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[2016] ZASCA 142
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Primedia Broadcasting (a division of Primedia (Pty) Ltd) and Others v Speaker of the National Assembly and Others (784/2015) [2016] ZASCA 142; [2016] 4 All SA 793 (SCA); 2017 (1) SA 572 (SCA) (29 September 2016)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 784/2015
In
the matter between:
PRIMEDIA
BROADCASTING (A DIVISION OF
PRIMEDIA
(PTY) LTD)
FIRST
APPELLANT
SOUTH
AFRICAN NATIONAL EDITORS’ FORUM
SECOND
APPELLANT
RIGHT2KNOW
CAMPAIGN
THIRD APPELLANT
OPEN
DEMOCRACY ADVICE CENTRE
FOURTH APPELLANT
and
SPEAKER OF THE
NATIONAL ASSEMBLY
FIRST
RESPONDENT
CHAIRPERSON
OF THE NATIONAL COUNCIL
OF
PROVINCES
SECOND RESPONDENT
SECRETARY
TO PARLIAMENT
THIRD
RESPONDENT
MINISTER
OF STATE SECURITY
FOURTH RESPONDENT
Neutral
Citation:
Primedia
Broadcasting v Speaker
(784/2015)
[2016] ZASCA 142
(29 September 2016)
Coram:
Lewis,
Cachalia, Tshiqi, Swain and Zondi JJA
Heard:
7
September 2016
Delivered:
29
September 2016, corrected 23 November 2016
Summary:
Constitutional
law: Parliament: The rules and policy adopted by Parliament governing
the broadcast of disorder in the Parliamentary
Chamber violate the
public’s right to an open Parliament and are unconstitutional
and unlawful. The disruption of the cell
phone signal in Parliament
during the State of the Nation address was in contravention of the s
4(1) of the Powers, Privileges
and Immunities of Parliament and
Provincial Legislatures Act 4 of 2004 and was unlawful.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Dlodlo and Henney JJ
concurring and Savage J dissenting, sitting as court of
first
instance): reported
sub
nom Primedia Broadcasting Ltd & others v Speaker of the National
Assembly & others
2015 (4) SA 525
(WCC) .
1
The appeal is upheld with the costs of two counsel.
2
The order of the court a quo is set aside and replaced with the
following:
‘
(a)
It is declared that clause 8.3.3.2 of Parliament’s Policy on
Broadcasting and Rule 2 of Parliament’s Television
Broadcasting
Rules of Coverage headed ‘Disorder on the Floor of the House’
are unconstitutional and unlawful in that
they violate the right to
an open Parliament.
(b)
It is declared that the manner in which the State of the Nation
proceedings in February 2015 was broadcast was unconstitutional
and
unlawful.
(c)
It is declared that the use of a telecommunication signal jamming
device in Parliament, without the permission of the Speaker
of the
House of Assembly and the Chairperson of the National Council of
Provinces, is contrary to s 4(1) of the Powers, Privileges
and
Immunities of Parliament and Provincial Legislatures Act 4 of 2004
and is unlawful.
(d)
The respondents are ordered to pay the costs of the application,
including the costs of two counsel.
JUDGMENT
Lewis
JA (Cachalia, Tshiqi, Swain and Zondi JJA concurring)
[1]
Democracy in South Africa is predicated on open government in which
all citizens participate. The Constitution thus affords
all South
Africans the right to see and hear what happens in Parliament.
Section 59 of the Constitution deals with ‘Public
access to and
involvement in National Assembly’ and s 72, in identical terms
(but with reference to the Council), deals with
public access to and
involvement in the National Council of Provinces. Section 59 reads:
‘
(1)
The National Assembly must—
(a)
facilitate public
involvement in the legislative and other processes of the Assembly
and its committees; and
(b)
conduct its business
in an open manner, and hold its sittings, and those of its
committees, in public, but
reasonable
measures
may be
taken—
(i)
to regulate public
access, including access of the media, to the Assembly and its
committees; and
(ii)
to provide for the
searching of any person and where appropriate, the refusal of entry
to, or the removal of, any person.
(1)
The National Assembly may
not exclude the public, including the media, from a sitting of a
committee unless it is reasonable and
justifiable to do so in an open
and democratic society.’ (My emphasis.)
[2]
Of course not all members of the public are able to attend sittings
of Parliament. But the media is able to bring to their attention
what
happens in sittings by virtue of radio and television broadcasts,
through newspapers and now also through social media such
as Twitter.
In so far as television and radio broadcasts are concerned, s 21 of
the Powers, Privileges and Immunities of Parliament
and Provincial
Legislatures Act 4 of 2004 (the Powers Act), provides for regulation
of the broadcast feed. It reads:
‘
(1)
No person may broadcast or televise or otherwise transmit by
electronic means the proceedings of Parliament or of a House or
committee, or any part of those proceedings, except by order or under
the authority of the Houses or the House concerned, and in
accordance
with the conditions, if any, determined by the Speaker or Chairperson
in terms of the standing rules.
(2)
No person is liable to civil or criminal proceedings in respect of
the broadcasting, televising or electronic transmission of
proceedings of Parliament or a House or committee if it has been
authorized, under subsection (1) and complies with the conditions,
if
any, determined under that subsection.’
[3]
Parliament has adopted both a broadcasting policy and rules pursuant
to s 21 of the Powers Act: the constitutional validity
of certain
provisions of the rules and policy is challenged in this matter. I
shall deal with their precise terms in due course.
The trigger for
the constitutional challenges is the events that took place in
Parliament on 12 February 2015 when the President
of the Republic, Mr
Jacob Zuma, was scheduled to address a joint sitting of Parliament,
delivering the State of the Nation Address
(SONA).
