Mc Naught & Co
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.