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.
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