Wednesday, February 17, 2010

The day that freedom of expression took a bashing

A joint post by Calli and Emma:

In what smacks of an apartheid-style arrest and interrogation, UCT sociology student Chumani Maxwele was arrested and taken to both the Rondebosch and Mowbray police stations before being held in a cell at the Wynberg Magistrate’s Court for merely gesturing at the presidential convoy. During his 24 hour period in custody, Maxwele had his house and personal belongings searched by police officers and he was questioned about his political affiliations. While conduct like this may be common place in other, more censured, parts of the world, it has no place in a constitutional democracy that expressly enshrines the right to freedom of expression in section 16 of the Constitution.

The police have justified the arrest on the basis that Maxwele allegedly showed his middle finger to the convoy, and that by doing so he committed the common law crime of crimen injuria. However, this would constitute a pretty stretched application of the elements of this crime. For an act to amount to crimen injuria it must unlawfully, intentionally and seriously infringe on the dignity of another. It is highly doubtful that gesturing to a passing convoy would meet this definition.

The act isn’t unlawful; no law exists, in either statutory or case law, which explicitly prohibits this kind of behaviour. As Pierre de Vos remarked, "If showing a middle finger was a criminal offence, half of South Africa would find themselves in prison." Whilst freedom of expression is not absolute and can be limited, it is not easily limited. Courts are very careful to weigh the issues and strike a delicate balance between freedom of expression and any right that is infringed as a result of expression. The denting of a few egos would unlikely constitute sufficient grounds to clamp down on expression.

In terms of intention, one can argue that the intention to be rude and show displeasure isn't the same as the intention to infringe the dignity of another. Further, and most significant of all, is the fact that the act has to seriously impair the dignity of another. Zapping someone as they drive past doesn't reach the threshold of severe impairment to a person's dignity - possibly to their pride, or their sense of importance, but not to their dignity.

The police also argued that their actions were justified due to the fact that Maxwele resisted the arrest. However, this too is without legal basis because Maxwele’s actions were justified in law - everyone has the right to offer reasonable resistance against an unlawful arrest. Case law has established that the person who is being arrested ‘may assault anyone who tries to arrest him or her unlawfully and may liberate another who is unlawfully arrested’.* When it comes to arguments over whether or not the arrest was in fact lawful the burden falls on the state to prove lawfulness.**

The remarks by the spokesman for the Police Ministry, Zwele Mnisi, are also particularly troubling. He states that ‘in terms of the law’ no person is permitted to use foul language or swear at another individual. We have struggled to find the ‘law’ that Mr Mnisi is referring to and when pushed further, he was similarly unable to offer a direct reference, stating that he was not aware of the ‘specific Act’ but added that ‘morally, you just can’t swear at people’. Well we certainly weren’t aware that we had begun enforcing morality directly (perhaps this is something else that has happened in terms of an unknown Act?). While the arguments around the separation of law and morality warrant a separate blog post entirely, it suffices for now to say that the two cannot simply be conflated as Mr Mnisi has done – merely because something is considered to be immoral (which, if we are honest, the waving off, or even zapping, of the presidential cavalcade would probably not be considered) it is not automatically illegal (and vice versa). While there are several instances where that which is forbidden by law may be considered immoral, saying that something is immoral is by no means a simile for saying it is illegal. A man cannot be arrested, interrogated and have his property searched for actions that an executive spokesman classes as ‘immoral’ and which have, as illustrated above, no basis for being considered illegal.

The fact that Maxwele’s conduct could not be considered illegal in any way makes his arrest and subsequent custody unlawful. Not only was his right to freedom of expression trammelled upon, but his right to freedom and security of the person, enshrined in s 12(1) of the Constitution was similarly infringed. It is possible that the state may now be faced with a claim concerning both his wrongful arrest and the unlawful search of his property from an aggrieved citizen who will probably not be short on offers of legal representation and support from lawyers eager to defend both Maxwele’s constitutional rights and in turn, the right of all South Africans to free expression.

For more information on unlawful arrest see this.

* R v Kleyn 1937 CPD 288 293; R v Karvie 1945 TPD 159; R v Moloy 1953 3 SA 659 (T) 661; R v Folkus 1954 3 SA 442 (SWA) 445H.
** R v Karvie supra 159 163; R v Ntanzi 1948 1 SA 1121 (N) 1129; R v Folkus supra; Brown v Deputy Commissioner of Police, Natal 1960 2 SA 809 (N). In R v Mofokeng 1954 4 SA 86 (O) and R v Henkins 1954 3 SA 560 (C) the contrary view stated in R v Msuida 1912 TPD 419 was not followed. See also Union Government v Bolstridge 1929 AD 240 244


  1. Good post. This is seriously disturbing; it speaks to a (seeming) general drift to untouchability and arrogance in government. (C.f. the blue light incidents).

    Can action be taken against the cops? A suit for unlawful arrest?

  2. Maxwele can bring a civil claim against the Minister of Police for unlawful arrest. The Minister would be liable in terms of vicarious liability, whereby an employer can be held liable for the acts of his employees that were committed in the course and scope of their employment.

    The good thing about such an action is that it does provide a mechanism for accountability – providing a means to prevent the sense of untouchability that some officials seem to have.

  3. Maxwele is also entitled to lay his case before the Independent Complaints Directorate (which investigates complaints of misconduct and criminality allegedly committed by members of the South African Police Service).

    Whilst this option is good for iro accountability, Emma's suggestion would be advisable for compensatory relief.

  4. Absolute nonsense. Just goes to show that the police and the government don't know the law. How can they promote it and enforce if they don't know.

    I would even go so far as to say it shows the government is not complying with there duty as per section 7(2) of the Constitution to 'respect, protect, promote and fulfill' the rights in the Bill of Rights if they arent adequately training policemen and government officials about when these rights can be infringed.

    I though this was a blog about the common law. WWJD - What Would Justinian Do? I think the answer will without a doubt involve slavery, violence and horses.

  5. @Tim - you are my hero. WWJD is going to be my maxim henceforth. Along with OMG how can I go wrong?

  6. Great post. I'd love to see the Minister himself respond to these questions.

    If compensation were awarded under a civil claim, would the Minister in his personal capacity have to pay, or would the State incur the legal costs? I think this distinction determines whether the Minister is really accountable for his actions in court.

  7. Completely terrifying if you ask me! My bet is this case disappears - the government will pay him to shut up - or maybe threaten him some more.
    Such corruption and irresponsible use of power is exactly what WILL lead SA into lawlessness.

    An ungoverned state becomes an ungovernable state...

  8. Lisa, I am not sure that this case will disappear and I think that that is thanks to a fairly quick and public response to what has happened. I don't think that he stands much chance of being bullied into keeping quiet either given, again, how public the issue has been and because of the media response.

  9. If Maxwele were to win a claim against the Minister of Police, the state would incur the cost rather than the Minister incurring it personally. Even so, it would still be pretty damn embarassing for him as the issue would likely get a lot of media attention.