Freedom of expressIon under the new

.
constitution
Yvonne M Burns*
Professor: Department of Constitutional and Public International Law
University of South Africa

Introduction
Section 16 ofthe Constitution ofthe Republic of South Africa Act 108 of1966,
is a more detailed provision than its predecessor in that it extends the scope
of freedom of expression to incorporate the freedom to receive and impart
information and ideas. The constitutional right to freedom of expression is not
absolute, and is subject to an internal limitation (section 16(2» in that
propaganda for war, incitement of imminent violence or advocacy of hatred
(the so-called 'hate speech', do not qualify for protection. Over and above this
internal limitation there is a general limitation clause, which permits the
limitation of a fundamental right under certain specific conditions.
This article addresses the philosophical basis of the right to free expression
and the content of the right. However, since section 39(1) of the Constitution
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specifically provides that in interpreting the Bill of Rights, a court, tribunal or

forum must consider international law and may consider foreign law, it is
apparent that no discussion of any fundamental righ t will be complete without
reference to international law and foreign law.
There are a number of interesting aspects in the freedom of expression clause
which warrant discussion. However, this article is confined to a discussion of
section 16(1) (a) and (b), which reads as follows:
Everyone has the right to freedom of expression, which includes-
(a) freedom of the press and other media;
(b) freedom to receive and impart information and ideas;

Before the content of the right to free expression is examined, a consideration

of the philosophical basis of the right to free expression is apposite.

The philosophical basis for the protection of free expression

Emerson, I the noted proponent of the need for free expression, includes sC\f-
fulfilmene, the attainment of truth,3 participation in decision-making4 and

·Blur LLB LLM LLD (Unisa).

ITI Emerson 'Towards a general theory of the First Amendment' (1963) 72 Yale Law
Journal 877.
2Freedom of expression is justified, first of aU, as the right of the individual in his
capacity as an individual. In order to achieve self-fulfilment, man has to develop his
mind and personality. In so dOing, he has the right to form his own opinions, and
to express those opinions. Id at 879.
 Freedom of expression under the new constitution 265

the achievement of a balance between stability and change,} as justification

for his theory of the need for free expression. Scanlon6 also adheres to the
theory that individual self-fulfilment or self-actualisation constitutes the
philosophical basis of free speech. On the other hand, the legal philosopher
Alexander Meiklejohn holds that freedom of speech must be protected in a
democratic society to facilitate self-govemance 7 Joseph Raz believes that the
individual usually places a higher value on being employed than on having the
right to free expression. He argues that although the individual's interest in his
right to free expression is, generally speaking, rather small (compared to his
interest in his other rights), the importance ofthe right lies therein that it is an
integral part of a democratic regime. 8 Although Raz does not discard the self-
fulfilment argument, he reasons that the value the individual has in the right
to free expreSSion derives from his interest in being able to participate in the
democratic process. He concedes that most people exercise the right to free
public political speech in a minimal way, but says:
This argument notwithstanding, the right is essential for the survival of
democracy, and everyone has a great interest in the survival of democracy. The
point is that this interest is not limited to those who have the vote or the right
of free expression. Members of the public in general, be they infants or
convicts without the vote, or without a right to free expression, have an
interest in the prosperity of democracy, since we assume that democracy is a
better form of government than its alternatives, and therefore more likely to
ensure that people get what they deserve and are entitled to, and what would
be good for them to have. This good, ie living in a democratic country, that
most people have a personal interest in having is clearly a public good. Its
existence is, in part, the existence of the right to free public political
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expreSSion. Hence that right is a pUblic good, a good not merely to its holders
but to the public at large. Furthermore, it follows from the above that the
right's service to this public good is a major reason for its importance, a reason
of greater weight than the value of the right to each individual who has it. 9

The role of the press was defined by Joffe J in Government of the Republic of
South Africa v Sunday Times Newspaper (FF1995 2 SA 221 (T) at 227 as
follows:

3Sound and rational judgment can be arrived at only once all the facts and arguments
for and against a proposition have been considered. An individual can test his
judgment only by sifting the true from the false. Suppression of information
prevents him from making a rational judgment. Id at 882.
4Emerson argues that freedom of expression in the political arena is an essential
requirement for securing freedom elsewhere and says: 'The right of all members of
society to form their own beliefs and communicate them freely to others must be
regarded as an essential principle of a democratically organized society'. Id at 883.
50pen discussion results in a more adaptable and stable community, and suppression
of discussion means that a rational judgment is impOSSible and society cannot adjust
or change ideas or develop new ideas. Suppression also tends to conceal the real
issues confronting society and may mean that the actual basis of the unrest or
grievance is not corrected (884).
&y Scanlon 'A Theory of Free Expression' Philosopby and Public Affairs (1972). See
too his article entitled 'Freedom of Expression and Categories of Expression' 40
(1979) University of Pittsburgh Law Review 519.
7A Meiklejohn Free Speech and its Relation to Self Government 66 (1948).
B'Free expression and Personal Identification' Free Expression Essays in Law and
Philosopby (1994) at l.
9Id at 8.
 266 xxx CILSA 1997
The press is in the front line of the battle to maintain democracy. It is the
function of the press to ferret out curruption, dishonesty and graft whenever
it may occur and to expose the perpetration. 10 The press must reveal dishon-
est, mal- and inept administration. It must also contribute to the exchange of
ideas already alluded to. It must advance communication between the
governed and those who govern. The press must act as the watchdog of the
government.

The Constitutional Court acknowledges that one of the most commonly cited
explanations of existence of the right to freedom of expression is the search
for truth in the 'marketplace of ideas'. However, Mokgoro J said that the
consideration that free speech is a sine qua non for every person's right to
realise his or her full potential as a human being, free of the imposition of
heteronomous power, is even more relevant than the marketplace conception
of the role of free speech. 11
Ultimately all these rights together (freedom of conscience, religion, thought,
belief and opinion, the right to privacy and dignity) may be conceived as
underpinning an entitlement to participate in an ongoing process of
communicative interaction that is of both instrumental and intrinsic value. 12

From this brief discussion it is apparent that freedom of expression serves to

protect a number of values, ranging from individual self-fulfilment to the
achievement and maintenance of a democratic state.

