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.
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