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Bill or Rights Cases: Test #2 (Freedom of Expression (SAHRC v Khumalo …
Bill or Rights Cases: Test #2
Freedom of Expression
South African National Defence Union v Minister of Defence :star:
Freedom of expression is instrumental in guaranteeing democracy
It implicitly recognises the recognition and protection of the moral agency of individuals in our society
FOE is also one of part of a web of mutually supporting rights
Dignity, freedom of religion belief and opinion, freedom of association, right to vote, right to assembly
Islamic Unity Convention v Independent Broadcasting Authority :star:
About clause 2(a) of the Code of Conduct for Broadcasting Services
Prejudicing relations between sections of the population
Doesn't fall within s16(2) because it doesn't require that the expression should amount to hatred, nor that it should have the potential to cause harm
Therefore, must look at s 36(1)
Found that Clause 2(a) is inconsistent with the const
Pluralism and broadmindedness that is central to a dem can be undermined by speech that threatens dem pluralism
Some expression can harm both the right to dignity of others, and the state pursuit of national unity
SAHRC v SABC :star:
One about the song which was hateful to Indian people
Mentions
Jersild v Denmark
:star:
The test for hate speech is objective - ie doesn't matter that the writer's voice says that the purpose of the song is for true reconciliation
Harm as required by the hate speech clause?
The likelihood of a real attack is irrelovant
There would be a likelihood of fear
Based on a reasonable inference based on the lanugae in the long
Therefore, broadcast of the song contravened the broadcasting code and amounted to hate speech
The broadcast was in the ambit of a bona fide current affairs programme
In public interest to hear, therefore complaint against radio station not upheld
S Lubbe and L Moyse vs 94.7 Highveld Stereo :star:
Wackhead called people from Brakpan "white trash"
Found that this did not amount to hate speech
Because did not meet advocacy and incitement requirement of S 16(3)(b)
Found that did infringe on dignity and therefore constitutes an abuse of expression
SAHRC v Khumalo
:star:
About the "kill all whites like Hitler did" comments
Khumalo argued that the comments were so hyperbolic that they could not be interpreted as incitement by a reasonable person
But the actual message is still clear: white people should be shunned and are less deserving of respect
Who is a reasonable person in this context?
Any reasonable person, not necessarily of the group being targeted
They would not share the views of Khumalo, but it's about whether they would perceive the comments to be an incitement of harm
Objective test
The type of harm envisaged is not only physical harm. Can be divided into 2 groups:
1) The group of those who share the views of Khumalo, who would also likely shun whites as a result of this
2) The victim group. This is not about their psychological harm (because this can occur without incitement) but rather the likelihood of retaliation - K says his comments were in response to the Penny Sparrow comments in the first place. This can lead to a 3rd harm to social cohesion
The potential for social harm means that it doesn't matter who is making the utterances. Ie. even if it is a formerly-oppressed person against a former-oppressor
There can be no defence for hate speech: if a person is found to have made utterances which constitute hate speech, they are liable
Hate speech is covered by Section 10 of PEPUDA
Matter referred to the NPA
Holomisa v Argus Newspapers :star:
One justification for free speech is not limited to its consequences, but rather based on the fact it is an essential and constitutive element of a just democratic society
In which the government treats all its members as responsible moral agents
Role of the media plays a particularly important role in democracy
Which is expressly recognised by s 15 of the constitution
Freedom of Assembly
SATAWU v Garvas :star:
About s 11(2) of the Regulation of Gatherings Act
SATAWU wants to make the words "and was not reasonably foreseeable" constitutionally invalid
On the grounds that this infringes on the right to assembly under section 17 of the constitution
Apps say it is irrational
Because it is irrational to expect org to take all reasonable steps to prevent damage which is not reasonably foreseeable
Therefore, section 11(2)(c) can never find application
BUT, the word "and" between the subsections must mean that the ordinary meaning is given, which avoids absurdity
Once all reasonable steps have been taken, damage is no longer foreseeable
This act goes further than regulating, it actually facilitates the realization of this right
This will limit the right because it will be more expensive to organise protests, and may have to cancel protests if there is a likelihood that they could become violent
Is this limitation justified?
Freedom of assembly is important because it gives voice to the powerless
Can't be limited without a strong justification - but this is a strong justification
It protects members of society - esp those who don't have the resources to pursue those who damaged their property themselves
The organisers are jointly liable with those who did the actual damage - who they have a better chance of being able to track
There is a close link between the limitation and the justification and there are no other less restrictive means
The wording of section 17 is generous: it would be difficult to interpret it to mean something less than what the wording promises
However, it is a requirement that this right must be exercised peacefully. If not, don't have constitutional protection
Mlungwana v S :star:
About Section 12(a) of the Gatherings Act which makes a convener criminally liable when they don't give notice to a local municipality when convening a gathering of more than 15 people
Under section 13(3), deemed to be a convener if:
Had any part in the planning of the event
Invited the public to attend
Notice must be given in writing 7 days before and contain loads of details
Can raise defense of spontaneous gathering
Police have lots of powers over gatherings even if they have not been notified
Convener is already held liable for any riot damage as a result of the gathering
Rebuttable presumption that they acted unreasonably if there is riot damage
This is a less restrictive means
Freedom of Assembly is a particularly important right for children, who have no other means of participating in public life
Respondents say that the purpose of the limitation is to ensure peaceful protests (to give police enough time)
Because of lack of resources
Although a lack of resources is not normally enough on its own to justify a limitation of a const right
Esp when the state hasn't actually shown that the costs will increase if this is declared unconstitutional
Limitation is very severe for 4 reasons
1) the definition of both 'gathering' and 'conveners' are overly broad
This means that even things that have no impact on public order (ie. gathering of a church in a public place with discussion of important issues) will count as gathering
People who had very limited involvement will be liable
2) Criminalisation has calamitous effect on the lives of those found guilty
Even if not convicted, fear of being arrested
If convicted, on record for 10 years
3) General deterrence against convening at all (even if lawfully) because don't want to behave in the same way as criminals
4) No differentiation between adults and children is made
Meaning that children may also be exposed to the criminal justice system
The limitation is neither necessary nor sufficient for the purpose of ensuring peaceful protests
Declared unconstitutional
Hotz v UCT :star:
CC agrees with what SCA said: can't interdict students from going onto campus
Interfered with SCA costs award
General rule: unsuccessful litigants against the state should not be required to pay costs because this can have a chilling effect on rights vindication through courts
Exception to this general rule: if the litigation is frivolous
Wasn't frivilous in this case, therefore should all pay own costs