FXI: FXI's Anti-Censorship Programme Releases Seventh Report
4 August 2006
FXI's Anti-Censorship Programme releases seventh report
The FXI's Anti-Censorship Programme (ACP) has released its 7th progress report, detailing the cases it has dealt with and outlining some of the challenges in the freedom of expression environment in South Africa.
The ACP's work includes two areas: 1) the "classical" cases of censorship that the FXI has dealt with over the past 12 years: denial of free expression to the media, journalists and other individuals, and 2) the denial of free expression to poor communities, movements, committees and organisations representing the poor. The latter usually means protecting and defending the right to gather, protest, march, publish, etc. The FXI defends these rights through advocacy, legal means, through the courts and by empowering organisations of the poor to be able to deal with the repression they might face.
Over the past year, the FXI noticed an increase in censorship related to the media, individual journalists, individual freedom of expression in the workplace, etc. An additional front is the trend towards constraining freedom of expression at tertiary institutions. This affects students and staff.
Below is a summary of cases we have dealt with in the past six months.
The Harrismith 13 case is ongoing. The 13 Intabazwe Township residents had been charged with sedition and public violence. They appeared in court in January 2006, having been informed that sedition charges were withdrawn. Charges relating to public violence stood. Some of trialists [i.e., the accused] had been subjected to police harassment, including a physical beating. The ACP is assisting the trialists through legal advice and through two workshops held in Harrismith. The withdrawal of sedition charges also followed the FXI's giving the case wide publicity. The case will resume in October 2006.
The FXI dealt with a few cases relating to the Durban shack dwellers movement, Abahlali base Mjondolo. Abahlali has had problems with the eThekwini municipality not allowing them to march in the city. In February 2006, with the help of the FXI, Abahlali won an important court victory against the city, interdicting the city and the police from preventing their march from going ahead. Another court victory around the right to protest and the application of the Regulation of Gatherings Act (RGA that the FXI secured was the case of members of the Soweto Concerned Residents (SCR), who were charged with holding a prohibited march. The magistrate ordered the acquittal of the two accused without even listening to the defendants' case. These court victories highlight the FXI argument that the RGA is often misapplied in an unconstitutional and illegal manner. Unless local authorities and the police implement the RGA differently, the constitutional right to freedom of expression will b!
e compromised and the space for peaceful, non-violent dissent will rapidly be constrained. The situation is worsened by local authorities wanting to overstep the RGA. This was brought to the fore ground recently when the City of Cape Town passed a by-law which, while referring to the RGA, subverts it and sets down regulations which violate the Act and the Constitution. The Legal Unit and ACP are currently writing a response to the by-law.
An issue becoming increasingly serious is journalists' right to protect their sources. The issue was highlighted by the case of the Mail & Guardian and the civil and criminal cases brought against it as a result of its reportage on the "Oilgate" scandal. The FXI is supporting the M&G with legal advice and costs and by being amicus curiae in the civil matter. The matter has not yet been resolved. Whatever the outcome, it will have severe repercussions for the media. Recently, there was also a threat by a politician in Outdshoorn to sue journalists if they did not reveal their sources regarding financial irregularities in the municipality. The FXI commented on that issue and is following developments. Before that, there was the case of two ex-Sowetan journalists subpoenaed to testify against a witness based on an interview she had given to one of them. The subpoena was later withdrawn.
The case(s) of South Africa's former Deputy President, Jacob Zuma, raised a number of issues the FXI had to respond to. These included Zuma's threats against the media and journalists (including a cartoonist), a pro-Zuma song being banned on a South Africa Broadcasting Corporation (SABC) radio station, the exposing of the identity of the rape complainant in the Zuma rape trial and the preventing of the media from attending a court appearance by Zuma. The FXI was inundated with calls for interviews, to appear on talk shows and for guidance from journalists.