Internationa1law
Section 39(1) provides that courts, tribunals and forums must consider
international law in the interpretation of the Bill of Rights.
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The following international human rights documents protect freedom of

expression:
• The Universal Declaration of Human Rights (article 19);'3
• The International Covenant on Civil and Political Rights (article 19;1~ and
• The European Convention for the Protection of Human Rights; Fundamen-
tal Freedoms (article 10). u

lOSee OnsbelJTrading (Pty) Ltd v De Klerk NV 19973 SA 103 (W) in which the court
dealt with the question whether the IBA was biased in refusing to grant a private
broadcasting licence to the respondent.
"Case v Minister of Safety and Security; Curtis v Minister of Safety and Security 1996
BCLR 609 (CC), 622.
12Id at 623.
11Article 19 reads as follows: 'Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and
to seek, receive and impart information and ideas through any media and reganlless
of frontiers'.
l"This article is similar to art 19 of the Universal Declaration.
lThis article, which is also similar to art 19 of the Universal Declaration, adds a
proviso that states are not prevented from broadcasting, television or cinema
enterprises. The exercise of the right to free expression carries with it duties and
responsibilities. This means that freedom of expression may be subject to
formalities, conditions, restrictions or penalties prescribed by law, and which are
necessary in a democratic society. These limitations relate to national security,
public safety, the prevention of disorder or crime, the protection of the reputation
or rights of others, the maintenance of the authority and impartiality of the
 Freedom of expression under the new constitution 267

• The American Convention on Human Rights (article IV) 16 and

• The African Charter on Human and People's Rights (article 9).17
The European Commission on Human Rights and the European Court of
Human Rights have considered a number of cases dealing with freedom of
expression. The well-known case Attorney-General v Times Newspapers
LimitedlR-the 'thalidomide' case-was referred to the European Court of
Human Rights by the European Commission of Human Rights. 19 The
application was lodged by the publisher of Times Newspapers Limited and a
group of journalists of the British weekly newspaper The Sunday Times, to
obtain a decision whether or not the facts of the case disclosed a breach by
the United Kingdom of Great Britain and Northern Ireland of its obligations
under article 10 (the right to freedom of expression) of the European
Convention. Applicants claimed that the injunction issued by the High Court
and upheld by the House of Lords restraining them from publishing an article
in TheSunday Times dealing with the thalidomide children and the settlement
of their compensation claims in the United Kingdom, constituted a breach of
the right to freedom of expression contained in article 10. The European
Court found
that the interlerence complained of did not correspond to a social need
sufficiently pressing to outweigh the public interest in freedom of expression
within the meaning of the Convention. 2o

The court found that there had been a violation of article 10 since the reasons
for the restraint were insufficient (under article 10 s 2), that the restraint was
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not proportionate to the legitimate aim pursued, and that the restraint was not
necessary for maintaining authority of the judiciary in a democratic SOCiety.
Although the European Court has found that the publication of information

Judiciary.
l'1n.is article provides that 'every person has the right to freedom of investigation, of
opinion and of the expression of dissemination of ideas, by any medium whatso-
ever'. There is a general limitation clause which provides that the rights of man are
limited by the rights of others, by the security of all, and by the just demands of the
general welfare and the advancement of democracy.
17This article reads as follows: 'l. Every individual shall have the right to receive
infonnation. 2. Every individual shall have the right to express and disseminate his
opinions within the law'.
18 1974 AC 273.

19In this case a drug company (Distillers Company Biochemicals Limited), who had
produced and marketed the drug known as thalidomide, had entered into
negotiations with the parents of the children, whereby each plaintiff would receive
a lump sum of money, provided the allegation of negligence was withdrawn. When
the Sunday Times published a series of articles dealing with the plight of the
thalidomide children, the company brought the matter to the attention of the
Attorney-General maintaining that the article constituted contempt of court as
litigation against them by some parents was still pending. When the matter came
before the House of Lords it was found that it constituted contempt of court to
publish material which prejudiced pending litigation, or which was likely to cause
prejudgment of the issue.
2fJTimes NewspapeTs Ltd v the United Kingdom Of GTe at Britain and NOTthem ITeland
Eur Court HR Series A vol 30 Judgment of 26 April 1979, 960.
 268 xxx CILSA 1997
and ideas which are offensive or shocking, as well as information which is
controversial, are protected by article 10/ 1 the court found that the United
Kingdom had not violated article 10 by prosecuting the publishers of The little
red schoolbook under the country's obscenity laws. The book, which had
been translated from Danish, urged young people to take a liberal attitude
towards sex. The court found that it was impossible to find a uniform
conception of morals in the domestic laws of the various contracting states.
The view taken by the respective laws (of contracting states) regarding
morality varies from time to time and from place to place, particularly in an era
which is characterised by a rapid and far-reaching evolution of opinion on the
subject, namely morality.

Foreign law
The Federal RepubliC of Germany
In Germany the Basic Law guarantees freedom of opinion, speech, the press,
broadcasting and films. However, the freedom is subject to limitations dermed
in 'general Laws, the provisions of law for the protection of youth and by the
right to inviolability of personal honour'. 22 In its analysis of the right to free
speech, the German Federal Constitutional Court has identified two dimen-
sions of the right, namely the individual and the social. The individual
dimension, which protects one of the most immediate issues of the spiritual
nature of man, flows from personal individuality and seeks dialogue. Without
this freedom man cannot live in accordance with his nature and it is therefore
one of the most precious of human rightS. 23 The other dimension is social:
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freedom of expression forms the basis of ordered liberty and democracy

because it permits permanent public discussion and the exchange of opinions
on subjects of general political importance which are essential to democ-
racy. 24

The United States ofAmerica

Freedom of expression is accorded wide protection via the First Amendment.
In America, undoubtedly one of the most successful democracies, an informed
citizenry is regarded as essential to the smooth functioning of a representative
and participatory government, and the main function of the media is said to
be the control of state action. 25 The American citizen is viewed not only as
a source of authority in government, but also as a regular and competent
participant-the idea being the fulfilment of the ideal of government of the
people, for the people and by the people. Freedom of expression, which

21Handyside v United Kingdom 24 Eur Ct HR (ser A) 1976.

22Grundgesetz (GG) art 5(2).
237 BverfGE 198 (1958).
24 5 BverfGE 85 at 205 (1956); 7 BverfGE 198 at 219 (1958); 12 BverfGE 113 at 125
(1961); 20 BverfGE 56 at 98 (1966); 20 BverjGE 162 at 174 (1966).
25New York Times v Sullivan 376 US 254 (1964). In Terminie//o v Chicago 337 US 1
(1949) 4 it was said (at 4): 'The vitality of civil and political institutions in our
society depends on free discussion .. , (and) it is only through free debate and free
exchange of ideas that government remains responsible to the will of the people
and peaceful change is effected.'
 Freedom oJ expression under the new constitution 269

includes freedom of speech, freedom of the press, broadcasting, films etc, is

accorded a preferred status by the United States Supreme Court. Th.is
'preferred status' doctrine, which applies to freedom of speech, freedom of
association and the right to vote, has the effect that legislation which infringes
the right to free expression must be subject to special scrutiny.26
Canada
Section 2 ofthe Canadian Charter protects a number offundamental freedoms
including freedom of thought, belief, opinion end expression and freedom of
the press and other media of communisation. The fundamental freedoms
enumerated in section 2 are expressly subject to 'reasonable limits'.
Great Britain
There is no single document in England which may be regarded as the
Constitution of that country. In can rather be said that the British constitution
is found in common law, statute law, the law and customs of parliament, and
the constitutional conventions. There is no inventory of human rights in the
sense of a Bill of Rights and the individual's rights are protected by common
law. In England, human rights and fundamental freedoms, including the right
to freedom of expression, can be traced back to the old declaratory Acts, such
as the Magna Carta and the Petition of Right. Fundamental freedoms in
England are thus residual rights which derive from common law. Since the
right to freedom of expression is not a constitutionally protected right, the
right is characterised by the limitations placed on it. The importance of these
limitations lies in their defining the scope and content of the right. In other
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words, the content of the right to freedom of expression is established by

subtracting all the limitations to the freedom, and that which remains
constitutes freedom of expression H

