South Africa has seen the grounds of its democratic constitution tested over a number of ‘politically’-oriented activities. The test ranged from Mbongeni Ngema’s song Amandiya which was overruled by the constitutional court as hateful and disrespectful of the Indian community. Following the court’s decision, the song was banned across all media platforms. A few years later, the South African constitutional court heard the case of the former controversial ANC youth league leader, Julius Malema, over a political song that he led which white Afrikaners argued was motivating the murdering of white farmers.

The court heard the case and ruled in favor of the Afrikaner community. The judgment invoked by the court was the same as the one used in the previous ruling on the song by Mbongeni Ngema. Following the ruling, the ANC youth league and its ‘leader’ were banned from singing the song, and as a result, the ruling made the Kill the boer song illegal. The judgment was met with fiery by the ANC, ‘renouncing’ the court’s ruling over the view that the song was part of the history of the political struggle of South Africa against apartheid, and that making it illegal simply meant erasing the national history of South Africa upheld by the majority that suffered against the injustices promulgated by the then white government. Nonetheless, the court decision remains effective.

The cases presented above indicate how subjective and contestable freedom of expression is in South Africa, given that we come from a divided past filled with hatred and abuse. South Africa’s historical legacy offers a better understanding of why previous rulings have compromised freedom of expression in an attempt to reconcile the nation and heal it from its divided past.

The recent case and debates surrounding ‘The Spear’ portrait – which exposed the genitals of the President – have taken debates on race, freedom of speech and artistic creativity to another level. These debates have gained a strong intensity across all media platforms – new and old. The debates were also hit by an unprecedented stir on national television. A perfect indication is drawn from Shift, a mid-day talk show on SABC 1 commissioned by SABC Education. The programme carried discussion content on freedom of expression following the portrait saga. Participation by viewers in the programme took the public views on ‘The Spear’ portrait to another realm. The concern that emerged from the viewers was that artistic freedom should be carried in such a way that it does not infringe on the right to dignity and should be respectful and mindful of other people’s cultures.

An argument that one should take away from the cases presented above is that freedom of expression is ideal, relative and subjective. It is not an inherent right to be considered of national priority whilst the majority of South Africans are living in abjective poverty. Before freedom of expression can be treasured and cherished by all, attempts need to be made first that South Africa fulfills its mandate of nation-building and reduces the extreme gap between the haves and their counterparts. Although freedom of expression is a crucial tool for any democratic society, in the context of South Africa we need to exercise this right with caution to ensure that it does not deprive the nation of the gains made so far in terms of nation-building. South Africa is a democracy in the making. Its constitution may provide a global blueprint for a constitutional democracy. However, its history and challenges will always dictate the interpretation and execution of its constitution.

Themba Mnguni is a MA student in Media Studies at the University of the Witwatersrand and an intern at SABC Education.