96. The Respondent never
addressed us on this
issue and in such a
situation, we are reminded of the words of Iain Currie and Johan de
Waall who in Bill of Rights Handbook stated thus:“Freedom of speech is valuable, not just by virtue of the
consequences it has, but because it is an essential and
‘constitutive’ feature of a just political society that government
treat all its adult members … as responsible moral agents. That
requirement has two dimensions. First, morally responsible
people insist on making up their own minds what is good or bad
in life or in politics, or what is true and false in matters of justice
or faith. Government insults its citizens, and denies their moral
responsibility, when it decrees that they cannot be trusted to
hold opinions that might persuade them to dangerous or
offensive convictions.
We retain our dignity, as individuals, only by insisting that no one
– no official and no majority has the right to withhold an opinion
from us on the ground that we are not fit to hear and consider
it.”
97. We also agree with the submissions by the Amici Curiae that where
restrictions are placed on the enjoyment of any right, the same must be
reasonable and the restriction must also be rational. What is the reason
and rationale preferred for some of the restrictions above? We see none
and in S. vs. Mamabolo [2001] ZACC 17, Kriegler J. stated as follows:“Freedom of expression, especially when gauged in conjunction
with its accompanying fundamental freedoms, is of the utmost
importance in the kind of open and democratic society the
Constitution has set as our aspirational norm. Having regard to
our recent past of thought control, censorship and enforced
Reference No. 5 of 2013
Page 36