The content of the South African right to free expression

Who is protected by the right?
The first question to be asked is who enjoys the right to freedom of express-
ion? Although this question has not yet been addressed by either the Supreme
Court or the Constitutional Court, it is submitted that the word 'everyone'
should be interpreted widely to include inter alia individuals, students,
juristic persons,28 aliens, journalists, editors, broadcasters, artists, and
researchers. 29
As we shall see, freedom of expression encompasses any fonn of human
expression. The protection of the right does not extend to infonnation or
ideas only, but includes matter which may offend, shock or disturb. Any

260p Kommers 'The jurisprudence of free speech in the United States and the Federal
Republic of Gennany' (1980) 53 Southern Californian Law Review 657 668.
27See in this regard YM Bums Freedom of the Press: A Comparative Legal Survey
unpublished thesis Unisa (1984).
l.8S 8(2) of the Constitution provides that the Bill of rights applies to natural and
juristic persons.
29See the American cases of Bridges v Wixon 326 US 135; Eisner v Stanford Bd of
Education 314 F Supp 832 (1970); New York Times v Sullivan n 25 above.
 270 xxx CILSA 1997
limitation to the right to free speech, including a limitation on information
which is offensive, shocking and disturbing information, must fall within the
scope of section 36. !fit does not do so, it will be unconstitutional. The United
States of America has upheld the principle that expression may not be
prohibited simply because it is offensive. 30
I t is interesting to note that there is no direct reference to the protection of an
individual's freedom of speech (or groups freedom for that matter) in section
16. Does this mean that only those freedoms specifically mentioned, such as
freedom of the press and other media, are constitutionally protected] The
answer to this question lies in the phrase 'everyone has the right to freedom
of expression, which includes ... ' It is submitted that the phrase 'freedom of
expression' is a generic term which must be widely interpreted to encompass
related freedoms such as freedom of speech (written and verbal), freedom of
the press (and other media), freedom of broadcasting, freedom of public
entertainment, freedom of artistic creativity, academic freedom and freedom
of scientific research, freedom oftelecommunications. 31 In essence, any form
of human expression may be included in this section.
In Canada the word 'expression' has been interpreted as any activity which
attempts to convey a meaning. For example, the parking of a car would
constitute expression if it took place as a protest against a parking regula-
tion. 32
In the United States the prohibition on the wearing of black armbands in
schools 33 and on the desecration of the flag in contravention of a statute 34 ,
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were both held to be violations of the First Amendment right to free speech.
This leads us to the question whether so-called 'symbolic speech', that is
conduct which is intended to convey a political or ideological sentiment, for
example, is also constitutionalJy protected. Tn assessing whether symbolic
speech should be protected under the right to free expression, the courts
generally balance this right against the conflicting rights of others and the right
of the state to prevent the infringement of other rights, such as the desecration
of the flag. In the case of United States v Eichman,35 the court found a
conviction for flag burning incompatible with the First Amendment.
The desecration of the flag has been a criminal offence in this country for
many years, and it will be up to the courts to balance the right to free
expression against the right of the state to prevent this desecration. The It
must be pointed out that section 17 of the new constitution makes specific

JOIn Texas v Gregory Lee Johnson 491 US 396 (1989) the court said the follOwing: 'If
there is a bedrock principle underlying the First Amendment, it is that the
Government may not prohibit the expression of an idea simply because society finds
the idea offensive or disagreeable'.
J1See in this regard YM Burns Media law (1990) 40.
J2Jrwin Toy Limited v Quebec (1989) 58 DLR (4th) 577.
llTinker v Des Moines School District 393 US 503 (1969).
:l4Texas v Johnson 491 US 396 (1989).
J5110 US 2404 1990.
 Freedom of expression under the new constitution 271

provision for the right to assembly demonstration, picket and petition, which
is a form of symbolic speech.
The limitation to freedom of expression
At common law the right to free speech and free press is a residual freedom
characterised by the limitations to the freedom. This has meant that the scope
and content of individual freedom of speech and the media in South Mrica has
waxed and waned down the years, depending on the pressure or influence
exerted upon it by the state. 36 Before the promulgation of the interim
constitution parliamentary sovereignty applied. As a consequence of this
doctrine and the apartheid policy and security legislation of the previous
government, fundamental freedoms, including freedom of expression could
not only be limited, but were virtually abolished in some instances. This
period, which was undoubtedly the darkest in the country's history as far as
the infringement of individual rights and freedoms is concerned, saw the
supremacy of the state and its structures over the rights and freedoms of the
individual. 37

The effect of the constitutional recognition of the right to freedom of

expression is that the right has a fixed meaning and content in that limitations
to the right must comply with the provisions laid down in the constitution. The
content of the right may be limited by:

• the internal limitations listed in section 16(2), namely propaganda for war,
incitement of imminent violence or advocacy of hatred that is based on
race, ethnicity, gender or religion and that constitutes incitement to cause
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harm;
• the requirements laid down in section 36-the limitation c1ause. 38
Let us examine the specific freedoms mentioned in section 16.

Freedom of the press and other media

The print and broadcast media played a vital role in most western societies in
developing and maintaining democratic principles. The control of newspaper

16Scc in this regard YM Bums Freedom of the Press.

