The nitty-gritties of titties on the web

Whatever your views on pornography may be, allowing the government to censor porn on the Internet would have catastrophic results for our right to freedom of expression. LegalBrief ran an article this morning after the FPI's (The Family Policy Institute) request to government to have additional restrictions placed on pornography, with the ultimate intention of introducing an absolute ban on pornography in public media, cellphones and the Internet. This comes in response to Multichoice's consideration of a 24-hour pornography channel, which has received mixed responses. Department spokesperson Bayanda Mzoneli is quoted as saying that 'pornography is addictive and breeds many ills in society including breaking families, abuse of women and affects the addicts psychologically'.

I do not purport to be an expert in the field of the psychological effects of pornography and I could well be wrong. However, the fact that there is a correlation between pornography and sexual abuse does not necessarily lead to the conclusion that pornography is in fact the cause of the abuse. Furthermore, there seems to be as of yet an inconclusive (and here) result as to whether there is a correlation. I also think that the break-up of families, sexual abuse and the poor treatment of women and children indicates a far deeper issue in society and social cohesion, and it is a cop-out to blame it on pornography. It allows for the parties perpetrating these crimes, or not taking their familial responsibilities seriously, to abdicate their own blame and responsibility in that situation.

However, the legal issue is of more concern to me here. How far are we willing to allow censorship to go? As far as the Chinese government, where there are approximately 30 000 Internet police? Where blogs, chat rooms, Internet forums are monitored and erased? Where there is reportedly the highest number of journalists and cyber-dissidents imprisoned in the world? I am wary of a paternalistic state especially in the context of freedom of expression. This right is probably one of the most important rights to grace our Constitution and is fundamental to any functioning democracy. We just need to look to the recent events where Mr Maxwele was arrested for zapping the President to see that we may be treading a fine-line in turning this right into a white elephant. I, for one, am not in favour of no longer being able to express my opinion, no matter how uninformed or counter-majoritarian it may be. I sincerely hope that the powers that be feel the same way.

*Note: in a quick search we found that our blog was as of yet insignificant and thus not censored in China. However, we'll monitor this situation once the blog is posted and let you know if we are blocked.

Call for t-shirt designs

Julian Jonker has just let me know that a prominent t-shirt designer/manufacturer has expressed interest in a t-shirt relating to last week's Chumani Maxwele alleged zapping of President Zuma. They are looking for designs along the lines of having a zap sign in the front with the right to freedom of expression reference on the back.

I think this is a great response to the incident since its a very public way of reclaiming freedom of expression without having to go to court.

If you are interested in submitting a design to them send me an email at david(dot)watson(at)uct(dot)ac(dot)za with the design or any questions you may have. I have the creative juices of a placid rock so I won't be submitting anything but I would really like to see a t-shirt like that.

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