South Africa: South African National Defence Union v. Minister of Defence
01 Jan 2000
 LRC 152 (Constitutional Court)
|Sub-Issues:||Right to protest|
|Test:||importance of freedom of expression; necessity|
|Decision:||violation of the right to freedom of expression (Section 16 of the South African Constitution); unanimous|
|Jurisdiction:||South Africa (Constitutional Court)|
The applicant, the South African National Defence Union, was a trade union for members of the armed forces. Under domestic law, members of the armed forces were prohibited from becoming members of a trade union; they were also prohibited from participating in strikes, public protests or similar activities. The applicant obtained a High Court declaration that the prohibition was unconstitutional and invalid to the extent that it prohibited members of the forces from participating in public protest and from joining trade unions. The judge referred the order of invalidity to the Constitutional Court for confirmation. The respondent opposed the confirmation of the order in respect of the prohibition on joining trade unions only, arguing that the army could not be a 'disciplined military force' if its members belonged to a trade union. This would have grave consequences for the security of the state. The applicant countered that it did not assert the right to strike on its behalf, but opposed the constitutionality of the prohibition on public protest. It did not seek to argue that the prohibition on participation in strikes was unconstitutional in relation to the relevant members of the Defence Force.
Importance of freedom of expression
At the outset, the Court stressed the importance of the right to freedom of expression:
Freedom of expression lies at the heart of a democracy ... It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally ... The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters. (para. 7, references omitted)
The Court emphasised the value of free expression in the context of other human rights, and the importance of tolerance:
[F]reedom of expression is one of a 'web of mutually supporting rights' ... It is closely related to freedom of religion, belief and opinion, the right to dignity, as well as the right to freedom of association, the right to vote and to stand for public office and the right to assembly. These rights taken together protect the rights of individuals not only individually to form and express opinions, of whatever nature, but to establish associations and groups of like-minded people to foster and propagate such opinions. The rights implicitly recognise the importance, both for a democratic society and for individuals personally, of the ability to form and express opinions, whether individually or collectively, even where those views are controversial. The corollary of the freedom of expression and its related rights is tolerance by society of different views. Tolerance, of course, does not require approbation of a particular view. In essence, it requires the acceptance of the public airing of disagreements and the refusal to silence unpopular views. (para. 8, references omitted)
It was not contested that the impugned statutory provision constituted a limitation on the right to freedom of expression; at issue was whether this limitation was justifiable.
The Court stated that the appropriate test was as follows:
The first question to be asked is whether the provision in question infringes the rights protected by the substantive clauses of the Bill of Rights. If it does, the next question that arises will be whether that infringement is justifiable. At the second stage of the constitutional enquiry, the relevant questions are what is the purpose of the impugned provision, what is its effect on constitutional rights and is the provision well-tailored to that purpose. (para. 18)
The Court observed, first, that the scope of the prohibition suggested that members of the army were not entitled to form, air and hear opinions on matters of public interest and concern; apparently, enrolment in the Defence Force required a detachment from the interests and activities of ordinary society and of ordinary citizens. The Court observed that such a conception of the army could not be correct; members of the army retain their right to freedom of expression:
Members of the Defence Force remain part of our society, with obligations and rights of citizenship. All ... the Constitution requires is that they perform their duties dispassionately. It does not require that they lose the rights and obligations of citizenship in other aspects of their lives. (para. 12, reference omitted)
Therefore, this sweeping prohibition, whose consequence was a grave incursion on the fundamental rights of soldiers, was inconsistent with the Constitution. However, the Court considered that it would be possible to strike out only those parts of the prohibition that could not be justified, thereby limiting the provision to a prohibition on strike action and incitement of strike action, thus rendering it constitutional.
With regard to the prohibition on trade union membership, the Court considered this issue under the constitutional right to form and join a trade union, which could be limited so, as long as that limitation is reasonable and justifiable in an open and democratic society. The Court considered first that the stated purpose of the prohibition was to ensure that the armed forces would function as a 'disciplined military force.' However, the Court was not persuaded trade union membership within the armed forces would jeopardise their internal discipline and efficiency; it considered that, in permitting members to join trade unions and in establishing proper channels for grievances and complaints, discipline may be enhanced rather than diminished. While the Court accepted that the nature of the relationship between the trade union and the Defence Force would be different from the relationship between other trade unions and employers, it considered that the total ban went beyond what was reasonable and justifiable to achieve the legitimate state objective of a disciplined military force.
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