17Thi'l statement Is borne out by the events of the 1980s when the former government
effectively curtailed all forms of political criticism through the Internal Security Act
42 of 1974, the Publications Act 42 of 1974 and the Emergency and Media
Regulations published under the Public Safety Act 3 of 1953. In terms of these
regulations the media were prohibited from publishing news, comment or
advertisements relating to inter alia security actiOn and subversive statements.
Furthermore, those individuals who had been placed under house arrest were not
only physically confined, they were also prohibited from making public statements.
In effect, therefore, their right to free speech was confined to communication with
one or two people.
llYfhis section provides that the rights listed in the Bill of Rights may be limited by 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 the nature of the right, the
importance of the purpose of the limitation, the nature and extent of the limitation,
the relation between the limitation and its purpose and less restrictive means of
achieving the purpose.
 272 xxx CILSA 1997
monopolies and the regulation of cross-ownership of the mass media
underscores a basic Western philosophy-that of the collective right to be
informed. 39 A diversity of news and information is not feasible in a monopol-
istic environment, and it is for this reason that issues such as the regulation of
monopolies, cross-ownership and internal measures of control are discussed
in this section.
The printed press
It has been said that freedom of the press has always been recognised at
common law as a residual freedom: that being permitted which is not
expressly forbidden. In theory, therefore, the press has always been at liberty
to print at will, subject to legal and certain extra-legal restrictions. At common
law the press has always been at liberty to express opinions and give news and
information to the public without interference, provided the laws of
defamation, privacy, and other similar laws are not infringed. Freedom of the
press now enjoys constitutional protection (in terms of section 19(1)(a)),
which means that any limitation to this freedom must pass constitutional
muster.
It is interesting to note that in Germany, freedom of the press is not regarded
as a sub-section of the general freedom of opinion or expression. The press
enjoys a wider area of freedom, since the institutional independence of the
press is also guaranteed. Freedom of the press is divided into a basic right to
protection from coercive action and also embodies an objective constitutional
guarantee of the institution 'free press', which means that there is a duty on
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the state to maintain and protect this institution. The approach is that freedom
of the press cannot be guaranteed unless there are a number of independent
press undertakings. The danger envisaged is that the larger undertakings may
swallow the smaller ones, thereby creating a monopoly, which would bring
about the disappearance ofa 'free press'.
The specific role of the press in creating public opinion, providing information
on all aspects of life, and creating a political forum for the exchange of ideas,
is the reason why the press is afforded specific protection in that country.
Consequently, the concepts 'individual freedom and liberty' and 'freedom of
the press and media' are inextricably interwoven, so much so that the ideal of
democracy can be achieved only in the presence of freedom of speech and
free media.
In United States law, the institutional independence of the press' o is not
guaranteed. In that country the mass media, including newspapers, radio and
television, are privately owned and 'have developed within the framework of
a free enterprise system. These media outlets, which have divergent

J~ Bums 'Free speech: has there been a shift in emphasis?' (1993) 19/2 Communi-
catio 2.
4O>rhe press includes newspapers, magazines, pamphlets, leaflets, signs, books, motion
pictures, non-commercial advertisements, radio and television. See Lovell v City of
Griffin 303 US 444 (1938); Schneider v New Jersey 308 US 147 (1939) and New York
Times v Sullivan n 25 above.
 Freedom of expression under the new constitution 273

approaches to political or social issues, obviate the need for the protection of
the institutional independence of the press. ,41
The importance of a free press has always been recognised in this country. It
may be said that the role of the South African press (and the mass media in
general) has been said to include the following:
• the provision of infonnation on a wide range of topics, such as educational
topics, cultural issues, the different political views of the populace;
• the articulation of public opinion by providing comment on news items;
• assuming the role of 'watchdog' over the government by infonning the
public of government malpractice or incompetence. 42
Monopolies
Although the institutional independence of the press is not accorded
constitutional protection, monopolistic trends which prevent a diversity of
news, infonnation and opinion from reaching the public, are regulated by the
state. The Maintenance and Promotion of Competition Act 96 of 1979, as
amended, regulates the promotion and maintenance of competition in the
economy and prevents and controls restrictive practices and the acquisition
of controlling interests in business and undertakings.
During 1973, the previous government thwarted an attempted take-over of a
majority shareholding of the South African Association Newspapers (SAAN) by
the Argus group. The government was opposed to the take-over, since it would
have created a monopolistic situation. On the other hand, it may be argued
that a certain monopolistic trend has always been the order of the day in the
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press industry, as illustrated by the Perskor-Nasionale Pers Beperk dispute in

the 1980s.43
In May 1994, the Competition Board conducted a fonnal investigation into
inter alia the (perceived) monopolisation of the English language newspa-
pers, particularly in the Cape Town area. The events leading up to this fonnal
investigation were:
• the conclusion of a JOint Operating Agreement between The Argus Printing
and Publishing Co limited and SAAN;
• the fact that Times Media (fonnerly SAAN) Argus Newspapers and Argus
Holdings were all ultimately controlled by the Anglo group;
• an agreement entered into between the Anglo Group and Independent
Newspapers, a public company in Ireland, and Argus Newspapers entering
into an agreement with Times Media at the same time. The purpose behind
these agreements was to 'unbundle' Argus Newspapers shares; to list the
Argus Newspapers shares on the Stock Exchange; to sell 31% in Argus
Newspapers to Independent Newspapers.
In its recommendations, the Competition Board found that there was no

41SN Brotman 'Broadcast regulation and the First Amendment: an American

perspective' (1980) 3}oumal of Media Law and Practice 302.
42See in this regard YM Bums Media law (1990) 63.
4JBums Freedom of the Press 523.
 274 xxx CILSA 1997
cogent reason for a recommendation that the monopoly (which probably
exists in respect of English daily newspapers in the Cape Town area) be
dismantled. The board also found that it was not empowered to recommend
that Anglo/JCI be directed to sell their share holding in Argus Newspapers to
someone other than Independent Newspapers.
The importance of this finding lies in the way in which the Board analysed the
share holding, editorial independence, and perceived monopolisation of the
English language newspapers in Cape Town before reaching its decision. It
may be expected that future attempted take-overs or monopolies will be
subjected to the same intensive scrutiny.
Licensing
The Imprint Amendment Act 18 of 1994 has repealed the Newspaper
Registration Act 63 of 1971 as well as the Newspaper and Imprint Registration
Acts of the former Transkei, Bophuthatswana, Venda and Ciskei. As a
consequence, the newspaper press is no longer subject to licenSing. The
Imprint Amendment Act regulates matters such as the protection of the names
of existing newspapers, the identity of printers and the addresses at which
newspapers are printed. This approach, which is in line with that of the United
States, is to be commended, particularly in the light of the threat of de-
registration which the former government often wielded over the newspaper
industry.
Extr~legal restrictions to freedom of expression
Internal or journalistic freedom is regulated contractually between journalists,
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editors and proprietors, and specific guidelines are generally laid down which
outline the basic approach of the newspaper.44 Although it is generally
agreed that journalists and editors are free to publish at will (subject only to
the limitations imposed by law), the reality is that there are a number of extra-
legal factors which have a restrictive effect on the content of a publication.
There is generally a form of self-regulation via the voluntary adherence to a
Code of Conduct. In terms of this Code, members undertake inter alia to
report news truthfully, accurately and objectively; to present news in a correct
and balanced manner without any intentional or negligent departure from the
facts by distortion, exaggeration and misrepresentation. Requirements are laid
down regarding the reporting of factual material and incorrect publications
must be spontaneously rectified, without reservation or delay. Specific
requirements are laid down regarding reports, photographs or sketches
involving indecency or obscenity. Members are also generally required to give
due regard to subjects which could cause enmity or give offence in racial,
ethnic, religious or cultural matters.
Secondly, the content of a newspaper is greatly dependent on its readership,
and a politically liberal newspaper, for example, will tailor its editorial content

