scholarly journals AT LAST A SOUTH AFRICAN PROPER LAW OF DELICT Burchell v Anglin 2010 3 SA 48 (ECG)

Obiter ◽  
2021 ◽  
Vol 32 (1) ◽  
Author(s):  
Frans E Marx
Keyword(s):  
New York ◽  
South African ◽  
Communication Systems ◽  
Freedom Of Expression ◽  
Technological Development ◽  
Common Denominator ◽  
Choice Of Law ◽  
The Road ◽  
American Case ◽  
The Right

The laws of defamation all over the world share a common denominator – the balancing of two basic human rights: the right to freedom of expression and the right to reputation. In spite of this common objective, the laws pertaining to defamation often differ substantially from country to country and courts are often reluctant to apply legal rules or recognize judgments of foreign courts in this regard. Until recently the question as to which law to apply in cases involving delict was neglected in most legal systems. Although this position has changed in many countries as a result of technological development as well as modern communication systems, South African choice of law in delict remained almost non-existent. In spite of the prevalence of the lex fori as connecting factor under the influence of Von Savigny in the past, and until recently in England, it is today generally accepted that the lex loci delicti should, at least as a point of departure, be used as the connecting factor in delict. As Forsyth points out, the application of the lex loci delicti is in accord with the locus regit actum principle as well as the vested rights theory. The application of the lex loci delicti is not without problems however. One problem is that the place where the delict was committed is not always clear. The elements constituting the delict may have their origin in different jurisdictions. A product manufactured in one country, may cause damage in another. Is the lex loci delicti the place where the conduct (manufacturing) took place or the place where the damage was caused? Moreover, harm may be caused in different countries where the defective products are available. Another example is defamation. A defamatory statementpublished in one country may cause damage in another jurisdiction. The problem becomes even more prevalent where a defamatory statement is uploaded on the Internet. A statement uploaded on a server in one country can be and generally is accessible in a multiplicity of countries. To complicate matters further, the statement may cause pecuniary damage in one or more countries and personality infringement in another. Moreover, because the requirements for defamation are closely linked to public policy and a country’s attitude towards the protection of freedom of expression, the statement may be regarded as defamatory in one country but not in another. A second problem is that the lex loci delicti may be perfectly clear, but may be almost irrelevant. The typical example is illustrated in the American case of Babcock v Jackson (191 NE 2d 279 (1963)), where a car, registered and insured in New York with driver and passengers resident in New York, left the road in Ontario during an over-the-border drive with resultant injury to one of the passengers. In this scenario the place where the delict occurred is clearly Ontario but this single fact is less significant than all the other factors that have connection with the delict and the parties, namely New York. The lex loci delicti rule fails to assign an appropriate system in this type of case. That is the reason why the New York court in Babcock applied New York law. In South Africa very little case law exists regarding the choice of law in delict and, until now, regarding choice-of-law in defamation. The few casesthat were reported did not deal with the matter satisfactorily. The matter is therefore still very much res nova and open to our courts to break new ground. This is exactly why the judgment of Crouse AJ in Burchell v Anglin (2010 3 SA 48 (ECG)) can be regarded asa ground-breaking decision.

Freedom of Expression and the Right to Privacy and Ethics in Dialectic of Human Rights in This Complex and Turbulent Society

2021 ◽  
Vol 9 (2) ◽  
pp. 1-28
Author(s):  
José Poças Rascão ◽  
Nuno Gonçalo Poças
Keyword(s):  
Social Networks ◽  
Human Rights ◽  
Online Social Networks ◽  
Freedom Of Expression ◽  
Technological Development ◽  
Social Engineering ◽  
Digital Data ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
The Right

The article is about human rights freedom of expression, the right to privacy, and ethics. Technological development (internet and social networks) emphasizes the issue of dialectics and poses many challenges. It makes the theoretical review, the history of human rights through and reference documents, an analysis of the concepts of freedom, privacy, and ethics. The internet and social networks pose many problems: digital data, people's tracks, the surveillance of citizens, the social engineering of power, online social networks, e-commerce, spaces of trust, and conflict.

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.