[4]
The appellants are a broadcasting company, Primedia Broadcasting, A
Division of Primedia (Pty) Ltd (Primedia); the South African
National
Editors’ Forum (SANEF), a non-profit organization whose members
are editors and journalists; the Right2know Campaign,
and the Open
Democracy Advice Centre, both of which are civil society
organizations that promote openness and public awareness
of the right
of access to information in the public domain. The appellants
maintain that the respondents, the Speaker of the National
Assembly,
the Chairperson of the National Council of Provinces, the Secretary
to Parliament and the Minister of State Security
violated the
public’s rights to see and hear what was said and done in
Parliament on 12 February 2015 in two ways.
[5]
First, the State Security Agency (the Agency), without seeking the
authority of Parliament, employed a device that disrupted
–
jammed – telecommunication signals when the sitting began.
Second, when there was a disruption of the proceedings
at the start
of the sitting, the parliamentary television broadcast feed was
limited to showing the face of the Speaker, Ms Baleka
Mbete, and
showed nothing of a scuffle that broke out between members of the
Economic Freedom Fighters (EFF) and security officials
as they tried
to force EFF members of Parliament out of the Parliamentary chamber.
[6]
The use of the jamming device precluded Members of Parliament (MPs)
and journalists from using their cell phones to inform the
public,
outside Parliament, what was happening at a significant national
event, the SONA. When there was loud and angry protest
by those in
the House about the jamming, the Speaker asked the Secretary to
investigate what was happening and the signal was restored.
The
explanation for the jamming, which was that it was inadvertent, shall
be discussed later. The appellants sought an urgent order
in the
Western Cape Division of the High Court that the jamming of the
signal was unlawful and unconstitutional. A majority of
the full
court that heard the application (Dlodlo and Henney JJ, Savage J
dissenting) refused that relief, but gave leave to appeal
to this
court.
[7]
The second violation complained of by the appellants is that members
of the public were deprived of the right to see and hear
what
happened in Parliament when members of the EFF asked the President
when he would pay back the money that had been spent on
his private
homestead in KwaZulu-Natal, Nkandla. The Speaker refused to allow the
questions. The EFF MPs refused to back down.
The Speaker ordered them
to leave the Chamber. They refused. She requested the
Serjeant-at-Arms to remove the MPs. She then called
in a large number
of men whom she referred to as ‘the parliamentary protection
services’, and a violent altercation
ensued. The EFF MPs were
forcibly removed from the Chamber.
[8]
When the members of the protection services entered the Chamber, the
broadcasting feed was focused on the Speaker and the Chairperson
of
the Council. People outside the Chamber could thus not see the
interaction between the EFF MPs and the security staff
through
official means. Journalists who took videos or photographs of the
scuffle in fact did broadcast the activity in Parliament,
but against
the provisions of s 21 of the Powers Act, and in violation of the
rules and the policy of Parliament on broadcasting.
The public
accordingly had to rely on poor and unauthorized cell phone
broadcasts or second-hand information on what had happened.
The
appellants had thus also applied for an order (at the same time as
they applied for the order that use of the jamming device
was
unlawful) that the respondents should ensure the openness of
Parliament and that the manner in which the live broadcast had
been
made was unlawful. In Part A of the application they had sought an
urgent order that the post-SONA debate in Parliament be
open, but
that was refused, and the appellants persisted only with Part B of
the relief asked for.
[9]
As the proceedings developed in the Western Cape Division, the
applicants discovered the existence first of the broadcast policy
and
later of the rules. They amended the relief sought to include an
order that the rules and policy that precluded coverage of
the
scuffle between the security staff and the EFF MPs were
unconstitutional. (Initially the appellants had also asked for an
order that the respondents investigate the use of the jamming device,
but had abandoned that by the time of the hearing a quo.)
The
majority of that court refused all the relief sought in this regard
as well, but granted leave to appeal to this court.
The
procedural issue
[10]
Parliament has made much of the late attack, in the course of the
proceedings in the court a quo, by the appellants on the
policy and
the rules. The appellants, argues Parliament, should not be permitted
to make up their case as they go along. While
that is, of course, the
usual rule, it must be borne in mind that the application was brought
as one of urgency. At the time of
instituting the application, the
policy was not well-known, although it was adopted in August 2009.
The policy was brought to the
attention of SANEF only in late January
2015, when a meeting between representatives of Parliament and
members of SANEF was held
to discuss events of the previous year, and
the coverage that SANEF considered inadequate.
[11]
The broadcasting rules were adopted in September 2003. Primedia and
the other appellants were made aware of the existence and
content of
the rules only when Parliament filed its answering affidavit in Part
A of the application. The appellants contend that
since the rules
inform the policy, and they are in substantively the same terms,
Parliament is not prejudiced by the late amendment
to the notice of
motion that seeks to challenge both the policy and then the rules.
[12]
While Parliament is skeptical about the professed ignorance of the
appellants, given that they have covered Parliamentary proceedings
since the dawn of democracy in 1994, the fact is that the rules in
question deal with grave disorder and unparliamentary behaviour.
It was only on 21 August 2014 that the rules and policy were first
invoked by Parliament to prevent the broadcasting of EFF MPs
being
forcibly removed from Parliament. The sitting was suspended. On 6
November 2014 a heated exchange between an EFF MP and the
Speaker
occurred. The broadcast heard and shown was focused on the Speaker
and the incident was not broadcast.
[13]
SANEF wrote to Parliament on 12 November 2014 referring to these
events and expressing its concern about the impact on media
freedom
of cutting the live feed when there were disruptions of the
proceedings. They asked for a meeting to be held as a matter
of
urgency. That meeting, with representatives of Parliament,
SANEF and the Press Gallery Association, was held only on 27
January
2015. SANEF became aware of the policy on broadcasting and its
contents only then. It recorded its concerns about the policy
on 30
January 2015, stating that it was probably ‘in conflict with
the constitutional values of transparency, accountability
and
openness that should underpin the activities of the legislature’.
