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Freedom of expression in South Africa
Freedom of expression is guaranteed in section 16(1) of the Constitution of South Africa, which provides as follows:
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.
The right, which is regarded as being of fundamental importance to South African constitutional democracy, was first recognised in the Interim Constitution of 1993. The right to freedom of expression is not unqualified — certain forms of expression fall outside of the ambit of section 16(1), and the right is capable of limitation in accordance with the general principles of South African constitutional jurisprudence. Application of the right to freedom of expression by the courts has had a considerable impact on South African criminal law, defamation law and trademark law.
Nature and content of the right
Justice Mokgoro in Case and Another v Minister of Safety and Security and Others 1996 (3) SA 617 (CC) described the right to freedom of expression as being "part of a web of mutually supporting rights" which "together may be conceived as underpinning an entitlement to participate in an ongoing process of communicative interaction that is of both instrumental and intrinsic value". Similarly, the importance of the right in the South African socio-historical context was emphasised by Justice Kriegler in S v Mamabolo 2001 (3) SA 409 (CC) as follows:
Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression — the free and open exchange of ideas — is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way.
The phrase "freedom of expression" unambiguously extends constitutional protection to expressive conduct beyond verbal communication, with those forms of expression specifically enumerated in section 16(1) generally being regarded as constituting the core of protected expression. Forms of expression such as pornography and commercial speech, which the courts have deemed to hold marginal value in light of the philosophical underpinnings of free speech protections, are often described as existing on the "periphery" of the right to freedom of expression, and thus being capable of more extensive limitation as compared to political speech or artistic freedom.
Exclusions and limitations
Section 16(2) of the Constitution provides that the right to freedom of expression does not extend to propaganda for war, incitement of imminent violence, or "advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm". The Constitutional Court in Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 confirmed that the categories of expression enumerated in this section fall outside of the ambit of constitutionally protected speech. Any regulation of such expression is thus not regarded as a limitation of the right afforded by section 16(1).
The first two categories of excluded expression have their origins in the International Covenant on Civil and Political Rights, and the United States Supreme Court case of Brandenburg v Ohio, respectively. Whilst not without academic critique, these exclusions have received considerably little attention from the courts. The interpretation and application of the hate speech prohibition has been significantly more controversial.
In circumstances where expression is not excluded from constitutional protection, any limitation on such expression must be justified in terms of the general limitation clause contained in section 36(1) of the Constitution, which provides that:
The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
- (a) the nature of the right;
- (b) the importance of the purpose of the limitation;
- (c) the nature and extent of the limitation;
- (d) the relation between the limitation and its purpose; and
- (e) less restrictive means to achieve the purpose.
The analysis undertaken in this regard resembles the approach to the limitation of rights under Section 1 of the Canadian Charter of Rights and Freedoms, and is thus distinguishable from the position in United States free speech jurisprudence, where any reduction in the scope of protection afforded to a particular form of expression must necessarily occur at the definitional stage.
Hate speech
Section 16(2)(c) of the Constitution is relatively narrow in scope. Expression is only excluded from protection if it amounts to advocacy of hatred on the basis of one or more of four listed group characteristics, and constitutes incitement to cause harm. It has been held that such harm may be physical, emotional or psychological in nature. Some commentators have suggested that judicial treatment of section 16(2)(c) has tended to neglect the incitement requirement, instead requiring that expression must itself cause, or be likely to cause, the harm in question. The Constitutional Court in Islamic Unity Convention ruled that a prohibition on the broadcasting of material that was "likely to prejudice relations between sections of the population" was unconstitutional, as the prohibited expression was not confined to the categories listed in section 16(2), and the limitation imposed was unjustifiable given the vagueness and overbreadth of the prohibition.