""In Germany, for example, editors are obliged to observe the predetermined
guidelines, but nevertheless retain a right to the protection of conscience and
convictions. See M loftIer & R Ricker llandbucb des Presserechts 170.
 Freedom of expression under the new constitution 275

to meet or coincide with the views of its readers. A newspaper which ignores
this reality does so at its peril, as is well illustrated by the financial downturn
and even tual closure of the Daily Mail, which suffered financial loss not only
via a diminished number of readers, but also because of the loss of advertising
revenue. Advertisers generally choose the newspaper or magazine which
reflects their political/socio-economic/cultural viewpoint, and editors and
journalists generally adhere to these viewpoints to ensure continued financial
support.
The broadcast media
The South African broadcasting industry is subject to regulation and control
via the Independent Broadcasting Authority (IBA) Act 152 of 1993. In tenns
of this Act the Authority, which is independent of political control, regulates
broadcasting in South Africa in the public interest. The Act provides for, inter
alia, the issuing of licences, the regulation of local television content and a
Code of Conduct. Although there is no prior censorship of programmes,
provision is made for the monitoring of programme content by a Broadcasting
Monitoring and Complaints Committee. Broadcasters who set up a satisfactory
system of content regulation may be exempted from this provision.
The Broadcasting MonitOring and Complaints Commission ensures adherence
to a Code of Conduct (a fonn ofsclf-censorship) and the Code of Advertising
Practice. The Code of Conduct deals with issues such as indecency, obscenity,
and offensiveness to public morals or religious convictions or feelings. This
system of self-censorship is adhered to in other Western countries. In England,
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

for example, the British Broadcasting Corporation (BBC) recently adopted

four procedures to ensure that an accountable BBC becomes the order of the
day. For our purposes the most important procedure is the institution of a
Programme Complaints Unit. This Unit, which is an internal mechanism,
investigates complaints and complainants who are dissatisfied may appeal to
the Appeals Committee of the Board of Governors of the BBe. 4~
Section 2(a) of the IBA Act obliges the Authority to promote a diverse range
of sound and television broadcasting services on a national, regional and local
level, to cater for all language and cultural groups and to provide entertain-
ment, education and infonnation. The Authority is also authorised to promote
the development of public, private and community broadcasting services
which are responsive to the needs of the public.
The primary objects of the Act clearly reflect the importance of broadcasting
in meeting the entertainment, educational, infonnation, religious and cultural
needs of South African SOCiety. To this end the Act provides, inter alia
• for the encouragement of ownership by historically disadvantaged groups;
• that foreigners may not control broadcasting services;
• that fair competition between broadcasting licensees ensues;
• that cross-media control of private broadcasting services is limited;

45Fraser Steel 'Judge and jury in our own case? The BBC's mechanism for handling
serious programme complaints'. (Paper delivered at the University of Pretoria.)
 276 xxx CILSA 1997
• that broadcasting licensees adhere to a code of conduct acceptable to the
Authorityj and
• for the encouragement of equal opportunity employment practices.
Licensing
An important question is whether the regulation of broadcasting via a licensing
system conflicts with the constitutionally entrenched right to free expression.
The justification for broadcast regulation and licensing in most countries,
including South Africa, has generally been that airwaves are a scarce resource.
The argument which is usually raised is that, technically, there are a limited
number of frequencies available, and it is therefore in the public interest to
regulate broadcasting to ensure a wide range of views. This scarcity argument
is closely related to the view that the broadcast spectrum is a national
resource. According to this view, broadcasters become trustees of the
resource and must therefore act in the public interest by complying with the
requirements laid down by the regulating body.46
Public broadcasting
The public broadcasting service is conducted by the South African Broadcast-
ing Corporation (SABC). Generally speaking public service broadcasting
should be available to everyone in the country, in the sense that all citizens
have an equal right to receive news, information, and other essential
broadcasting services. The importance of a public broadcasting system to the
maintenance of a constitutional democracy is specifically recognised in the
new Constitution. Section 192 provides for the establishment of an indepen-
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dent authority to regulate broadcasting in the public interest, and to ensure

fairness and a diversity of views broadly representing South African society.
Since the previous public broadcasting service clearly did not meet the
requiremt>nts of the various cultural and language groups in this country, the
service has been fundamentally changed. Although English is still the dominant
language, the SABC has made important strides in accommodating the various
cultural and language groups.
Deputy President Thabo Mbeki recently commented in parliament that the
SABC does not give the government enough favourable air time. It is hoped
that this comment will not lead to the present government adopting the
modus operandi of its predecessor, which used the public broadcaster to
broadcast government propaganda during the 1950s in programmes such as
Current Affairs. The present government has not, as yet, interfered with the
editorial policy of the SABC, and it is to be hoped that this attitude will prevail
in the future.
Private broadcasting
Section 49 of the Act provides for certain limitations to be placed on private
broadcasting services. These include that no person:
• shall have direct or indirect control over more than one private television

""Office of the Communications of United Church ofCbrist v Federal Communications

Commission 359 F2d (D Cir 1966) at 994.
 Freedom of expression under the new constitution 277

broadcasting licence;
• may be a director of a company which is in a position to control more than
one private television broadcasting licence;
• may be in a position to control more than two private FM sound broadcast-
ing licences; and
• may be a director of a company which is in a position to control more than
two private FM sound broadcasting licences.

