Brief Summary

Media Law — Access to court proceedings — Application for media access to trial of minor accused under Section 63(5) of the Child Justice Act 75 of 2008 — Applicants, comprising media entities, sought permission for journalists to attend trial concerning murder of Eugene Terre'blanche — Respondents did not oppose the application — Court considered the balance between public interest in open justice and the protection of the minor's rights — Held that the presiding officer has discretion to permit media attendance, emphasizing the importance of freedom of expression while safeguarding the child's best interests.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an application in the North Gauteng High Court, Pretoria, brought in terms of section 63(5) of the Child Justice Act 75 of 2008. The proceedings concerned whether, and on what conditions, members of the news media (and initially also members of the public) could be permitted to attend and report on a criminal trial in which one accused was an adult and one accused was a minor, arising from a charge of murder.

The applicants were Media 24 Limited, the South African Editors Forum, e.tv (Pty) Limited, and e.sat TV (Pty) Limited. Media Monitoring Africa was admitted as amicus curiae. The respondents were the National Prosecuting Authority, Chris Mahlangu (the adult accused), and Minor X (the child accused). The Terre’blanche family later entered the litigation as an intervening party during subsequent proceedings directed at rescission and/or variation of the court’s earlier order.

The matter had a notable procedural history. The substantive application for access was not opposed by the respondents, who elected to abide the court’s decision. The third and fourth applicants intervened before the hearing and were joined. The amicus was admitted under Rule 16A. The court initially issued an order only on 2 December 2010, indicating that reasons would follow later. Thereafter, an application for rescission and/or variation was pursued in relation to the terms of the order; this process led to the joinder of the Terre’blanche family and culminated in a clarified and amended order. The judgment delivered on 29 April 2011 furnished the reasons for the earlier order and recorded the later rescission/variation and substituted order.

The general subject-matter of the dispute was the proper interpretation and application of section 63(5) in the context of constitutional and international-law considerations, specifically the tension between open justice and media freedom on the one hand, and the best interests, privacy, dignity, and fair-trial rights of a child accused on the other, in a politically and socially high-profile murder trial (the alleged victim being Eugene Terre’blanche, leader of the Afrikaner Weerstandsbeweging).

2. Material Facts

Eugene Terre’blanche was found dead on 3 April 2010 on his farm near Ventersdorp. The National Prosecuting Authority alleged that he was murdered by the second and third respondents (the accused persons), both of whom were described as workers on the farm, and one of whom was a minor. The criminal trial to which the application related was thus a joint trial of an adult accused and a child accused on a charge of murder.

The court treated as material and largely undisputed that the death and the prosecution attracted extensive media coverage, both locally and internationally, and that reporting and public commentary included multiple narratives about motive. Those narratives included accounts of a wage dispute, allegations connecting the killing to broader political or racial tensions (including reporting on the singing of the struggle song “Dubula ibhunu” / “kill a Boer” by Julius Malema and reactions by some supporters of the AWB), suggestions of a broader campaign of farm killings, and speculation that the death was linked to sexual circumstances (including reporting about a crimen injuria allegation that the deceased had been found with his trousers pulled down, allegedly to humiliate him). The court also noted that these reports and rumours had contributed to a heightened level of public controversy and curiosity around what the trial would reveal.

It was further material that section 63(5) creates a default position of excluding the public from child justice court proceedings unless their presence is necessary or the presiding officer grants permission. The applicants sought permission under the discretionary portion of section 63(5) for journalists to attend the proceedings in order to report as evidence emerged. In the alternative formulations advanced by the applicants, a defined number of nominated journalists would be permitted to attend for the duration of the trial.

In the later procedural phase, it became material that the amicus sought rescission and/or variation of aspects of the initial order, and that the Terre’blanche family sought joinder as intervening party because the rescission application implicated their ability to attend the trial. The parties ultimately informed the court that the rescission/variation dispute had been settled to the extent that members of the Terre’blanche family would be allowed to attend, but that the general public would be prohibited from attending, and that the order required clarification because the applicants and the prosecuting authority differed on whether the media would sit in the courtroom itself or in a closed-circuit television room.

