The Right to Freedom of Expression, Press and Culture in South Africa: A Survey of Recent Developments

2013 ◽  
Vol 2 (1) ◽  
pp. 170-185
Author(s):  
Lufuno Nevondwe ◽  
Motlhatlego Matotoka
Keyword(s):  
South Africa ◽  
South African ◽  
Freedom Of Expression ◽  
Media Industry ◽  
Constitutional Rights ◽  
Recent Developments ◽  
The Media ◽  
Constitutional Right ◽  
The Right

This article reflects on the recent case and determination in Goodman Gallery v Film and Publication Board and Print Media South Africa v Minister of Home Affairs and Another which set important precedents in the media industry. These determinations also show the consistency of the South African Courts and tribunals in ensuring that the right to human dignity, the achievement of equality, and the advancement of human rights and freedoms which are among the founding values of the Constitution are afforded adequate protection. These constitutional rights are often in conflict with each other. The article determines whether one constitutional right supersedes the other. It also comments briefly on the role of the media in South Africa and its challenges under democracy. The article further considers the statutory mandate of the Films and Publication Board and provides a critique of the decision in Goodman Gallery.

scholarly journals Challenges to the sub judice rule in South Africa

2014 ◽  
Vol 70 (1) ◽  
Author(s):  
Kobus Van Rooyen
Keyword(s):  
Doctoral Students ◽  
South African ◽  
Freedom Of Expression ◽  
Fair Trial ◽  
South Africans ◽  
The Bible ◽  
The Media ◽  
Entire Career ◽  
Constitutional Right ◽  
The Right

As a lawyer, it is a privilege to contribute to this Festschrift in honour of Professor Doctor Johan Buitendag. His entire career has been a quest for the truth. In the process, he has fearlessly rejected political agendas based on the Bible, and has inspired countless students in their quest to serve God in a practical and humane manner. His published research as well as the output of his doctoral students, both present and past, bear witness to a life dedicated to the search for knowledge in the service of God. He has also assisted substantially in placing South African theological research on the international map. In a sense, this article which deals with the protection of the right to a fair trial of an accused, also acknowledges Johan Buitendag’s quest for justice for all South Africans, whatever their creed, gender, race or standing. The subject of my article demonstrates my own quest to promote the constitutional right of an accused to a fair trial, a right that should not be subject to inordinate pressure by the media, and which gives priority to the right of an accused to be presumed innocent: an accused who may frequently suffer loneliness and a sense of rejection. Related to that it is, of course, always important to bear in mind that freedom of expression is at the heart of our democracy. A balance has, accordingly, to be struck between the competing rights.

scholarly journals Dignity, religion and freedom of expression in South Africa

2011 ◽  
Vol 67 (1) ◽  
Author(s):  
Jacobus C.W. Van Rooyen
Keyword(s):  
South Africa ◽  
South African ◽  
Freedom Of Expression ◽  
Sense Of Self ◽  
Point Of View ◽  
National Pride ◽  
Form Part ◽  
Self Worth ◽  
Constitutional Right ◽  
The Republic

The issue that this article dealt with is whether, in South African law, speech that infringes upon the religious feelings of an individual is protected by the dignity clause in the Constitution of the Republic of South Africa. The Constitution, as well as the Broadcasting Code, prohibits language that advocates hatred, inter alia, based on religion and that constitutes incitement to cause harm. Dignity, which is a central Constitutional right, relates to the sense of self worth which a person has. A Court has held that religious feelings, national pride and language do not form part of dignity, for purposes of protection in law. The Broadcasting Complaints Commission has, similarly, decided that a point of view seriously derogatory of ‘Calvinistic people’ blaming (some of) them as being hypocritical and even acting criminally is not protected by dignity. It would have to be accompanied by the advocacy of hatred as defined previously. The author, however, pointed out that on occasion different facts might found a finding in law that religion is so closely connected to dignity, that it will indeed be regarded as part thereof.

scholarly journals OF SEMI-COLONS AND THE INTERPRETATION OF THE HATE SPEECH DEFINITION IN THE EQUALITY ACT South African Human Rights Commission v Qwelane (Freedom of Expression Institute as Amici curiae) and a related matter [2017] 4 All SA 234 (GJ)

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
Joanna Botha
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Eastern Cape ◽  
Threshold Test ◽  
Related Matter ◽  
The Republic

In South African Human Rights Commission v Qwelane (hereinafter “Qwelane”) the constitutionality of the threshold test for the hate speech prohibition in section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter the “Equality Act”) was challenged. Although the court had no difficulty in finding that the publication in question fell squarely within the parameters of hate speech, the judgment is both incoherent and flawed. The court’s conjunctive interpretation of the section 10(1) requirements for hate speech also differs from the disjunctive interpretation given to the same provision in Herselman v Geleba (ECD (unreported) 2011-09-01 Case No 231/09 hereinafter “Herselman”) by the Eastern Cape High Court. The consequence is a “fragmented jurisprudence” which impacts on legal certainty, and which is especially dangerous when the legislation in question is critical to the achievement of the constitutional mandate (Daniels v Campbell NO 2004 (5) SA 331 (CC) par 104 hereinafter “Daniels”).This note demonstrates that the Qwelane court misapplied a number of key principles. These include: the court’s mandate in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 (hereinafter the “Constitution”); the need to strike an appropriate balance between competing rights in the constitutional framework; the importance of definitional certainty for a hate speech threshold test; the meaning to be ascribed to the terms “hate”, “hurt” and “harm” in the context of hate speech legislation; and the role of international law when interpreting legislation intended to give effect to international obligations.The consequence of these errors for hate speech regulation in South Africa is profound.

