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.

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
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