Mc Naught & Co
News

Freedom of Speech : Case Review

CASE REVIEW:                     JANKIELSOHN V BOOYSEN (2019) JOL 46248 (FB)

JUDGMENT:                           DAFFUE ,J

 

Media recently covered DA’s, Dr. Roy Jankielsohn victory against members of the ANC YOUTH league over racial slurs, the 29-page judgment was handed down on the 11th November 2019, and Jankielsohn was awarded R300 000.00 in damages.

 

The case in essence was about the balancing of two constitutional rights, the right to dignity and freedom of expression.

 

Although freedom of expression is a fundamental to our democratic society, it is not a paramount value, it must be construed in the context of other values enshrined in our Constitution. In particular the values of human dignity, freedom and equality.

 

To dissect further, Section 10 of the Constitution of the Republic of South Africa provides for the right to human dignity: “Everyone has inherent dignity and the right to have their dignity respected and protected”. Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings.

 

Freedom of expression is guaranteed by the South African Bill of Rights under section 16, within the Constitution. This is the absolute letter of the law: Everyone has the right to freedom of expression, which includes: Freedom to receive or impart information or ideas. However it does not extend to freedom of expression to hate speech.

 

Racism is an extremely sensitive issue, especially in South Africa therefore attempting to accuse one of being a racist can also be an infringement of rights. Reckless statements and with indifference as to whether it was true or false can be actuated to malice. Reliance on section 16 of the Constitution can be ill-founded where it is evident that statements involve advocacy of hatred based on race and constitutes incitement to cause harm.

 

The victory of this case in effect establishes that we cannot just throw around the R-Word.

Share this article
Now!
Read our
most recent!
Communication is Key to Success

Communication is Key to Success

The single biggest problem in communication is the illusion that it has taken place. This has been a discovery in many trial matters run throughout South Africa, whereby it seems some matters heard before the court in civil proceedings could have easily been resolved at an earlier stage and should never have reached trial stage.

Read More
Lost your Title Deed? Don’t delay!

Lost your Title Deed? Don’t delay!

Your property has been sold and you eager to sign the Transfer documents, it is 2020 the year of plenty and all of a sudden it dawns on you that you cannot remember where you have left your Title Deeds. Through diligent search they cannot be located, what do you do now?

Read More
Division of Assets in Divorce

Division of Assets in Divorce

Who gets what? is the question that we get asked most when sitting down with clients to negotiate and finalise divorce settlement agreements. Whilst an uncontested divorce where the parties are able to agree on the proprietary consequences (division of assets) gives room to cater to what best suits each couple in their circumstances, the law determines the basic rights and entitlement of each party as regards assets and liabilities in the case of divorce should no settlement be reached.

Read More