Die grondwetlikheid van staats- en administratiefregtelike beperkings op mediavryheid in Suid-Afrika
Abstract
An independent, investigative and responsible media is regarded as one of the most important role players upon which the preservation of democracy in South Africa
depends. The rights and freedoms of the media enjoy constitutional acknowledgement and protection. As fundamental rights and indispensable
components of media freedom, the Constitution of the Republic of South Africa, 1996 guarantees the right to freedom of expression (section 16) and the right of access to information (section 32) to everyone. The constitutional protection of media freedom empowers the media to (i) address public issues in the interests of the public, (ii) call the state to account to be transparent, open and accountable and (iii)
counterbalance abuse of power and malpractice by the state. The right to media freedom is, however, not absolute and may consequently be limited in its application. The state possesses the authority to subject this right to limitations in order to protect other individual fundamental rights and to serve important public interests. Due to the supremacy of the Constitution (section 2), such state conduct is, however, only allowed if it conforms to the provisions of the
Constitution. The media are nevertheless, and in spite of the important role they play in preserving democracy in South Africa and the constitutional acknowledgement and protection that is provided for media freedom, continuously placed under immense pressure, mostly by the state. The adoption of the Protection of State Information Bill, 2010 serves as the most recent example hereof. Seeing that the various constitutional law and administrative limitations on media freedom are criticised widely because of their potential unconstitutionality, it is the main aim of this study to demarcate the constitutional boundaries for the limitation of media freedom by the state and to investigate the extent and constitutionality of the state’s authority to limit media freedom. By demarcating the extent of the state’s authority in general and specifically its
authority to limit media freedom in view of the relevant constitutional provisions, it
was found that the conduct of the state in this regard is strictly regulated by the
Constitution. Although the right to media freedom may be limited in its application, it
was found that the Constitution – in terms of sections 33 and 36 – sets clear boundaries for the limitation thereof by the state. All executive and administrative organs of state that limit the right to media freedom by virtue of legislation and according to the discretionary authority granted to them,
must comply with the requirements set for just administrative action. All administrative decisions and conduct limiting the right to media freedom must therefore be lawful, reasonable and procedurally fair and must be accompanied by sufficient written reasons. Both constitutional law and administrative limitations on media freedom must comply with the requirements set by the general limitations clause for limiting fundamental rights. Any limitation placed on the right to media freedom must therefore be done in terms of law of general application and must, taking into consideration the section 36-key factors, be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Any constitutional law and administrative limitations that do not meet these constitutional requirements are therefore unconstitutional. After critically analysing the provisions of the Protection of State Information Bill, 2010 that will have the effect of limiting media freedom, it was found that it will not pass the constitutional test.
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- Law [826]