[3]
This simply means that where a person has consented to the deprivation of
the enjoyment of the right of expression he cannot then turn around and
assert the right. Ironically, the Section of the South African Bill of Rights
dealing with freedom of expression is couched differently from our Section
24. It does not create the exception as the case is with our Section 24 (2).
[4]
In Interpreting a Constitution His Lordship Zietsman J.A. in the Supreme
Court Case of Khanyakezwe Mhlanga and Another V the Commissioner
of Police and Another No. 12 of 2018, made reference to the Ugandan case
of Rwanyarare and Another V Attorney General (2004) AHRLR 279,
where the Uganda Court observed as follows:
“The Constitution is to be looked at as a whole. It has to be read as
an integrated whole with no one particular provision
destroying
another but each supporting the other. All provisions
concerning an
issue should be considered together so as to give
effect to the purpose
of the instrument………..”
[5]
The background to the Khanyakezwe case was whether Regulation 19 of
the Police Regulations and Section 18 of the Prisons Act, 1964, whose effect
was to take away the right of police officers and prison officers to form or be
part of a trade union, was Constitutional or not. Both the High Court and the
Supreme Court emphasised that Article 39 created an exception when it
comes to the enjoyment of certain rights by disciplinary forces with the
exception of the right to life, torture and protection from inhuman or
degrading treatment. See Article 39 (3).
[6]
I am inclined to hold the view that Section 24 (2) cannot be interpreted to
confer the freedom of expression in an absolute fashion. It says that unless
you consent to the deprivation of the right, then you can freely enjoy it. It is
this court’s considered view that the Applicant’s act of accepting the social
media policy as part of the contract of employment amounted to him
consenting to the deprivation of his enjoyment of the right to freedom of
expression; and having done so, he cannot turn around and indirectly
challenge it.
28
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