Monday, March 1, 2010

Some very controversial judgments

The Courts have been busy recently releasing some controversial judgments:

The Labour Court has ruled that the failure to promote a white female officer in the police force was discriminatory. More consideration needed to be given to her rights to equality and dignity and there needed to be consideration of her personal work history and circumstances. Find the judgment here (pdf). This promises to create quite a stir in the media in the next few days and I will try and get someone with labour law knowledge to write a post.

The SCA has ruled that Robert McBride was defamed by The Citizen newspaper who called him a murderer. The SCA reasoned that since McBride had been granted amnesty for the crimes concerned he was no longer a murderer. See the judgment here (pdf).

I find this latter judgment quite troubling for a few reasons. If someone gets amnesty it doesn't mean that retroactively they did not kill someone illegally. To that extent the person is surely a murderer. Even if legally you're no longer a murder, in common parlance it seems that the person is still a murderer albeit an excused one.

The SCA jumps this linguistic hurdle by arguing that a purposive reading of the Promotion of National Unity and Reconciliation Act 34 of 1995 (PNURA) shows that amnesty should also remove the label of being a murderer so the excused person can reintegrate into society. Now there may be substantial benefits to integrating someone who has been granted amnesty back into society. However, it seems very dubious that we should limit the right to freedom of expression of the media in order to give effect to something that has not been expressly stated in a statute. To make this more clear, the PNURA does not expressly state that people who committed crimes are no longer to be labeled murders. The SCA are reading this in order to give effect to promoting reconciliation. Purposive reasoning is an important part of legal reasoning but it shouldn't be used to limit rights particularly rights that are so foundational to a democratic order.


  1. Interesting. I don't know where i stand on that. On the one hand i agree with you. On the other hand, the whole point of reconciliation is to get rid of the malice and hatred in our society. What would happen if people started publishing articles about every apartheid criminal? Would it be different if Nelson Mandela was called a saboteur (is that a word?) or a murderer? What if i printed an article talking about a specific (white) person who merely didnt oppose the apartheid (during apartheid) as an "apartheid enabler" or a racist or some such thing.

    These aren't fool proof arguments, just trying to illustrate that the speech may not be constructive.

    Oh and dave, one thing, there is a subtle distinction which you havent pointed out here between censorship (prior to publication) and punitive measures (after publication) such as defamation. The later accepts the right to freedom of expression but limits it because of other concerns. The former is more dangerous.

    I personally am a fan of the instrumental view (remember that vaguely from con law)on freedom of expression - Basically i think expression should almost be allowed, but it should be 'punished' when it serves no good purpose.I think some of our case law could back me up on this view of freedom of expression (Manto case, Laugh it Off etc).

    To quote the judge in the Manto case (lus to find his name):

    "Just because we possess rights, does not mean that we must exercise them to the hilt at every opportunity. Though we enjoy the freedom of expression, we would be ill advised to celebrate them by vilifying each other on the slightest pretext."

    These are general comments as i clearly have not read the case that you are referring to.

  2. @Tim Although I think there is a valid distinction between prior censorship and punitive measures. However, punitive measures encourage self censorship since newspapers want to avoid paying large defamation amounts. Perhaps the difference can be made by having declarations of defamation coupled with very low fines - thus we publicly vindicate the defamed person's rights but don't create a large financial incentive on media not to defame.

    On the more general points around reconciliation - I do agree that if that is going to happen we need some kind of collective buy-in to make it work. However, and here I think is why you are torn about the question, we still need to leave media and society free to talk about apartheid frankly. Its a difficult balance (and if you ever read the judgment you will see that The Citizen said some really hectic things about McBride which were far from conciliatory).

    On the deeper jurisprudential point - I think that a foundational principle of interpretation should be that statutes should be interpreted,in instances of vagueness and ambiguity, in a way that avoids limiting rights.

    So, perhaps government could've passed a statute allowing the limitation of freedom of speech in instances like these. That could then be subject to a section 36 analysis. However it is quite different for the SCA to limit a right using an implication of the statute.