The past six months has also seen intense FXI engagement with issues related to the public broadcaster and censorship. The SABC issue that attracted the most attention in the past six months was its decision to halt the screening of the documentary on President Thabo Mbeki as part of the SABC's "Unauthorised" series. The FXI lobbied the SABC and had ongoing discussions with the SABC and the producers, advising the producers and attempting to organise a meeting of independent producers to discuss, more broadly, the question of the relationship between the SABC and independent producers.
Another SABC-related issue is the allegations of an SABC "blacklist" of analysts. The fiasco was embarrassing for the SABC. The FXI lobbied the SABC, participated in a roundtable discussion on the matter and assisted in drawing up a petition of SABC commentators who objected to the notion of the blacklist. The SABC has set up a commission of enquiry to look into the issue. The FXI expressed unhappiness about the two-person Commission, seeing that one of them is a former CEO of the SABC and is currently part of an independent production company that does work for the SABC.
There were a number of cases of individuals the FXI handled in the past six months. Two were grievances with public institutions (the University of Kwazulu Natal, in the case of Ashwin Desai, and the Office of the Presidency, in the case of Thoko Mkhwanazi-Xaluva), one with a private business concern (Super Spar, in the case of Vusi Sibeko) and the case of Charlene Smith and Patricia de Lille.
Desai had been prevented from being considered for a position at the university based on a banning order by the former University of Durban-Westville. The last Vice-Chancellor of UDW had lifted the ban but the current Vice-Chancellor of UKZN had decided the ban remained valid. The FXI had a number of interviews with and published articles in the media on the issue. The matter is set finally to be resolved in August.
Thoko Mkhwanazi-Xaluva, former Director in the Office of the Rights of the Child (ORC), was fired by the Presidency after she had claimed a consultant to the ORC was guilty of sexual harassment. She claimed the consultant was a friend of Minister Essop Pahad. After being reinstated by a bargaining council arbitrator, she was again fired, this time for having spoken to the media about her earlier matter. The matter then went back to the bargaining council. The ACP assisted her with legal advice and tried to secure the services of counsel. She won the case in the bargaining council.
Desai's case was not the only matter that the ACP dealt with which involved the University of Kwazulu Natal. There was also the high-handed approach to a staff strike and, an ongoing matter, the issue of UKZN's electronic communication policy which violates students' and staffs' academic freedom and their right to privacy and dignity. The university hopes to use the policy to snoop on staff and student electronic communication as well as having access to electronic documents.
Chief shop steward at Super Star, Milnerton, Vusi Sibeko was suspended for having published an article in the Democratic Socialist Movement newsletter where he exposed bad working conditions and salaries of workers at Super Spar. The FXI assisted Sibeko with legal advice and mounted a media campaign around the matter. The matter went to arbitration and the FXI's Legal Unit Head, Simon Delaney, was called by Sibeko's representatives as an expert witness. His testimony played a crucial role in the decision of the arbitration hearing, which reinstated Sibeko.
The Charlene Smith / Patricia de Lille case went to the Constitutional Court where the FXI appeared as amicus curiae. The case relates to the biography of de Lille, written by Smith, which names three HIV-positive women and exposes their HIV status. The three are accusing de Lille and Smith of violating their rights to privacy and dignity. The FXI's concern is the application, if successful, would have a chilling effect on freedom of expression of (non-media) individuals. It is not in the public interest for the common law to develop in the direction of criminalizing negligence by individuals - especially where such negligence is without malice.
The FXI was very involved in commenting on the controversy surrounding the (not quite) publication of the Prophet Muhammad cartoons in South Africa. Much media work was done around the cartoon issue. And, the ACP also attempted to play a mediating role between the Sunday Times and the Muslim groups that had applied for the interdiction against various newspapers.
The full report will be available from the FXI website: http://www.fxi.org.za/
For further information, contact FXI at P.O. Box 30668, Braamfontein, 2017, Johannesburg (Street Address: 21st floor, Sable Centre, 41 De Korte Street, Braamfontein, 2001, Johannesburg), South Africa, tel: +27 11 403 8403/4, fax: +27 11 403 8309, e-mail: firstname.lastname@example.org, Internet: http://fxi.org.za
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