preventing the disclosure
received in confidence;

of information


maintaining the authority and independence
of the courts; or


regulating the technical administration or the
technical operation of telephony, telegraphy,
posts, wireless broadcasting or television or
any other medium of communication; or

that imposes reasonable restrictions upon public

except so far as that provision or, as the case may be, the
thing done under the authority of that law is shown not to
be reasonably justifiable in a democratic society.”

(emphasis added)


I note straightaway that the right of freedom of expression is not the law
of the Medes and Persians. It is not sacrosanct. The Constitution subjects
it to respect for the rights of dignity of others, amongst other fundamental


It follows that where these two crucial fundamental rights conflict, it
becomes necessary that the courts embark on a balancing act in order to
maintain the very fabric of our constitutional democracy. This requires a
value judgment to ensure that none prevails over the other.


Speaking about this balancing prerogative in the case of Khumalo v
Holomisa 2002 (5) SA 401 (CC) O’Regan J,made the following condign
“In a democratic society, then, the mass media play a role of undeniable
importance. They bear an obligation to provide citizens both with
information and with a platform for the exchange of ideas which is


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