[14]
In my view, the explanations proffered by the appellants for the late
attack on the policy and the rules are reasonable. No
prejudice was
suffered by Parliament since the same principles underlying the
demand for an open and transparent Parliament underlie
the attack on
the constitutional validity of the policy and rules. I shall
accordingly consider the appellants’ complaint
about the lack
of constitutional compliance in the policy and rules, and I shall do
so together since, save for one definition
in the rules that the
policy does not contain, they are in the same terms.
The
provisions of the policy and the rules
[15]
As Parliament points out, the appellants do not attack the validity
of s 21 of the Powers Act, pursuant to which the policy
and rules
were adopted. It accepts that Parliament may determine the rules
regulating the broadcasting of Parliamentary proceedings.
But, they
argue, the rules must be framed in such a way as to ensure that the
public may see for itself, and hear, precisely what
happens in
Parliament. People are entitled to see the disruptive behaviour of
public representatives and the response to it by
forcible removal of
them from the Chamber by security staff. Measures to ensure that the
broadcast meets the constitutional requirements
of openness and
public participation must be reasonable, and not amount to
censorship. Indeed, ss 59(1) and 72(1) of the Constitution
expressly state that reasonable measures may be taken to regulate
public access; and ss 59(2) and 72(2) provide that the public
may not
be excluded from sittings of committees ‘unless it is
reasonable and justifiable to do so in an open and democratic
society’.
[16]
The general policy statement in para 3 of Parliament’s Policy
on Filming and Broadcasting is that:
‘
Parliament
will allow filming and the taking of pictures of its precinct and the
recording of proceedings that is in the public
interest and related
to the main business of Parliament in conformity with acceptable
standards of dignity, appropriate behavior
and conduct.’
Paragraph 8.2.5 (d) provides that filming in chambers can be done
only with the permission of the Speaker or
the Chairperson presiding.
The broadcast and rebroadcast of Parliamentary proceedings may be
made only from the official composite
sound and visual feed provided
by the Sound and Vision Unit (SVU) of Parliament (para 8.3.1.1(b)).
Broadcasting on television must
respect the ‘dignity and
decorum of Parliament’ and must be used only for the purposes
of fair and accurate reporting
or proceedings (para 8.3.1.1(c)).
[17]
Paragraph 8.3.2.2 of the policy deals with ‘Style and
Presentation’. The Director of the SVU is given guidelines
for
filming and subpara(d) requires that the Director, as a matter of
general practice, must ‘switch to a picture of the
occupant of
the Chair whenever he or she addresses the House: the principle must
be applied all the more strictly during any incidents
of disorder or
altercations between the Chair and other Members’. The
paragraph deals generally with how proceedings are
to be filmed.
[18]
Paragraph 8.3.3 of the policy deals with the ‘Management of
disorder’. The first subpara relates to disorder in
the public
galleries. Paragraph 8.3.3.2 regulates the filming of disorder on the
floor. It reads:
‘
Disorder
on the floor of the House:
(a)
Televising may continue
during continued incidents of grave disorder or unparliamentary
behaviour for as long as the sitting continues,
but only subject to
the following guidelines:
(i)
On occasions of grave
disorder, the director must focus on the occupant of the Chair for as
long as proceedings continue, or until
order has been restored; and
(ii)
In cases of
unparliamentary behaviour, the director must focus on the occupant of
the Chair. Occasional wide-angle shots of the
chamber are
acceptable.’
Paragraph
2 of the policy defines unparliamentary behaviour as ‘any
conduct which amounts to defiance of the person presiding
over the
proceedings, but which falls short of grave disorder’. The
appellants argue that para 8.3.3(a) is unconstitutional
and thus
unlawful.
[19]
Rule 2 of the Rules of Parliament regulating ‘Television
Broadcasting: “Rules of Coverage”, headed ‘Treatment
of Disorder’, is virtually identical to para 8.3.3, save that
it includes a definition of grave disorder. Rule 2(a) states
that
‘[b]y “grave disorder” is meant incidents of
individual, but more likely collective misconduct of such a
seriously
disruptive nature as to place in jeopardy the continuation of the
sitting’. And rules 2(a) and (b) differ from
the policy in that
they state that in cases of grave disorder or unparliamentary
behaviour ‘the director should normally
focus on the occupant
of the Chair’, whereas the equivalent provisions of the policy
require that the director ‘must
focus’ on the occupant of
the Chair. The rules are thus less restrictive than the policy and
confer a discretion on the director.
I shall refer generally to the
provisions of both the rules and the policy attacked by the
appellants as the ‘disruption
provisions’.
[20]
Any contravention of the rules or the policy constitutes an offence,
by virtue of s 27 of the Powers Act, which makes a breach
of s 21
(under which the rules and policy are determined) a criminal offence
punishable and liable to a sentence of a fine or imprisonment
not
exceeding 12 months, or both. That imposes serious consequences for
anyone broadcasting information other than that obtained
via the live
feed of Parliament. Since many, if not most, of the journalists (and
possibly MPs too) were not aware of the restrictions
on broadcasting
they would have been ignorant of the penalties to which they were
subjected when sending out cell phone footage
in respect of the grave
disorder and unparliamentary behaviour that preceded the 2015 SONA.
Yet but for those unlawful ‘broadcasts’,
the public would
have remained in the dark.
The
right to public participation in the proceedings of Parliament
[21]
The appellants argue that the Constitution creates a ‘default’
position that Parliamentary proceedings are open
to the public and to
the media. Dealing with freedom of expression and the right to
open justice, Moseneke DCJ said in
Independent Newspapers (Pty)
Ltd v Minister for Intelligence Services: In re Masethla v President
of the Republic of South Africa
& another
[2008] ZACC 6
;
2008
(5) SA 31
(CC) (para 39) that:
‘
There
exists a cluster or, if you will, umbrella of related constitutional
rights which include, in particular, freedom of expression
and the
right to a public trial, and which may be termed the right to open
justice.’
