Don’t take our media freedom for granted
“I prefer a free press in South Africa, but as Prime Minister I cannot do what I want to do.”
Those words were uttered by former State President PW Botha during the infamous ‘Muldergate’ Scandal of the late 1970s. He was warning the press that “if it regarded itself as above the law”, the government would step in with strict regulation. Indeed, during the Apartheid era, media and press freedom in South Africa was definitely not guaranteed in any respect. While our common law contains a very strong right to freedom of expression, an ordinary rule of legal interpretation is that any legislation which conflicts with the common law, immediately overrules that common law principle. Any Act prohibiting a certain kind of speech was thus binding during those days, and there were certainly many such statutes.
The interim (1993) and current (1996) Constitution fundamentally changed this state of affairs in South Africa. Section 16 has codified our common law right to freedom of expression and given it constitutional strength. Legislation must now be consistent with this provision of the Bill of Rights, and we have been reaping the rewards ever since. While the Apartheid government did not micromanage all dissenting speech, the current government has even less power to do so.
Recent history gives us The Spear controversy where Brett Murray painted a picture of President Jacob G. Zuma with his private parts prominently exposed. In times past, such a work of ‘art’ may have been considered pornographic under the Publications Act, and would have been promptly removed. The National Party government may even have made a state security argument in favour of removing it. The African National Congress (ANC) government had significantly less power at its disposal to see the humiliating piece removed. In fact, the President had to pursue a private law remedy, by arguing that he had been defamed. The ANC later withdrew the case when a settlement was reached with the art gallery.
However, our recently gained media freedom should not be taken for granted. Section 36 of the Constitution, known as the ‘general limitations clause’, provides that any right in the Bill of Rights may be limited under certain circumstances (this is in addition to the internal limitation of Section 16 which prohibits speech advocating war or violence, and hate speech). This section has been used by the government variously to limit the rights of South Africans, such as the ability to smoke marijuana. The right to freedom of expression is no exception.