(FXI/IFEX) – The following is a 15 April 2005 FXI press release: FXI’s Anti-Censorship Programme releases fifth progress report The Anti-Censorship Programme (ACP) of the Freedom of Expression Institute has just released its fifth progress report, covering the period October 2004 to March 2005. In it, the Programme noted that is was pleased to announce […]
(FXI/IFEX) – The following is a 15 April 2005 FXI press release:
FXI’s Anti-Censorship Programme releases fifth progress report
The Anti-Censorship Programme (ACP) of the Freedom of Expression Institute has just released its fifth progress report, covering the period October 2004 to March 2005. In it, the Programme noted that is was pleased to announce that there was progress in regards to some of the matters in which it have intervened in the recent past. These matters relate mainly to cases of the state’s use of legal mechanisms to frustrate the work of social movements, as well as the unlawful use of force by police officers to disperse peaceful gatherings and demonstrations of people exercising their right to express themselves publicly. In addition, there was the matter of torture by police against certain members of the Landless Peoples’ Movement that the Programme reported on in its last progress report in September. At the time of the incident, the FXI had condemned the incident as an unprecedented move to intimidate activists on the basis of their political beliefs and advocacy. In this regard, it is gratifying to note that a police officer has been charged with assault with intent to do grievous bodily harm, after his prosecution was recommended by the Independent Complaints Directorate (ICD) for their torture.
It is also pleasing to note that the long-standing case of public violence and intimidation laid against members and activists of the Khayelitsha Anti-Eviction Campaign was dropped by the state on 20 October 2004. The dropping of these charges also meant that the restrictive and patently unconstitutional bail conditions imposed against the members (which among other things prevented them from meeting with each other and participating in assemblies and demonstrations) have fallen away. The ACP had provided financial support for legal counsel to challenge the unconstitutionality of these bail conditions.
Similarly, the ICD announced on December 20 last year that it had completed its investigations into the fatal shooting by police of Teboho Mkhonza, during a peaceful public demonstration in the township of Intabazwe, in Harrismith in the Free State on August 30. The ICD recommended that three police officers be charged with murder, alternatively culpable homicide, and several counts of attempted murder. Furthermore, the ICD body urged that disciplinary action be taken against the named police officers and that under no circumstances must members of the police force be allowed to use bird shot and buck shot in crowd management and control operations.
Public protests have continued unabated in several poor townships in the Free State Province as the residents demand delivery of basic services and accountability from their elected leaders. For example in Phomolong near Hanneman, the residents took to the streets on February 7 and blocked roads demanding that the Free State government address their grievances. The previous week, police had used rubber bullets to disperse a group of protestors taking part in what they (police) termed to be an “illegal march” in the same township.
These developments are of extreme importance to the ACP because as we have pointed out in the past, the real terrain of struggle in relation to the exercise of the right to freedom of expression in South Africa, is the agitation for social and economic rights. We are keeping a watchful eye on the unfolding events in the Free State.
The third area of progress noted during the period under consideration was the recommendation made by the ICD in January 2005 that one of the police officers cited by the four LPM activists for torturing them, be charged with intent to cause grievous bodily harm. We welcomed this development but expressed our disappointment at the fact that it had taken an inordinate amount of time to complete the investigations only for the ICD to recommend that one out of almost five police officers fingered by the LPM activists be charged. It is also frustrating to note that the State is still pursuing its charge of unlawful assembly against the more than forty-LPM members arrested on Election Day, April 14 2004.
In addition, the hate speech complaint laid by a member of the Freedom Front Party to the South African Human Rights Commission (SAHRC) against Mangaliso Kubheka, the national spokesperson of the LPM, has not been taken forward. Initially, the Commission found Kubheka guilty of hate speech and recommended that he issue an apology. However, after the active intervention of the ACP, the matter was re-opened afresh and culminated in the SAHRC’s letter of 20 December 2004 in which the commission stated that it could make no specific finding against Kubheka as there was “a major dispute of facts”. This is clear demonstration that the ACP’s intervention played a major role in reversing a decision, which had obvious far-reaching implications on Kubheka’s right to free expression. We are still attending to this matter.
International solidarity has brought certain successes in the work of the programme as well, and especially in regard to the Harrismith shooting matter and the LPM members’ torture case discussed above. Amnesty International’s (AI) London office has been instrumental in urging the state to take the necessary steps to address these and other matters, and letters of concern from its members in countries such as France, Germany, Austria, the Netherlands and Canada, have been sent to top government officials in South Africa.
Regarding other matters and cases captured in this report, we have once again noted the increasing censorship against community media and particularly community newspapers, in several regions of the country. For example there is the outstanding case of Die Hoorn a small community newspaper published and distributed in the town of Oudtshoorn in the Western Cape, which was condemned by the local municipality as “biased and one sided”. The Municipality then took a decision not to place any further advertisements with the newspaper. Neither would it invite the paper’s reporters to its sessions. The ACP sent a letter to the municipality in August asking it to reverse the decision and in our last communication with the paper’s editor in early March 2005, we were informed that the Council has decided to hold a roundtable discussion with him in order to explore ways of settling the dispute.
There are also two matters that have been brought to the attention of the ACP in which two local community newspapers, The Orange Farm Vision and The Developer, have been sued for defamation. In the two cases, the threats for legal action seem to have receded after the ACP intervened directly with the complainant’s lawyers pointing out such action was unwarranted in the face of the papers’ right to freedom of expression.
Another area of concern relates to the growing spectre of censorship under the guise of protection of intellectual property, particularly copyright and trademarks by big corporations. In this regard, we report about the long running case of Justin Nurse and his T-shirt manufacturing company “Laugh It Off” which has been sued for trademark infringement by brewing giant South African Breweries (SAB) International Ltd. This case was ultimately heard in the Constitutional Court on 8 March and judgment reserved. FXI, which was represented by advocates Gilbert Marcus SC and Anthony Steyn made written and oral submissions before the court arguing that Laugh It Off’s “Black Labour, White Guilt” should be seen as parody against SAB’s “Black Label, Carling Beer” trade mark.
The Institute went on to point out that South Africa’s Trade Marks law gives a virtual monopoly to the holder of copyright, a situation that must now be changed because this law unjustifiably truncates an individual’s right to comment on, criticise or lampoon a registered mark. The case has been covered extensively in the media, as evidenced by the press cutting annexed to this report, and FXI’s role and participation as amicus curiae (a friend of the court) prominently mentioned. We are awaiting the decision of the court with great expectation.
The second case in the current conflict between intellectual property and the right to freedom of expression relates to the “Hellkom” website, which has now been sued by South Africa’s telecommunications giant Telkom for copyright infringement. Telkom is asking for R5, 000,000. The programme will provide as much support as possible to the site and its owner Gregg Stirton, which will include media publicity as well as the possibility of joining the case as amicus curiae.
Finally, the programme is continuing the implementation of other activities such as its education and training workshops with community radio stations and the campaign for legislative amendment. The programme has also undergone an evaluation process out of which recommendations have been made for its restructuring in order to make it more effective, efficient and sustainable.
The report is available on the FXI’s website at http://www.fxi.org.za/
