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.

Adrian Sissing and SA News Blog
Two news articles were published on the SA News Blog concerning Mr Adrian Sissing's alleged illegal business practice as a business broker. After the publishing of the two article Mr Sissing sent messages to the author of the articles threatening the author with legal action if the two articles are removed from the blog site. No official documents have been served yet.
FXI Objective: Media and Free Press
January 27 2017 By Freedom Of Expression Institute

Monametse/Mokotho Relocated Community
Moshabi Selowa ( FXN Limpopo) contacted us in November 2016 noting the difficulties he was facing from the resoponisble officer in the municipalaity. He notes that the group was attempting to arranage a protest and she was refsuing to release the notice form. She also took to attempt to mediate the matter ( which is not her role). Severals meetings were had with the min against whom the group souaght to protest howvere we await further instrauctions from moshabi on the way forward.
Freedom of Expression
November 20 2016 By Bongani Phiri

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

SATAWU and Moloto
Following an unresolved wage dispute, SATAWU (the recognized majority union) notified Equity Aviation Services (Pty) Ltd. that it intended to lead a strike. Sixty-three employees who were not SATAWU members also participated in the strike. In November 2004, Equity Aviation dismissed the non-union workers for their unauthorized absence during the strike. These employees argued that their dismissal was "automatically unfair" because it was based on their participation in a lawful strike. The case accordingly came to turn on how much notice an employer should receive prior to a strike in accordance with the procedural requirements of a lawful strike outlined in section 64(1)(b) of the Labor Relations Act 66 of 1995. Should every individual striker have to provide notice or was SATAWU's notice sufficient?

The majority of the court held that the notice provided by SATAWU sufficed since such an interpretation of s64(1)(b) best accorded with section 23 of the Constitution, protecting the right to strike without express constitutional limitation. Legislative limitations-for example, as delineated in s64-should be construed as narrowly as possible so as not to contravene the s23 right to strike. The majority opinion thus adopted a pro-employee stance, recognizing that the right to strike is designed to restore the power imbalanced between employee and employer.

The dissenting opinion interpreted the section as requiring each individual employee to notify employers of their intent to strike. Judge Maya supported her position by pointing to the need for strikes to be as orderly as possible to minimize disruption of the workplace and society as a whole.

The sharp division of the Constitutional Court demonstrated a significant ideological split on the power that should be accorded to unions and employees in the workplace.
Open/View PDF (SATAWU-v-Moloto.pdf)
September 21 2012 By Bongani Phiri sawatu, moloto

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

Afriforum and Julius Malema
Julius Malema, who at the time was the President of the African National Congress Youth League, led the singing/chanting of a former ANC "struggle song" entitled "Dubul'ibhunu" at various public events. Though there was some controversy as to the song's exact translation, its words were generally understood to mean "shoot the Boers/farmers, they are rapist/robbers!" Malema accompanied his singing with a gesture mimicking the shooting of a firearm. Afri-forum and Tau SA brought suit against him and the ANC, arguing that the song constituted hate speech under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Malema countered that the singing was within his right to freedom of expression under section 16(1) of the Constitution and that the allegedly offensive language alluded to destroying the apartheid regime, which his audiences would have understood.

Judge Lamont found for the complainants, banning Malema from singing "Dubul'ibhunu" thereafter in public or private. According to the court, the context in which the song was sung (at public events and political rallies with media presence), combined with the aggressive accompanying gesture, weighed in favor of a finding of hate speech. In his decision, J. Lamont also noted that the song likely had not comprised hate speech previously since the targeted group (Boers/Afrikaners) had not been aware of what the words meant; the subsequent translation and press coverage contributed to its "transformation" to hate speech. The reaction of the audience-in this case, the public at large-thus had significant ramifications for whether an expressive act constituted hate speech.
Open/View PDF (Afriforum-v-Julius-Malema.pdf)
September 12 2011 By Freedom Of Expression Institute

Media 24 and SA Taxi Securitisation (PTY) LTD
Media 24 published an article sharply criticizing the conduct of SA Taxi Securitisation (Pty) Ltd. and accusing it of, inter alia, "cheating taxi operators." SA Taxi thereafter brought suit against the news source and its editors for (1) general damages under the law of defamation (based on an actio iniuriarum) and (2) special damages (based on an actio legis Aquiliae for patrimonial loss).

