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Theme 1

CHAPTER 3

The protection of freedom of speech in South Africa

LEARNING OUTCOMES LEARNING ACTIVITY 3.1

3.1 INTRODUCTION

3.2 TO WHOMDOES THE BILL OF RIGHTS APPLY?

3.3 FREEDOMOF EXPRESSION

3.4 ACCESS TO INFORMATION

3.5 RIGHT TO PRIVACY

3.6 OTHER RIGHTS3.7 REDUCING THE SCOPE OF A RIGHT

3.8 INTERPRETING THE BILL OF RIGHTS

FEEDBACKPOINTS TO PONDER

LEARNING ACTIVITY 3.2 DISCUSSION FORUMS

LEARNING OUTCOMES

After studying this chapter, you should be able to

• discuss how the South African Constitution regulates the relationship between state and subject, as well as the relation- ships between the subjects themselves

• explain to what extent speech is protected by the Constitution• provide guidelines for interpreting the Constitution’s text by

referring to, inter alia, the philosophical background discussed in the previous chapter

• explain the safeguards provided in the Constitution to prevent thegovernment from abusing its powers

LEARNING ACTIVITY 01 - CASE STUDYRead the case study given in the previous chapter a second time. Afteryou have worked through this chapter, try to answer the questions once again but this time make use of the information you have gained by studying various aspects of our Constitution.

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3.1 INTRODUCTIONThe theoretical protection of a specific right is not much use to anyone unless that same right is also protected in practice. To determine whether a specific right exists and whether it is protected in a specific country, we would need to look at that country’s constitution and the way in which the constitution is applied and interpreted by jurists and politicians. This does not mean that theories with a philosophical basis (theories that have been created through reasoned and logical argument) are completely irrelevant. They provide the reasons for the existence of a specific right, which all play a role in determining the extent of the legal protection that has to be given to that right. A constitution normally provides only a broad framework of the various rights that are to be protected. The interpreter of a constitution has to rely on philosophical theory to determine the ambit or extent of each right and to determine which right should receive priority in cases where different rights come into conflict. The various theories mentioned in the previous chapter can therefore help us to expand the broad framework of the Constitution, or, to put flesh on the bare bones of the Constitution.

It was explained in the first chapter that, although the wording of the Constitution itself seems very clear, it may quite often be necessary for a court to interpret or explain the wording. The Constitution itself may provide guidelines on how it should be interpreted, but where no such guidelines are given, it is the duty of the court to provide an interpretation that is consistent with the Constitution. In other words the interpretation is in agreement with the Constitution. In accordance with the precedent system which we have already discussed, such court interpretations will then in future be referred to, in order to determine the meaning and ambit of every right.

Chapter 2 of the Constitution of the Republic of South Africa 108 of 1996 consists of a Bill of Rights. It contains a description of certain fundamental rights to which constitutional protection is granted. However, the Constitution is still very young. It only came into operation on 1 February 1997. A set of precedents of judicial interpretations (interpretations by the courts) does not yet exist, but still has to be developed by the courts. Therefore we have to depend largely upon philosophy (which the Collins Dictionary defines as “the study or creation of theories about basic things such as the nature of existence, knowledge, thought, or about how people should live”) and the application of similar principles in other countries in order to predict how the various rights should be understood and applied in practice. The few guidelines that are given in the Constitution itself with regard to interpretation and application, should also be noted. Although we will not discuss the Constitution itself in this course, it is nevertheless necessary to have a closer look at some of the rights that are protected in the Bill of Rights and which are important for purposes of communication. We will also refer briefly to some other related aspects such as the limitation and suspension of rights and the interpretation of the Constitution.

3.2 TO WHOM DOES THE BILL OF RIGHTS APPLYIn its original sense a bill of rights operates only between the state and the individual. Generally speaking, it restrains the state from violating any of the fundamental rights of the individual which are protected in a bill of rights. In terms of section 8(1) of our Constitution, the Bill of Rights will bind "the legislature, the executive, the judiciary and all organs of state". In terms of this provision, the Bill of Rights has vertical application, in other words, application between the state and the individual (the state being higher in the hierarchy).

Section 8(2) goes further and provides the following:

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A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

This means that the Bill of Rights will also be applied horizontally between different individuals, or between an individual and a juristic person (these persons having the same position in the hierarchy). A juristic person (also called a legal person) is a body of persons working together such as a company or close corporation and which is given the legal status of a natural person.

