LU4

Political & Process Rights

 Theme 1: The right to freedom of
expression
• LO1: State the two main reasons that justify the importance of the
right to freedom of expression in South African constitutional
democracy
• LO2: Apply the provisions of the right to freedom of expression to a
set of facts with reference to relevant case law
LO1: State the two main reasons that justify the importance of the right to freedom of expression
in South African constitutional democracy

Freedom of expression:
1. Contributes to the goal of establishing a democratic
society
2. Constitutes an important aspect of what it is to be
human
o It empowers individuals, bestows a certain agency on us and
helps us to make informed and hopefully wise life-choices and to
decide for ourselves who we are and how we want to live our
lives
 LO2: Apply the provisions of the right to freedom of expression to a set of facts with reference to relevant case law

16: Freedom of expression

(1) Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.
 LO2: Apply the provisions of the right to freedom of expression to a set of facts with reference to relevant case law … (2)

S v Mamabolo (2001):
• The Constitutional Court of South Africa ruled that the conviction and sentence of
the appellant for contempt of court was unconstitutional. The appellant, Russell
Mamabolo, a spokesperson for the South African Department of Correctional
Services, was quoted in a newspaper as saying that a High Court Judge had “made
a mistake” in granting a right-wing leader bail.
o The Constitutional Court reasoned that the contempt of court offence was a justifiable
limitation to the right to freedom of expression if it was interpreted narrowly
• However, in this case the summary procedure adopted by the High Court judge was an infringement of
Mamabolo’s right to a fair trial, and that, in any event, the statements made by Mamabolo did not
constitute contempt
• CC: ‘the public interest in the open market-place of ideas is all the more
important to us in SA because our democracy is not yet firmly established and
must feel its way’.
LO2: Apply the provisions of the right to freedom of expression to a set of facts with reference to relevant case law … (3)

Laugh It Off Promotions v SAB (CC in 2005):

T-shirt maker Laugh It Off has won its fight against South African Breweries (SAB) over its right to mock the Carling Black Label
brand. Justice Dikgang Moseneke, handing down a unanimous judgement in the Constitutional Court on Friday, found that SAB had
not proved that Laugh It Off had infringed on the brewery’s trademark with the message on its T-shirts. Laugh It Off had substituted
the words “America’s lusty, lively beer, Carling Black Label beer, enjoyed by men around the world” with “Black Labour White Guilt,
Africa’s lusty lively exploitation since 1652, no regard given worldwide”.

• The case boiled down to balancing the right to freedom of expression guaranteed in the Constitution and the right to protect a
trademark
• Justice Moseneke said SAB had failed to show a real or even probable likelihood that the T-shirts had economically harmed the
Carling Black Label brand. This was necessary in light of the Trade Marks Act which protects the trademark’s selling power rather
than its dignity. “There is not even the slightest suggestion that, from the time the T-shirts saw the light of day to the date the
interdict proceedings were launched, there had been a real possibility of a reduction of its [Carling Black Label’s] market
dominance or compromised beer sales,” Moseneke said. Only a few hundred T-shirts appeared to have been sold, which was
“negligible”, he said. He compared this with SAB’s “awesome marketing machinery bolstered by impressive advertising spend on
every conceivable medium”. He also said the right to freedom of expression should not be “lightly trampled upon”.
LO2: Apply the provisions of the right to freedom of expression to a set of facts with reference to relevant case law … (4)

In a concurring judgement, Justice Albie Sachs said: “The evidence indicates that everybody concerned with the T-shirts, whether producer or
consumer, knew that they were intended to poke fun at the dominance exercised by brand names in our social and cultural life.” He said the over-
zealous application of the trademark law could have a detrimental effect on the free circulation of ideas.

Sachs also warned that big companies attempting to block free speech could do themselves more damage than good “... in the present matter
simply bringing proceedings against Laugh It Off risked being more tarnishing of Carling Black Label’s association with bonhomie and cheerfulness
than the sale of 200 T-shirts could ever have done,” Sachs said.

The dispute began in 2001 when SAB found that Laugh It Off was producing and selling the T-shirts. The company won an interdict in the Cape
High Court, stopping Laugh It Off from using the trademark. The T-shirt maker appealed to the Supreme Court of Appeal, which found in favour of
SAB, saying the T-shirt’s message could take unfair advantage of, or cause detriment to, SAB’s trademark. Laugh It Off then took its case to the
Constitutional Court, where the court found in its favour and ordered SAB to pay the costs of the legal action.

