to enquire on anti-competitive behaviour and to offer a legal opinion about the options available to them.
Access to media & ICT
April 01 2016 By Freedom Of Expression Institute

SATAWU and Moloto
Following an unresolved wage dispute, SATAWU (the recognized majority union) notified Equity Aviation Services (Pty) Ltd. that it intended to lead a strike. Sixty-three employees who were not SATAWU members also participated in the strike. In November 2004, Equity Aviation dismissed the non-union workers for their unauthorized absence during the strike. These employees argued that their dismissal was "automatically unfair" because it was based on their participation in a lawful strike. The case accordingly came to turn on how much notice an employer should receive prior to a strike in accordance with the procedural requirements of a lawful strike outlined in section 64(1)(b) of the Labor Relations Act 66 of 1995. Should every individual striker have to provide notice or was SATAWU's notice sufficient?

The majority of the court held that the notice provided by SATAWU sufficed since such an interpretation of s64(1)(b) best accorded with section 23 of the Constitution, protecting the right to strike without express constitutional limitation. Legislative limitations-for example, as delineated in s64-should be construed as narrowly as possible so as not to contravene the s23 right to strike. The majority opinion thus adopted a pro-employee stance, recognizing that the right to strike is designed to restore the power imbalanced between employee and employer.

The dissenting opinion interpreted the section as requiring each individual employee to notify employers of their intent to strike. Judge Maya supported her position by pointing to the need for strikes to be as orderly as possible to minimize disruption of the workplace and society as a whole.

The sharp division of the Constitutional Court demonstrated a significant ideological split on the power that should be accorded to unions and employees in the workplace.
Open/View PDF (SATAWU-v-Moloto.pdf)
September 21 2012 By Bongani Phiri sawatu, moloto

SA Transport, Allied Workers Union and Garvas
A protest organized by SATAWU on behalf of its members within the security industry devolved into a violent riot where fifty individuals allegedly lost their lives. The respondents brought suit against SATAWU under section 11(1) of the Regulation of Gatherings Act holding them liable for the damage caused. Section 11(2) of the Act provided an extremely limited defense to liability. This case only involved the question of the legality and constitutionality of section 11(2) rather than the actual liability of SATAWU.

SATAWU first contended that section 11(2) was incoherent or irrational since it appeared to suggest that the organizer of a demonstration must take all reasonable steps to prevent a specific act or omission tending towards violence or destruction, even when this act/omission was not reasonably foreseeable. The Constitutional Court disagreed with this construction, reminding appellants that it is required to avoid an incoherent interpretation when a more rational one is readily available. It found that the defence, while narrow, provided a viable opportunity to avoid liability as long as (1) the act/omission was not reasonably foreseeable or (2) if it was foreseeable, the organizer took all reasonable steps to prevent the violence or destruction.

In the alternative, the applicants challenged section 11(2) on constitutional grounds, alleging that the provision constituted an unconstitutional limitation to the section 17 right to gather. Though the court recognized the fundamental importance of the right to gather in a democratic society (and especially in post-apartheid South Africa), it held that the provision was justifiable under a section 36 analysis. Section 36 of the Constitution sets forth factors to consider when determining if a limitation on a protected right is constitutionally valid. These factors include: "(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) [the availability of] less restrictive means to achieve the purpose." The court decided that section 11(2) passed constitutional muster since it balanced the right to gather with other important considerations, such as public safety. The legislature intended for the defence to be a narrow, but ultimately workable one, as the court recognized in its decision.
Open/View PDF (SA-Transport-and-Allied-Workers-Union-v-Garvas.pdf)
June 13 2012 By Bongani Phiri

Munyai Nyawasedza Anna and Editor in Chief: Ngoho News & Blusky Developments Communications
The Plaintiff is suing the Defendant (a community newspaper) for 3 million rands in damages for a defamation claim for a article that was written in May 2012. All documents have been filed in the matter and the matter needs to be set down for trial.

Anti censorship
May 02 2012 By Freedom Of Expression Institute

Afriforum and Julius Malema
Julius Malema, who at the time was the President of the African National Congress Youth League, led the singing/chanting of a former ANC "struggle song" entitled "Dubul'ibhunu" at various public events. Though there was some controversy as to the song's exact translation, its words were generally understood to mean "shoot the Boers/farmers, they are rapist/robbers!" Malema accompanied his singing with a gesture mimicking the shooting of a firearm. Afri-forum and Tau SA brought suit against him and the ANC, arguing that the song constituted hate speech under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Malema countered that the singing was within his right to freedom of expression under section 16(1) of the Constitution and that the allegedly offensive language alluded to destroying the apartheid regime, which his audiences would have understood.

Judge Lamont found for the complainants, banning Malema from singing "Dubul'ibhunu" thereafter in public or private. According to the court, the context in which the song was sung (at public events and political rallies with media presence), combined with the aggressive accompanying gesture, weighed in favor of a finding of hate speech. In his decision, J. Lamont also noted that the song likely had not comprised hate speech previously since the targeted group (Boers/Afrikaners) had not been aware of what the words meant; the subsequent translation and press coverage contributed to its "transformation" to hate speech. The reaction of the audience-in this case, the public at large-thus had significant ramifications for whether an expressive act constituted hate speech.
Open/View PDF (Afriforum-v-Julius-Malema.pdf)
September 12 2011 By Freedom Of Expression Institute

Media 24 and SA Taxi Securitisation (PTY) LTD
Media 24 published an article sharply criticizing the conduct of SA Taxi Securitisation (Pty) Ltd. and accusing it of, inter alia, "cheating taxi operators." SA Taxi thereafter brought suit against the news source and its editors for (1) general damages under the law of defamation (based on an actio iniuriarum) and (2) special damages (based on an actio legis Aquiliae for patrimonial loss).

The court unanimously held that a plaintiff who seeks to recover special damages for an allegedly defamatory statement must prove all elements of an Aquilain action. Since SA Taxi did not establish that the defamatory statements were false, it did not meet its burden of proof and could not succeed on the Aquilian claim.

With respect to general damages, the court debated the validity, extent and the form of such remedies in cases involving corporations accusing other entities of defamation. The amici curiae (including the Freedom of Expression Institute) argued that the protection granted by the law of defamation should not extend to corporations because this would inevitable have a chilling effect on the constitutional right to free expression and free press (see section 16 of the Constitution). While individuals have a simultaneous right to reputational dignity (see section 9 of the Constitution), which the law of defamation protects, juridical persons (such as corporations) do not suffer hurt feelings or reputational harms in the same way. Based on this proposition, the amici curiae argued that the growing power of corporations should be kept in check by allowing others to criticize without fear of litigious action.

The majority of the court disagreed, citing a long line of contrary precedent as well as the need to balance free expression with other fundamental concerns. Judge Brand also pointed to the modest amount of potential damages (R250 000) in support of his contention that defamatory actions would not chill speech or free press. Despite the majority's inclination to grant general damages in similar cases, it did not do so in this action, ultimately finding of the defendant.

The dissent did not agree that general damages should be awarded to corporations in defamatory claims. Instead, Judge Nugent contended that alternative remedies, such as retractions or apologies, should suffice in most cases. An award of general damages appears to be punitive, and thus, barred by South African law. To support his position, Judge Nugent pointed to the practices of other countries (e.g., Australia), which generally do not allow defamation claims to be brought by corporations.
Open/View PDF (Media-24-v-SA-Taxi-Securitisation-(PTY)-LTD.pdf)
July 05 2011 By Freedom Of Expression Institute media 24, SA Taxi securitisation