The Media and Power in Postliberal Venezuela

2016 ◽  
Vol 44 (1) ◽  
pp. 199-214 ◽  
Author(s):  
Ewa Sapiezynska
Keyword(s):  
Latin American ◽  
Freedom Of Expression ◽  
Negative Freedom ◽  
The Public ◽  
Positive Freedom ◽  
The Media ◽  
The Government ◽  
Hugo Chavez ◽  
The Right

Two narratives dominate the literature about the state of freedom of expression in postliberal Venezuela, and they have few points in common, since they depend on different conceptualizations of the notion of freedom of expression. While the traditional liberal narrative focuses on the negative freedom that prohibits state interference, the postliberal narrative is based on positive freedom that encompasses the collective right of self-realization, particularly for the previously marginalized. During the government of Hugo Chávez, the discourse of freedom of expression was renewed, placing it in the context of power relations, accentuating positive freedom, and emphasizing the role of the public and community media. The establishment of the international public channel TeleSUR has revived the 1970s debate about the right to communication and contributed to the creation of a new Latin American-ness. En la literatura predominan dos narrativas acerca del estado de la libertad de expresión en la Venezuela posliberal las que tienen pocos puntos en común porque parten de visiones distintas del concepto de la libertad de expresión. Mientras la narrativa liberal tradicional enfoca sólo en la libertad negativa que previene la injerencia estatal, la narrativa posliberal se centra en la libertad positiva que abarca la autorrealización del derecho colectivo, también de los previamente marginalizados. Durante el gobierno de Hugo Chávez el discurso acerca de la libertad de expresión se renueva, insertando el concepto en el contexto de las relaciones de poder, acentuando la libertad positiva y enfatizando el rol de los medios públicos y comunitarios. El establecimiento del medio público internacional TeleSUR revive los debates sobre el derecho a la comunicación de la década de los 70 y aporta a la creación de una nueva Latinoamericanidad.

scholarly journals Contested confines: political risk and the media in South Africa

2016 ◽  
Vol 14 (2) ◽  
pp. 143-154
Author(s):  
Mary-Anne Piasecki ◽  
Piet Croucamp
Keyword(s):  
South Africa ◽  
South African ◽  
News Media ◽  
Economic Downturn ◽  
Media Industry ◽  
The South ◽  
Economic Stability ◽  
Media Ownership ◽  
Additional Risk ◽  
The Media

The South African private news media industry represents a substantial portion of the overall media industry and the most successful in terms of profit acquired. It is critical however to assess the shareholders and private ownership of the news media industry in order to determine the likely success of investment in this industry. However, additional risk factors need to be considered along with the shareholders and ownership; macro factors such as, legislation and economic stability as well as micro factors such as the restructuring of ownership and transparency within the industry. It is also fundamental that the news media industry of South Africa is assessed through the lens of its historical landscape and transformation and its Fourth Estate responsibilities. Through this assessment it is possible to conclude three likely outcomes of investment in the news media industry. These outcomes are based on the measured growth and current stability of the industry and the South African economy. The most concerning risk for investment is the continued economic downturn of the South African economy and its effect on restructuring of media ownership and a declining profit. This can be coupled with the risk of legislative turnover and executive overreach within the news media industry

scholarly journals The limitation of the discovery rules of Court against the right of access to information in South Africa

2017 ◽  
Vol 13 (3) ◽  
pp. 1029-1051
Author(s):  
Rashri Baboolal-Frank ◽  
Fola Adeleke
Keyword(s):  
South Africa ◽  
South African ◽  
Access To Information ◽  
Legal Analysis ◽  
Civil Proceedings ◽  
Access Information ◽  
Constitutional Right ◽  
South African Constitution ◽  
The Right ◽  
Right Of Access

Abstract In South Africa, the Promotion of Access to Information Act 2 of 2000 (PAIA) gives effect to the right of access information in Section 32 of the South African Constitution (the Constitution). Section 7 of PAIA provides that PAIA does not apply to records required for criminal or civil proceedings after commencement of proceedings where access to that record is already provided for in any other law. Where records are obtained in contravention of Section 7, they are not admissible as evidence in criminal or civil proceedings. The aim of this paper is to determine whether the discovery rules of Court limit the constitutional right of everyone to access information. Consequently, the methodology employed in this paper involves a legal analysis namely: a limitations analysis utilising Section 36, the limitations clause of the Constitution. This paper further engages in case law analysis interpreting the exercise of the right of access to information before PAIA was passed and after PAIA was passed to highlight the anomaly of the application of Section 7. This paper argues that Section 7 unconstitutionally limits the ambit of the right of access to information and a direct constitutional challenge on this provision is necessary.

