The constitution : Chapter 10

• Author: Adelheid Janse van Rensburg
• Pages: 117-129
• Date: 01 January 2002
• Published date: 01 January 2002
• DOI: 10.10520/EJC74002

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CHAPTER 10

THE CONSTITUTION

1. Freedom of expression as a fundamental right and the value attached

thereto

2. Who is entitled to the rights granted in section 16

3. Restrictions on the right to advertise

4. Freedom of speech in the United States of America

5. Freedom of speech as a fundamental right in the Canadian Charter

6. Freedom of speech in South Africa

7. Conclusion

1. Freedom of expression as a fundamental right and

the value attached thereto

The Constitution of South Africa1plays a dominant role in all legal

spheres, because it is the supreme law of this country. Therefore this

paper will not be complete without reference thereto.

Section 16 of the Constitution provides for the freedom of expression.2

The courts, however, can interpret the term “expression” as encompass-

ing any verbal articulation of ideas, as well as any symbolic speech, for

example the burning of flags, etc.3The Constitution is accordingly applic-

able to advertisements and commercial speech,4specifically so in the light

of the “freedom of the press and other media”.

Section 16 reads as follows:

“(1)

Everyone has the right to freedom of expression, which includes-

(a) freedom of the press and other media;

(b) freedom to receive and impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to-

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or

religion, and that constitutes incitement to cause harm.”

1 Act 108 of 1996.

2 Act 200 of 1993 provided for the right to freedom of speech, as well as freedom

of expression.

3Tinker v Des Moines Independent Community School District 393 US 503.

4 Woker 1997: 292, at fn 8.