CYRILLA: Global Digital Rights Law

Held further: A determination whether the doctrine of avoidance is applicable or not requires an assessment of the merits of the matter, even if cursorily, and this is beyond the mandate of this court. Held further: On the facts, even if the court adopts the doctrine of avoidance the constitutional issue is bound to arise again in the Industrial Court, or even before the disciplinary chairperson, as the applicant canvasses his defence, and such futility is undesirable. Held further: Ex facie, the applicant’s facebook page is well-within the ambit of the constitutional rights of freedom of speech and opinion under Section 23(1) and (2) and Section 24(1) and (2). Held further: The clawback clauses in Section 23(2) and 24 (2) and (3) allow hindrance on the exercise of those rights under exceptional circumstances. Held further: The facts in casu fall outside of the exceptional circumstances recognized by the Constitution, hence the post complained of was in exercise of the applicant’s freedom of speech and opinion. Held further: The rights in Section 14, 23 and 24 of the Constitution are not derogable except to the extent that the constitution expressly provides. 1) Application is granted. 2) Matter referred back to the Industrial Court for determination of merits. 3) No order for costs. JUDGMENT MLANGENI J. 3