If we look at how constitutions are applied in other countries, we find different approaches. In the United States of America constitutional principles are applied only vertically, in other words, between the State and the individual. Horizontal application is achieved by means of other legislation such as the "Civil Rights Acts". The Constitution of Namibia, on the other hand, provides specifically in section 5 that not only does it apply to the executive, legislative and judicial authorities, but that it also applies to all natural persons and juristic persons in Namibia. In other words, the Constitution of Namibia specifically provides for both vertical and horizontal application, as does the South African Constitution.

3.3 FREEDOM OF EXPRESSIONSection 16 of the Constitution contains the freedom-of-speech clause. It determines as follows:

(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.

Freedom of speech or expression is one of the most fundamental rights normally acknowledged in a democratic society. When the South African constitutional negotiations took place, the dispute regarding freedom of speech did not relate to the acknowledgment of the right, but related to determining its ambit (how far it was to be allowed to go).

We can draw certain conclusions from the wording of the abovementioned section. We would therefore like to draw your attention to the following:

(1) This section is not limited to freedom of speech, but makes provision for freedom of expression. Expression covers a much wider field than speech. The use of the word “expression" in the South African Constitution has brought the wording of the section in line with the most modern developments in the world and made it all-inclusive.(2) Freedom of the press and other media is expressly included in this right. It seems only logical that protection which is given to the individual, should also be given to the press and other media.(3) Section 16(1)(b) clearly states that in South Africa the right to

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freedom of expression protects not only the interests of the speaker, but also the rights of the recipient (the one who is receiving the message). It therefore seems as if a journalist may have the right to gather information in preparation for expressing himself or herself and also may have the right to use distribution channels in order to deliver that expression to others. This may however cause considerable problems when one is dealing with a form of communication that is limited, for example broadcasting by means of sound waves.The gathering of information is furthermore protected in section 32 of the Constitution which will be discussed after section 16.(4) Artistic creativity is expressly mentioned as being protected.During the negotiation process that preceded the drawing up of the Constitution, artistic creativity was regarded as a specific type of expression. The court will however, have to determine whether artistic creativity which is not meant to communicate but which is merely done as a form of recreation, should also be protected.(5) Academic freedom and freedom of scientific research are included as subsections of freedom of expression.(6) Although section 16(1) gives the impression that the right to freedom of expression is almost without limit, section 16(2) immediately reduces or narrows the ambit of the right by telling us that certain forms of expression are specifically excluded and therefore should not be protected. These forms of expression relate to propaganda for war, incitement to violence and expression that instigates hatred (so called hate speech).

In the case study that was provided at the beginning of chapter 2, several questions referred to the type of speech or conduct that should be protected under a freedom-of-expression-guarantee. Where dancing by students expresses their dissatisfaction, dancing would be acceptable as a form o f protected expression. The writing of the graffit i however would be excluded from protection because it can be regarded as inciting imminent violence or as "hate speech" which is specifically excluded. The emptying of the garbage cans is somewhere in the grey area (somewhat uncertain) where a definite "yes" or "no" is not so easy to give and where we would have to argue the case by once again referring to the various reasons for justifying free speech. We should also take into consideration t h e arguments that apply in the case of damage to cars. This will be referred to later.

3.4 ACCESS TO INFORMATIONSection 32 of the Constitution of 1996 reads as follows:

(1) Everyone has the right of access to -(a) any information held by the state; and(b) any information that is held by another person and that is

required for the exercise or protection of any rights.

(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

The granting of an indisputable constitutional right of access to certain information is unique to the South African Constitution. Normally, such a right is incorporated in the freedom-of-expression right and is not given independent status.

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In the South African Constitution, this right is seen as a completely separate entity. The reason is probably that, in this way, it serves as a reaction to the secrecy which was a feature of the "apartheid" regime. It reflects the need for transparency in government procedure and therefore government responsibility. Government should take responsibility because its actions are evident. It cannot avoid liability.