The court unanimously held that a plaintiff who seeks to recover special damages for an allegedly defamatory statement must prove all elements of an Aquilain action. Since SA Taxi did not establish that the defamatory statements were false, it did not meet its burden of proof and could not succeed on the Aquilian claim.

With respect to general damages, the court debated the validity, extent and the form of such remedies in cases involving corporations accusing other entities of defamation. The amici curiae (including the Freedom of Expression Institute) argued that the protection granted by the law of defamation should not extend to corporations because this would inevitable have a chilling effect on the constitutional right to free expression and free press (see section 16 of the Constitution). While individuals have a simultaneous right to reputational dignity (see section 9 of the Constitution), which the law of defamation protects, juridical persons (such as corporations) do not suffer hurt feelings or reputational harms in the same way. Based on this proposition, the amici curiae argued that the growing power of corporations should be kept in check by allowing others to criticize without fear of litigious action.

The majority of the court disagreed, citing a long line of contrary precedent as well as the need to balance free expression with other fundamental concerns. Judge Brand also pointed to the modest amount of potential damages (R250 000) in support of his contention that defamatory actions would not chill speech or free press. Despite the majority's inclination to grant general damages in similar cases, it did not do so in this action, ultimately finding of the defendant.

The dissent did not agree that general damages should be awarded to corporations in defamatory claims. Instead, Judge Nugent contended that alternative remedies, such as retractions or apologies, should suffice in most cases. An award of general damages appears to be punitive, and thus, barred by South African law. To support his position, Judge Nugent pointed to the practices of other countries (e.g., Australia), which generally do not allow defamation claims to be brought by corporations.
Open/View PDF (Media-24-v-SA-Taxi-Securitisation-(PTY)-LTD.pdf)
July 05 2011 By Freedom Of Expression Institute media 24, SA Taxi securitisation

The Citizen and McBride
The Citizen 1978 (Pty) Ltd. v. McBride (CCT 23/10) [2011] ZACC 11 (8 Apr. 2011)
The Citizen newspaper printed a number of articles, dubbing Robert McBride (the respondent) a "murderer" and "criminal" for his role in the bombing of civilian locales as part of the ANC militant wing, Umkhonto we Sizwe. During the apartheid regime, McBride had been tried and convicted of murder, but later received amnesty as South Africa moved past apartheid and towards reconciliation. In 2003, McBride became a candidate for the position of chief of Ekurhuleni Metro Police and the Citizen responded with the allegedly offensive articles in opposition of his candidacy. McBride brought suit against the newspaper for defamation.
The newspaper faced a potential obstacle because of the grant of amnesty afforded to McBride, which according to the Reconciliation Act, expunged his conviction "for all purposes, including the application of any Act of Parliament or any other law." McBride contested the reference to him as a "murderer" as contravening the Act. The court thus considered the effect that the provision (which recognized that a conviction is deemed "for all purposes" not to have taken place) has on the law of defamation as well as public discussion of the conviction in newspapers or other mediums.
The FXI and SANEF intervened as amici curiae, arguing that the potential suppression of such speech violates the section 16 right to free expression and works against the primary objective of the Reconciliation Act: to promote truth-telling. The court agreed that the granting of amnesty did not shield the respondent from the public discussion of his former conviction; a grant could not erase the past and did not "change" historical facts. The court pointed to the DuToit decision to buttress their finding in the present case. The court also significantly suggested that South Africa was still exploring the concept of reconciliation and what it exactly entailed.
Once it established this portion of the case (that the newspaper could, in fact, print information about McBride's former conviction without contravening the Reconciliation Act), the Court next turned to the defamation claim levied by the respondent. While the Court believed that the Citizen's reporting was distasteful, it recognized that the coverage was generally not defamatory as a legal matter. However, the Court did take issue with the claim that McBride was not "contrite," pointing to McBride's testimony to the contrary. The demonstrable falsity of the allegations made the statement defamatory. In coming to this decision, the court weighed McBride's right to dignity (section 9) with the right to freedom of expression (section 16). The Court also rebuffed the notion that an apology was the appropriate remedy since it minimized the chilling effect of defamatory law had on free speech. Accordingly, it awarded a modest amount of R 50 000 to McBride.
Open/View PDF (The-Citizen-v-McBride.pdf)
April 08 2011 By Freedom Of Expression Institute the citizen , mcbride

Le Roux and Dey
This case concerns a sexually suggestive image created by one of the applicants and distributed by the others. The image involves two male bodybuilders sitting in a sexually explicit manner with the likenesses of the respondent, Dr. Dey (vice principal of the applicants' school), and the principal superimposed over the original faces. Dr. Dey brought suit against the applicants, all school children, for defamation. The boys countered that the picture was clearly meant as a joke, and thus, did not constitute defamation.