Similar considerations arose in the decision of Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), which concerned the constitutionality of a provision of the Promotion of Equality and Prevention of Unfair Discrimination Act that prohibits hate speech in circumstances beyond those contemplated in section 16(2). The dispute arose as a result of the publication of a column by Jon Qwelane in the Sunday Sun which likened same-sex marriage to bestiality. The court found that expansion of the grounds of hate speech to include, amongst others, sexual orientation, was a justifiable limitation of the right to freedom of expression, but that the provision had to be read to require that expression be both harmful or capable of inciting harm, and aimed at the promotion or propagation of hatred, in order to be prohibited. A prohibition on speech that was merely "hurtful" was found to be impermissibly vague and accordingly an unconstitutional infringement of the section 16(1) right. The Gauteng Local Division of the High Court in Afriforum v Economic Freedom Fighters and Others 2022 (6) SA 357 (GJ) relied on this development as the basis for its finding that the singing of the controversial song Dubul' ibhunu at gatherings of the Economic Freedom Fighters constituted a legitimate exercise of the right to freedom of expression — a conclusion which departed from the earlier Equality Court decision of Afriforum and Another v Malema and Others 2011 (6) SA 240 (EqC).
The Constitutional Court in South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another 2022 (4) SA 1 (CC) confirmed that whether or not a statement constituted hate speech was to be determined objectively. The court, applying this test, found that a reasonable person would regard a remark referring to "Zionists who belong to the era of their Friend Hitler" as being based on Jewish identity and thus the prohibited ground of religion.
Despite the explicit mention of hate speech in the form of "words" in the Promotion of Equality and Prevention of Unfair Discrimination Act, the Supreme Court of Appeal held in Afriforum NPC v Nelson Mandela Foundation Trust and Others 2023 (4) SA 1 (SCA) that the prohibition contained in this statute is concerned with the "conveyance of ideas" or "communication of a message". As such, the gratuitous public display of the apartheid-era South African flag was found to constitute hate speech, subject to the proviso that the display of the flag for artistic, academic or journalistic purposes was not prohibited.
Impact
Censorship
The majority of the Constitutional Court in Case struck down a prohibition on the "possession of indecent or obscene material" contained in the apartheid-era Indecent and Obscene Photographic Matter Act on the basis that the prohibition contravened the constitutional right to privacy. Justice Mokgoro in a minority judgment, however, reasoned that the prohibition further contravened the right to freedom of expression, which embraced the "right to receive, hold and consume expressions transmitted by others". The Court in Phillips and Another v Director of Public Prosecutions and Others 2003 (3) SA 345 (CC) later relied squarely on the right to freedom of expression in finding that a prohibition on nude dancing at licensed premises was unconstitutional, given its overbroad formulation that included premises such as theatres.
In Print Media South Africa and Another v Minister of Home Affairs and Another 2012 (6) SA 443 (CC), it was held that an administrative scheme provided for in the Films and Publications Act that required publications containing certain sexually explicit content to be submitted to the Film and Publication Board for classification before publication amounted to prior restraint, and was unconstitutional given the availability of less restrictive means to achieve the purpose of the prohibition.
Criminal law
Defamation
The law of defamation has historically been conceived in South African legal literature as aiming to strike a balance between the right to reputation and the right to freedom of expression. This determination has been impacted in the constitutional era by the importance attached to the latter right. Similarly to the position in English law, the burden of proof rests on the defendant to establish a legitimate defence once publication of defamatory material has been proved by the plaintiff. The Constitutional Court in Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) ruled that the common-law position that the plaintiff need not prove falehood to succeed with a claim for defamation was a reasonable and justifiable limitation on the right to freedom of expression, given the countervailing right to reputation, which is to be regarded as an incident of the broader right to dignity.
The imposition of strict liability for defamation by media defendants has, however, not survived constitutional scrutiny. The Supreme Court of Appeal in National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA) concluded that free speech imperatives necessitated the development of a defence of reasonable publication to excuse the publication of defamatory allegations in the press in circumstances where publication is not unreasonable given, amongst other things, the tone of the allegations and the reliability of the sources on which the allegations are based. Whilst the court's finding has been the subject of considerable academic debate, the degree of fault required to impose liability on mass media defendants following Bogoshi is generally regarded as being that of negligence.