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.

Independent Newspapers and Minister of Intelligence Services
The Independent Newspaper (Pty) Ltd. sought disclosure of procedural records in the Masetlha v. President of the Republic of South Africa matter. The newspaper attempted to join the Masetlha matter in order to gain access to written arguments filed by both parties; the Minister of Intelligence Services opposed to release of the documents citing national security concerns. Thereafter, the Independent Newspaper Ltd. brought an interlocutory appeal requesting copies of restricted document for the "limited purpose" of preparing its case, but the Minister again opposed this action.

The Constitutional Court, after careful consideration, denied the newspaper's interlocutory appeal. The majority of the Court acknowledged the right to "open justice." However, this right was not considered absolute since limitations could be levied on it, especially when balanced against national security concerns. The majority did release the whole of Mr. Masetlha on-camera affidavit, but denied the other requested documents.

There were a number of dissenting judgments, which favored release of the restricted documents over national security concerns. First, Yacoob J. ruled that the documents should be released to the public since the information which they contained was in the public interest. National security concerns could be effectively mitigated through further redaction of the documents. Second, Sachs J. emphasized the constitutional ideal of open justice to support his position to release the documents. He additionally warned against encouraging the secretiveness of intelligence agency, which marked the apartheid era. Third, Van der Westhuizen J. reached the same conclusion as Sachs J. and Yaccob J., but advocated for the use of the section 36 limitation clause of the Constitution to guide analysis of the limitation of the right to open justice.
Open/View PDF (Independent-Newspapers-v-Minister-of-Intellgience-Services.pdf)
May 22 2008 By Freedom Of Expression Institute
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