Various repressive laws that explicitly or implicitly allow government to censor or manipulate free expression and discourse are already on the Statute Book in South Africa, and at the time of writing several bills were additionally in various stages of adoption. This is one of government’s most well-kept secrets. 

This week, the Free Market Foundation (FMF) published my policy brief titled, ‘Silencing Dissent: Measures Enabling the South African Government to Manipulate Democratic Discourse’, which considered these laws and bills. 
 
These instruments are not a secret in the sense that they are hidden from public view, but rather that they are so ingeniously crafted to ostensibly deal with various, unrelated matters, that their relationship to one another is obscured. The government has also not invoked the instruments already at its disposal in any substantive way, which puts them well out of the minds of ordinary South Africans. But these laws, and when adopted, the bills, will be at the government’s disposal to use to comprehensively censor or undermine political opponents and snuff out dissent whenever it deems it expedient.  
 
Their availability to government alone is an unacceptable threat to the open and democratic society, and profoundly incompatible with the standards in the Constitution. 
 
The laws and bills 
 
The laws considered in the policy brief that have already been enacted are the Equality Act of 2000, the Terrorism Act of 2004, and the Anti-Money Laundering Act of 2022. The bills yet to become law are the Expropriation Bill of 2020, the Equality Amendment Bill of 2021, the Tobacco Bill of 2022, the Hate Speech Bill of 2023, and the Spy Bill of 2023. 
 
The brief does not consider all the instruments government potentially has at its disposal. Phenomena like the Films and Publications Act of 1998, the doctrine of crimen iniuria, and the ability of regulators with wide discretionary powers to revoke operating licences and permits, are therefore not considered. 
 
Crucially, what the instruments that are considered have in common is that they either explicitly empower (or even require) government to engage in censorious or repressive conduct toward non-governmental organisations and even commercial entities (broadly, civil society) that express views or peacefully and persuasively advocate policy alternatives to those embraced by the incumbent government, or they implicitly allow government to do so. 
 
In isolation, each of these instruments would do harm to constitutional rights and freedoms. Taken together, they threaten the very rules of South Africa’s democratic game.  
 
Not often used… yet 
 
While it would represent a significant escalation if government in fact utilised the repressive powers it has granted itself in terms of these instruments – it has hitherto made scant use of them – the fact that it has not is largely immaterial. The presence of laws of this nature on the Statute Book is reason enough to give democrats and watchdogs pause. 
 
Having these laws on the Statute Book is akin to a mafioso sitting down with a business owner to ‘negotiate’ a protection deal, while playing with his firearm. The threat is there, even if it is not used. 
 
This does not mean that they have not ever been used, of course. The Equality Act has in the past been used to force church groups to sanction marriages that conflict with their doctrine, and the same Act’s hate speech provisions have been used to silence reprehensible but peaceful expression, in the case of Penny Sparrow and recently Kenny Kunene.  
 
There is also a hidden provision somewhere in the Equality Act, probably written in invisible ink, that says its hate speech provisions do not apply to powerful politicians like Julius Malema, but that is a story for another day. 
 
Why is all of this important? 
 
Civil society in a constitutional state 
 
In 1947, in the wake of the ruinous Second World War and the world’s first significant taste of totalitarianism, the great liberal Friedrich August von Hayek wrote that one of the ‘most important element[s] in any free society’ is ‘the man of independent means, a figure whose essential role’ is to maintain ‘a free opinion and generally the atmosphere of independence from government control’. 
 
The privilege of living in a free society necessitates the diffusion of power. The myth that this only occurs within formal constitutional arrangements, primarily through the horizonal trias politica (also known as the separation of powers) and the vertical division of power between the central, regional, and local spheres, is an enduring one.  
 
The reality is that a substantive diffusion of power must happen both within and outside the formal political, legal, and constitutional system, and include civil society. This means that civil society, in order to be independent of government control, must itself be a repository of meaningful power. 
 
‘Civil society’ is a broad term that refers to all non-state actors in a country. This includes the media, religious institutions, non-profit organisations, non-profit companies, for-profit commercial enterprises, think tanks, private universities, colleges, schools, community organisations, voluntary associations, and a substantial private landowning class.  
 
It is irrelevant whether these entities are ‘formal’ (registered with some arm of the state) or ‘informal’. What is key is that these entities do not rely, and do not wish to rely, on the favour or grace of the state, being those institutions in society that are funded by the coercive extraction of rates or taxes. 
 
Civil society fulfils a crucial role in the constitutional dynamics of a free society. The press, for instance, is regarded as the ‘fourth estate’, or effectively a fourth branch of government – aside from the executive, legislature, and judiciary – that acts as a further check and balance upon the exercise of power of the other branches. This applies to the organised professions, lobbyists, academics and researchers, tax- and ratepayers’ associations, and the myriad other forms of incorporated and informal groups and associations that members of the general public form outside the structures of the state.  
 
These institutions collectivise the negligible power of individuals as against the comparatively all-powerful state. 
 
