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.

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