And,
more importantly (para 40):
‘
This
systemic requirement of openness in our society flows from the very
founding values of our Constitution, which enjoin our society
to
establish democratic government under the sway of constitutional
supremacy and the rule of law in order, amongst other things,
to
ensure transparency, accountability and responsiveness in the way
courts and all organs of State function.’ (Footnote
omitted.)
[22]
The founding provision of the Constitution, to which Moseneke DCJ
referred, and which is significant in this matter, is s 1
(d)
:
‘
The
Republic of South Africa is one, sovereign, democratic State founded
on the following values:
.
. .
(d)
Universal adult
suffrage, a national common voters’ roll, regular elections and
a multi-party system of democratic government,
to ensure
accountability, responsiveness and openness.’
[23]
Referring to
Independent
Newspapers
,
this court in
Cape
Town City v South African National Roads Authority & others
[2015] ZASCA 58
;
2015 (3) SA 386
(SCA) para 16, said, in relation to
open justice, that the Constitutional Court had ‘confirmed that
the default position
is one of openness’. That was said in
relation to court proceedings. The same must, however, be even more
true of proceedings
in Parliament. The default position must be that
the public has access to proceedings unless there is strong
justification for
departing from it. That flows too from the
provisions of ss 59 and 72 of the Constitution.
[24]
In
Minister
of Health & another v New Clicks South Africa (Pty) Ltd &
others (Treatment Action Campaign & another as amici
curiae)
[2005] ZACC 14
;
2006 (2) SA 311
(CC) paras 111-113) Chaskalson CJ
explained the goal of the Constitution – the foundation of a
democratic and open society.
He said, after quoting the
provisions of ss 59 and 195: ‘The Constitution calls for open
and transparent government, and
requires public participation in the
making of laws by Parliament and deliberative legislative
assemblies.’
[25]
Ngcobo J approved this statement in
Doctors for Life International
v Speaker of the National Assembly & others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) para 138, and emphasized the importance of
public access to Parliament (para 137):
‘
Public
access to Parliament is a fundamental part of public involvement in
the law-making process. It allows the public to be present
when laws
are debated and made. It enables members of the public to familiarize
themselves with the law-making process and thus
be able to
participate in the future. The opportunity to submit representations
and submissions ensures that the public has a say
in the law-making
process.’
[26]
Earlier, Ngcobo J described the importance of openness in the
law-making process. He said (para 115):
‘
The
participation by the public on a continuous basis provides vitality
to the functioning of representative democracy. It encourages
citizens of the country to be actively involved in public affairs,
identify themselves with the institutions of government and
become
familiar with the laws as they are made. It enhances the civic
dignity of those who participate by enabling their voices
to be heard
and taken account of . . . . It strengthens the legitimacy of
legislation in the eyes of the people. Finally, because
of its open
and public character, it acts as a counter-weight to secret lobbying
and influence-peddling.’
[27]
The appellants argue that it is just as important for those who do
not make submissions to Parliament, and who do not have
the privilege
of being in the public gallery, to know what is happening in
Parliament – hence the need for media reports
and broadcasting.
Freedom of expression that inheres in the media (s 16(1)
(a)
of
the Constitution) is of primary importance. In
Democratic Alliance
v African National Congress & another
[2015] ZACC 1
;
2015 (2)
SA 232
(CC), Cameron J said in the majority judgment (para 122):
‘
The
Constitution recognises that people in our society must be able to
hear, form and express opinions freely. For freedom of expression
is
the cornerstone of democracy. It is valuable both for its intrinsic
importance and because it is instrumentally useful. It is
useful in
protecting democracy, by informing citizens,
encouraging
debate and enabling folly and misgovernance to be exposed
.
It also helps the search for truth both by individuals and society
generally. If society represses views it considers unacceptable,
they
may never be exposed as wrong.
Open
debate enhances truth-finding and enables us to scrutinize political
argument and deliberate social values
.’
(My emphasis, footnote omitted.)
[28]
The appellants argue that political speech is at the heart of the
media’s and the public’s right to freedom of
expression.
This was the view expressed by this court in
Mthembi-Mahanyele v
Mail & Guardian Ltd & another
[2004] ZASCA 67
;
2004 (6)
SA 329
(SCA) para 66:
‘
The
State, and its representatives, by virtue of the duties imposed on
them by the Constitution, are accountable to the public.
The public
has the right to know what the officials of the State do in discharge
of their duties.’
The
behaviour of MPs in Parliament is something which the public has the
right to see and hear. It is political speech of the first
order. And
freedom of speech in Parliament is fundamental to an open and
democratic State:
Chairperson
of the National Council of Provinces v Malema & another
[2016] ZASCA 69
;
[2016] 3 All SA 1
(para 11).
[29]
The right to vote held by all adult citizens in the country can be
exercised meaningfully only if voters know what their representatives
do and say in Parliament. And since the vast majority of people are
not actually in Parliament, they must rely on public reports
and
broadcasts. As Cameron J also said in
Democratic
Alliance
(above, para 135), the right of individuals to make political choices
is ‘made more meaningful by challenging, vigorous and
fractious
debate’. Whether the broadcasts relayed to the public in
the manner dictated by the rules and the policy
are sufficiently
informative and accurate, is the essential question.
The
test of reasonableness
[30]
The right to see and hear what happens in Parliament is not
unlimited. The appellants accept this. But, they argue, the
limitations
must be reasonable. Sections 59 and 72 of the
Constitution expressly say so. Any measure adopted by Parliament must
be objectively
reasonable. If it is not, it may be subject to review
and constitutional challenge. In considering whether a measure is
reasonable,
a court must balance parliamentary autonomy with the
right of the public to participate in public affairs:
Doctors
for Life
para 146.
