oa Comparative and International Law Journal of Southern Africa - Freedom of expression under the new constitution

Volume 30, Issue 3
  • ISSN : 0010-4051



Section 16 of the Constitution of the Republic of South Africa Act 108 of 1966, is a more detailed provision than its predecessor in that it extends the scope of freedom of expression to incorporate the freedom to receive and impart information and ideas. The constitutional right to freedom of expression is not absolute, and is subject to an internal limitation (section 16(2)) in that propaganda for war, incitement of imminent violence or advocacy of hatred (the so-called 'hate speech', do not qualify for protection. Over and above this internal limitation there is a general limitation clause, which permits the limitation of a fundamental right under certain specific conditions. This article addresses the philosophical basis of the right to free expression and the content of the right. However, since section 39(1) of the Constitution specifically provides that in interpreting the Bill of Rights, a court, tribunal or forum must consider international law and may consider foreign law, it is apparent that no discussion of any fundamental right will be complete without reference to international law and foreign law.

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