The T-shirt company’s founder Justin Nurse said he was very happy with the judgement. “It’s cool,” he said. Nurse said Laugh It Off had another 1
000 Black Labour T-shirts that it would auction off on its website. It would donate the proceeds to an anti-alcohol abuse charity. “And that will be
the end of Laugh It Off,” Nurse said, adding that he was now doing “nothing”.

Source: https://mg.co.za/article/2005-05-27-laugh-it-off-wins-case-against-sab
LO2: Apply the provisions of the right to freedom of expression to a set of facts with reference to relevant case law … (5)

De Reuck v Director of Public Prosecutions (CC in 2003):

• De Reuck, a film producer, was found in possession of child pornography and charged under
section 27(1) of the Film and Publications Act
• The CC first decided that pornography (even child pornography) was protected speech (it was
not one of the forms excluded from protection under section 16(2) of the C)
• However, in the second stage of this enquiry the CC found that the infringing legislation (the
Act) was indeed a reasonable and justifiable limitation of the right to freedom of expression for
these 3 reasons:
1) Limiting the right to possession of child pornography is not particularly serious
2) Purpose of section 27(1) of the Act was important – child pornography is harmful to children and
undermines their dignity etc.
3) Procedures are available whereby a person could receive permission to possess such pornography for
legitimate reasons
 Theme 2: Freedom of the press and other
media
LO1: Relate the role of the press and other media in a democratic society
to the right of freedom of expression
LO2: Compare the views of the Constitutional Court on the right to
freedom of expression in regard to the media and press concerning access
to court proceedings, divorce proceedings and broadcasting thereof
LO3: Explain the position of the Constitutional Court on the right to
freedom of expression and prior restraints on the media and the press
LO4: Assess the scope and extent of hate speech insofar as it pertains to
freedom of expression and its limitation under the right to freedom of
expression
 LO1: Relate the role of the press and other media in a democratic society to the right of freedom of expression

Khumalo and Others v Holomisa (CC in 2002):

• In a democratic society, then, the mass media play a role of undeniable importance.
They bear an obligation to provide citizens both with information and with a platform
for the exchange of ideas which is crucial to the development of a democratic culture.
• As primary agents of the dissemination of information and ideas, they are, inevitably,
extremely powerful institutions in a democracy and they have a constitutional duty to
act with vigour, courage, integrity and responsibility.
• The manner in which the media carry out their constitutional mandate will have a
significant impact on the development of our democratic society. If the media are
scrupulous and reliable in the performance of their constitutional obligations, they will
invigorate and strengthen our fledgling democracy. If they vacillate in the performance
of their duties, the constitutional goals will be imperilled. The Constitution thus asserts
and protects the media in the performance of their obligations to the broader society,
principally through the provisions of section 16.
LO1: Relate the role of the press and other media in a democratic society to the right of freedom of expression … (2)

Khumalo and Others v Holomisa (CC in 2002) … more

Suit for defamation by public politician against newspaper. Appellants asked
for the common law rule on defamation to be developed to allow the action
to lie only if the article was false …
O'Regan J writing for a unanimous Court found that the common law rule
developed by the Supreme Court of Appeal that a publisher could avoid
liability where it could not prove that the statement was true but it could
establish that publication was nevertheless reasonable struck an appropriate
balance between the right to freedom of expression and human dignity.
LO2: Compare the views of the Constitutional Court on the right to freedom of expression in regard to the
media and press concerning access to court proceedings, divorce proceedings and broadcasting thereof

SABC v NDPP (CC in 2006):

• Request by the SABC for permission to broadcast live on radio and television high-
profile criminal appeal in SCA with potential political consequences. Majority the CC
dismissed these claims. While right to a fair trial and SABC’s right to freedom were
obviously important, the key issue in the case was not about those rights, but rather
about the public’s right to be informed how the judiciary operates – e.g. to prevent
courts from abusing their power. However, CC in this case said it would not interfere
with SCA’s discretion in this regard (unless the SCA was abusing its power or
misdirecting itself etc.)
• This decision struck a proportionate balance between the SABC’s right to freedom of
expression and the SCA’s obligation to ensure that appeal proceedings are fair
• Public access to the courts may be limited provided such limitation is reasonable and
justifiable
LO2: Compare the views of the Constitutional Court on the right to freedom of expression in regard to the media
and press concerning access to court proceedings, divorce proceedings and broadcasting thereof … (2)

Access to divorce proceedings:

