Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
7 October 2010

Freedom of speech for Afriforum?

Most people will agree (as will our courts, I suspect) that when you invite someone to a braai at your home and that person abuses your hospitality by drinking too much beer and getting obnoxiously drunk, then insulting the guests and loudly professing his support for Kaizer Chiefs and the Blue Bulls (as opposed to Ajax and Western Province), you will have every right to ask that person to leave.

The person kicked out of your house would not be able to claim that she had a right to freedom of expression, guaranteed in section 16(1) of the Constitution, and that you were therefore infringing this right by censoring what she was allowed to say at the braai.  However, if that same person went to the train station and forcefully expressed her support for the Blue Bulls at the entrance to that building (even if it was Cape Town station), the police would probably not have a right to remove her if she did not break any other law. After all, she has a right freely to express and share her views with the world (even if these views were misguided or offensive to some).

And Parliament – indignant about the alleged murder committed by Bees Roux – would definitly not be able to pass a law prohibiting anyone from expressing their support for the Blue Bulls in public. (Parliament would also be very stupid to do so because one would probably have a full scale rebellion in Tswane – sorry, Pretori-a-a-a-a , a.k.a. “Snor City” – if such a law was ever passed.)

So what’s the difference between these three situations. It is clear that the legislature and the executive are bound by the provisions of the Bill of Rights – including the right to freedom of expression – which can only be limited by a law of general application that complies with the requirements of the limitations clause.

The position regarding private individuals and organisations is a bit more complex. Section 8 of the Constitution states that a provision of the Bill of Rights binds private individuals (which would include home owners) but only “if and to the extent that it is applicable, taking into account the nature of the right and the nature of the duty imposed by that right”.

The Constitutional Court has not yet provided a clear and definitive analysis on when exactly private individuals would be bound by any of the rights in the Bill of Rights. In any case, this will depend on the particular right and the obligation this right places on others, so one rule could not be made to apply to all the rights in the Bill of Rights.

In this context, the question of whether the two members of AfriForum Youth, who were  kicked out of Loftus by security guards during a Blue Bulls and WP game because they displayed a banner with the words “Sies Absa, ons eis meriete!” (“No go Absa, we demand merit”), is an interesting one.

I suspect the two men would not be succesful if they approached a court claiming that the owners of Loftus had infringed on their right to freedom of expression. The right to freedom of expression could, of course, apply horisontally and could bind private individuals and institutions in certain circumstances.

But the more private the occasion the less succesful one would be in claiming an infringement of one’s rights where one is not allowed to express one’s opinion. If one has to pay to get in to a venue the organisers of the event would probably have less of a duty to respect your freedom of expression than if one attended a public gathering or event that was open to all.

Loftus is a private establishment. One must pay to enter Loftus to attend a Rugby game and once inside one can be expected to behave in a way that conforms to what the owners of Loftus (and their sponsors) require. Unfurling a banner in support of a rival bank or a banner attacking one of the sponsors would obviously not please the owners and hence where they remove the culprits (as they did here) they would have reason to argue that the right to freedom of expression would not be binding on them. 

Whether a private establishment has the right to limit one’s freedom of expression will depend on the place, the message and the context. If this was an event held on Church Square, where no fee was charged and where the public at large was invited, it would probably be more difficult to justify a limitation on freedm of expression. 

I am thinking of the World Cup, where it would have been easier to justify the Fifa rules that prohibited individuals from making political statements inside the stadiums than at the Fan Parks, which were open to the public and which did not charge anyone to enter.

The guys from Afriforum could, of course, have unfurled their banner outside Loftus to make their point. The space outside the Stadium is a far more public space and as long as they do not break any other law I cannot see how the owners of Loftus or the South African Rugby Board cld have prevented them from communicating in this way with those who were going to attend the game.

This also reminds us that the right to freedom of expression was not taken awayin this case. It was limited in the sense that the two Afriforum guys could not take their message inside the stadium. This is another reason why I suspect these guys would have little luck in challenging the actions of the people who threw them out of the stadium.

In the US jurisprudence a question that arises often is whether one should have a right to distribute pamphlets and unfurl banners at shopping centers and malls as part of one’s right to free speech. I have no idea how our courts will come out on this question. Shopping Centres are clearly private property but one does not need to pay to get inside and they are open to the public at large so one could argue that expressing one’s views in a non-disruptive way at a shopping centre should be protected by section 16.

A balance will have to be struck in each case between the interests of the owner of the private shopping centre (open to the public) and the baroader interest of the community who has a right to be informed about how their fellow citizens feel and what they might be upset about. Personally, I would lean in favour of the protection of free speech and would argue that as long as one  is not disruptive, one should be allowed to have some kind of respectful protest at a shopping centre.

The owners of shopping centres will probably disagree. But in the end this is an issue that our courts will have to deal with. Maybe those Afriforum guys can do something worthwhile for a change and take the case to court so that we can get clarity on the issue.

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