How can the use of office space be a freedom of expression issue? The recent prospect of journalists’ eviction from their offices in parliament was met with strong disapproval because, amongst other things, it involved the notion that such a move would threaten freedom of expression, and the freedom of the press to report on parliament.
The right to freedom of expression is a general right contained in section 16 of the constitution. It provides specific protection for rights such as freedom of the press and other media, and states what expression is not permitted, such as hate speech.
Borrowing from Canadian law, in South Africa the accepted meaning in a constitutional context of the word expression has become “any activity which attempts to convey meaning”. Section 16 protects any form of human expression that would enable a person to receive or impart information. The protection envisioned under this section is accordingly extremely broad.
Applying this definition to the prospective evictions, it seems that various forms of “expression” might have been limited. Specifically, it had been argued that taking away the offices of journalists in parliament, and substituting them for ones outside the parliamentary precinct, would mean security checks for journalists and additional time considerations and inconveniences that would hamper the receiving and imparting of information, thus infringing the freedom of expression right. An associated argument considered that the basis of parliamentary reports was the previously unhampered informal interaction between journalists and parliamentarians within the parliament buildings. It had been argued that the proposed moving of journalists would limit such interaction, thereby limiting the ability of journalists to receive the information, and accordingly their ability to impart the information to readers.
The right as noted is broad enough to have envisaged protection of the journalists’ arguments. But like other rights, the right to freedom of expression is not absolute and is subject to limitations. Section 16(2) identifies conduct that does not amount to expression, and a secondary limitation is contained in the general limitation clause found in section 36. The limitations clause provides for the valid limitation of a right on consideration of various factors, including whether it is reasonable and justifiable, the nature of the right, and the importance and purpose of the limitation.
The enquiry into the validity of a limitation of the right to freedom of expression consists of two stages: the first a factual one looking for any limitation of the right, the second looking at the constitutional validity of such a limitation. Applying this to the eviction scenario, it may very well have been that there was some limitation of the right. Factors to be considered would have included the argument put forward by the Secretary of Parliament, citing a lack of office space for parliamentarians in parliament. Another relevant consideration would have been that journalists were allocated alternative offices, and so would not have been denied access to parliament. This could have resulted in a finding that such a limitation of the right was constitutionally valid.
Office space became an expression issue, because the offices were linked to the ability of journalists to report freely on events in parliament. There were two competing interests, the right to freedom of expression and the right to limit it. Had the Secretary of Parliament not backed down, it would have been up to the courts to decide on which interest was more important.
Reggie Manyakara is a candidate attorney with Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg.