Discuss how the South African Constitution protects communication

 Freedom of expression

This provision must be interpreted widely to include related freedoms such as speech, freedom of press, broadcasting, freedom of entertainment (which includes public entertainment in the term of theatre, movies, sport meetings, films and videos), freedom of artistic creativity, academic freedom and freedom of scientific research, freedom of telecommunications, and so on.

It is clear that s16 is not a numerus clausus but it is rather open-ended so as to encompass any new forms of expressions that are developed with time.

 Limitations

An internal limitation to freedom of expression is given in s16 (2) of the constitution. It provides for three types of expression in which there will be no constitutional protection. The proviso reads:

        “The right in subsection (7) does not extend to

1. Propaganda for war
2. Incident of imminent violence
3. Advocacy of hatred that is based on race ethnicity or religion, and that it constitutes incitement to cause harm.

This internal limitation draws itself from a South African historical perspective and from the experience of the other jurisdictions. According to De Waal et al the term ‘propaganda for war’ originates from Art20 (1) of the International Covenant on Civil and political rights and refers to acts of the external aggression and not internal resistance to the government of the day.

The term ‘incitement of imminent violence’ is said to originate from the US first Amendment jurisprudence. In Brandenburg v Ohio a similar provision was integrated to mean advocacy that is ‘directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’

Section 16(2)(c) is normally referred to as the ‘hate speech’ clause. Hate speech restrictions are also found in the laws of various democratic states such as Canada, United Kingdom and Australia. In South Africa where racial divides were given legal recognition, this provision is likely to be given a more serious interpretation as the post-apartheid healing process continues. For an expression to constitute hate speech it must have two elements present viz (i) advocacy of hatred on one or more of the listed grounds and (ii) must constitute incitement to cause harm.

A general limitation to freedom of expression also suffices through s36. The legislature  has passed various laws that infringe on the right to freedom of expression. In Nel v Le Roux  the court was asked to oreder s 205 of the Criminal Procedure Act to be unconstitutional in that it impeded journalists in their functions. The provision in question allows a magistrate to order anyone to give evidence in court unless such person has a ‘just excuse’ not to. The court held that rights in the bill of rights could be read in to the term ‘just excuse’, the provision was thus not unconstitutional. Other laws that infringe on expression include the Monitoring and Interception Act and The Defence Act. Provisions in these laws are still to pass constitutional scrutiny.

Other forms of Communication

Privacy

The right to privacy is provided for in s14. This essay shall limit itself to s14(d)  which includes in the right to privacy, the right not to have the privacy of ones communications infringed. In S v Naidoo, the court held that where false and misleading information is furnished to a judge to obtain an order to tap a telephone conversation, such monitoring was unjustifiable violation of the accused right to privacy. Inherent in this case is the general limitation placed on this right by the Interception and Monitoring Prohibition Act. Section 3 of the Act allows a judge to issue an order allowing the relevant authorities to monitor or intercept ones communication devices. In S v Nkabinde, however, the state went overboard by monitoring privileged information and doing so beyond the order of the court, leading to the acquittal of the accused.

Freedom of religion, belief and opinion

Language and culture

Cultural, religious and linguistic communities

We shall attempt to approach the above three categories of rights provided for in s15, s30 and s31 respectively, single-handedly due to space constraints. From the Raz definition, we have already established that if ones religion, belief, opinion, culture or languages are suppressed, a violation of freedom of expression/communication is experienced.

With regard to religion and culture, the most contentious form of expression is that of religious garb and probably hairstyle too. There has been debate over whether children should be allowed to wear their religious clothing in school, whether dreadlocks are permitted in court. It is submitted here that denying one the right to wear their religious garb will not be a justifiable limitation to the rights given in s15, 30 and 31.

The most utilized form of expression is in the form of a language. In the South African context of protection of the ‘ language right’ is not superfluous considering that in apartheid schools were forced to teach in Afrikaans alone. Only English and Afrikaans were recognized languages, leaving the nine vernacular languages to survive on their own. This right has meant, interalia, parliamentarians can speak in any of the official languages which in parliament, witnesses or accused persons can address the court in a language of choice and students can communicate in whatever language in their school. The State has an obligation to ensure the promotion and protection of all official languages.

Freedom of Assembly, Demonstration, Picket, Petition

It is now well established that communication need not be verbal or language based. According to DeWaal, the rationale in protecting this freedom is that assemblers are much more likely to get their message across than individuals. There is thus freedom of expression granted to the collective voicing of opinions and grievances.

There are two internal modifiers given in this right. To be constitutionally protected an assembly must be peaceful and unarmed. It is not clear whether an assembly, as in Kwazulu-Natal, where supporters of the Inkatha Freedom Party (IFP) marched peacefully but ‘armed’ with traditional weapons, is protected by the Constitution. A court faced with a such a situation will have to balance out this right with the right to culture and various other policy considerations.

The Right to vote

The right to vote is provided for in s19(3)(a). this is a form of expression in that one is given the opportunity to show satisfaction or dissatisfaction to those holding public office. The importance of this right as a freedom of communication was shown in the recent Constitutional Court case of  Minister of Home Affairs v NICRO And Others where the state was ordered to make provision for prisoners to vote.

Access to Information

To be able to fully express oneself, one must be informed. To nurture ignorance is to deny a people of their freedom of expression. Section 32 gives people the right to access any information that is held by the state or by any private person. A modifier to this provision is that such information must be required for the exercise or protection of any rights.

The Promotion of Access to Information Act gives effect to the s32 right and at the same time places various limitations to it. Limitations to this include the refusal of information which would constitute unreasonable disclosure of  about a , including a deceased individual and if the disclosure of the record would constitute an action for breach of a duty of confidence owed to a  in terms of an agreement. The limitations imposed by this Act, in principle, comply with the general limitation clause. Provisions in the Act are still, however, to pass constitutional scrutiny.

Conclusion

In a nutshell we see that there is wide protection within the constitution afforded to various types of communication. We also see that although the right to freedom of expression is wide there are other provisions that have been inserted to bolster the express views of people. In spite of this, it is clear that no right whatsoever is absolute. Lee-way has to be given to conflicting rights and other policy considerations. This gives reasons to limit the right to freedom of expression firstly as it is done in s16(2) and secondly as provided for by s36 the general limitation clause. South African jurisprudence is still a long way in enumerating expression rights. In the meanwhile strong reliance will be placed on foreign law and the writings of legal scholars.

 

 

 

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