This study investigated the tension between the right to freedom of expression and the right to a fair trial in the context of the public broadcasting of criminal trials. The aim of the study was to determine whether the right of the media to broadcast criminal trials can be reconciled with the right of an accused person to a fair trial. To accomplish the above aim, the research undertook a review of the case law relating to televised criminal trials in order to determine how the courts have addressed the fair trial-free expression conflict. The study concluded that the ‘balancing exercise’ employed by the courts does not seem to have addressed this tension. Given that televised criminal trials are prone to sensationalism and the danger of fabrication of evidence, the study concludes that the broadcasting of criminal trials undermines the right to a fair trial. The study makes recommendations that are designed to ensure a proper balance between the freedom of expression as exercised by the media through the broadcasting of criminal trials on the one hand and the right of accused persons to a fair trial on the other.

This study investigates the interaction between freedom and limitation as applied to political expression and hate speech. The need for the limitation of hate speech, with its inherent risk of escalation into other serious crimes such as genocide, is established. The view of the South African courts is identified as pro-limitation but generally respectful of the right to freedom of expression. A lacuna in current constitutional law, common law and legislative remedies is evident and the various ways in which limitation can be effected are explored; the researcher finds for criminalisation as an effective measure to address this lacuna in hate speech regulation. The importance of complying with the international call for the criminalisation of hate speech is analysed. Insight is gained regarding what would be an effective model for criminalisation. Here lessons are taken from foreign comparatives that have successfully criminalised hate speech in the context of their cultural identity, history and social needs. Ultimately, a framework for effective hate speech criminalisation in South Africa is formulated. / Constitutional, International & Indigenous Law / LL.M

This study was conducted to identify and analyse Mail and Guardian Online moderation outputs which contradicted the platform‟s own stated policy on hate speech and other forms of problematic speech. The moderation outputs considered were a battery of readers‟ comments that were posted in response to Thought Leader blogs on xenophobia published between May and June, 2008. This was the same period a series of xenophobic attacks was taking place in some parts of South Africa, leaving an estimated 62 people dead, more than 30,000 displaced, and countless victims injured and robbed of their property. The attacks were a catalytic moment that enabled a whole range of discursive positions to be articulated, defended, contested and given form in the media. They also made visible the potential tensions between free speech on the one hand, and hate and other problematic speech on the other. Using qualitative methods of thematic content analysis, document review, individual interviews, and an eclectic approach of framing analysis and rhetorical argumentation, this study found instances of divergence between the M&G policy and practice on User Generated Content. It found that some moderator-approved content advocated hate, hatred, hostility, incitement to violence and/or harm, and unfair discrimination against foreign residents, contrary to the M&G policy which is informed by the constitutional provisions in both section 16 of the Bill of Rights and section 10 of the Equality Act. Based on examples in the readers‟ comments of how „the foreigner‟ was made to signify unemployment, poverty, disease, unfair competition, and all manner of deprivation, and bearing in mind how such individuals have also become a site for the violent convergence of different unresolved tensions in the country, the study‟s findings argue that the M&G – a progressive paper dealing with a potentially xenophobic readership (at least a portion of it) – should have implemented its policy on acceptable speech more effectively. The study also argues that the unjustifiable reference to foreigners as makwerekwere, illegals, illegal aliens, parasites, invaders and border jumpers, among other terms, assigned them a diminished place – that of unwanted foreigner – thereby reproducing the order of discourse that utilises nationality as a space for the expurgation of the „other‟. The study argues that the use of bogus (inflated) immigration statistics and repeated reference to the foreigners‟ supposedly parasitic relationship to the country‟s resources also unfairly constructed them as the „threatening other‟ and potentially justified action against them.

This study investigates the interaction between freedom and limitation as applied to political expression and hate speech. The need for the limitation of hate speech, with its inherent risk of escalation into other serious crimes such as genocide, is established. The view of the South African courts is identified as pro-limitation but generally respectful of the right to freedom of expression. A lacuna in current constitutional law, common law and legislative remedies is evident and the various ways in which limitation can be effected are explored; the researcher finds for criminalisation as an effective measure to address this lacuna in hate speech regulation. The importance of complying with the international call for the criminalisation of hate speech is analysed. Insight is gained regarding what would be an effective model for criminalisation. Here lessons are taken from foreign comparatives that have successfully criminalised hate speech in the context of their cultural identity, history and social needs. Ultimately, a framework for effective hate speech criminalisation in South Africa is formulated. / Constitutional, International and Indigenous Law / LL.M