Judgment No. CCZ 11/15 10
Const. Application No. CCZ 28/11
The applicant contends that he was denied the right to publish opinions and
thoughts to the persons he associated with. This assertion is premised on the fact that the
editor of the newspaper that published his article and a director of the company owning the
newspaper were jointly arrested with and faced the same charges as him. He further argues
that since these were the people he associated with for purposes of airing out his views, their
arrest and detention amounted to an interference with his freedom of association. This was
because the arrests instilled so much fear in them that they might not wish to associate further
with him.
The respondent in response, argues correctly that the right to freedom of
association was not absolute, given that there were permissible derogations in terms of s 21
(3) of the old Constitution, which read as follows:“(3)
Nothing contained or done under the authority of any law shall be held to be in
contravention of subsection (1) to the extent that the law in question makes
provision –
(a)
in the interests of defence, public safety, public order, public morality
or public health;
(b)
for the purpose of protecting the rights or freedom of other persons;
(c)
for the registration of companies, partnerships, societies or other
associations of persons, other than political parties, trade unions, or
employers’ organisations; or
(d)
that imposes restrictions upon public officers.
except in so far as that provision or, as the case maybe, the thing done under the
authority thereof is shown not to be reasonably justifiable in a democratic society.”
(my emphasis)
The respondent argues that the reason behind the right to freedom of
association is to ensure that no individual is forced or coerced to associate with any group,
organisation or entity. It is also meant to protect an individual in choosing whom he wants to
associate with. In this particular case the question of the applicant being forced or coerced to
associate with the editor and the company that owned the newspaper which published his