Community broadcasting
In its initial efforts the Authority addressed the participation and development
of commurtity broadcasting. During 1994, the Authority issued 82 temporary
(one year) commurtity broadcast licences, and the Authority is at present
involved in a series of public hearings on community broadcasting policy,
which will lay the foundation for licence conditions for four-year licences.
Although the Act prohibits the granting of a licence to a party-political entity,
it does not prohibit the issuing of a licence to a community which is organised
on the basis of certain political objectives. The commurtity of interest of the
'Boer-Afrikaans' community has been recogrllsed by the Authority and licences
have been granted to these commurtities in different parts of the country. A
question which arises in this context is whether the information presented on
the radio station should be fair, impartial and balanced. In other words, the
question is whether it should adhere to the British Broadcasting Commission's
(BBC) standards of fairness and balance. The argument is that the radio
station represents a particular interest group, why should it be required to
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

apply the standards of fairness and balance, particularly since, 'viewed

coUectively', there should be a diversity of services and programmes? In her
address at the recent Conference at the Urtiversity of Pretoria, Bronwyn
Keene-Young, the head of the IBA Mortitoring and Complaints Department,
said that the argumen t should be tempered with the recognition of the limited
broadcasting resources available-there is an obvious frequency space
limitation and only so many frequencies are reserved for commurtity
broadcasters. Secondly, commurtities such as the Boer-Afrikaans community
have had access to finances, expertise and equipment to start a radio station.
Most black commurtities have not. Thirdly, the question must be asked
whether broadcasters which are based on ethrtic and raciaUy defined political
objectives, should be encouragedY
In considering applications forcommurtity broadcasting licences the Authority
will consider whether the applicant is fully controlled by a non-profit entity,
whether the applicant proposes to serve the interests of the commurtity and
whether it has the support of the commurtity.
Code of Conduct
All broadcasting licensees are subject to the Code of Conduct for Broadcasting

47Bronwyn Keene-Young 'Telecommunications and broadcasting: reaching the

people. A legitimate bias for community broadcasters?' (Paper delivered at the
University of Pretoria.)
 278 xxx CILSA 1997
Services set out in Schedule 1 of the Act.
According to this Code broadcasters:
• may not broadcast any material which is indecent or obscene or offensive
to public morals or offensive to the religious convictions or feelings of any
section of the population or is likely to prejudice the safety of the State or
the public order or relations between sections of the population;
• may not, without due care and sensitivity, present material which depicts
or relates to brutality, violence, atrocities, drug abuse and obscenity;
• must exercise due care and responsibility in the presentation of pro-
grammes where a large number of children are likely to be part of the
audience.
Subsection (a) is very similar to the undesirability requirement laid down in
section 47 of the Publications Act 42 of 1974. The question is whether the
Code of Conduct will pass constitutional muster particularly in the light of the
Constitutional Court decision of Case vMinisterofSafetyandSecurity; Curtis
v Minister of Safety and Security.48 As a general criticism, the terms 'in-
decent', 'obscene', 'offensive to public morals' are subject to attack for
unconstitutionality on the ground that they are vague and overbroad.
It is a universal trend that printed/broadcast matter is regulated in the interest
of the vulnerable, mainly children. Any limitation of freedom of broadcasting
should thus be designed to protect the vulnerable and the legislature should
bear in mind that audiences are sophisticated and that the maturity of adults
and co-responsibility of parents should be taken into consideration. Where a
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broadcast (or publication for that matter) reflects a clearly perceivable

likelihood of harm the distribution or screening may be prohibited, provided
that the prohibitions are defined as precisely as possible.
The question of the portrayal of sex and violence on teIcvision has been the
subject of much debate. In Canada, the Broadcast Standards Council
promotes self-regulation in programming matters by Canada's private sector
broadcasters. Its objectives include the application of specific broadcast
standards developed by the Canadian Association of Broadcasters, the
provision of recourse to the public regarding the application of those
standards and keeping the broadcasters in touch with societal trends. The
Standard Council is not a judicial or even a quasi-judicial body. It does not
hold hearings or apply the rules of natural justice. It uses the complaint put
forward by a member of the public, the code of conduct, previous decisions
of the council etc. The decision becomes a matter of public record and, if it is
negative, the broadcaster is obliged to read a prescribed statement during
peak listening hours on radio or prime time on television.
A Violence Code has also been adopted in Canada. The main objectives ofthe
Code are to protect children and other vulnerable groups from inappropriate
programming containing violent elements and to inform adults about
programme content. Gratuitous violence, that is material which does not play

48Note 10 above.
 Freedom oj expression under the new constitution 279

an integral role in developing the plot, character or theme of the material as

a whole, is banned 49
Editorial independence
Editorial independence in the field of broadcasting has been somewhat
unclear in South Africa, particularly in the field of public broadcasting.
Although the South African Broadcasting Authority (SABC) has denied state
control in the past, this denial is not borne out by the facts. It is common
knowledge that the previous government interrupted broadcasts and that the
views of that governing party were given preference.
Radio 702, which hosts talk radio, is often placed in difficult situations where
the caller either uses offensive language or confesses to being a paedophile,
for example. The argument put forward is that talk radio requires greater
tolerance from both listeners and regulators. On the other hand, a compro-
mise between good radio and responsibility should be effected, and
incitement to violence or opposition to criminal law should not be part of any
programme. )0
Cross-ownership
The control of newspaper monopolies and the regulation of cross-ownership
(in press, radio and television broadcasting) underscores a basic Western
approach-that the collective right to be informed, which is based on the
dissemination of a diversity of news and information, is impossible in a
monopolistic environment.
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

With regard to the regulation of cross-media ownership of private broadcast-

ing, the Authority's paper of 12 March 1996, must be discussed. The Authority
recommends the adoption of the following principles to regulate cross-media
control:
• No person who controls a newspaper may acqUire or retain financial
control in both a radio and television licence .
• No person who is in a position to control a newspaper may be in a position
to control a radio or television licence in an area where the newspaper has
an average issue readership of more than 20% of the total newspaper
readership in that area, if the licence area of the radio licensee overlaps
substantially with the said circulation area of the newspaper. Substantial
overlap must be interpreted to mean an overlap by 50% or more. The effect
of this regulation is that the newspaper will still be able to acquire or retain
a financial interest in a radio or television licence but may not be in a
position of control over such licence, if its readership exceeds the
prescribed figure. Full and extensive disclosure of share holding and
financial structures of private broadcasting licensees will be a requirement.

49Ronald Cohen 'Television violence-a Canadian perspective'. (Paper presented at

the University of Pretoria.)
5O]bis issue was raised at the broadcast conference recently hosted by the University
of Pretoria.
 280 xxx CILSA 1997
Advertisements
The Act requires all broadcasting licensees to adhere to the Code of Adver-
tising Practice as determined by the Advertising Standards Authority (ASA). The
Authority recognises the ASA Code, but will also consider placing restrictions
on tobacco advertisements on the ground of health considerations, prohibit-
ing alcohol advertisements during religious, children and youth programmes,
and developing general advertising standards for radio and television.

