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.

Masetlha v. President of the Republic of South Africa
The President unilaterally removed Mr. Masetlha, the former Director-General of the National Intelligence Agency (NIA), was removed from this position, sparking a constitutional challenge to such unilateral removal.

The majority of the Constitutional Court found the removal to be constitutionally permissible when reading section 209 of the Constitution together with section 3 of the Intelligence Service Act. However, the Court simultaneously held that Mr. Masetlha needed to be restored to the state he would have been in, if he had not been dismissed from his post. The breakdown in the relationship between the President and Mr. Masetlha-precipitating the removal-prevented reinstatement as a viable remedy. The President should trust and be secure in his political appointments.

The minority of the Court disagreed with the majority, holding that, under the Constitution, the President must act fairly which precludes him from dismissing the Head of the NIA before the end of his term. Nevertheless, the minority also recognized the futility of reinstatement at this point because of the fractured relationship between the President and the former Director-General.
October 03 2007 By Freedom Of Expression Institute
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