• In 2008 section 12 of the Divorce Act was declared unconstitutional by the High Court in Johncom
Media Ltd v M and later confirmed by the Constitutional Court
• The case involved, in essence, the competing constitutional rights to privacy, human dignity, and
freedom of expression and had been referred to the Constitutional Court (CC) for confirmation of
the court a quo's finding that section 12 is unconstitutional
• The CC found that section 12 did not fall into any of the exceptions set out in section 16(2) of the C.
and that the section therefore infringed on the freedom of the media
• The key question was: did the infringement satisfy the requirements of the limitation clause
• The CC decided that the requirements of the limitations clause were NOT satisfied:
o Section 12 was too broad – and intruded on the principle of open justice
o Section 12 did not achieve its purpose – because it allowed publication of the identities of the divorcing people
• Remedy: CC declared section 12 of the Divorce Act invalid and issued an order prohibiting
publication of the identities of divorcing spouses
LO3: Explain the position of the Constitutional Court on the right to freedom of expression and prior restraints on the media and the press

Print Media South Africa (CC in 2012)

• The Films and Publications Amendment Act (the Act) required all publishers of material that
“contains” sexual conduct, advocated propaganda for war, incited hatred or advocated
violence to submit their publication for examination before publication (para. 14). An
administrative board was empowered either to ban the publication, to impose restrictions on
its distribution (such as an adult-only limit) or permit its free distribution following
examination (para. 15). The Act therefore established a regulatory system of prior restraint
o The Constitutional Court of South Africa, confirming the High Court’s ruling, held that legislative
provisions in the Films and Publications Amendment Act, 2009 - which required publishers to submit
publications containing certain categories of “sexual conduct” for examination before publication - were
unconstitutional
o The Court reasoned that the administrative prior classification provided for under the Act amounted to a
form of prior restraint which is a drastic interference with freedom of speech that should only occur
where there is a substantial risk of grave injustice which was not the case here where less restrictive
means (such as an interdict) could be employed
o Accordingly, the Act’s prior classification system was an unjustifiable limitation of the right to freedom
of expression
LO4: Assess the scope and extent of hate speech insofar as it pertains to freedom of expression
and its limitation under the right to freedom of expression

• Jurisprudence confirms that it would be impossible to judge whether a

specific statement constitutes hate speech without reference to the broader
context within which the statement was made
• Certain types of hate speech are already excluded from C. protection in
terms of section 16(2)
• Other types of hate-speech would first have to be found to constitute
advocacy of hatred on one of the listed (section 9) grounds
o And also constitute the incitement to cause harm
• Section 10 of the Equality Act (aka PEPUDA) also contains a general
prohibition of hate speech which is broader than section 16(2)
o Section 10 now also prohibits hate speech w.r.t. ALL prohibited grounds
LO4: Assess the scope and extent of hate speech insofar as it pertains to freedom of expression and
its limitation under the right to freedom of expression … (2)

Once a listed ground is determined, then …

• Question is whether the speech could reasonably be construed to demonstrate
a clear intention to be hurtful, harmful or to propagate hatred
o Test is objective: What would the reasonable person have thought of the speech?
• The subjective question (intention of the speaker) therefore must be
determined using an objective test (the reasonable bystander – who should
also be someone who understands the nature of the constitution, the
importance of robust debate in a constitutional state etc.)
o Would therefore need to look at the speaker, the context etc.
• What is required is to determine whether a reasonable person could have
believed that the speaker had the intention to hurt the targeted group or to
incite harm against the group
LO4: Assess the scope and extent of hate speech insofar as it pertains to freedom of expression and
its limitation under the right to freedom of expression … (3)

Afri-Forum v Malema (Equality Court, 2011):

• In this case, the Equality Court considered whether the song ‘shoot the
Boer, shoot the farmer’ constituted hate-speech
o Court found that it did and that Mr Malema be interdicted
• ‘It may be accepted that the reasonable person must be contextualised
and that one is not concerned with a purely abstract exercise. One must
have regard to the nature of the audience … each meaning must be
considered and be accepted as a meaning … if the words mean different
things to different portions of society, then each of these meanings
must be considered …’
 Theme 3: The rights to freedom of
assembly, demonstration, picket and
petition
• LO1: Identify the goals of the right to freedom of assembly with
reference to relevant case law
• LO2: Discuss the scope of section 17 of the Constitution, 1996
• LO3: Distinguish between assemblies, demonstrations, pickets and
petitions
• L04: Apply the obligations imposed by the Regulation of Gatherings Act
205 of 1993 and principles on liability for damage caused during a
gathering to a factual scenario
Section 17: Assembly, demonstration, picket
and petition:
Everyone has the right, peacefully and
unarmed, to assemble, to demonstrate, to
picket and to present petitions.