The Supreme Court of Appeals ruled against the applicants, upholding the judgment of the trial court. The court advanced a two-prong test for prima facie defamation: first, the court must consider the ordinary meaning-express or implied-of the defamatory depiction by a reasonable person; and second the judge must decide whether such a meaning is defamatory in nature (i.e., that it could injure the good esteem of an individual as determined by a reasonable person). Based on this test, applicants' image was found to be defamatory since a reasonable person would associate Dr. Dey with the image, subjecting him to potential ridicule. Though authority figures, such as teachers, should expect some jokes to be made at their expense, the image crossed a line in the eyes of the court. The court did not buy applicants' defense that a reasonable person would consider the picture to be a joke, stating that defamation and jokes were not mutually exclusive. Accordingly, a joke can still be defamatory.

Similar to the Afri-Forum v Malema decision, in which the Equality Court considered the reaction of the audience to weigh heavily in favor of a finding of hate speech, the Supreme Court of Appeals decided that the reaction of the defamed, in this case Dr. Dey, tipped the scale in favor of a finding of defamation. The intention of the accused defamer mattered little in comparison. Such a legal formulation is potentially problematic because it restricts free speech based on the reactions of others, which can be varied and unpredictable.
Open/View PDF (Le-Roux-v-Dey.pdf)
March 08 2011 By Freedom Of Expression Institute

Smit and 94.7 Highveld Stereo [2010] JOL 26581 (BCCSA)
The broadcaster was accused of perpetuating indirect hate speech by broadcasting a song using the word "moffie." Complainant lodged a suit against 94.7 Highveld Stereo before the Broadcasting Complaints Commission, claiming that it contravened section 16.3(c) of the Commission's Code, which protects against hate speech. Complainant was concerned that the song would lead to a rise in negative attitudes towards homosexuals, including "homophobic jokes, physical attacks, discrimination in the workplace and media representation." Smit was also apprehensive about the effect that the broadcast would have on children.

The tribunal disagreed with complainant, holding that contextual factors pointed to a lack of hate speech. The song was sung in a celebratory, jovial manner and used the term "moffie" in an "endearing" manner. Furthermore, the intention of the song and its broadcasting was "not to offend the listener" or to "perpetuate hostility." The target audience of the broadcaster was not children (most of whom would be at school during the broadcast) so concerns about their reactions was not legitimate.

The tribunal finally emphasized the broadcaster's section 16(1) right to free expression, which protects the content of broadcasting, as long as it does not constitute hate speech as defined in section 16(2)(c) and reflected in the Code.
June 20 2010 By Freedom Of Expression Institute

Albutt and Centre for the Study of Violence and Reconciliation and Others 2010 (5) BCLR 391 (CC)
In November 2007, President Mbeki instituted a special dispensation process to handle pardon applications for those individuals who did not participate in the Truth and Reconciliation Commission. The Centre for the Study of Violence and Reconciliation (with other NGOs) brought an application to delay the process since the participation of victims had not been secured. The High Court found in favor of the NGOs, deciding that the victims of the offences were entitled to tell their side of the story before pardon could be granted. The court based its decision on section 84(2)(j) of the Constitution, which it claimed required "procedurally fair requirements" set out in the Promotion of Administrative Justice Act, 2000 (PAJA)."

Mr. Albutt, who had sought pardon through this procedure, appealed the decision of the High Court to the Constitutional Court. The President and the Minister for Justice and Constitutional Development supported Mr. Albutt's case, stating that victims were not necessarily entitled to make representations before pardon was granted. The respondents (the NGOs) contended that like the Truth and Reconciliation Commission (TRC), the special dispensation process was based on the ideals of national unity and truth-telling. Accordingly, both sides of the story must be told.