With regard to section 32, note the following:

(1) This section is widely formulated by making it applicable to a n y information regardless of whether the information is political, personal or even economic.(2) Section 32 is given definite horizontal application by making it applicable not only to information held by the state, but also to information held by individuals. What was said with regard to section 8(2) in 3.2 of this chapter, will therefore apply here.(3) Where the right of access to information is given horizontal application, a limitation is placed on the right at the outset. It applies only to information that "is required for the exercise or protection of any rights". During the negotiation process the Technical Committee expressly stated that the rights that should be exercised or protected are not only those mentioned in the Bill of Rights, but all rights acknowledged by the legal system. That is why the word "any" was inserted before "information".(4) A right to information (and especially to information held by the state) cannot be boundless. If that were to be the case, it would be impossible to preserve state secrets, to protect national security, to combat crime effectively or to enforce the law. Therefore, section 32(2) specifically provides that the government should create national legislation to regulate this right. This has now been done in the form of the Promotion of Access to Information Act 2 of 2000. This Act is discussed in chapter 5 and the information given there should be read in conjunction with this chapter.

In the case study the students’ claim of the right to be furnished with information regarding Unisa’s financial situation, would have to be considered in the light of the right protected in this section. Information held by Unisa is not information held by the state and therefore no absolute right exists to claim access to such information. The access may only be claimed where the information is necessary for the exercise or protection of any rights. The students claim the right to be allowed to see Unisa’s financial statements in order to substantiate their claim that discussion classes should be presented. The availability of discussion classes is not a contractual undertaking that is guaranteed by Unisa when students register, so it is unlikely that students would succeed in claiming such presentation as a right which can only be exercised or protected with the help of the information in the financial statements.

3.5 RIGHT TO PRIVACYSection 14 of the Constitution determines the following:

Everyone has the right to privacy, which includes the right not to have -

(a) their person or home searched(b) their property searched(c) their possessions seized; or(d) the privacy of their communications infringed.

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Section 14 makes provision for a right to privacy. Such is right is created to protect a person against intrusion into his or her private life by the state or by other individuals. Privacy and human dignity go hand in hand, giving each individual the choice as to when and to what extent information about his or her personal affairs or private activities may be revealed. Although section 14 gives some indication of the scope of the right by specifying some forms of conduct that are expressly forbidden, there still remain many aspects which are not mentioned and which will therefore have to be determined by the courts or regulated by the legislator. For example, one can mention aspects such as homosexual acts in the privacy of one’s home, private possession of pornographic photographs, the right to have an abortion, the abuse of personal data, euthanasia or the right to ask for death. In some of these cases, answers have already been given (either in court cases or by the introduction of new legislation), but it would be inappropriate to discuss these at this stage.It is not clear whether this right should be limited to natural persons only.

We mentioned at the beginning of this chapter that section 8(2) makes it possible for juristic persons to claim the same rights as natural persons where the nature of the right is such that it applies to juristic persons as well. If a juristic person can claim a right to privacy, Unisa would in all probability be able, in the case study, to rely on this right when refusing to reveal financial information. The Principal’s right to privacy was in any case violated by the conduct of the students when they opened his private files and removed some of his documents.

3.6 OTHER RIGHTS(The entire of Section 3.6 only need not be studied. You must read it for a more comprehensive understanding.)A number of other rights are also protected in the Bill of Rights. A com- municator may sometimes be confronted with these and therefore some of the more important rights for your purposes, are mentioned below.

3.6.1 The right to equalitySection 9(1) guarantees for every person

(1) the right to be equal before the law (i.e. it mandates the equal treatment of all persons by a court of law, as well as by the administration)

(2) the right to equal protection and benefit of the law (i.e. it requires that the rights of all persons should enjoy equal protection)

The aim of this provision is to ensure that everyone is treated equally. The rule in general is that if, for example, a provision in a statute (or rules of common law or customary law) prohibits certain conduct, such a provision should be applicable to all: it may not infringe the rights of some categories of persons, while exempting others.

Section 9(3) and (4) prohibits unfai r discrimination against anyone, whether directly or indirectly, on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

In terms of section 9(5), discrimination on any of the grounds specified in section 9(3) will be regarded as unfair, unless it is established that the discrimination is fair. In other words, as soon as the court finds that

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discrimination on any of the above grounds has been proven, the onus of proof (duty to prove) shifts to the defendant, to prove that the discrimination was not unfair.

3.6.2 Human dignitySection 10 provides that every person has inherent dignity and the right to have his or her dignity respected and protected.

3.6.3 The right to lifeIn terms of section 11, every person has the right to life.

3.6.4 Freedom and security of the personIn terms of section 12(1), every person has the right to freedom and security of his or her person, which includes the right not to be deprived of freedom arbitrarily (without valid reason), not to be detained without trial, not to be tortured or treated or punished in a cruel, inhuman or degrading way, and to be free from all forms of violence.

