Recent Case: Constitutional application

• Jurisdiction: South Africa
• Pages: 262-270
• Date: 03 September 2019
• Citation: (2003) 16 SACJ 262
• Published date: 03 September 2019
• Author: Anashri Pillay

262



SACJ •

(2003) 16

Constitutional application

ANASHRI PILLAY

University of Cape Town

Interpretation—right to freedom of expression

In

Phillips v Director of Public Prosecutions, Witwatersrand Local Division

2003 (1) SACR 425 (CC), the High Court's finding that s 160(O of the Liquor

Act 1989 was unconstitutional came to the Constitutional Court for a

confirmation of invalidity. Section 160(O 'made it an offence for any holder

of an on-consumption licence who allowed any person (i) to perform an

offensive, indecent or obscene act; or (ii) who was not clothed or not

properly clothed, to perform or to appear, on a part of the licensed premised

where entertainment of any nature was presented or to which the public had

access' (at 430g-h).

The court noted, per Yacoob J, that findings of invalidity would not be

routinely confirmed (at 432

b-c).

The court is obligated to enter into a

thorough investigation into the constitutionality of the legislative provision

(at 4324. The court found it unsatisfactory that the relevant members of the

executive provided no reasons for their decision not to oppose the

application for confirmation of invalidity (at 432

i-j).

Under the separation

of powers doctrine, the courts, and not the executive, must decide on the

constitutionality of laws.

On the issue of whether the section violated the right to freedom of

expression, the court first noted that the s 160(O prohibition 'applies to all

entertainment of every description, provided only that the conduct covered

by the section is part of it. It covers dramatic performances, including plays

and concerts, irrespective of whether they represent serious works of art or

the communication of thoughts or ideas essential for positive social

development' (at 433i-434a). The section is, thus, a limitation on the right

to freedom of expression, specifically the 'freedom of artistic creativity' and

`freedom to receive or impart information or ideas'. Its impact is on both

performers and the audience.

The court moved on to the s 36 limitation enquiry. It noted that the right to

freedom of expression is not absolute — it may be limited provided the

requirements of s 36 were met. Taking a different approach from the High

Court, the Constitutional Court found that the 'absence of evidence and

argument from the state does not exempt the court from the obligation to

(2003) 16 SACJ 262

© Juta and Company (Pty) Ltd