Violence Against Speakers / Impunity
Duque v. Ministry of the Interior and Justice
In Progress Mixed Outcome
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The High Court of South Africa granted a number of orders forbidding the Black First Land First organization from engaging in, among other things, acts of intimidation, harassment, and threats directed at certain journalists. The High Court also ordered that the organization not use social media in an intimidating and threatening way. The case was taken after protesters affiliated with the Black First Land First organization gathered in front of a journalist’s home. They had golf clubs, sticks, and turned off the water supply to the house. They also assaulted two journalists, and sent tweets targeting certain journalists.
Eleven journalists, represented by the South African National Editors Forum, filed an application before the High Court requesting urgent protective orders. The High Court determined that the journalists had a right to the protection of their physical and human dignity, and to carry out their profession according to their freedom of expression. The Court also determined that a protest that amounts to harassment and intimidation, including following journalists to their places of worship, cannot amount to a peaceful protest.
On June 29, 2017, protesters affiliated with the Black First Land First organization (Respondents), gathered in front of journalist Peter Bruce’s house. The Respondents had golf clubs and sticks, invaded Mr. Bruce’s property, and assaulted journalists Karema Brown and Simon Timothy Cohen. The Respondents turned off the water supply to the journalist’s home. The Respondents also sent threatening tweets to them and other members of the South African National Editors Forum (SANEF).
Following the incident, eleven journalists, including Bruce, Brown, and Cohen , as well as SANEF (together the Applicants), filed an application for interdictory relief asking the High Court of Gauteng to order the Respondents to refrain from further acts that violate their right to human dignity and personal liberty.
The Applicants contended that the Respondents’ conduct constituted harassment, intimidation, and threats “in respect of [the Applicants’] bodily and physical integrity, to their safety, liberty and the right to eke out a living as a journalist.” [para. 11]. According to the Applicants, their conduct was contrary to sections 10 (human dignity) and 16 (freedom of expression) of the South African Constitution.
The Respondents maintained that they had a right to peaceful protest “against any journalist that is perceived to be racist and biased in their reporting.” [para. 13]. The Applicants did not contest the Respondents’ right to peaceful protest and to criticize, unless that protest and criticism turns to harassment, intimidation and threats.
Justice Van Der Westhuizen delivered the decision of the High Court of Gauteng (Court). He began his judgment by stating that “[t]he life of a journalist is not easy. The profession of a journalist, and in particular that of an investigative journalist, is seldom appreciated. More often it is criticized. The public often frowns upon the reporting of a journalist. His or her actions are continuously subjected to criticism of alleged biasness or sensation. Seldom a word of gratitude is expressed.” [para. 1] The Court determined that the Applicants demonstrated a reasonable apprehension of harm that was clearly going to continue, and so were granted the relief sought.
The Court held that the Respondents’ demonstration in front the house of one of the Applicants did not amount to a peaceful protest. The judge asserted that a protest like the one carried out by the Respondents had “the attributes of a protest with the intention to harass, intimidate and threaten.” [para. 14]. In reaching its decision, the Court highlighted the fact that journalists had been assaulted, and protesters were armed and invaded private property.
Furthermore, the Court held that it is not indicative of a peaceful protest when the Respondents also intended to follow the Applicants to their places of worship. This demonstrated an intention to harass, intimidate, and threaten. The Court reasoned that following the journalists in this way meant that “[t]he journalist is clearly not entitled to worship in peace. He or she is constantly aware of the presence of the protestors. It is a clear invasion of the privacy and liberty of the targeted journalist.” [para. 15]
Concerning the Respondents claim that their protest was directed at racist and biased journalists, the judge determined that, if this were so, the protest then should have been directed to the profession and the place where the profession is followed, “not at the private home or place of worship of the journalist.” [para. 16].
The Respondents also argued that the threatening tweets directed at the Applicants were not done by any of the Respondents. According to them, their Twitter account might have been hacked. However, the Court did not give merit to this submission. The tweets were also found to have been published with the intention to harass, intimidate, and to threaten. Furthermore, the Respondents did not distance themselves from the tweets, instead they associated themselves with them.
In relation to the attacks made against Brown and Cohen, the Respondents argued that one of the journalists provoked them. The Court found this claim to be “opportunistic and illogical” as calling someone a “fool” does not amount to incitement. [para. 23]
Finally, the Court determined that the Applicants had a right to the protection of their bodily and physical integrity and to dignity, as well as protection of their constitutional right to follow their profession.
Having determined that there was no alternative remedy available to the Applicants other than an injunction, the High Court ordered the Respondents to;
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This is an important decision that ensures the journalists were protected against intrusion and harassment that could have dissuaded them from carrying out their important functions. The orders granted were an important means of protecting the journalists’ private lives, and physical safety and security, in order to allow them to carry out their journalistic work without interference. In doing so, the Court gave explicit recognition to the important work performed by journalists in South Africa, and some of the challenges they face. However, in granting these orders, the High Court has also arguably curtailed speech by requiring that the Respondents refrain from activity that “would constitute an infringement of [the Applicants’] personal liberty” and refrain from publishing “threatening” or “intimidating” statements. This order is imprecise and could result in the Respondents over-censoring their speech in order to comply with them.
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The Gauteng High Court’s decision is binding within its jurisdiction.
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