Mr Mtyhopo (the Appellant) acted on behalf of over 90 members of the Fund who, due to a collective bargaining agreement, found themselves unable to change pension funds. The appellant took their grievances to the Pension Fund Adjudicator who found in favour of the workers and stated that the same should be able to move to a different fund. The Fund appealed to the South Gauteng High Court. It is necessary to note that at this time, the Appellant and his fellow workers did not have legal representation and were thus unable to intervene. The matter was heard unopposed and the court set aside the order of the Adjudicator thus keeping the Appellant in an unfavourable position.

Following these proceedings, the Appellant approached a local newspaper which printed his story. Pursuant to the publishing of the issue, the Fund claimed defamation and applied to the Grahamstown High Court for an interdict to prevent the Appellant from approaching the press or in any other way, directly or indirectly, speaking to the issue surrounding the Fund and the workers. The Fund was successful and the Appellant was refused leave to appeal by both the High Court and the Supreme Court of Appeal.

The matter found itself before the Constitutional Court based on invitation by the Chief Justice to the parties to make submissions. The case has constitutional bearing because, as previously stated, the freedom to express oneself is a protected right. In this case, the issue was the prior restraint of speech which according to the court in Print Media South Africa and Another v Minister of Home Affairs and Another, (Print Media) is the most serious infringement of this right. This is due to the fact that it bars an individual from speaking about a particular topic, regardless of whether such speech is lawful. By nature, prior restraint addresses future transgressions and is overly broad because there is no guarantee that an individual will indeed make defamatory statements.

The Print Media matter stipulated that prior restraint is unconstitutional and the Constitutional Court used similar reasoning in deducing that there was no reasonable cause for the interdict granted by the Court below. Whilst the Court dwelt on ascertaining whether the Appellant had indeed defamed the Fund rather than deciding on the issue of the freedom of expression, it indirectly confirmed the importance of protecting the right to express oneself. Importantly, the decision underscores that in an open and democratic state as is South Africa, the default positon should always be that of openness. 

By Rebecca Sibanda; Intern: Centre for Constitutional Rights