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.

Johncom Media Investment Ltd. v. M (CCT 08/08) [2009] ZACC 5 (17 Mar. 2009)
This case addressed the constitutional validity of section 12 of the Divorce Act of 1979 (hereinafter, "the Act"), which related to the "publication of information that comes to light during a divorce action." The application was initiated by the owners of the Sunday Times newspaper in response to an order preventing them from publishing a report from a divorce case (involving a man suing his ex-wife for damages for concealing the fact that he was not the biological father of her child). In reviewing the case, the High Court had found in favor of the applicant, in the process holding that section 12 of the Act was indeed constitutionally impermissible.

The Constitutional Court upheld this position since this provision limited the section 16 right to free expression unjustifiably and not in accordance with the section 36 justification clause of the Bill of Rights. Section 12 also did not fall within any of the explicit exceptions to freedom of expression delineated in section 16(2) of the Constitution (e.g., limitation on free expression, if it constitutes propaganda for war).
March 17 2009 By Bongani Phiri
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