3.6.5 Religion, belief and opinionIn terms of section 15, every person has the right to freedom of conscience, religion, thought, belief and opinion.

3.6.6 Assembly, demonstration and petitionIn terms of section 17, every person has the right to assemble and demonstrate with others peacefully and unarmed, and to present petitions.

3.6.7 Freedom of associationIn terms of section 18, every person has the right to freedom of association.

3.6.8 Political rightsIn terms of section 19(1), every citizen is free to make political choices, which includes the right

(1) to form a political party(2) to participate in the activities of and to recruit members for a

political party(3) to campaign for a political party or cause

In terms of section 19(3), every citizen has the right to vote, to do so in secret and to stand for election to public office.

3.6.9 Freedom of movementIn terms of section 21, every person has the right to freedom of movement and the right to leave the Republic or to enter, to remain in and to reside anywhere in the Republic.

3.6.10 Just administrative actionIn terms of section 33, every person has the right to

(1) administrative action that is lawful, reasonable and procedurally fair

(2) be furnished with reasons in writing for administrative action which affects any of his or her rights

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Even prior to the adoption of the Bill of Rights, the courts had the power to test the validity of subordinate legislation (ministerial regulations, for instance, or municipal by-laws) and other administrative acts. Rules have developed in our common law, which seek to ensure that the individual is treated fairly in his or her dealings with the state administration. Some of these rules are now recognised explicitly in section 33.

3.6.11 Access to courtSection 34 guarantees every person the right to have disputes settled by a court of law or, where appropriate, by another independent and impartial forum.

3.6.12 Detained, arrested and accused personsSection 35 guarantees certain fundamental rights of detained persons (i.e. persons in detention who are awaiting trial, or sentenced prisoners). Furthermore, this s e c t i o n gua r an t ees certain fundamental rights to every person arrested for the alleged commission of an offence.

In terms of section 35(3), every individual has the right to a fair trial, which includes the right

(1) to a public trial before an ordinary court of law within a reasonable time after having been charged(2) to be informed with sufficient detail of the charge(3) to be presumed innocent until proven guilty(4) to remain silent and not to testify during the proceedings

3.7 REDUCING THE SCOPE OF A RIGHTThe rights in the Constitution are not absolute. The protection given to each right is not without limit. The scope or extent of a right varies from one community to the other and is related to the nature and purpose of the right. Therefore, by their very nature, rights are subject to limits. In South Africa one can determine at least four different ways in which the rights can be restricted. Some of these restrictions can be termed "inherent" because provision i s made for them within the Constitution itself. Therefore, these restrictions are already present. Others are imposed from outside by means of other legal rules.

Inherent (internal) restriction occurs in two ways:(1) A right is restricted immediately it is granted in the text itself.(2) A right is restricted by another right in the Constitution and thus

the courts will have to balance the conflicting interests in order to determine which right should be given precedence.

External restriction occurs when(1) a right is limited by means of other legislation or other legal rules(2) a right is suspended altogether

The four ways in which rights can be restricted will now be discussed.

3.7.1 Intra-textual restrictionIf a right is restricted in the text of the Constitution itself, its ambit is already limited by the Constitution the moment it is granted. There is more than one way in which the Constitution can limit a right. It is usually done by formulating the

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right restrictively or by excluding certain forms of conduct from the right. For example, the right to information held by another person is only applicable in the case of information “required for the exercise or protection of any rights” (s 32). The freedom of expression clause (s 16) is limited by the exclusion of expressions connected with propaganda for war, incitement of imminent violence and advocacy of hatred. This form of restriction will be clear when we analyse the grammatical construction of a specific section, in other words how the words of the section are put together.

3.7.2 Balancing conflicting interestsMy rights are always limited by the rights of other people. A good illustration of this is that my right to swing my arms around stops short of the next person’s nose. A bill of rights cannot possibly indicate every specific right. It is furthermore written in general and often vague terms and does not place the rights in any order which would indicate which right has more value or less value than another right.