It was primarily civil society organisations that ensured justice was done to get former president Jacob Zuma back in prison after his allies in the Correctional Services portfolio set him free. Justice that was swiftly undermined by political prerogative, however, when Cyril Ramaphosa effectively pardoned Zuma.  
 
The Democratic Alliance, the Helen Suzman Foundation, AfriForum, and the Institute of Race Relations were the primary movers in the Supreme Court of Appeal litigation. None of these entities are part of the formal structures of government. The Commission of Inquiry into State Capture, the Minister of Justice, and the Medical Parole Advisory Board were all named as respondents but did not participate in the appeal.  
 
According to a strict, positivistic approach to constitutional theory, it had to be Parliament that exercised its oversight over the executive’s mishandling of Zuma’s imprisonment, but instead it was civil society. 
 
But without these organisations, it is guaranteed that Parliament would have flouted its constitutional responsibilities, just as the Correctional Services portfolio and the Minister of Justice had done before it, and the President did afterwards. The ‘working’ of the constitutional state in this case was therefore entirely reliant on civil society, not government. 
 
Dissent 
 
No free society, and certainly not a democracy, can function in an undistorted fashion if the exchange of alternative views and ideas – including ‘bad’ or reprehensible ideas – is not possible. This is especially true for those views that do not accord, and in fact detract from, the views held most intimately by the political class in that society. 
 
Reprehensible views must be protected, for if they are not, the observance of freedom of expression becomes an ad hoc exercise that hinges on the question: ‘who decides when an idea is bad or reprehensible, and therefore not allowed to be expressed?’  
 
Whatever the answer to this question is, the decider is not (and cannot be) perfectly impartial and objective. When the decider has to choose, its own prejudices and preconceptions will play a key role in the determination of whether an idea is reprehensible, and therefore prohibited. The ‘decider’, of course, is almost always the state, meaning whichever political grouping currently exercises the lion’s share of control over the machinery of government.  
 
It would be a mere pretence to freedom to regard one’s society as free if the allowability or not of certain views or ideas was subjected to this kind of arbitrary determination. Rather, all ideas, including dissenting ideas, must be allowed.  
 
It is only when these ideas become part of some scheme of action – something that is perceivable and definable, although not objectively, at least more accurately than mere expression – that the coercive powers of the state may be brought to bear. But even then, only under strictly circumscribed conditions.  
 
The state will not always desire allowing dissenting views, which is why it is crucial that civic formations are strong enough, and independent enough, to resist attempts by the state to impose its ideological convictions upon society. Where law undermines this strong independence of civil society, the door to repression opens. 
 
History’s lessons 
 
During a significant portion of South Africa’s history, the idea of racial equality was considered to be not merely reprehensible by the white electorate, but fundamentally evil: a principle of anti-Christian agitation. As a result, dissenting organisations that fought for this equality were subject to strict regulation and even banning.  
 
With the benefit of modern sensibilities, we can comfortably scoff at this historical bigotry and say that ‘it was always clear that the white electorate was wrong’. But this is a profoundly naïve approach to constitutional and political governance.  
 
One must never assume that only enlightened, infallible beings (that exist only in fiction) will be the ones placed in control of the machinery of government. In fact, whenever law is designed, one must ask: ‘what is the worst that a bad actor can do with the legislation or regulation that we wish to adopt?’ If the answer is that the legislation or regulation can easily be abused if, say, the executive or judiciary were compromised, then that law is a bad law. 
 
The laws and bills considered the FMF’s policy brief are examples of such bad laws. 
 
Ideological gerrymandering 
 
It seems clear that government has over the years sought to enable itself – whether it exercises this power or not – to silence civil dissent against its ideology and policy agenda. This cannot compute in a democratic constitutional state, where policy must necessarily and permanently be debatable, and moreover where civil society must in a substantive sense be independent of government control. 
 
During its term of office, a democratic government may pursue policies that advance its political agenda, but under no circumstances may it change the very rules of the game, by placing its partisan preferences legally above criticism. In South Africa’s particular context, this applies to the African National Congress’s transformationist agenda, with its superficial focus on equality of outcomes and homogenisation. 
 
These instruments are the epitome of undemocratic conduct and could potentially gerrymander electoral outcomes in an insidious way: they do not restrict or modify the geography of electoral divisions – as gerrymanderers tend to do – but instead restrict and change the range of allowable contestation in the democratic discourse. This stands to significantly weaken opposing formations as legal action can be taken against them in terms of these laws. 
 
Resistance is imperative 
 
The government and courts have an obligation, given the nature of the society the Constitution envisions, to undo the legal web of repression and censorship that has already been constructed, and abandon any bills being considered to further entrench it.  
 
But civil society, in particular, as the victim of this web and – in a constitutional sense – arguably the most important entity that protects the population from political dangers, to the extent that it has not already, must begin stateproofing and hedging itself and its various constituencies against the harm that can result from the enforcement of these laws. 

Martin van Staden is the Head of Policy at the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com.

This article was first published by Daily Friend on 30 November 2023