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.

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

Manuel v. Crawford-Browne (2471/08) [2008] ZAWCHC 13 (3 Mar. 2008)
Mr. Manuel brought a defamation suit against Mr. Crawford-Browne, a prominent campaigner against an arms deal completed by Mr. Manuel in his role as Minister of Finance. The defamatory comments alleged extreme misconduct, including tax evasion and corruption, and stated that Mr. Manuel had "prostituted himself for the sake of political perks and power."

The Court noted that, as in all defamatory cases, two rights had to be balanced-dignity (section 10 of the Constitution) and freedom of expression (section 16 of the Constitution). While the Judge emphasized that freedom of expression should not be limited lightly, the Minister was still entitled to protect his reputation. The repetitive nature of the respondent's attacks seemed to sway the Court towards finding Mr. Crawford-Browne's statements as defamatory. The Court rejected the notion that an apology constituted sufficient remedy pointing to the aggressiveness and repetitiveness of the respondent in his attacks against the appellant. The Court ordered the respondent to cease making similar statements and to remove all allegations from his website accusing appellant of corruption or other criminal conduct.
March 03 2008 By Bongani Phiri

Kerr Luzoko Hoho and the State
Mr Hoho was convicted of criminal defamation in 2005 in the Bhisho High Court. This was confirmed by the SCA in 2008. Mr Hoho would however like to appeal the conviction and has approached FXI to assist. We approached counsel to prepare a legal opinion on the viability of such an action.
January 05 2008 By Bongani Phiri