In terms of s 8(2) of the Constitution of the Republic of South Africa, 1996 (the “Constitution”), a provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. S 8(4) says that a juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person requires it, in this sense then, a juristic person cannot have “dignity”, for example. Juristic persons (and companies) are entitled to rights and obtain rights in the Bill of Rights. The Constitution makes it clear that they will not have the same rights as natural persons, whether a right in the Bill of Rights applies to a juristic person will depend on the nature of the right and nature of the juristic person.
First National Bank of SA Ltd t/a Wesbank v Commissioner South African Revenue Service and Another 2002 looked at the First Certification case – rights in the Bill of Rights also apply to juristic persons. Certain rights are only properly protected and given full effect if they are also given to juristic persons and companies / these rights can only be properly recognized when given to companies. If you do not give these rights (for example the freedom of expression) to juristic persons and media companies, it would substantially limit the right to freedom of expression (especially in the political sense). Behind every juristic person, you will ultimately find natural persons that will be protected if constitutional rights are extended. Although there are often long chains of control, even those chains have natural persons behind them. Their rights must be protected as well. Such individuals’ interests will be protected by giving constitutional rights to juristic persons. Given the number of companies and regular/daily business undertakings, not affording companies with certain rights would create disruption and would prove to be costly. In the modern-day, it is not possible to dispense with companies and would therefore be required to have rights afforded to them.
One of the most common areas of dispute in political spheres is the right to freedom of expression from media companies and the right to dignity and privacy of political bodies.
Citizen United v Federal Election Commission 558 US 310 (2010) asked whether a juristic person could be involved in political processes. The matter concerned a piece of legislation in the United States which prohibited funding by companies and other juristic persons and election communications in certain periods before certain elections. The intention behind this was to prevent the powerful companies from using their vast resources to dominate or influence the political discourse – a phenomenon not uniquely American. Citizens United argued that this prohibition was unconstitutional as it interferes with the right to freedom of expression of juristic persons. The Supreme Court found that the provision was unconstitutional. Juristic persons have the constitutional right to freedom of expression and the statute undermines that freedom of expression. It is generally accepted in America that the decision harmed how politics were conducted, bearing in mind that advertisements are also dominated by large companies.
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Faure Swanepoel
faure@bbplaw.attorney
Associate
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