Section 18: Freedom of association:

Everyone has the right to freedom of
association.
 LO1: Identify the goals of the right to freedom of assembly with reference to relevant case law

South African Transport and Allied Workers Union (SATAWU) v Garvas (CC in 2012):
• The right to freedom of assembly is central to our constitutional democracy. It exists primarily
to give a voice to the powerless. This includes groups that do not have political or economic
power, and other vulnerable persons. It provides an outlet for their frustrations. This right
will, in many cases, be the only mechanism available to them to express their legitimate
concerns.
• Indeed, it is one of the principal means by which ordinary people can meaningfully
contribute to the constitutional objective of advancing human rights and freedoms.
• This is only too evident from the brutal denial of this right and all the consequences flowing
therefrom under apartheid. In assessing the nature and importance of the right, we cannot
therefore ignore its foundational relevance to the exercise and achievement of all other rights.
• Also: develops everyone’s unique personality – in the context of our communities, activities
culture etc.
o Although arguably should be limited to political spheres?
LO2: Discuss the scope of section 17 of the Constitution, 1996

17: Assembly, demonstration, picket and petition

• Everyone has the right, peacefully and unarmed, to
assemble, to demonstrate, to picket and to present
petitions
• Assemblies that are therefore not peaceful or that are
armed are therefore excluded from the scope and ambit of
section 17
o The requirement that a protected assembly must be peaceful and
unarmed thus serves as an internal modifier limiting the scope of the
right itself
LO3: Distinguish between assemblies, demonstrations, pickets and petitions

Assembly:
• There is no definition of ‘assembly’ in the Constitution
o Generally, assembly occurs when people meet in public or private, and remain together for a collective purpose
• There must have been intention to meet, and not coincidence
• The purpose may vary: political, economic, etc.
• Opinions need not be formed or expressed

Demonstrations and pickets

• These are manifestations of assemblies
• They are usually aimed at expressing a point of view
• It is necessary to distinguish between demonstrations and gatherings
• This is important for notice purposes
• See the Gatherings Act (discussed LO4 below)
LO3: Distinguish between assemblies, demonstrations, pickets and petitions

Pickets
• Mostly common in labour disputes
• The LRA also provides protection

Petitions
• Making submissions to relevant persons or institutions
• Read together with sections 56 (Parliament) and 115 (Provincial
legislatures) of the Constitution
 L04: Apply the obligations imposed by the Regulation of Gatherings Act 205 of 1993 and principles on liability for damage caused during a gathering to a factual scenario

• The Gatherings Act regards demonstrations as a RIGHT

• The Act represents a compromise between the old order (e.g. Riotous Assemblies Act and
Internal Security Act) and the new C. order
• Seven-day notice period, for example
• Basic premise, however, is that everyone has an IN PRINCIPLE right to assemble etc.
• And that authorities must facilitate this right – including through negotiations with the
organisers
• A gathering or protest may only be prohibited in extreme cases
• Where there is credible information that demonstration etc. may lead to damage and injury etc.
• The Act also imposes joint and several liability on the organisers of a demonstration or
gathering for riot damage caused by the participants in the demonstration or gathering
 L04: Apply the obligations imposed by the Regulation of Gatherings Act 205 of 1993 and principles on liability for damage caused during a gathering to a factual scenario

South African Transport and Allied Workers Union (SATAWU) – case:

• The South African Transport and Allied Workers Union (SATAWU) had organised a gathering of thousands of people through
the City of Cape Town to register employment-related concerns. Some 50 people had lost their lives in the course of SATAWU’s
protracted strike action before the gathering. During the gathering, much property including private property was damaged.
• In response to a claim for damages made by people who claimed that they had suffered loss as a result of the gathering,
SATAWU challenged the constitutional validity of the law that imposed liability on organisers. The Union contended that the
defence allowed by the law is non-existent and unjustifiably limits the right to freedom of assembly in the Constitution.
• In a majority judgment, Mogoeng CJ held that the law aims to afford victims effective recourse where a gathering becomes
destructive and results in injury, loss of property or life.
• The majority held that the defence provided for by the law is viable and that the limitation on the right to freedom of
assembly in section 17 of the Constitution is reasonable and justifiable, because it serves an important purpose and
reasonably balances the conflicting rights of organizers, potential participants and often vulnerable and helpless victims of a
gathering or demonstration which degenerates into violence.
• Mogoeng CJ emphasised that the reasonable steps taken on the one hand and reasonable foreseeability on the other hand
were inter-related.
o Organisers are obliged at all times to take reasonable steps to prevent all reasonably foreseeable conduct that causes damage and the
reasonable steps must be of the kind that render the conduct causing damage unforeseeable.
• For these reasons, the majority dismissed the appeal.
• In a concurring judgment, Jafta J reasoned that the appeal should be dismissed, on the basis that SATAWU had failed to prove
that the law limits the right to freedom of assembly, or that the defence that it creates is irrational.
 Theme 4: Political Rights
• L01: Discuss the manner in which political rights in terms of section 19
allow one to participate in the activities of a political party
• L02: Evaluate the relevance of political party funding in light of section
19
• L03: Interpret the scope of the right to free, fair and regular elections
in accordance with section 19
• L04: Examine the right to vote in light of its scope and regulation, with
reference to relevant case law
• LO5: Elaborate on the constitutional validity in relation to categories
of individuals excluded by Parliament from the right to vote
Section 19: Political rights
(1) Every citizen is free to make political choices, which includes the right
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections for any
legislative body established in terms of the Constitution.

