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26 September 1994
The Editor
Sunday Times
FREEDOM OF
EXPRESSION
I refer to your letter dated 1 3 September 1
994. Mr. Ramaphosa is presently on a trip abroad and your letter has therefore
been referred
to me.
In the absence of Mr. Ramaphosa, I would like to
thank you for your committee's proposal with regard to the protection of freedom
of expression in the constitution.
I believe your committee's proposal
should be directed to the Theme Committee dealing with fundamental rights. I
will accordingly
submit a copy of your proposal
to them.
In view
of the Resolution adopted by the Constitutional Assembly on the 5th September 1
994, which makes it mandatory for the Theme
Committees to canvass the views of
the broader public, I have every reason to believe that a Conference of Editors
will be given
an opportunity to present its views.
With regard to your
request to Mr. Ramaphosa that he give his personal support to this attempt to
widen the boundaries of freedom,
I will refer a copy of your letter and proposal
to him for a response.
in the meantime, should we be able to be of any
assistance to you or your committee in any way whatsoever, please do not
hesitate
to call on me.
Yours faithfully
HASSEN
EBRAHIM
EXECUTIVE DIRECTOR
September 13, 1994
Mr. C
Ramaphosa
Chairman
Constitutional Assembly
Dear Cyril
I
write to you as a member of a small sub-committee appointed by the Conference of
Editors to lead its effort to eliminate from South
Africa's final constitution
the deficiencies concerning freedom of expression which appear in the interim
constitution.
There is no need to over-emphasise the importance of this
undertaking. Mr. Justice Cardozo of the US Supreme Court remarked that
freedom
of expression is the "matrix, the indispens able condition of nearly every other
form of freedom'.
Consequently, it is almost incomprehensible that the
interim constitution affords a lesser protection to freedom of expression than
to other fundamental rights. We can only assume that this was the result of a
gross oversight on the part of the drafters of the
interim
constitution.
The amendments we seek are three: firstly freedom of
expression should be accorded the highest level of protection recognised by the
constitution; secondly, the provisions of the common law should specifically and
explicitly be made subject to the provisions of
the constitution; and thirdly,
the right of access to information held by the state should be
broadened.
This requires amendments to Section 33(1)(b), to Sections 4(1)
and 7(2), and to Section 23 of the interim constitution.
A memorandum on
these amendments, prepared on behalf of the Conference of Editors by Mr. David
Hoffe, of Bell, Dewar and Hall is appended
for your
information.
2/...
Page 2
We ask you:
(a) To ensure that
these views are put before the relevant committees of the Constituent Assembly
in good time;
(b) To ensure that the Conference of Editors has the
opportunity to present its views on all appropriate occasions; and
(c) To
give your personal support to this attempt to widen the boundaries of freedom,
and to secure the foundations of South African
democracy before this historic
opportunity passes.
Yours sincerely
FREEDOM OF
EXPRESSION
EXPLANATORY MEMORANDUM ON
AMENDMENTS
TO THE CONSTITUTION PROPOSED BY
THE CONFERENCE OF
EDITORS
The Conference of Editors has briefed counsel
to give special consideration to the wording of the constitutional
guarantee of freedom of expression in the light of similar
provisions in the International Covenants and Constitutions of other countries,
and, if thought
necessary or desirable, to propose amendments to the interim
Constitution.
What follows is,.- a summary of counsel’s opinion in
support of proposed amendments to the Constitution, together with those
proposed
amendments.
Freedom of expression
1 It is
almost universally recognised that free expression is central to
democracy.
- It is the "rratrix, the indispensable condition of nearly
every other form of freedom" (Mr. Justice Cardozo of the United States
Supreme Court in Palko v
ConnecticutJ.
2
It is not a creature of any charter
of human rights. "It is'one of the fundamental concepts that has formed
the basis for the historical development of the political, social and
educational institutions of western society. " (Judge Mclntyre of the
Canadian Supreme Court in Retail, Wholesale and Department Store
Union, Local 580 v Dolohin Delivery L
tLi).
Representative democracy, as we know it today, which is in
great part the product of free expression and discussion of varying
ideas, depends upon its maintenance and protection (Judge Mclntyre in
the same case).
· Freedom of expression is accordingly
recognised as a cornerstone of democracy.
3 It is generally recognised that
all rights are subject to limitation, including the right of freedom of
expression. The notion
that constitutionally protected rights are not absolute
is entirely consistent with the approach adopted in other countries and in
international human rights instruments.
4 The extent of the limitation on
freedom of expression and the way in which this limitation is determined varies
according to the
particular legal system of each country, and depends to some
extent upon the value placed upon freedom of expression in each country.
in this
area the United States Supreme Court has gone further than any other court in
jealously guarding freedom of expression and
protecting it from
limitation.
· Section 33 of the South African Constitution provides the
framework within which rights may be limited. It creates two tiers
of
justification for the limitation of rights, namely:
those rights which may
be limited if the limitation is reasonable, justifiable in an open and
democratic society based on freedom and equality, and does not negate the
essential content of the right in question; and
those rights
which may be limited only if, in addition to the above, the limitation is
necessary.