The Court again found in favor of the NGOs, holding that the purported objectives of the special dispensation process aligned with those of the TRC. Victims should thus have the opportunity to make representations before pardon could be dispensed. The court decided this case on a unanimous basis.
Open/View PDF (Albutt-v-Centre-for-the-Study-of-Violence-and-Reconciliation.pdf)
February 23 2010 By Freedom Of Expression Institute

The Qwelane hate speech case is underway in the Johannesburg South Gauteng High Court wherein the respondents of the initial case have made an application to the high court challenging the constitutionality of Section 10 of the Equality Act, on which the case against Mr Qwelane was founded. Mr Qwelane was initially taken to court by the South African Human Rights Commission for hate speech. (FXI Amicus)FXI takes particular interest in this matter because it stands to define the very contentious parameters of hate speech in South Africa.
Open/View PDF (Qwelane-v-Minister-of-Justice-and-Constitutional-Development.pdf)
December 10 2009 By Bongani Phiri SAHRC, 44/2009

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

Out in Africa: South African Gay and Lesbian Film Festival v. Film and Publication Board (Jan. 2009)
The Out in African: South African Gay and Lesbian Film Festival (hereinafter, the "Film Festival") made an application to the Film and Publication Board to show a film entitled XXY. The film told the (fictional) story of Alex, an intersex individual with both male and female genitalia. At some point in the film, there is a simulated depiction of anal intercourse between Alex and a love interest, both of whom are under the age of eighteen in the film. A committee at the Film and Publication Board held that this portion of the film constituted child pornography, and accordingly, ordered all copies to be destroyed or turned over to the police.

The Film Festival approached the Board to rule on whether the film, in fact, constituted child pornography. The Board thus considered the definition of child pornography, considering Constitutional Court precedent in the De Reuck case, the language of the Film and Publication Act (outlawing the distribution of child pornography) and other relevant legislation. It concluded that the scene did not constitute child pornography. In its opinion, the Board issued some guidelines for assessing whether a film, photo or other expressive activity was child pornography, mandating that one should assess whether it was created primarily for aesthetic or erotic purposes. If created for erotic reasons, then the creation almost always constitutes child pornography; but if created for aesthetics, then contextual factors should be considered before qualifying a creation as pornographic.

In this case, the contextual factors pointed to this not being categorized as child pornography since the film was clearly aimed at fostering discussion, acceptance and tolerance.
January 01 2009 By Bongani Phiri

Mazibuko and City of Joburg
In this case, the applicants consisted of residents of Phiri, Soweto, who challenged the City of Johannesburg's policy of supplying six kilolitres of water per month for free. They argued that this policy violated section 27 of the Constitution, protecting the right of access to "sufficient" water. The applicants also questioned the legality of the installation of pre-paid water meters in lower income households.

The Constitutional Court did not find for applicants on either front. Justice O'Regen concluded that the right of access to sufficient water does not impose an obligation on the State to provide immediate access to water. Instead, the State is required to take reasonable legislative (and other) measures, based on its current resources, to achieve access to water progressively. The case thus turned on the "reasonableness" of the City's water policy.
The court found that under the circumstances, the City had acted reasonably in instituting its policy, despite obvious flaws (e.g., six kilolitres were dispersed regardless of household size, meaning that households with 1 person or 20 people received the same amount of free water). However, as Justice O'Regen pointed out, policy perfection is not the constitutional standard. The City must simply take reasonable steps to realize the right of access to sufficient water and continually evaluate its progress. The court judged the City as acting reasonably by (1) attempting to provide some sort of access to water to all residents and (2) by providing persuasive and intelligible reasons for not expanding this access. The introduction of pre-paid water meters was also found to be lawful for various reasons.

In its judgment, the Constitutional Court recognized the primacy of the legislative and executive branches in terms of policy-making. Though the judiciary retains the power to decide whether a certain policy is reasonable (or unreasonable), it generally may not formulate a replacement policy. Thus, the court seemed to suggest that even if it had found in favor of applicants, it would not have instituted a policy of providing 50 litres per person per day as requested.

