MOKGORO J
[21]
The United States approach is, at least in part, a reflection of the fact that the American bill
of rights does not contain a limitations clause. Where, as in the case of our Constitution, the listing
of rights is accompanied by a clause that provided for the limitation, on a principled and
considered basis, of all enumerated rights, the better approach would seem to be to define the right
generously, and to interpose any constitutionally justifiable limitations only at the second stage of
the analysis. That, in fact, is the approach that this Court has adopted.32
[22]
There is significant textual support in section 33 of the Constitution for the adoption of such
an interpretive methodology in relation to the question of “non-political” expression in particular.
Section 33(1)(a) provides that Chapter Three rights may be limited by laws of general application,
provided that such limitation is both “reasonable” and “justifiable in an open and democratic
society based on freedom and equality.” Part (bb) of the same subsection further provides that
any limitation to, inter alia, section 15 rights, must, in addition, be “necessary” “in so far as such
right relates to free and fair political activity.” The clear inference is that section 15 must be
read broadly enough to protect “non-political” expression. The fact that particular speech is not
“political” in nature is factored only at the limitations stage of the analysis.
[23]
That method would seem to be particularly appropriate in the course of interpreting and
applying the guarantee of free speech and expression.
There is an inherent artificiality in
categorising expression in principle as “political” or not. Few forms of what we conventionally
class as “artistic” expression can be said to be devoid of “political” implications. Conversely,
history records many a rhetorically distinguished “political” speech that could fairly be
32
S v Zuma 1995 (4) BCLR 401 (CC) 414; S v Makwanyane 1995 (6) BCLR 665 (CC) 707.
12
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