[31]
The test to be applied is not only whether the limitation is
proportionate to the end sought to be achieved, but also whether
other measures would better achieve the end, or would do so without
limiting others’ rights. This is the test in the limitations
provision in the Constitution (less restrictive means to achieve the
purpose – s 36(1)
(e)
). In
S v Manamela & another
(Director-General of Justice Intervening
2000 (3) SA 1
(CC),
O’Regan J and Cameron J said (para 66) in a dissenting
judgment, but the particular passage was approved by the majority
of
the court):
‘
The
approach to limitation is, therefore to determine the proportionality
between the limitation of the right considering the nature
and
importance of the infringed right, on the one hand, and the purpose,
importance and effect of the infringing provision, taking
into
account the availability of less restrictive means available to
achieve that purpose.’
[32]
In determining the reasonableness of a limitation in so far as an
administrative decision is concerned, where the power conferred
identifies a goal to be achieved, but does not dictate a method of
achieving it, a court should pay due respect to the route chosen
by
the decision-maker:
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism & others
[2004] ZACC 24
;
2004 (4) SA 490
(CC) para 48. O’Regan J, expressing this
principle, continued:
‘
This
does not mean, however, that where the decision is one which will not
reasonably result in the achievement of the goal, or
which is not
reasonably supported on the facts or not reasonable in the light of
the reason given for it, a Court may not review
that decision. A
Court should not rubber-stamp an unreasonable decision . . .’.
The
same principle must apply to the adoption by Parliament of measures
under s 21 of the Powers Act.
The
appellants’ arguments that the disruption clauses are
unreasonable
[33]
The appellants argue that the disorder clauses are unreasonable for
various reasons. First, they serve no purpose: not showing
scenes of
grave disorder and unparliamentary behaviour is futile. The events
are reported by other means; journalists in Parliament
at the time of
disorder are not precluded from reporting on it. Thus the prohibition
on broadcasting actual shots of disorder will
not prevent the public
from knowing that it has occurred. Second, although the public may
learn about the incidents of grave disorder
or unparliamentary
behaviour, they will not learn about it through the most direct and
accurate means – a television broadcast.
The public may receive
inaccurate or unbalanced accounts of what has happened.
[34]
Thus the public is deprived of being able to see exactly what has
happened, and must rely on second-hand accounts. In
Dotcom Trading
121 (Pty) Ltd v King NO & others
2000 (4) SA 973
(C) at 987C,
Brand J said that a visual recording ‘most probably provides
the ultimate means of communication’. And
in
Multichoice
(Pty) Ltd & others v National Prosecuting Authority &
another: In re S v Pistorius; Media 24 Ltd & others
v Director of
Public Prosecutions, North Gauteng & others
2014 (1) SACR 589
(GP), Mlambo JP, in dealing with the live television broadcasting of
the (by now notorious) trial of Oscar Pistorius, said (para
21):
‘
I
have found merit in the argument on behalf of the applicants
[broadcasters], that acceding to an objection by Pistorius [to the
extent of the broadcast] fully will perpetuate the situation that
only a small segment of the community is able to be kept informed
about what happens in courtrooms, because of this minority’s
access to tools such as Twitter. Acceding to that argument will
also
perpetuate the reality that the community at large remains dependent,
for news on what happens in the courtroom, on the summarised
versions
of the journalists and reporters who follow these proceedings. These
summarised versions or accounts have, in my view,
been correctly
categorised as second-hand, liable to be inaccurate, as they also
depend on the understanding and views of the reporter
or journalist
covering the proceedings.’
[35]
The appellants contend that accurate reporting is not only desirable
but also necessary. The media has a ‘responsibility
to report
accurately’ because the consequences of inaccurate reporting
can be harmful: In
Brummer v Minister for Social Development
&
others
[2009] ZACC 21
;
2009 (6) SA 323
(CC) Ngcobo J said that access
to information is fundamental to the rights guaranteed by the
Constitution. He said (para 63):
‘
[A]ccess
to information is crucial to the right to freedom of expression which
includes freedom of the press and other media and
freedom to impart
information or ideas. As the present case illustrates, Mr Brummer, a
journalist, requires information in order
to report accurately on the
story that he is writing. The role of the media in a democratic
society cannot be gainsaid. Its
role includes informing the
public about how our government is run, and this information may very
well have a bearing on elections.
The media therefore has a
significant influence in a democratic State. This carries with it the
responsibility to report accurately.
The consequences of inaccurate
reporting may be devastating. Access to information is crucial to
accurate reporting and thus to
imparting accurate information to the
public.’ (Footnotes omitted.)
[36]
The Broadcasting Policy itself requires fair and accurate reports of
proceedings (clause 8.3.1.1(c) above). The appellants
argue that
preventing the public from seeing and hearing scenes of grave
disorder and unparliamentary behaviour must give rise
to inaccurate
or less accurate reporting. They rely in this regard also on a
dissenting judgment in a decision of the Canadian
Supreme Court in
New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House
of Assembly)
[1993] 1 SCR 319
at 403
e-g
, where Cory J
said:
‘
If
Canadians are to have confidence in the actions of their elected
representatives, they must have accurate information as to what
has
transpired in the legislative assemblies and House of Commons.
Informed public opinion is the essential bedrock of a successful
democratic government. Accurate information can only be obtained by
the public through the work of a responsible press which must
today
include television coverage.’
Cory
J continued (at 408
i
-409
a
):
‘
The
video camera provides the ultimate means of accurately and completely
recording all that transpires. Not only the words spoken
but the tone
of voice, the nuances of verbal emphasis together with the gestures
and facial expressions are recorded. It provides
the nearest and
closest substitute to the physical presence of an interested
observer.