Films
Although films are not specifically mentioned in section 16, they do qualify for
protection as a form of expression. It is submitted that films form a sub-set of
the general right to freedom of expression. Furthermore, section 16(l)(c)
specifically protects the freedom of artistic creativity. It has been said that no
right is absolute and films, like other forms of expression, are subject to the
general limitation clause.
In terms of the Films and Publications Act 65 of 19% all films are subject to
classification before screening.'! For example, films which contain scenes of
explicit violent sexual content, bestiality, explicit sexual conduct which
degrades a person and which constitutes incitement to cause harm, the
explicit infliction of extreme violence, and the promotion of religious hatred
will be classified as XX films. The R18 classification imposes an age restriction
on the film. An XX or X18 classification does not apply to bonafide SCientific,
documentary, dramatic or artistic film.
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

Telecommunications
Since the Constitution protects a general right to free expression the right
encompasses various subsets of the general right. We have already dealt with
freedom of the press, broadcasting and films and we should now address
freedom of expression via the electronic media or, as it is also known the
information superhighway.
The telecommunication industry has undergone rapid technolOgical changes
in the past few years. The telecommunication and broadcasting industries have
merged internationally into the electronic superhighway, more commonly
known as 'cyberspace'. What do we mean by 'telecommunication'? It has been
defined as follows:
any electronic transmission of infonnation chosen by the sender, between
speCific places chosen by the sender, qualifies as telecommunications. The
medium of transmiSSion may be copper wire, radio or optical fiber; the
transmission may be one-way (as in paging) or two way (as in an ordinary
telephone conversation); the information transmitted may be a voice
conversation or bits of data passing between computers. The definition
includes ordinary telephone service, cellular service, fax machines, paging, on-
line information services and much else besides ... '2
In South Africa the law of telecommunications policy is in a developmental

51 Films may be classified as SS, X18 or R18---s 18(4)(a).

52CH Kennedy An introduction to US Telecommunications law (1994) xv.
 Freedom of expression under the new constitution 281

phase. A Green Paper has been released, followed by the White Paper on 13
March 1996. These stages led to the promulgation ofthe Telecommunications
Act 103 of 1996. This Act, which regulates telecommunication activitiesH
(other than broadcasting) controls radio frequency spectra and establishes an
independent South African Telecommunications Regulatory Authority as well
as a Universal Service Agency. The objects of the Act are to provide for the
regulation and control of telecommunication matters in the public interest. ~4
The Authority is governed and represented by its Council, which may establish
standing or special committees to perfonn the functions set down in section
2 of the Act. The Universal Service Agency must inter alia promote the goal of
universal service; promote telecommunication services as part of reconstruc-
tion and development projects and programmes; stimulate public awareness
of the benefits of telecommunication services. ~~
It is apparent that the law regulating telecommunications needs to be
developed in specific areas, particularly the protection of copyright and the
prohibition on the transmission of sexually explicit material. In America the
legislature recently promulgated a Communications Decency Act which is
based on the need to protect children from sexually expliCit material. The Act
prohibits the on-line communication of indecent or patently offensive
material, or material which communicates anything in connection with
abortion. In the South African context research will have to be conducted into
the need for regulation of on-line communication in general and copyright and
offensive material in particular. With regard to the protection of children, the
installation of computer software to prevent the transmission of sexually
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

explicit material should be examined. Another important question is howon-

line communication can be controlled effectively (if at all) by government in
the light of its global implications.

The right to receive and impart information and ideas

Section 16(1)(b), which protects the freedom to receive and impart informa-
tion and ideas, is in all probability a reaction to the 1980 states of emergency,
when the South African population was deprived of information of national
importance and the individual and the press were prohibited from publishing
infonnation which related to 'unrest' situations.
Although section 16(1) (b) makes no reference to freedom of opinion and the
question is whether this right is included in section 15. (Section 15 specifically
protects the right to freedom of conscience, religion, thought, belief and

SlThe Act defines lelecommunication as 'emission, transmission or reception of a

signal from one point to another by means of electricity, magnetism, radio of other
electromagnetic waves, or any agency of a like nature, whether with or without the
aid of tangible conductors'. (s 2) (xxxv).
S4Section 2. The objects of the Act include the promotion of the universal and
affordable proviSion of telecommunication services; encouraging investment in the
telecommunications industry; promoting the development of telecommunication
services which are responsive to the needs of users and consumers; taking the needs
of local areas and communities into account.
SSSection 59.
 282 xxx elLSA 1997

opinion. It could be argued that the exclusion of freedom of opinion from the
ambit of freedom of expression is because section 16 relates to expression
which is articulated rather than thoughts of private opinions. It is unnecessary
to embark on a long and difficult argument in this regard. Suffice it to say that
freedom of opinion, as part of intellectual freedom, also forms part of the
general freedom of expression. In the fmal analysis, intellectual opinions
which are not communicated, will not qualify as expression. It is only when
these opinions are manifested in some form, such as verbal or written speech,
that freedom of speech/expression becomes an issue.

The right to gather/receIve informatIon

Freedom of infonnation does not mean that the individual may insist on
receiving specific information from the press, for example. It does include the
right to the passive reception of information, as well as the active collection
thereof, but this does not mean that the individual may freely intrude upon the
privacy of another, or trespass upon his property. No right, including freedom
of expression, is absolute.
As we shall see, a distinction must be drawn between the right to gather
information of one's own accord and the constitutional right to information.
Thejournalist's right to gather infonnation
In German legal literature the basic right to freedom of information is
recognised as an independent right which stands on an equal footing with the
right to freedom of expression. In Germany every person has the right to freely
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

inform himself from generally accessible sources. This right to information is

closely aligned to article 20 of the Basic Law which provides inter alia that
Germany is a social and democratic state; that government derives from the
people via elections, voting and separate legislative, judiCial and executive
organs. The significance of this alignment is that only an informed citizen is a
politically mature dtizen.
In the United States, the right to gather information is seen as a part of the
broader right to know, but 'the right to speak and publish does not carry with
it the unrestrained right to gather information,.}6 The question whether the
actual process of gathering information is entitled to legal protection has not
been conclusively decided in that country. In Branzburg v Haye~7 it was
said that press freedom could be eviscerated, in the absence of some
protection in seeking out news. In Pell v Procuni~8 the court acknowl-
edged that a journalist is free to seek out sources of information not available
to the public and is entitled to constitutional protection of the confidentiality
of his sources.
In South Africa neither the media nor journalists have been accorded greater

56Zemei v Rusk 381 US 1 (1965) 16.

57408 US 655 (1972). This case involved a journalist's response to a grand jury
demand to provide information in connection with the manufacture, sale and use
of illegal drugs.
58417 US 817.
 Freedom of expression under the new constitution 283

privileges than the individual in the past. As a result the confidentiality of

journalistic sources has not been the subject of specific protection. In S v
Mattison'9 a journalist for the Sunday Express was subpoenaed in terms of
section 205. The nature of the evidence required from the journalist was the
disclosure of the identity of the informant or the source of the information
relating to a newspaper article. When the journalist refused to disclose the
name of his informant he was sentenced to 14 days imprisonment.
The 1996 Constitution recognises the importance of free media to a demo-
cratic SOCiety. Does the specific right accorded the press and other media
mean that journalistic sources should be accorded special protection? It is
submitted that a journalist should not be accorded greater protection than the
ordinary individual, particularly in the light of section 9 of the new constitu-
tion, which specifically states that everyone is eql.~al before the law and has the
right to equal protection and benefit of the law.

