‘The decision by EFF leader Julius Malema to ban certain media organisations from covering EFF events or briefings directly implicates the proper functioning of the democracy and it is highly unlikely that the court will sanction the limitation of the right.’

The ban – says constitutional law expert Professor Pierre de Vos – may well be unconstitutional as it seems to infringe on the right to freedom of expression guaranteed in section 16 of the Bill of Rights.

In an analysis on his Constitutionally Speaking blog, De Vos notes private individuals and institutions have a duty to respect many other rights – including the right to freedom of expression guaranteed in section 16 of the Bill of Rights.

In Governing Body of the Juma Musjid Primary School & Others v Essay NO and Others, the Constitutional Court dealt with the extent to which section 8(2) will impose duties on private parties to respect specific rights in the Bill of Rights.

De Vos says when one applies these principles to the right to freedom of expression, it becomes clear that the right will often impose obligations on private individuals, organisations and institutions not to do anything that would interfere with the enjoyment of this right.

Section 16 states – in part – that everyone has the right to freedom of expression, which includes ‘freedom of the press and other media’ and ‘freedom to receive or impart information or ideas’.

Thus, everyone has a duty not to do anything that would ‘interfere with or diminish the enjoyment of a right’ to freedom of expression.

‘Where private individuals, organisations or institutions take steps to prevent members of the media from doing their job, that private individual, organisation, or institution will be infringing on the right to freedom of expression because they will be interfering with or diminishing the enjoyment of the right.’

De Vos adds while the right will apply to a private party whenever that private party attempts to curtail the ability of the media to gather information and to report on a matter of public interest, the right would arguably apply more intensely and would have a more devastating impact if it is limited in ways that affect the democratic process.

In such cases, the court would be more reluctant to impose limits on the infringed right in accordance with section 8(2)(b).

Malema’s ban, says De Vos, impacts negatively on the media and on the ability of individuals to enjoy their right to freedom of expression.

‘The fact that the EFF is a political party and therefore performs a public function intimately linked to our constitutional democracy places an even heavier burden on the party (as on any other political party) to respect the right to freedom of expression.’

Full analysis on the Constitutionally Speaking blog

Governing Body of the Juma Musjid Primary School & Others v Essay NO and Others