So
long as the camera is neither too pervasive nor too obtrusive, there
can be no good reason for excluding it. How can it be said
that
greater accuracy and completeness of reporting are to be discouraged?
Perhaps more Canadians receive their news by way of
television than
by other means. If there is to be informed opinion in today’s
society, it will be informed in large part
by television reporting.’
[37]
The appellants point out that the majority of that court differed
with Cory J only because it held that a decision to remove
strangers
from Parliament was part of Parliament’s privilege that
originated in English rules. The South African constitutional
provisions requiring public participation in an open Parliament are
very different.
[38]
The third ground for contending that the disorder provisions are not
reasonable limitations on the right to an open Parliament
is that the
public has an interest in knowing about incidents of grave disorder.
It has the right to know who causes it and who
regulates it. The
disorderly conduct of MPs – public representatives of the
people – is a matter of public concern.
South Africans have a
right to know how Parliamentarians and parliamentary officials
behave. It is not only proper behaviour that
is of concern: ‘loud,
rowdy and fractious’ political life is good for democracy, said
Cameron J in
Democratic
Alliance
(para
133), above. The public has a right to witness it. And the public has
a right to know not only what the Speaker or the Chairperson
says
during moments of disorderly behaviour, but also to see how MPs are
treated by security staff who forcibly evict them from
the Chamber.
The public has a right to know how the legislative arm of government
operates.
[39]
The fourth reason advanced by the appellants in contending that the
limitations are unreasonable is that broadcasting what
happens in
Parliament does not constitute support for or encouragement of
disorder. Viewers are not going to embark upon disorderly
conduct
just because they see it. They will decide for themselves whether MPs
have behaved appropriately, whether the presiding
officer manages the
situation properly or whether security staff use undue force.
[40]
Another ground for contending for unreasonableness, in my view, is
that the decision to train the camera on the face of the
presiding
officer when there are incidents of grave disorder or unparliamentary
conduct is not that of the person responsible for
a sitting: it is
the Director of the SVU who decides what constitutes grave disorder
or unparliamentary conduct. The Director is
given a discretion to
make a distinction on the basis of rules that are not clear. It is he
or she who decides whether or when
there is grave disorder or merely
unparliamentary behaviour. On what basis? The policy and rules are
not clear. The limitation
on the right to an open Parliament should
be clear in order to be reasonable.
The
justifications for limitation
[41]
Of course Parliament has tried to gainsay these grounds for claiming
that the disruption clauses constitute unreasonable limitations
on
the right to an open Parliament. The majority of the court a quo
accepted Parliament’s defences. Parliament claims that
just as
a court has the power to tailor the manner in which proceedings are
published and broadcast, as in
Multichoice
,
above where Mlambo JP issued very specific directions (para 30) as to
what parts of the proceedings could be broadcast and what
not,
so Parliament has the power to tailor the manner of the broadcast of
sittings. The appellants point out, however, that
in this matter we
are dealing with the public’s right to know what their public
representatives say and do in Parliament.
Any limitation on that
right must be reasonable in that context. We are not concerned here
with fair trial rights and an accused’s
right to a fair trial.
A court’s power to limit the broadcast of any evidence or
conduct that might jeopardize a fair
trial must invariably be
different from Parliament’s power to limit the public’s
right to an open Parliament. In my
view that is correct.
[42]
The first justification of the limitations advanced by Parliament is
that the disruption provisions are necessary to protect
and promote
the dignity of Parliament. On the assumption that Parliament enjoys
dignity, it is argued that the conduct of some
MPs will cause the
public to think less of the institution or its presiding officers. If
the public sees such incidents, the dignity
of the institution will
be impaired. The contention fails to recognize that it is not the
broadcast that may impair Parliament’s
dignity but the
behaviour of MPs and parliamentary officials that do so. In any
event, as Savage J observed in her dissenting judgment,
members of
the public in the gallery of Parliament would witness disorder and
Parliament’s dignity, if impaired, would suffer
in any event.
[43]
The appellants argue that if the Speaker or Chairperson deals
lawfully and fairly with those who disrupt proceedings, and the
proceedings are broadcast, the dignity of the institution would be
enhanced rather than impaired. Parliament’s argument,
on the
other hand, is that the disruption provisions temper the strong
impact that a television broadcast would have. This was
accepted by
the majority in the court a quo. In my view, that is contrary to the
right of the public to know what is happening
in Parliament during a
sitting. It is not for Parliament to determine how people will react
to what happens in the Chamber. The
public is entitled to know
exactly what happens and individuals may themselves evaluate how
their elected representatives fare.
This justification for the
limitation on the right to an open Parliament has no basis.
[44]
Secondly, Parliament contends that the public has a right to view
only the legitimate business of Parliament. Incidents of
disruption
and disorderly behaviour are the antithesis of legitimate
Parliamentary business. They undermine the proper functioning
of
Parliament rather than promote it. Thus, goes the argument, there is
no parliamentary obligation to foster such conduct by providing
an
unlimited audience for it. It is reasonable thus to preclude the
televising of disorderly MPs, for they are not engaged in the
legitimate business of Parliament.
[45]
However, the appellants ask only that the events while Parliament is
in session be broadcast. The fact that MPs or the Speaker
or
Chairperson may act in an unacceptable manner does not mean that the
business of Parliament becomes illegitimate. And members
of the
public have the right to see and hear elected members of Parliament
misbehave. They are entitled to know what happens in
the legislature.
I consider that this justification for the disruption provisions must
fail.
[46]
Thirdly, Parliament contends that the limitations to the right to an
open Parliament resulting from the disruption provisions
are minor in
nature. Only serious disruptions may not be broadcast and other
reporting and public access are not prevented. The
appellants argue,
rightly in my view, that because broadcasting provides greater
accuracy than other forms of reporting, it is
necessary, in order to
discharge the duty to report accurately, to ensure the broadcast of
the scenes of disruption in the Chamber.
