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.

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