Additionally, the judgment is important because the court recognized the democratic value of litigation on social and economic rights for holding the State accountable to its citizenry. While the present litigation was ultimately unsuccessful, it still forced the City of Johannesburg to re-evaluate and re-fashion its policies surround water rights.
Open/View PDF (Mazibuko-v-City-of-Joburg.pdf)
October 08 2008 By Freedom Of Expression Institute City of Joburg, Mazibuko

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

MEC for Education: Kwazulu-Natal v. Pillay (CCT 51/06) [2007] ZACC 21 (5 Oct. 2007)
Sunali Pillay, a student at Durban Girls' High School and a practicing Hindu, wore a small nose stud to school. Her school concluded that she should not be allowed to wear the stud since it was allegedly disruptive and against the dress code. Thereafter, Pillay brought suit before the Equality Court, alleging unfair discrimination, which violated her cultural and religious rights.

The Equality Court disagreed with Pillay, finding that the school's conduct did not constitute unfair discrimination. On appeal, the High Court overturned the Equality Court's decision, holding that the prohibition on nose students in school was null-and-void as the rule was discriminatory to Hindu/Indian students. The MEC for Education appealed the decision to the Constitutional Court, which upheld the position of the High Court. The Court decided that the rule against nose studs comprised indirect discrimination because it "allowed certain groups of students to express their religion/culture freely while denying that same right to others."

Though the wearing of nose studs was voluntary in the Hindu religion/Tamil culture, both obligatory and voluntary practices qualified for protection under the Equality Act. Schools (and similar institutions) should foster and allow for diversity in this case by permitting nose studs to be worn. Such acceptance would not lead to unnecessary disruption in learning environments as contended by critics.
October 05 2007 By Freedom Of Expression Institute

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

Timile and Radio 702
The complainant made a claim that a certain debate on radio regarding the canning of a controversial film from being broadcasted by the SABC. The complaint claimed that the debate that was had on the radio broadcast was unbalanced and biased. The complainant claimed that the since the matter of canning of the film was of importance, the debate that was had on radio should have balanced out by having conflicting views on the matter. The complainant claimed that there was only one view that was expressed and not alternative or contrary views were allowed on the show
The Commission held that the "canning" of the film was of interest of the public but not of public importance, secondly the complaint was not based on the "canning" of the film but of the debate that was had subsequent to the canning. The Commission held that different views was allowed on the show, as people could call in and stipulate their views. The Commission held that there was a sufficient balance of different views on the show and absolute balance would be impossible to achieve. The complaint was dismissed.
Open/View PDF (Timile-v-Radio-702.pdf)
June 21 2007 By Freedom Of Expression Institute radio 702, timile

NM/Others and Smith /Others (Freedom of Expression Institute as Amicus Curiae) 2007 (7) BCLR 751 (CC)
Three HIV-positive women brought suit against respondents for printing their names in a biography about Mrs. de Lille without proper consent. Applicants' names were published in a report (the "Strauss report"), which was circulated to a number of individuals including Mrs. de Lille; Mrs. Smith had then published the names in her book as found in the report. In publishing without explicit consent, applicants contended that respondents had violated their rights to privacy (section 14) and dignity (section 10). Though applicants originally pursued an interdict against further publication, they quickly dropped this request. Instead, they sought removal of their names from future versions and damages before the Johannesburg High Court.

The High Court refused to find for applicants on this point, holding that respondents were not negligent for publishing applicants' names in the first place. However, once the applicants' displeasure became known, respondents had acted unlawfully by continuing to publish their names, violating their rights to privacy and dignity. Damages were thus awarded for this offence.

Applicants appealed up to the Constitutional Court, which brought back a fragmented decision. The Freedom of Expression Institute intervened as amicus curiae, arguing that negligence as a ground for fault would limit the right to freedom of expression in violation of the section 36 constitutional justification clause. The Court disagreed with this argument (and respondents' other arguments), holding that respondents were aware of the lack of express consent. The fact that they had printed their names constituted an explicit violation of their right to dignity/privacy. Furthermore, the court decided that there was not a compelling public interest reason for doing so, and thus, the right to freedom of expression could not act as a "defence" of sorts. Essentially, unless public interest concerns were significant, publication of intimate details (like HIV status) should not be permitted without explicit consent.

Various other justices concurred and dissented in part with the majority's judgment. Significantly, O'Regan J. (dissenting) stated that the right to privacy in this context had to be balanced with the right to free expression. Based on the factual scenario, the publication of the names was neither negligent or intentional.
January 20 2007 By Freedom Of Expression Institute