An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
News that Public Works Minister Thulas Nxesi will launch an investigation into how City Press had obtained documentation revealing a R203 million budget for the unlawful and wasteful upgrades to President Jacob Zuma’s Nkandla homestead does not come as a surprise. Those who want to hide unlawful, immoral or corrupt activities often attack the messenger. However, before embarking on a witch hunt of City Press and its journalists, the Minister (who falsely claimed that the spending was authorised by the Ministerial Handbook – despite the fact that the Handbook places a R100 000 cap on state-funded security upgrades to the private home of the President) might do well to familiarising himself with the Constitutional Court jurisprudence on freedom of the media.
As a start, the Minister might want to study the most recent Constitutional Court judgment in the case of Print Media South Africa and Another v Minister of Home Affairs and Another. Studying the judgment, one cannot but be struck by the importance which our Constitutional Court attach to the right to freedom of expression and the media. When those in power do not respect freedom of expression and the media, they endanger our democracy and threaten the wellbeing and human dignity of every South Africa.
In the case under discussion, the Constitutional Court declared invalid section 16(2)(a) of the Film and Publications Act. The section required any publication – except a bona fide newspaper – to submit any article, picture or work of art to the Film and Publication Board for pre-publication classification or even censorship if the work contained “sexual conduct” which, among other things, showed disrespect for the right to human dignity of a person.
Because “sexual conduct” is broadly defined in the Act, the section would have required any magazine or website who published a report on a man being prosecuted for flashing his genitals to submit their publication for pre-classification or censorship. Similarly, a magazine report on the extra-marital romantic liaisons of a second rate celebrity like Joost van der Westhuizen or on the fathering of extra-marital children by President Jacob Zuma would have had to be submitted to the Film and Publications Board for pre-publication classification or censorship. It would also have required any art magazine, art gallery or website to submit any painting depicting “undue display of genitals” (whatever that might mean) for such classification or censorship before it could publish or display the work of art. A volume of erotic poetry might also have fallen foul of this unconstitutional provision.
Both the majority judgment (authored by justice Skweyiya) and the supporting minority judgment (authored by Justice Van der Westhuizen) emphasise the importance of freedom of expression and freedom of the media for our democracy and for the personal self-fulfilment of each individual in our society. In a passage that Minister Nxesi might wish to take note of, justice Skweyiya highlights the importance of freedom of expression and the media in an open and democratic society in the following terms:
Embraced by the right is the liberty to express and to receive information or ideas freely. The right also encompasses the freedom to form one’s own opinion about expression received, and in this way both promotes and protects the moral agency of individuals. Whether expression lies at the right’s core or margins, be it of renown or notoriety, however essential or inconsequential it may be to democracy, the right cognises an elemental truth that it is human to communicate, and to that fact the law’s support is owed. In considering the comprehensive quality of the right, one also cannot neglect the vital role of a healthy press in the functioning of a democratic society. One might even consider the press to be a public sentinel, and to the extent that laws encroach upon press freedom, so too do they deal a comparable blow to the public’s right to a healthy, unimpeded media.
In short, freedom of expression lies at the heart of democracy and newspapers like City Press often act as guardians of that democracy by exposing the immoral, corrupt or illegal activities of those in power and by alerting voters to what their elected representatives have been up to. This freedom is not primarily aimed at protecting journalists – although they are protected in ways that Minister Nxesi seems to find hard to stomach. It is wrong to imagine that freedom of the press is a right enjoyed by journalists alone. It is a right enjoyed by every person living in South Africa, a right which must be protected to ensure that all our other rights are safeguarded.
A free media protects ordinary citizens by exposing abuses of power and the unlawful looting of state resources by the powerful politicians and their private sector enablers. Without access to all relevant information, ordinary citizens cannot make meaningful choices about their lives. Nor can they exercise informed and responsible political choices to ensure that our democracy is protected and can flourish.
Politicians who try to intimidate newspapers or who threaten journalists with criminal prosecution because they had the cheek to inform the public about the unlawful spending of public funds are the adversaries of democracy. Such efforts infringe on the human dignity of every voter in South Africa because it attempts to close down sources of information which voters need to make meaningful decisions about their lives and their political choices. This point is well made by Justice Van der Westhuizen in his opinion in the Print Media South Africa judgment:
The search for the truth, the ability to take democratic decisions and self-fulfilment have been put forward as reasons why freedom of expression must be protected. It is closely linked to the right to human dignity and helps to realise several other rights and freedoms. Being able to speak out, to educate, to sing and to protest, be it through waving posters or dancing, is an important tool to challenge discrimination, poverty and oppression. This Court has emphasised the importance of freedom of expression as the lifeblood of an open and democratic society.
The question to be asked of anyone who supports government attempts to intimidate and censor the media is this: how will we be able to speak out, to protest and to educate others if members of the media do not inform us about what is happening in the country? If City Press did not inform us that the Department of Public Works had budgeted more than R200 million for upgrades of the private home of a politician who might soon be out of office, we would never have known. We would then have been denied the moral agency to make informed decisions about how we feel about Jacob Zuma and his government and whether we wish to support his bid for a second term as President of the ANC and eventually South Africa.
If we are denied important information which reveals something about the moral character of our leaders, our lives become less meaningful. We are robbed of some of our agency and with it our human dignity and we are turned into quasi-zombies unable to stand up for what is right and unable to withdraw our support for leaders who enrich themselves.BACK TO TOP