The following appeared originally on the Free Market Foundation website on 23 September 2015, and in the Pietermartizburg newspaper The Witness on 28 September 2015.
“I prefer a free press in South Africa, but as Prime Minister I cannot do what I want to do.”
Those words were uttered by former State President PW Botha during the infamous ‘Muldergate’ Scandal of the late 1970s. He was warning the press that “if it regarded itself as above the law”, the government would step in with strict regulation. Indeed, during the Apartheid era, media and press freedom in South Africa was definitely not guaranteed in any respect. While our common law contains a very strong right to freedom of expression, an ordinary rule of legal interpretation is that any legislation which conflicts with the common law, immediately overrules that common law principle. Any Act prohibiting a certain kind of speech was thus binding during those days, and there were certainly many such statutes.
The interim (1993) and current (1996) Constitution fundamentally changed this state of affairs in South Africa. Section 16 has codified our common law right to freedom of expression and given it constitutional strength. Legislation must now be consistent with this provision of the Bill of Rights, and we have been reaping the rewards ever since. While the Apartheid government did not micromanage all dissenting speech, the current government has even less power to do so.
Recent history gives us The Spear controversy where Brett Murray painted a picture of President Jacob G. Zuma with his private parts prominently exposed. In times past, such a work of ‘art’ may have been considered pornographic under the Publications Act, and would have been promptly removed. The National Party government may even have made a state security argument in favour of removing it. The African National Congress (ANC) government had significantly less power at its disposal to see the humiliating piece removed. In fact, the President had to pursue a private law remedy, by arguing that he had been defamed. The ANC later withdrew the case when a settlement was reached with the art gallery.
However, our recently gained media freedom should not be taken for granted. Section 36 of the Constitution, known as the ‘general limitations clause’, provides that any right in the Bill of Rights may be limited under certain circumstances (this is in addition to the internal limitation of Section 16 which prohibits speech advocating war or violence, and hate speech). This section has been used by the government variously to limit the rights of South Africans, such as the ability to smoke marijuana. The right to freedom of expression is no exception.
The Films and Publications Board, which was created in terms of the Films and Publications Act (1996), is tasked with “[ensuring] efficient and effective consumer protection through regulation of media content, while empowering the public, especially children, through robust information sharing”. The Act’s objectives are said to be: “to regulate the creation, production, possession, and distribution of certain publications and certain films by means of classification, the imposition of age restrictions, and giving of consumer advice; and make exploitative use of children in pornographic publications, films, or on the internet punishable.”
The Board released draft regulations last year which caused much confusion and concern about possible censorship. What the regulations appeared to do was oblige users who publish content to be registered with the Board and have the content classified by the Board. This spawned an Avaaz petition which, to date, has garnered over 32,000 signatures. The petition calls on the Board to “completely set aside” the proposed regulations.
The Board thankfully clarified its stance and said earlier this year that the “obligation to classify content will not generally apply to persons uploading online content on a non-commercial basis”. However, the policy still states that no online publisher will be allowed to publish content in South Africa unless it has been registered with the Board, and has paid its licence fee. While the attempted clarification does relieve some of the concern for oppressive censorship, we should not perceive this occurrence narrowly.
Adolf Hitler said that the best way to take control of a people is to chip away at their rights and freedoms slowly and gradually. When the people finally notice they are no longer free, it will be too late.
Even various small administrative or bureaucratic ‘annoyances’ may collectively culminate into an authoritarian regime of speech prohibition. There may be noble intentions underlying the Board’s and the government’s plans to regulate publishing, but noble intentions alone do not safeguard the foundational integrity of our democracy and free society.
Andrew Jackson said that the only way to secure liberty is through the ‘eternal vigilance’ of the citizenry, within the American context. The American right to free speech is pre-eminent, unlike in our system where all rights are equal; and even there, this freedom has been curtailed in various respects. That should signal to all South Africans that we need to be extra vigilant, and extra careful, and certainly proactive, in defending our right to speak our minds and hear others speak theirs. A large number of South Africans have been lax in defending this particular right and have even advocated for more government intrusion on free speech, especially on university campuses. They must reconsider this approach and remember that restricting free expression is a slippery slope: it will not be long before the darlings of government overregulation too are caught within the sights of the State.