Art and Pluralism

2012 ◽  
Author(s):  
Nigel Whiteley
Keyword(s):  
New York ◽  
Vietnam War ◽  
Freedom Of Expression ◽  
Clement Greenberg ◽  
The 1950S ◽  
Post War ◽  
Art And Society ◽  
The 1960S ◽  
The Right ◽  
World Centre

Lawrence Alloway (1926–1990) was one of the most influential and widely respected (as well as prolific) art writers of the post-war years. His many books, catalogue essays, and reviews manifest the changing paradigms of art away from the formal values of modernism towards the inclusiveness of the visual culture model in the 1950s, through the diversity and excesses of the 1960s, to the politicisation in the wake of 1968 and the Vietnam War, on to postmodern concerns in the 1970s. Alloway was in the right places at the right times. From his central involvement with the Independent Group and the Institute of Contemporary Arts (ICA) in London in the 1950s, he moved to New York, the new world centre of art, at the beginning of the 1960s. In the early 1970s Alloway became deeply involved with the realist revival and the early feminist movement in art — Sylvia Sleigh, the painter, was his wife — and went on to write extensively about the gallery and art market as a system, examining the critic's role within this system. Positioning himself against the formalism and exclusivism associated with Clement Greenberg, Alloway was wholeheartedly committed to pluralism and diversity in both art and society. For him, art and criticism were always to be understood within a wider set of cultural, social and political concerns, with the emphasis on democracy, social inclusiveness and freedom of expression. This book provides a close critical reading of Alloway's writings.

Remarks by Alejandra Gonza

2017 ◽  
Vol 111 ◽  
pp. 263-265
Author(s):  
Alejandra Gonza
Keyword(s):  
Freedom Of Expression ◽  
State Power ◽  
Freedom Of Speech ◽  
Case Law ◽  
The State ◽  
International Tribunal ◽  
Primary Means ◽  
American Case ◽  
The Right ◽  
Control State

Article 13 of the American Convention was designed to provide robust guarantees for the freedom of thought and expression. Early Inter-American case law conceived freedom of speech as a primary means to control state power and provided strong protection to varied expression. This included ideas and information considered “offensive, shocking, unsettling or disturbing for the state or to any sector of the population.” In fact, the Court was the first international tribunal to recognize the right to access to state-held information as part of the protection of freedom of expression.

scholarly journals A Duty Perspective on the Hate Speech Prohibition in the Equality Act

2021 ◽  
Vol 24 ◽  
pp. 1-35
Author(s):  
Marelize Marais
Keyword(s):  
South African ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
The State ◽  
Bill Of Rights ◽  
Socioeconomic Rights ◽  
The Supreme Court ◽  
The Republic ◽  
Legal Contexts ◽  
The Right

In this contribution, I argue that every person's duty to respect others is central to section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ("the Equality Act"), otherwise known as the "hate speech" prohibition. This duty should therefore also be a central consideration in its interpretation. Related duties are those of the state to enact legislation, and of courts to interpret and apply the law to promote the spirit, purport and objects of the Bill of Rights. Our courts have in many instances considered the duty to respect others, as well as the state's and the courts' related duties, in the interpretation of socioeconomic rights and the development of the common law. In doing so, they have consistently employed the reasonableness standard. Therefore, references to relevant case law in various legal contexts provide the framework within which I examine legal duties in the context of unfair discrimination and, in particular, hate speech in terms of section 10(1) of the Equality Act. I examine the constitutional obligations of the state, the courts and private persons to promote respect for the dignity of others. I reiterate the state's specific obligation in terms of section 9(4) of the Constitution of the Republic of South Africa, 1996, to enact legislation to prevent or prohibit unfair discrimination on the grounds listed in section 9(3). Finally, I relate these duties to the section 10(1) prohibition in the Equality Act. I apply the reasonableness standard to conclude that the prohibition gives due effect to the duties of the state and every person, and that the courts are duty-bound to interpret it accordingly. This conclusion refutes the Supreme Court of Appeal's ruling in Qwelane v South African Human Rights Commission ("Qwelane")[1] that the section 10(1) prohibition was vague, overbroad and, therefore, unjustifiably infringing the right to freedom of expression.   [1]        2020 3 BCLR 334 (SCA). 

scholarly journals PERANAN DAKWAH DALAM MEDIA WEBSITE DAN PENGARUHNYA DI MASYARAKAT

