Rights and remedies: How do reality shows violate constitutional rights?

December 1st, 2020

The South African Constitution and the court recognises the right of every citizen to freedom of speech and media, and the right to receive information and ideas. While these rights may be absolute, they may not be exercised to trump the constitutional comfort of others. The use of reality shows and social media platforms as instruments to expose what may be regarded as ‘ill behaviour’ has become the new norm in South Africa (SA), as well as in other countries. For example, in SA, reality shows such as the recently launched Uyajola 9/9 and the notorious American television (TV) series, Cheaters, which was launched back in 2000. The one thing that these two TV shows have in common is that they aim to expose infidelity in intimate relationships. However, these TV shows are not only humiliating, but degrading in an inhuman manner and violate the fundamental rights, not only of the unfaithful partners, but their families, as well as their extended families. This article seeks to strike an objective balance between the rights of those involved in these TV shows, as well as to provide possible remedies, where such rights are violated by such exposure.

The law

The Bill of Rights under the Constitution provides for non-derogable rights of all people in SA, which includes the right to life, the right to dignity, privacy, and the freedom of expression, among others, and affirms the democratic values of human dignity, equality and freedom. Of all these rights, the right to dignity may be said to be the most violated right where these reality shows are concerned. In the matter of S v Makwanyane and Another 1995 (3) SA 391 (CC), the court emphasised the importance of dignity as a founding value of the Constitution and held that it cannot be overemphasised. The court further held that, ‘recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern’.

Section 36 of the Constitution provides that the rights in the Bill of Rights may be limited in terms of the law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Worthy to note is that rights, such as the right to life, dignity, the right not to be tortured in any form, and the right not to be treated or punished in a cruel, inhuman or degrading way, are non-derogable rights, which cannot be limited or suspended under any circumstances, not even under a state of disaster. These reality shows may very well be protected under the right to freedom of expression, which includes freedom of the press and other media and the freedom to receive or impact information or ideas. Yet, such a right does not extend to incitement of imminent violence and advocacy of hate that constitutes incitement to cause harm, which we have seen on the TV show.

In Mail & Guardian Media Ltd and Others v Chipu NO and Others 2013 (6) SA 367 (CC) the court held that ‘the media play a key role in society and are not only protected by the right to freedom of expression but are also key facilitators and guarantor of the right’. This basically means that the media guarantees every individual’s right to express their beliefs, thoughts, ideas and emotions about different issues, free from government interference. This right goes hand in hand with the responsibility to behave responsibly, in a manner that may not infringe on other people’s rights. In Khumalo and Others v Holomisa 2002 (5) SA 401 (CC), the court stated that freedom of expression is not superior to other rights in the Constitution. The court found that the right to freedom of expression must sometimes take a back seat and should be interpreted in the context of the fundamental values of the Constitution, most significantly, the right to dignity.

Social issues

One can agree that the show can be very entertaining, but what the victims of this show may not be aware of is that no one should be subjected to such ill treatment and inhuman acts wherein an individual, be it a man or a woman, is man-handled in front of the whole world, shamed, and humiliated and have their personal matters aired in public without their consent. The mere fact that the aggrieved party sought assistance from the host of the show, does not necessarily mean that all parties involved have automatically consented to have their identities and personal lives aired in public. They have the right to privacy and to have their dignity protected and respected. On several occasions, it can be seen that these shows exceed the bounds of their purpose, which I would like to believe was created primarily for bringing closure to the aggrieved parties, following an allegation and/or opinion that their partners are unfaithful. There is, among other disturbing issues on the show, the destruction of property, where one partner discovers the deceitful acts of their significant other and smashes the windows of the other party’s car or throws stones at the car. Also, there is the act of trespassing, which may well be regarded as an entry in the property belonging to an occupier, without the occupier’s permission to be on that property, which is a punishable offence under the Trespass Act 6 of 1959.

On one confrontation, the bouncers can be seen on the scenes of the show, holding a man who was found being unfaithful, by the back of this trousers, similar to a little child whose mother was taking him for a serious beating after being mischievous. These acts are humiliating and degrading. On another occasion, the same bouncers can be seen pushing a woman on the chest, as two men were about to start a fight. These events force one to start questioning the motive behind the launch of this reality show. Is the motive to allow the aggrieved party to find closure or to degrade people’s dignity and subject them to inhuman treatment?

In as much as this show provides comfort to the aggrieved party whose partner has been unfaithful, it raises the question whether the hosts and producers take into account the rights of the parties affected by such infidelity, more particularly airing the infidelity in public, or is the show aired for mere social entertainment. The psychological trauma goes beyond the unfaithful party being humiliated and shamed on screen. Many of us have witnessed that in most cases, the third party was unaware that the unfaithful partner was married or has a current partner.

Financial inequality also plays an important role in this show, in that the manner in which they would handle a case of an individual from a poor household, will never be the same as if they were dealing with a millionaire. The host, his assistants and producers tend to take advantage of the unfaithful partner’s circumstances, which in itself is a violation of the right to equality, and subsequently, their right to have their dignity protected.


The parties affected by such exposure should write a petition and seek signatures from the public to have the show removed from television owing to the violations of the aforesaid rights. They should also claim damages for all their losses. Most of these victims of infidelity discover the truth before they go onto the show, their acts are merely motivated by anger and revenge, in which case, their families, children and extended families are merely casualties.

Tshililo Mulalo LLB (UniVen) is a candidate legal practitioner at Selamolela Inc in Thohoyandou.

This article was first published in De Rebus in 2020 (Dec) DR 39.

De Rebus