When there is a conflict between rights, it is left to the courts to define the scope of the rights, to weigh the value of one right against another and to determine which one should have preference. The importance of a right will then depend on the value the Constitutional Court, as the highest body for the adjudication of constitutional matters, places on a right when weighing up competing interests. In this way there is a constant interaction between different rights and one is constantly influencing the other. Freedom of expression affects almost every facet of life, and thus we can expect problems in this connection to arise fairly often and on a wide variety of issues. The value which a court will attach to this right will to a large degree depend on the nature of the "speech" or "expression" and the purpose for which it is used. For example, a fairly great degree of freedom of speech is permitted a t political debates because this is necessary to enable people to make informed decis ions. Contrast this for example, with t h e degree of freedom permissible f o r the explicit portrayal of sexual intimacy. Indeed if you look at the decision in the case of Democratic Alliance v African National Congress 2015 (2) SA 232 (CC), you will see the importance that the courts place on freedom of expression and the importance of balancing different rights.

The following are examples of instances where the right to freedom of expression of one individual might come into conflict with rights of another individual:

(1) A newspaper publishes allegations that a senior government official, X, has been involved in gross irregularities. X sues the newspaper for defamation. In the ensuing lawsuit, the court has to weigh up the freedom of the press and the right of the public to know (under the freedom of expression clause) against X’s right to his good name. Similarly, where allegations about the private life of a pop star are published, the right to a free press will have to be measured against the right to privacy. (2) Before (or during) the trial of a suspected murderer, a newspaper publishes factual allegations which have been previously undis- closed. A court will have to weigh up the right of the publ i c to kn o w against the righo a fair trial, and therefore the right not to be biased against by pre-trial publicity.

Individual rights may also come into conflict with the public interest, requiring the court to balance the interests of the community against those of the individual. For instance:

(1) At a political meeting where the tension runs high, one of the

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speakers accuses the government of being murderers, and says that all police should be killed, and the government overthrown. Subsequently, she is brought to trial on charges of high treason, subversion and incitement to violence. The court has to weigh up her r i ght to freedom of speech against the state’s inte r est in nation al security.

(2) A professor, B, publishes an article in a newspaper in which heproposes that some race groups are intellectually superior to others. He is prosecuted in terms of legislation designed to promote racial harmony, and to protect individuals from the kind of harm that results from racial stereotyping. B claims that the legislation imposes an unjustifiable limitation on his right to freedom of speech and scientific research. This right has to be weighed against the state’s inte r est in the promotion of racial harmony, and/or the pro t ection of others’ rights to equal protection of the law.

The case study gave several examples of such conflicts between rights. A few of these rights were the newspaper editor’s right to free expression, and the right of students to air their opinions; the students’ right to free expression and the right of the Principal and of Unisa, to privacy; the students’ right to freedom of expression and the rights of the university employees to be free from violence.

It remains to be seen what approach the Constitutional Court will follow when weighing up against one another, the different rights and interests in the examples mentioned above, and also other issues which might arise. While the Constitution itself opens up a wide range of possibilities, these will be narrowed by the interpretation and decisions of the court. This will provide guidelines for future interpretation.

3.7.3 Extra-textual limitation of rightsRights and freedoms in the Constitution are formulated widely and comprehensively. However, by means of "law of general application" extra-textual limitations (i.e. limitations which originate outside the original text of the Constitution) can then be placed on the extent of the right. This “law of general application” refers to normal legislation, the common law, customary law, administrative acts or administrative decisions. The limitations will however, only be permissible if they comply with the criteria provided in section 36 of the Constitution and which determine as follows:

(1) 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.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right

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entrenched in the Bill of Rights.

Three requirements have to be complied with for the limitation of any right to be permissible:

(1) A right may be limited only by law of general application.Limitations may be introduced only by means of legislation or legal rules that apply generally and that do not just apply to individual cases alone. All citizens should be affected in the same way and certain groups or individuals should not be singled out.The "law of general application" must be reasonably accessible. The individual must be able to gain an indication of the legal rules applicable to a given case. The "law" must be formulated with sufficient precision that the individual can regulate his or her conduct and can foresee the consequences of a certain action.(2) The limitation must be reasonable. In terms of generally accepted legal practice, reasonableness is determined by means of objective norms (ie an objective measure). The interest which the legislature wants to protect by means of the limitation should be more important than the right that is protected constitutionally. Only limitations that are in keeping with "an open and democratic society based on human dignity, equality and freedom" are important enough to qualify.