And the public is entitled
to see and hear scenes of disruption so that it can call MPs to
account for their conduct.
[47]
The appellants argue further that ‘it is at the margins where
speech is disruptive, offensive and controversial that
the right to
freedom of speech has real practical value’. If the right to an
open Parliament were limited to proceedings
that do not involve
controversy and bad behaviour, the right would be meaningless.
Moreover, the fact that disruption is reportable
by other means does
not detract from the fact that most people obtain their information
from watching television: precluding broadcasts
of disruption thus
deprives most of the general public from gaining that information.
The finding by the majority of the court
a quo that the limitation of
the right to an open Parliament is of a minor nature, ‘compared
to the damage that may arise
in the absence of these measures’
is thus to be rejected.
[48]
The fourth argument for the reasonableness of the limitations raised
by Parliament is put thus in the Speaker’s answering
affidavit:
she said that the disruption provisions are such that ‘the
incidents are not ignored, but the consequences that
visuals of
disorder and defiant conduct would have if broadcast to the world,
and played repeatedly, is mitigated. An audience
for conduct striking
at the heart of Parliament’s functioning would be guaranteed,
and such ill-discipline would thereby,
be encouraged.’
[49]
The court a quo accepted the contention, despite the fact that it was
not substantiated. Savage J, on the other hand, held
that even if
broadcasting did increase disorder, the justification amounted to ‘an
authoritarian approach to openness and
media freedom, one similar to
that adopted by the apartheid State’. She added that ‘It
is an approach that is not condoned
by our Constitution and is out of
keeping with the fundamentals of our constitutional democracy.’
I agree.
[50]
Moreover, the prohibition on publication on the assumption that it
may cause harm, is lawful only where the prejudice that
it would
cause is demonstrable. ‘Mere conjecture or speculation that
prejudice might occur will not be enough’:
Midi
Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions
(Western Cape)
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA) para 19. Parliament did not
show that the broadcast of disorderly conduct would in any way cause
harm, let alone encourage
further disorder.
[51]
The last argument raised by Parliament in relation to the
reasonableness of the limitations is that they amount to
international
best practice. It asserted in its papers that the
disruption provisions are drawn directly from the rules of Parliament
in the
United Kingdom. That may be correct, but that does not mean
that the rules are consonant with our Constitution. Parliament
referred
to parliamentary rules around the world that are similar.
The appellants, on the other hand, referred to rules of the Scottish
Parliament and of the Indian lower house, the Lok Sabha, as well as
the European Union. Those legislatures allow uncensored broadcasts
of
proceedings. The comparative analysis is interesting, but in
the end, this court must determine the constitutionality
of the
disruption provisions in the context of the nature of our democracy
and the provisions of the Constitution referred to earlier.
[52]
I consider, therefore, that the justifications offered for the
limitation of the right to an open Parliament do not survive
scrutiny, and conclude that the disruption clauses are
unconstitutional and thus unlawful, and that the manner in which the
SONA
2015 proceedings was broadcast was unconstitutional.
[53]
In view of the conclusion to which I have come it is not necessary to
consider the appellant’s alternative argument that
the entire
policy is unlawful since it was concluded through an irregular
process.
The
jamming issue
[54]
The appellants sought an order in the court a quo that the use of a
device that disrupted all cellular telephone signals during
the SONA
sitting was unlawful. The majority held that the relief sought was
moot as the incident was isolated and a mistake had
been made. Savage
J, on the other hand, considered that the issue was live and that the
use of the device by the State Security
Agency was unlawful.
[55]
In response to the application for a declaration that the use of a
device to disrupt the signal in the Chamber of Parliament
was
unlawful, the Minister of State Security stated that the disruption
when the sitting commenced was accidental. The Agency,
said the
Minister, was empowered to fulfill national counter-intelligence
responsibilities. Counter-intelligence is defined in
the
National
Strategic Intelligence Act 39 of 1994
as ‘measures and
activities conducted, instituted, or taken to impede and to
neutralise the effectiveness of foreign or hostile
intelligence
operations, to protect intelligence and any classified information,
to conduct vetting investigations and to counter
any threat or
potential threat to national security’.
[56]
The Agency had determined that the risks and security threats
attendant on the 2015 SONA were major. One of the threats it
sought
to guard against was the risk of hidden explosive devices in the
precincts of Parliament that could be activated by a radio
signal or
a cell phone, including devices that might be carried on remote
controlled drones. The Agency considered that these risks
were at
their highest when the President, the Deputy President and other
important people were outside the Parliamentary Chamber.
The Chamber
itself was secure since it had been ‘swept’ prior to the
SONA session to ensure that there were no explosive
devices in the
Chamber. The Agency had used the signal disrupting device to ensure
that there were no threats before the President
and his entourage
entered the Chamber. The device was supposed to have been switched
off before the session began. The technician
charged with this duty
had forgotten to switch the device off, something which his superior
noticed as soon as he saw the protests
of MPs and journalists on
television. He issued an instruction to the technician to switch it
off, which was done, and the signal
was restored. The entire incident
had been a mistake that would not be repeated, said the Minister.
[57]
The Speaker, on the other hand, had professed ignorance of the device
and did not know that it was in the building. She too
had reacted to
the protests in Parliament and asked the Secretary to Parliament to
investigate. The Minister claims, and the majority
of the court a quo
found, that the issue was no longer live. But the appellants contend
that the lawfulness of the use of a jamming
device is still an issue
and ask for an order that it be declared unlawful.