6 Our Constitution accordingly accords different weight to the
entrenched rights - some are regarded as more valuable to democracy
than
others.
7 Freedom of expression in our Constitution is placed neither a, the
highest nor the lowest end of the scale of values, but fails
between the
two.
On the one hand, in so far as freedom of expression relates to
"free and fair political activity", any limitation on such right must,
in addition to being reasonable and justifiable in an open and
democratic society, also be necessary.
On the other hand, in so
far as freedom of expression does not relate to free and fair political
activity, the limitation need only be reasonable and justifiable in an
open and democratic society irrespective of whether that limitation is
necessary or not.
8 The Constitution accordingly affords "free and fair
political activity" a higher value than other rights in the Constitution. Given
the centrality of free expression -in a democratic society and the role of the
press therein, this is a serious shortcoming in the
Constitution. In
counsel’s view, this is one area which justifies amending legislation if
freedom of expression is to enjoy
its rightful place in the new
democracy.
-1 -
· We accordingly propose that section
33 be amended by elevating freedom of expression to the highest plane of values
recognised
by the Constitution. We accordingly propose that section 33(1)(b) be
amended to read as follows:
Insertions are designated by bold
type.
Deletions are designated by
-.
33(1)(b) (aa) a right entrenched in section 10, I
1, 12, 14(1), 15, 21, 25
or 30(1)(d) or (e) or (2);
or
(bb) a right entrenched in section @, 16, 17, 18, 23 or 24,
in so far as such right relates to free and fair political
activity,
shall, in addition,to being reasonable as
required in paragraph (a)(i), also be
necessary.
Reach of the Constitution
1 The
second crucial issue in relation to the nature and ambit of constitutionally
protected rights is the question of whether or
not the common law fails under
the sway of the Constitution.
· The issue of the application of the
Constitution to the common law is of vital importance to the press. The entire
body of
the law of defamation is regulated by the common law and it is this area
in particular which poses hazards for the press.
3 The effect of a series of
decisions handed down in the Appellate Division over the last decade,
culminating in the decision of Neethiing v Vrve Weekbiad, has been to
seriously curtail the ability of the press to raise concerns about the conduct
of pubilc officials in matters of the
most vital public
interest.
9
4 Counsel believes that on a proper interpretation of
the Constitution, it does apply to the common law. This view has been endorsed
by two recent cases, namely Mandela v Falati in the PWV region, and the
full bench decision in the Eastern Cape, namely Qozeieni-v Minister of Law
and Order and Another.
· To put the matter beyond doubt however,
we propose the following
amendments:
Section 4(1)
This
Constitution shall be the supreme law of the Republic and any law,
including the common law, oractinconsistent with its provisions shall,
unless otherwiseprovidedexpresslyorbynecessaryimplication in this
Constitution, be of no force and effect to the extent of the
inconsistency.
Section 7(2)
This Chapter shall apply to
all ]a w, including the common law, in force and all administrative
decisions taken and acts performed during the period of operation of this
Constitution.
Access to information
1 Section
23 of the Constitution gives every person a right of access to all information
held by the State or any of its organs at
any level of government, but only in
so far as such information is required for the exercise or protection
of any of his or her rights.
· Counsel has been unable to find
any equivalent clause in the Constitutions of other major democracies. There is
certainly
no provision in the Constitutions of the United States and
Germany.
3 The absence of a general right of information in the
Constitutiofis of other democratic countries is remedied by statutes which
entitle citizens under specified circumstances to obtain access to information.
This legislation tends to be complicated by reason
of the necessary procedures
for applying for information and the nature and extent of the exemptions to the
general right.
4 On its own, section 23 is extremely limited in its scope and
constitutes a wholly inadequate substitute for detailed freedom of
information
legislation.
· The most striking feature of section 23 is that it does
not enunciate a general right of access to information held by the State.
On the contrary, the right embodied in this section is contingent upon such
information
being required for the exercise or protection of
rights.
6 Section 23 of the Constitution is capable of both a broad and a
limited interpretation. A limited interpretation would confine
the right of
access to information to circumstances involved in the legal protection of
rights, in other words, information required
for the purpose of legal
proceedings. A broader interpretation would extend the right of access to
information beyond the legal
process. Thus, in so far as the Constitution
affords a special protection to the press, it is strongly arguable that for the
press
to fulfil its constitutional function, it would be entitled to have access
to information required for that purpose.
7 Section 23 places an onus upon
the person seeking access to information to establish a right to such
information. We believe the
onus should be on the State to establish a right to
withhold the information. We accordingly propose that section 23 read as
follows:
@c .
7
23. Every
person shall have the right of access to all information held by the
State or any of its organs at any level of government
te.F as such
inteffiga@n d tier. fine of an@, ef his or- heF
4@hts.
8 With such a right, it will be incumbent on the State to
propose and promote legislation limiting the right, such as the legislation
that
is found in the United States, Australia and New Zealand.
DAVID
HOFFE
BELL, DEWAR & HALL
1 September 1994
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