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.

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