The purpose of the limitation should be what determines how it is imposed. This means that a limitation is permissible to the extent that it is reasonable, justifiable and so on. From this one can deduce that the limitation should

(a) be a rational way of achieving the desired objective(b) infringe as little as possible on the right involved(c) maintain a balance between its result/ effect and the desired

objectiveThe various factors that should be taken into consideration when limiting rights and which are mentioned in section 36(1) (a) to (e) help the interpreter to obtain this standard of reasonableness and sense of proportion. In S v Manamela and others 2000 (1) SACR 414 (CC), the court specifically mentioned the fact that these five factors should not be regarded as constituting an exhaustive list. They were included merely as key factors to be taken into account.

(3) The limitation has to be justifiable in an open and democratic society based on human dignity, equality and freedom. Justifiability can only be determined after the meaning of human dignity, equality and freedom has first been considered. These three characteristics form the basis of a democratic society. They are abstract concepts which refer to certain values and which are, as such, difficult to define. Although the Constitution refers to a "right to equality" (s 9), "a right to human dignity" (s 10), and to a number of "freedoms" (see e.g. ss 12, 15(1), 16, 18 and 21) these concepts should be interpreted much more widely than merely as the sum total of the rights and freedoms protected in the Constitution.

In practice, courts, in order to define these concepts, will rely largely on legal principles which are also applicable in other democratic societies, as well as on international treaties and conventions.

The investigation into whether limitations are constitutional, will probably be approached in two stages. In the first stage the court will determine whether the right or freedom in question has been infringed, breached or denied. The onus will be on the applicant in so far as this first issue is concerned (in other words, the

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applicant will have to prove the claim that his or her right or freedom has been infringed). If the applicant proves this, then the second stage is reached. At this stage the court will evaluate the restriction (or infringement) and will try to determine whether this limitation is permissible in terms of the limitation clause. The party who relies on the limitation clause will then be the one who has to show that the restriction is in line with (or agrees with) the limitation clause.

At present the right to freedom of expression is considerably limited by various forms of legislation and by rules of common law. It can therefore be expected that the court will soon have to adjudicate on these issues and determine whether the existing limitations comply with the requirements set out in section 36 of the Constitution, or whether they should be regarded as unconstitutional and therefore unenforceable. In the chapters that follow, where different limitations are discussed, we will return to these issues.

For the time being an example of such extra-textual limitation has been given in the case study. The students claim that their conduct should be protected under the freedom of expression clause in the Bill of Rights. Various crimes limit this freedom, however. For example, where freedom is expressed in such a way that property belonging to somebody else is damaged through this expression, the wrongdoer willbe charged with commission of the crime "malicious injury to property". The court will then have to consider the principles set out above to determine whether the acknowledgement of this crime should be regarded as being a permissible way to limit freedom of expression.

3.7.4 Suspension of fundamental rightsIn any community, the interests of the individual, the community and the state are constantly being weighed up against one another, in order to establish which should take precedence. In a state of emergency (such as armed invasion, civil commotion or national disaster), the ordinary law is unable to guarantee the continuation of basic order. The state is then given the power to take extraordinary measures in order to protect its citizens and/ or its own existence.

In terms of Section 37 the state has the power to suspend rights under a state of emergency. Please note that the suspension of rights (or withholding of rights for a specific period of time) and the limitation of rights do not mean the same thing. Unlike limitations, the suspension of rights is a temporary measure, and may occur only under exceptional circumstances (as set out in s 37).

The suspension of individual rights and freedoms is effected out of sheer necessity or as a form of national self-defence. It is however such a drastic measure, which can easily be abused by a government, that strict safeguards are needed to regulate the suspension of rights. These safeguards are provided in section 37, which requires an express declaration of emergency, controlled by parliamentary oversight and judicial supervision, and, at the same time, setting limits to the period of time as well as the state’s power to suspend rights.

3.7.4.1 Declaration of an emergencyIn terms of section 37(1) and (2), a state of emergency may be declared only in the following circumstances:

(1) prospectively (i.e. not with retrospective effect) (2) by an Act of Parliament(3) when the life of the nation is threatened by war, invasion, general

insurrection, disorder, natural disaster or other public emergency

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(4) if the declaration of a state of emergency is necessary to restore peace and order

3.7.4.2 DurationIn terms of section 37(2), the declaration of a state of emergency, and any legislation enacted in terms of the state of emergency, may be of force for a period of only 21 days. This period may be extended by a 60 percent majority of the National Assembly.