(3) Every adult citizen has the right—

(d) to vote in elections for any legislative body established in terms of the
Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.
L01: Discuss the manner in which political rights in terms of section 19 allow one to participate in the activities of a political party

• A range of political rights are included in the Constitution

• They are important in a system of representative democracy
• Political rights are available to citizens only
• Rights are not limited to party politics only; social movements, and other
citizen activism are included
• There is no regulation of internal party politics in the Constitution
o Members of a political party have a right to participate in the activities of the party
o A right is enforceable even against interference from within the party
o There is no regulation as to how members should participate in their activities as
members
o Parties themselves are to determine this, but must be within the confines of the
Constitution
L01: Discuss the manner in which political rights in terms of section 19 allow one to participate in the activities of a political party … (2)

• There are no significant constitutional provisions regulating

the internal affairs of parties
oThese are largely based on common law principles
• These are viewed as a voluntary association
• The Electoral Act, and the Electoral Commission Act,
regulate the manner of participation in elections
oRegistration, submitting candidates, etc.
L02: Evaluate the relevance of political party funding in light of section 19 … (3)

State funding for political parties

• National legislation must provide for the funding of political parties
• The Public Funding of Represented Political Parties Act
o This is to enhance multi-party democracy
• Parties are free to raise their own funds
• See the Institute for Democracy in SA-case on the disclosure of funding by political
parties
o High Court held that PAIA does not impose obligations on political parties to provide the
public with information about the private donations received
o High Court preferred to classify political parties as private instead of public bodies
o Applicant could therefore only access info on donations if it could show that this
information was ‘required for the exercise or protection of a right’
• See par 2 on page 567 for more
 L03: Interpret the scope of the right to free, fair and regular elections in accordance with section 19

• The right to free, fair and regular elections

o Closely related to the right to vote
• Positive obligation imposed on the state to ensure this right is fulfilled
o See August-case (page 569 of TB)
• The CC held that the Electoral Commission had a duty to ensure the registration of these prisoners so as to enable them to
exercise their political rights
• Compare NICRO case …
• The power to organising elections is to be vested in an independent body (the Electoral
Commission)
• Must have both financial and administrative independence
• Only those entitled to vote must vote once
• Free and fair election also encompasses the ability of parties to campaign, and free treatment in
the media
• No intimidation for voters, etc.
• Duty rests on the State to realise
L04: Examine the right to vote in light of its scope and regulation, with reference to relevant case law

The right to vote

• Every adult citizen has this right; S 19(3)
• Must have registered to vote
• Closely intimate with the value of human dignity
• Other limitations of citizens are contained in the Electoral Act
• The limitations are subject to the limitation clause
• Parliament may also pass legislation to regulate the manner to exercise the right, or to exclude certain
categories from voting
o Must be in line with the limitation clause
• See the NICRO v Minister of Home Affairs-case
o In the NICRO case, a legislative provision, the Electoral Law Amendment Act of 2003, effectively prevented certain
classes of convicted prisoners from voting
o Applicants argued that the act unjustifiably infringed on their right to vote
o CC accepted this argument
• Unlike the August-case, this case dealt with legislation
• Study pages 574-575 in TB for more
LO5: Elaborate on the constitutional validity in relation to categories of individuals excluded by Parliament from the right to vote

The right to stand and hold office

• Adult citizens also have a right to stand for, and, if elected, hold, office
• Some citizens, however, are not eligible to be Members of Parliament, or
of provincial legislature
o For reasons of mental instability or insolvency, for example
o Read sections 47(1) and 106(1) of the C.
• Others may also lose their membership
o When their party does less well in the elections or they are removed from their
party’s lists or is absent from Parliament for an extended time
o Read sections 47(3) and 106(3) of the C.