The role of freedom of expression in the construction of historical memory

2019 ◽  
Vol 101 (910) ◽  
pp. 173-196
Author(s):  
Germán Parra Gallego
Keyword(s):  
Transitional Justice ◽  
Freedom Of Expression ◽  
Historical Memory ◽  
Case Law ◽  
Armed Conflicts ◽  
High Courts ◽  
The Media ◽  
State Archives ◽  
The Right

AbstractThe construction of historical memory is closely linked to the guarantees provided by the right to freedom of expression. This right ensures that victims and society in general are able to speak about the past, narrate their own stories, and call for and influence social discussion and institutional reform. Mechanisms such as access to State archives, participation in the media, journalistic coverage of armed conflicts and the free flow of stories, artistic endeavours, criticisms and condemnations empower victims and the rest of society in the construction of alternative narratives and independent memories. This article examines case law of the Inter-American System of Human Rights that elaborates on freedom of expression, and considers its importance for the construction of historical memory. It also touches upon some decisions taken by the Colombian high courts, relevant to a context in which mechanisms of transitional justice have recently been implemented.

scholarly journals ANYONE FOR A GAME OF MONOPOLY™?* A CRITICAL EVALUATION OF THE EVERINCREASING COMMERCIALIZATION OF MAJOR SPORTING EVENTS PART 3: EXAMINING THE LEGITIMACY OF THE CREATION AND MAINTENANCE OF COMMERCIALLY-DRIVEN MONOPOLIES IN SPORTS EVENTS

Obiter ◽  
2021 ◽  
Vol 32 (1) ◽  
Author(s):  
Andre M Louw
Keyword(s):  
South Africa ◽  
South African ◽  
Critical Evaluation ◽  
Sporting Events ◽  
World Cup ◽  
Sports Events ◽  
Current State ◽  
Domestic Legislation ◽  
Recent Developments

This is the third and final part in a series of articles which examines the commercial monopoly in a major sports event such as the 2010 FIFA World Cup South Africa, and its protection against ambush marketing by means of (specifically) domestic legislation. This part will continue the evaluation of the role of relevant constitutional guarantees in terms of the South African Bill of Rights, will consider the justification for the protection of commercial rights to such events, will briefly examine recent developments elsewhere in respect of the development of a ‘sports event organiser’s right’, and includes a concluding section with some critical evaluation of the legitimacy of the current state of the law in this regard in South Africa (and elsewhere).

Shooting the East/Veils and Masks: Uncovering Orientalism in South African Media

2002 ◽  
Vol 1 (4) ◽  
pp. 367-384
Author(s):  
GABEBA BADEROON
Keyword(s):  
South Africa ◽  
South African ◽  
Cape Town ◽  
Edward Said ◽  
The South ◽  
The Media ◽  
African Media ◽  
The Right ◽  
Newspaper Articles

ABSTRACT In this essay the author analyzes a series of South African newspaper articles on a Cape Town-based group called Pagad (People against Gangsterism and Drugs). The essay draws upon a larger study of the images of Islam in the South African media and reveals that both the Pagad and the media make use of regressive discourses about Islam. The author finds traces in the media of what Edward Said has referred to as Orientalism. Through the Pagad stories, Muslims in South Africa are treated by the media with an extremely constricted vocabulary which gives little of the suppleness needed to distinguish between Muslims, and the violence enacted in the name of Islam. The answer to the problem of stereotypical and racist representations in the media lies for Baderoon in people reading critically, insisting on complexity, claiming the right to ethical journalistic practices, establishing media with varied ownership, providing alternative visions, and inserting repressed histories into the media.

scholarly journals Disability Discrimination and the Right of Disabled Persons to Access the Labour Market

2017 ◽  
Vol 15 (1) ◽  
pp. 344
Author(s):  
Motseotsile Clement Marumoagae
Keyword(s):  
South Africa ◽  
Labour Market ◽  
South African ◽  
Disabled Persons ◽  
Constitutional Rights ◽  
Employment Equity ◽  
Employment Opportunities ◽  
Persons With Disabilities ◽  
Government Work ◽  
The Right

Inequality, discrimination and transformation remain the key challenges which most employers are faced with in the South African labour market. Key among such challenges has also been employers' ability to ensure that persons with disabilities access the labour market. In this paper I highlight employment discrimination experienced by persons with disabilities in South African workplaces, which often prohibits them from accessing employment opportunities. I argue that employers need to consider employing persons with disabilities and also reasonably to accommodate them within South African workplaces. I further illustrate efforts by the legislature to eradicate forms of unjustified discrimination against persons with disabilities through the enactment of the Employment Equity Act 55 of 1998. I argue that all of us need to understand how cultural, social, physical and other barriers continue to prevent persons with disabilities in South Africa from enjoying their constitutional rights to equality, freedom and human dignity, and further, that it is desirable that society at large and government work together towards eradicating barriers which prevent persons with disabilities from accessing the labour market.

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