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.

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