Can an artist paint what he chooses? Can the media report on anything? While it is impossible to give these rights the depth they deserve we provide an objective and brief description of the essence of the right to freedom of expression versus the right to dignity below and leave the debate in your hands. The Bill of Rights comprises chapter 2 of the Constitution 108 of 1996 and applies to all law and further it binds the legislature, the executive, the judiciary and all organs of state. It binds both the natural and juristic person based on the application and nature of each right.

Section 16 – Everyone has the right to freedom of expression:
This right includes freedom of the press and other media; to receive or impart information or ideas; of artistic creativity; academic freedom and freedom of scientific research. Subsection 2 places certain types of expression outside the realms of the right and not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement of harm. In addition to this subsection the limitation clause in section 36 of the Constitution provides for the limitation of all rights to some extent as no right is absolute. Interestingly in the United States the First amendment of their jurisprudence is highly protective of freedom of speech specifically and their law contains no or very little limitation such as we do in section 16(2) of our Constitution. The limitation that our Constitution provides has specific reference to our past and while it allows for freedom to express yourself, it does not allow one to infringe on another right or to incite hatred that is based on “race, ethnicity, gender or religion”.

The importance of freedom of expression in freedom of speech allows people to voice their morals and independence as well as their political views. The most topical of the “freedoms” in South Africa currently is the freedom of the press and other media and the freedom of artistic creativity. The importance behind the freedom of the press and other media is based on establishing and maintaining a democratic society as our Constitution’s preamble depicts. In a case before it, the Constitutional Court stated that “the ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate”. The media informs the citizen of the events around them. To what extent should this right be limited and to what extent should the government limit the information which the public are allowed to receive? The right to artistic creativity is also a controversial right as people, politicians and organizations are sometimes the brunt of this right and often defamation is born from artistic expression (paintings, cartoons and theatre) and the right to dignity must in turn be protected proportionally.

Section 10 – Everyone has the right to dignity:
This right includes “inherent dignity and the right to have their dignity respected and protected”. Human dignity is a founding value of our Constitution along with equality and freedom. “Human dignity is the source of a person’s innate rights to freedom and to physical integrity” (Iain Currie and Johan de Waal constitutional law authors). In a case before it in 2002 the Constitutional Court stated that the law of defamation lies at the intersection of freedom of speech and the protection of dignity. In another case before the Constitutional Court it held that the onus of showing that a publication was reasonable (i.e.: a painting or media statement) was on the media agent (or artist) to show that the publication was reasonable and not negligently made.

All rights are interpreted generously and purposively along the backdrop of the underlying values of the Constitution. All rights are limited as above and in addition can be limited both generally and then if reasonable and justifiable in “an open and democratic society based on human dignity, equality and freedom”. Proportionality must however follow the limitation with due regard to the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose.

So ask yourself the right questions. Are your rights being protected? Should your rights be limited? If so, in what justified proportion? Do governments have the right to limit your rights to protect the dignity of a political office and/or secrets of state in the interests of political stability or national security?

Written and prepared by Lauren Hastie
BOUWER KOBELI MORABE

Please do not hesitate to contact us on +27 11 788-0083 should you have any further enquiries or email enquiries@bkm.co.za.