2020 ◽  
Vol 8 (3) ◽  
pp. 10-19
Author(s):  
Hijaz Tahir Hijaz Tahir ◽  
Syamsu Tang ◽  
Saifullah Saifullah
Keyword(s):  
Mass Media ◽  
Communication Systems ◽  
Freedom Of Expression ◽  
Technological Development ◽  
Western World ◽  
Main Task ◽  
Moral Principles ◽  
The People ◽  
The World ◽  
Technological Means

Abstract The Western world, communication technology and mass media, have a big hand in building and establishing the moral principles of society. Internet media in particular, have a major role in introducing new norms of society. For the Islamic Ummah it is necessary to strengthen the missionary motivation which takes up so much time and attention of the majority Muslim community. Even now the technological means have been dubbed by the people of various terms for example, as a corona screen, a magic box, a window to the world and so on. The rapid introduction of new norms was made possible because the media moved with the principle of freedom of expression without preaching motivation, so that these principles were often used as a pretext for pursuing worldly interests. Unfortunately, many developing countries, including those claiming to be Muslim countries, follow this trend. As a result, Muslims around the world have been trapped in a foreign conceptual framework, which resulted in a media invasion of their value system, ethical perceptions, moral standards, sociocultural views, and even their religious beliefs. Therefore, Islam needs to set a da'wah strategy in all aspects of life through communication systems, especially electronic media that affect many people. This should not be ignored, and must be directed in accordance with Islamic perinsif which covers all aspects of life through the da'wah strategy. Technological development cannot be dammed. The role of Muslim communicators must defend the truth so that justice remains upheld. Justice cannot possibly be upheld without safeguarding the truth and this is the main task for the Islamic Ummah to carry out scientific charity including one of which is the application user in the mass media.   Keywords ; Da'wah, technology, mass media

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 Editorial

2015 ◽  
Vol 18 (6) ◽  
pp. 0-0
Author(s):  
Marius Smit
Keyword(s):  
South Africa ◽  
South African ◽  
Freedom Of Expression ◽  
Education Law ◽  
Educational Institutions ◽  
Legal Analysis ◽  
The South ◽  
South African Society ◽  
The Law ◽  
The Right

2015 Volume 18 Number 6 Special Edition 21 December 2015 Editorial At a juncture in time when two decades have passed since the establishment of a constitutional democracy in South Africa and almost twenty years since the commencement of the South African Schools Act, this special issue reflects on the interrelationship between Education and the Law.  This compilation of ten articles includes a historic look at Education Law as a field of study and reflects on a range of topical issues such as safeguarding learners against exposure to pornography, promoting safety in youth sport, the essentiality of ensuring open deliberative democratic practices during school elections, the role of educator “prosecutors” in disciplinary hearings of learners, pluralism as overriding consideration by the courts, as well as the rights to freedom of expression and life in relation to education. In many respects the multicultural plurality in most educational institutions depicts the coalface of the South African society. Legal disputes and conflicting interests in schools about equal access to quality education, promotion of African languages and non-diminishment of Afrikaans in the face of English hegemony and the accommodation of religious diversity echo the realities of life in South Africa. Johan Beckmann’s personal account provides a historic look at the beginnings of Education Law as a field of study in South Africa expresses the hope that more South African universities will become involved in studying the field of Education Law and that a joint partnership between educationists and jurists might develop in future. Stuart Woolman’s insightful article contends that the constitutional aim to promote pluralism as the grundnorm in South Africa explains some seemingly anomalous judgments in the education context. This plausible explanation leaves much food for thought, but also raises an array of questions. Should the paradigmatic notion of pluralism trump all other legal principles in a constitutional democracy? Are the principles of legality, justice and fairness not as important? Should pluralism underlie the adjudication process of balancing of rights and freedoms according to contextual circumstances in spite of unreasonable or unlawful state action?  Have the courts not merely shown deference to an external political schema as arbiter of what "the good life" should be? The criminalisation of exposing children or learners to pornography is particularly relevant in schools in this era of ready access to the internet and social media and is aptly explained by Susan Coetzee. Marius Smit appositely combines legal analysis of provincial regulations with qualitative research, in keeping with the methodology of social sciences, to provide evidence of undemocratic conditions and features as well as shortcomings in the system of school governing body elections.  Greenfield et alia contend that a detailed and textured approach to coach education, coupled with a more nuanced judicial appreciation of the importance of sport to society (and schools) and a positive interpretation of the ‘prevailing circumstances’, may help prevent widespread expansion of liability in both rugby and sport more generally. Michael Laubscher and Willie van Vollenhoven suggest that South Africa should take cognisance of the legislative and judicial measures that have been taken in the United States and Canada to deal with the dilemmas posed by cyber bullying in schools.  Erica Serfontein explores the nexus between the right to life and education in laying a foundation for the development of learners’ talents and capabilities, advancing democracy, combating unfair discrimination and eradicating of poverty in view of the essential role that the law plays to uphold these rights to attain quality of life. Based on qualitative data, Willie van Vollenhoven contends that student-educators are not able to internalise or apply the right to freedom of expression in practice. He warns that our school system is failing to develop learners as critical thinkers in the marketplace of ideas. Elda de Waal and Erika Serfontein argue that the neither the State, nor parents or educators are able to independently guide learners to responsible adulthood – a collaborative effort in accordance with the democratic principles of cooperation is required. They caution against the reciprocal tendency of parents and schools to blame each other and encourage parents to participate accountably to address learner misconduct. At times educators are required to fulfil quasi-judicial roles as evidence leaders (prosecutors) when conducting disciplinary hearings of learners. Anthony Smith highlights the difficulties experiences by these “evidence leaders” and recommends the provision of specific training in this regard. It is notable that three contributions to this special issue on Education Law utilised education research methodology, which is grounded in social science paradigms, in conjunction with legal analysis, based on law research methodology.  This accentuates the interdisciplinary relationship between education and the law and promotes the epistemological enrichment of legal theory. Although the jurisprudence of the field of Education Law is fairly modest, the implications of court decisions on educational issues have a profound effect on the South African society, firstly because schools are microcosms of society, secondly because democratic (or undemocratic) practices in educational institutions leave indelible imprints on the youth that will eventually find expression in the life of a nation, and finally because the success (or failure) of an education system will ultimately determine the level of progress and economic destiny of the nation. Special Edition Editor Prof Marius Smit       