Access to infonnation
An important corollary to the right to gather information is the constitutionally
protected right of access to information. Section 32 of the new Constitution
provides that everyone has the right to any information held by the state and
any information that is held by another person and that is reqUired for the
exercise or protection of any rights 60 . This is a wide right of access to state
information and here again any limitations to this right must fall within the
requirements of the limitation clause. The question is how one can best
accommodate the right to information with the administration's task of
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ensuring a smoothly run and efficient administration.

In America the Freedom of Information Act61 entitles any person to request
information from the federal executive government (Congress and the courts
are excluded from the ambit of the Act). Government agencies are required to
divulge information on their functions and the exercise of their powers.
Certain categories of information such as national defence and foreign policy
are excluded from the ambit of the Act.
In Australia, the Freedom of Information Act of 1982 provides for a general
right of access on the part of the Australian community to information in the
possession of the government. This general right is limited only by such
exceptions and exemptions as are necessary for the protection of essential
public interests, and the private and business affairs of persons affected by
rules and practices.
Article 5 of the German Basic Law includes the right to the passive reception
as well as the active collection of information. 62 The active collection of news

S91981 3 SA 302 (A).

"'fhis section also provides that national legislation must be enacted lO give effect lO
the right, and may provide for reasonable measures to alleviate the administralive
and financial burden on the state.
61 5 USC 552.
62See Lomer Handbucb des PresseTecbts 35.
 284 xxx CILSA 1997
does not mean that government records may be inspected at will: there is no
positive right to know.
Is the South African information clause similar to the American and Australian
Freedom of Information Acts (which establish a general right to information)
or is our information clause limited to a need to know? The wording of section
32(a) unequivocally states that everyone has the right of access to 'any
information held by the state'-which establishes a general right to informa-
tion. Section 32(b) provides that where the information is held by another
person, the right to access is qualified: it must be required for the exercise or
protection of rights. It is clear that section 32(a) provides for a general right
to know. This means that the individual is entitled to access to state· held
information, with certain limitations, such as national security. The objective
here is to ensure an accountable and responsive system of government. On
the other hand, section 32(b) makes provision for a need to know. In other
words, it is not an unqualified right and depends on the circumstances of the
case.

The right to receive information

In South Africa the right to receive information will in all probability be
restricted to 'generally accessible sources' as is the case in Germany. These
generally accessible sources will include information received via the printed
press, the broadcast media and the electronic media.

The freedom to impart information

Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

The freedom to impart information should also be effected by way of generally

accessible sources. This does not mean that the individual may demand that
either the press or broadcasters specifically publish or rustribute a particular
opinion or viewpoint. Although the media are seen as the purveyors of
information, they are private undertakings (apart from the public broadcaster),
and are at liberty to follow a particular editorial policy. It is generally accepted
that a public broadcaster should provide information of a general nature,
covering a variety of topiCS, and articulating as many viewpoints as pOSSible,
on social and political issues
In recent years there has been a universal movement towards the recognition
ofa collective right to be informed. 61 As a normative ideal, the collective right
to information gives effect to democratic principle by ensuring an informed
voting populace, and here one must agree with Anthony Mathews who says it
no longer makes sense to speak of democracy without at least implying a
popular right to information. 64 It must again be mentioned that this collective
right to information amounts to access to a diversity or variety of information,
rather than a right of individual access to the media.
In this context that the importance of regulating newspaper monopolies and
cross-media ownership become apparent. Regulation is necessary to ensure

6lCommunicatio n 39 above at 5.
64A Mathews The darker reaches of government (1978) 8.
 Freedom of expression under the new constitution 285

that a proliferation of newspapers and broadcasting, which produce a

balanced representation of essential information,free of manipulation, reach
the public.
The Constitutional Court has specifically held that freedom of expression is
impoverished if it does not embrace the right to receive, hold and consume
expressions transmitted by others.
Firstly, my right to express myself is severely impaired if others' rights to hear
my speech are not protected. And secondly, my own right to freedom of
expression includes as a necessary corollary the right to be exposed to inputs
from others that will inform, condition and ultimately shape my own
expression. Thus, a law which deprives willing persons of the right to be
exposed to the expression of others gravely offends constitutionally protected
freedoms both of the speaker and of the would-be recipients.6~

The interpretation clause is of particular importance to a discussion on

freedom of expression in general and the right to receive and impart
information in particular. Section 39 (1) of the new Constitution unequivocally
states that a court, tribunal or forum must consider international law when
interpreting the Bill of Rights.

Conclusion
It is apparent the freedom of expression is accorded wide protection by
international human rights documents and that the South African freedom of
expression clause is in line with these documents. There is no doubt that these
documents and foreign law will be of assistance in developing the South
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

African right to freedom of expression. For example, American law will be

important in developing our law since the Federal Supreme Court has
developed an extensive body of case law over the years regarding this
constitutionally protected right. German law ilJ also be useful, since certain
parallels may be drawn between the former systems of government obtaining
in South Africa and Germany. In both countries the former totalitarian systems
have been transformed into and replaced by democratic states. Article 5 of the
Basic Law is a wide and detailed provision, encompassing the right freely to
express and disseminate opinion by speech, writing and pictures and the right
to freely inform oneself. Freedom of the press and freedom of reporting by
means of broadcasts and films are guaranteed, and the article specifically
states thaI there shall be no censorship.
The German Federal Court has also expressed itself on the scope and content
of the different rights contained in Article 5 on a number of occasions. South
African courts will no doubt rely on the judiCial interpretation of Article 5,
particularly with regard to the right to receive and impart information.
With regard to the fundamental importance of freedom of expression one can
only agree with Anthony Mathews who said:

65Case v the Minister of Safety and Security; Curtis v the Minister of Safety and
Security n 11 above at 622.
 286 xxx eILSA 1997

Autocracies pennit no participation, including the sharing of infonnation;

authoritarian rulers control infonnation as a means of retaining power over
matters that are "ultimate"; totalitarian governments assume control over the
downward now of infonnation, thereby making the state its only "authentic"
source. 66

In the light of the historical inequities of the past, it is probably no exagger-

ation to say that in all probability democracy cannot survive in the absence of
freedom of expression. Therefore the wide and detailed protection accorded
freedom of expression and the inclusion ofthe constitutional right to receive
and impart infonnation constitute an effective mechanism whereby self-
fulfilment and the ideals of democratic government may be achieved. Although
there is no hierarchy of values in the South African Bill of Rights in the sense
of 'preferred freedoms' the importance of freedom of expression in maintain-
ing a democratic society cannot be underestimated.
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66Mathews n 64 above at B.