[58]
Even if a mistake had given rise to the disruption of signals during
the parliamentary session, the question remains whether
the use of
the device was ever lawful. If not, the issue is far from moot, and
needs to be determined. In
Buthelezi
& another v Minister of Home Affairs & others
[2012] ZASCA 174
;
2013 (3) SA 325
(SCA), this court held that the
legality of the conduct of the Minister of Home Affairs in failing to
take a decision on whether
to grant a visa to the Dalai Lama, even
though the purpose of the visit had long passed by the time the case
was heard in the high
court, remained a live issue. Nugent JA said
(para 4) that ‘whether or not the authorities had acted
lawfully was and remains
a live issue’.
[59]
And in
Minister
of Justice and Constitutional Development & others v Southern
Africa Litigation Centre & others
[2016] ZASCA 17
;
2016 (3) SA 317
(SCA) (the Omar al Bashir matter),
this court held that the question whether Al Bashir was immune from
arrest in South Africa,
even though he had already left the country,
should be decided. First, because the question whether Al Bashir was
immune from arrest
remained a live issue and secondly because it was
a matter of public importance. In my view, since the Minister has not
undertaken
that the device will not be used again, but instead
contends that its use was lawful and that he may use it again,
without Parliament’s
authority, the question must be
determined.
[60]
The appellants argue that the use of the jamming device when
Parliament was in session was a breach of the right to an open
Parliament, and that it was in violation of s 4 of the Powers Act.
The first breach is acknowledged by the Minister. He says that
it was
a mistake. I shall deal only with the question whether the use of the
device was also in breach of the Powers Act.
[61]
Section 4 of the Powers Act, which deals with the presence of members
of security services (defined in accordance with
s 199 of the
Constitution – that is, defence force, police and intelligence
services) in the precincts of Parliament, reads:
‘
(1)
Members of the security services may—
(a)
enter upon, or remain
in, the precincts for the purpose of performing any policing
function; or
(b)
perform any policing
function in the precincts,
only
with the permission and under the authority of the Speaker or
Chairperson.
(2)
When there is immediate
danger to the life or safety of any person or damage to any property,
members of the security services may
without obtaining such
permission enter upon and take action in the precincts in so far as
it is necessary to avert that danger.
Any such action must as soon as
possible be reported to the Speaker and the Chairperson.’
[62]
The plain purpose of s 4(1) is to protect the independence of
Parliament. Only the presiding officers may decide what the security
services may do on its precinct. The Speaker, as I have said,
professed ignorance as to the existence of the jamming device. She
had obviously not consented to its use. But she and the Minister
maintain that it is but a matter of detail. She had had a meeting
about security arrangements for the SONA with members of the Agency
before the SONA. How it went about securing the precinct and
the
Chamber was not for her to determine. The Speaker knew that security
arrangements would be put in place. The majority in the
court a quo,
although it had held that the matter was moot, found that the details
of security measures were left to the discretion
of the Agency.
[63]
The appellants argue, however, that any action that might interfere
with the ordinary functioning of Parliament, and which
might threaten
the openness of Parliament, would have to be specifically authorized.
If the security services are entitled to take
any action, or use any
device it thinks fit, then s 4(1) has no purpose. They contend
that the use of a signal disrupting
device was not merely a detail.
It was a measure implemented that could, and did in fact, interfere
with communication in Parliament.
The permission of the Speaker was
thus required before the device was set up in Parliament. Savage J
found that the use of the
jamming device was contrary to the
provisions of s 4(1) of the Powers Act. I agree.
[64]
In the circumstances, the use of the signal disrupting device both
before and during the SONA was unlawful. This judgment must
not be
read to suggest, however, that the use of any device or equipment by
security services to execute a legitimate policing
function, without
the permission of Parliament, is unlawful. It is sufficient for
present purposes to hold that the use of a telecommunications
signal
disrupting device was unlawful in the circumstances in which it was
used prior to the SONA in February 2015.
[65]
Accordingly, I consider that the appeal must be upheld. Although the
appellants asked that this court craft broadcasting provisions
for
Parliament that would be lawful, I consider that that would be to
intrude on the Legislature’s domain. It is Parliament’s
prerogative and right to determine its own rules and policy, provided
that the measures it adopts are reasonable limitations of
the right
to an open Parliament. It is sufficient that the disruption
provisions be declared unconstitutional and unlawful.
[66]
In the circumstances:
1
The appeal is upheld with the costs of two counsel.
2
The order of the court a quo is set aside and replaced with the
following:
(a)
It is declared that clause 8.3.3.2 of Parliament’s Policy on
Broadcasting and Rule 2 of the Parliament’s Television
Broadcasting Rules of Coverage, headed ‘Disorder on the Floor
of the House’ are unconstitutional and unlawful in that
they
violate the right to an open Parliament.
(b)
It is declared that the manner in which the State of the Nation
proceedings in February 2015 was broadcast was unconstitutional
and
unlawful.
(c)
It is declared that the use of a signal jamming device in Parliament,
without the permission of the Speaker of the House of
Assembly and
the Chairperson of the National Council of Provinces, is contrary to
s 4(1) of the Powers, Privileges and Immunities
of Parliament
and Provincial Legislatures Act 4 of 2004 and is unlawful.’
(d)
The respondents are ordered to pay the costs of the application
including the costs of two counsel.
_______________________
C
H Lewis
Judge
of Appeal
APPEARANCES
For
the First and Second Appellants:
S Budlender (with him M Bishop and M Maenetje)
Instructed
by: Webber Wentzel Attorneys, Johannesburg
Honey
Attorneys Inc., Bloemfontein
For
the Third and Fourth Appellants:
Legal Resources Centre, Cape Town
Honey
Attorneys Inc., Bloemfontein
For
the First to Third Respondents:
J J Gauntlett SC (with him
M R Townsend)
Instructed
by: The State Attorney, Cape Town
The
State Attorney, Bloemfontein
For
the Fourth Respondent:
F van Zyl SC (with him D J Jacobs SC)
Instructed
by: State Attorney, Cape Town
State
Attorney, Bloemfontein