Does the Constitution Call for the Criminalisation of Hate Speech?

2017 ◽  
Vol 30 (2) ◽  
pp. 456-483
Author(s):  
Marelize Marais
Keyword(s):  
South African ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Constitutional Rights ◽  
South African Society ◽  
Constitutional Protection ◽  
Clear Cut ◽  
International Commitments ◽  
The Right ◽  
Legislative Measures

The clear-cut exclusion from constitutional protection of ‘hate speech’ contemplated by section 16(2)(c) of the Constitution is not per se concerned with the expression or promotion of hurtful or offensive discriminatory views, not even if intentionally aimed at disadvantaging the target group. Rather, it is concerned with the devastating human rights risk that irrational, cruel behaviour may be borne out of the hatred instilled in others by the inflammatory speech of reckless orators who advocate hatred. The article submits that existing legislative measures do not satisfactorily meet the responsibility to take necessary legislative measures to safeguard society against the realisation of this risk. It points out that while expression under section 16(2)(c) of the Constitution to a substantial extent falls within the ambit of existing criminal offences, in particular the common law offence of incitement to commit a crime, expression contemplated by section 16(2)(c) that incites others to inflict harm by means that do not constitute criminal offences, for instance, discrimination or the promotion of hatred, is prohibited under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, but not criminalised. Expression of this nature should be criminalised, but only when the inciting action or attitude will have the effect of victimising target groups to the extent that they are effectively prevented from exercising their constitutional rights, in particular their right to freedom of expression. An analysis of the Draft Prohibition of Hate Speech Bill, 2004 reveals that the Bill fails to provide appropriate protection. Taking into account the guarantees of the Constitution including the right to freedom of expression, international commitments, comparative law and, most significantly, relevant features of South African society, the conclusion is reached that the criminalisation of incitement to promote hatred on the grounds stipulated in section 16(2)(c), as well as on the additional grounds of sexual orientation and nationality, is indeed called for.

The Road to Reading for South African Learners

2012 ◽  
Author(s):  
Maike Malda ◽  
Carisma Nel ◽  
Fons van de Vijver
Keyword(s):  
South African ◽  
The Road
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