3.7.4.3 JusticiabilityA court may enquire into the validity of a declaration of a state of emergency, any extension of it, and any action taken, including any legislation enacted under such declaration.

3.7.4.4 LegislationLegislation enacted in consequence of a declaration of a state of emergency must be consistent with South Africa’s international obligations and must be published in the Gazette.

3.7.4.5 Non-suspendible rightsIn terms of section 37(5)(a), the state or any person acting under its authority may not be indemnified from any unlawful actions during the state of emergency (i.e. may not have special protection against unlawful actions). Furthermore, certain rights may never be suspended - not even where a state of emergency has been declared. The list of non-suspendible rights mentioned in section 37(5)(c) includes inter alia section 9 (in terms of which unfair discrimination is prohibited and which contains the grounds for unfair discrimination), section 11 (the right to life), section 10 (the right to dignity), section 12 (the right to freedom and security of the person) and section 13 which deals with slavery, servitude and forced labour.

Summary o f the differences between a limitation of rights and a suspension of rights

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3.8 INTERPRETING THE BILL OF RIGHTSThe ordinary rules of statutory interpretation (interpretation of the Acts of Parliament), as currently applied by our courts, are completely inadequate as far as interpretation of the Constitution is concerned. This is because a supreme constitution, and especially a bill of rights, is no ordinary legal document; it is the embodiment of the values to which a political community has committed itself (in other words, the setting down in writing, of these values). These values are often in conflict with one another. Therefore the interpretation of a bill of rights can never be a mechanical application of the literal meaning of the text, or the intention of the framers of the constitution. The spirit and objects of the bill of rights should always be borne in mind.

Section 39 of the Constitution lays down guidelines for the interpretation of the Bill of Rights:

(1) When interpreting the Bill of Rights, a court, tribunal or forum -(a) must promote the values that underlie an open and

democratic society based on human dignity, equality and freedom

(b) must consider international law; and(c) may consider foreign law.

(2) when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law,

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customary law or legislation, to the extent that they are consistent with the Bill.

According to this section "the values which underlie an open and democratic society based on human dignity, equality and freedom" mus t be promoted and "international law" mus t be taken into consideration while "foreign law" may be consulted.

The first part of this subsection is imperative, that is it has to be done (there is no choice in the matter) while the second part is indicative or optional (as is evident from the use of the word "may"). Although international law that is applicable to the protection of rights "must" be taken into consideration, it need only be done where applicable. South Africa does not have to have ratified a certain international convention or does not have to have been member of an international agreement, before the stipulations of such conventions or agreement will be taken into consideration by a court.

In addition, the interpretation of any Act (and therefore of the Constitution itself) as well as common law and customary law, must, according to section 39(2), take place in such a way that the "spirit, purport and objects" of the Bill of Rights are duly considered.

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FEEDBACK(1) At this stage you should understand that although we have a Bill of Rights where certain r i gh t s a r e protected, i t does not mean that these rights are absolute and may never be violated.

(2) The fact that a right is acknowledged in the Bill of Rights does not necessarily mean that every aspect relating to that right is now determined constitutionally. There will always be some degree of uncertainty in this area.

POINTS TO PONDER(1) Where the editor of a newspaper selects the articles and letters that

should be published and those that should not, would you regard this as a form of censorship? Should it be allowed?

(2) Should a member of the public have a right to claim that his or her letters be published in a newspaper? In other words, should a person have a right to be heard? Would it make any difference if the individual was a student and the newspaper was a student paper published by the university where the student was registered?

(3) Should a right to be heard exist when one is not dealing withnewspapers or printed matter but with broadcasts?

(4) The case study excluded the graffiti on the walls from the protection offered by the freedom-of-expression clause because the graffiti contained phrases which incited violence and instigated hatred. Would the graffiti be protected if it had contained other expressions which would not be classified under the exceptions?

(5) In the case study you were accused of having committed the crimeof maliciously damaging another’s property. Your defence is that you have merely expressed your views on group discussions and that therefore you should be granted the protection of freedom of expression. Do you think a court ought to accept such a defence in the circumstances we are discussing?

LEARNING ACTIVITY 3.2 – TEST YOURSELF QUESTIONS

Questions relating to this chapter can be found under Discussion Forum 3.2.

DISCUSSION FORUM

You are encouraged to discuss Learning Activities 3.1 & 3.2 online in the Discussion Forum.

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