3. Legal Issues

The central legal questions concerned the proper interpretation and application of section 63(5) of the Child Justice Act 75 of 2008, namely whether the court should exercise its discretion to permit attendance by the media (and, in the initial order, members of the public and the deceased’s family), despite the statutory default position excluding the public from child justice court proceedings.

The dispute was primarily one of law and the application of law to fact, requiring the court to determine the standard governing the exercise of discretion under section 63(5), and then to apply that standard to the circumstances of a high-profile trial involving a child accused. The court also had to make an evaluative judgment regarding the appropriate balance between competing constitutional rights and values, including the best interests of the child and fair-trial protections, as against freedom of expression, the public’s right to receive information, and the principle of open justice.

A further legal issue arose in the rescission/variation stage: whether, and on what basis, the court could rescind or vary aspects of its earlier order, with reference to Rule 42, the doctrine of functus officio, and the recognised bases for clarification or correction of orders.

4. Court’s Reasoning

The court approached section 63(5) as legislation that had to be interpreted and applied consistently with constitutional values and, where reasonably possible, consistently with international law. It noted that the Child Justice Act commenced on 1 April 2010 and repealed section 153(4) of the Criminal Procedure Act, with the consequence that section 63(5) remained the operative provision governing attendance at child justice court proceedings. The court emphasised interpretive principles requiring that statutory interpretation should advance the values underlying the Bill of Rights (with reference to Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (7) BCLR (CC)) and that courts should prefer a reasonable interpretation consistent with international law (with reference to Progress Office Machines CC v South African Revenue Services and Others 2008 (2) SA 13 (SCA)).

In framing the core balance, the court accepted that open justice is a foundational tenet of criminal procedure and is constitutionally anchored (including through fair-trial rights), and that the media play a constitutionally important role as agents of the public in disseminating information. At the same time, the court treated the protection of vulnerable participants in criminal proceedings as a well-established justification for restricting public access, and held that similar considerations apply to youthful accused persons. It relied on the protective purpose of section 63(5) as recognising the need to shield children from public exposure and potential emotional or psychological harm, while remaining attentive to the public’s entitlement to scrutiny of the administration of justice.

The court accepted the amicus’s submission that section 63(5) should generally be understood to exclude public attendance in child justice proceedings, grounded in the child’s rights to privacy, dignity, and a fair trial, and the constitutional injunction that the best interests of the child are of paramount importance. However, it rejected a reading in which the best-interests principle would automatically and invariably override public-interest considerations irrespective of the case. Instead, the court reasoned that the legislature must have envisaged exceptions because section 63(5) expressly provides for permission to attend at the discretion of the presiding officer.

On the structure of section 63(5), the court reasoned that the first portion (“no person may be present...”) should be understood as prohibiting the opening of the courtroom to a class of persons such as “the media” or “the public”, whereas the second portion (“or the presiding officer has granted him or her permission...”) permits access to be granted within the court’s discretion. That discretion had to be exercised in a manner that properly accounted for constitutional rights, including freedom of expression and the public’s right to receive information, but also required a balance with fair-trial interests and child-protection imperatives.

The court treated the granting of such permission as requiring extraordinary and exceptional circumstances, understood as circumstances that are out of the ordinary or unusual, and emphasised that such an approach was necessary to avoid opening the “floodgates” to routine media attendance in child-accused trials. In assessing whether exceptional circumstances existed, the court considered the intense public interest and international attention in the prosecution, including the political status of the deceased, the racial and political tensions reported around the death, and the proliferation of rumours and speculative narratives. The court expressly cautioned that it had no evidence before it establishing a causal link between political chanting and the alleged acts of the accused, but nevertheless reasoned that public perceptions and speculation could generate a “myth” which contributed to the exceptional character of the matter. In that context, it considered that a limited degree of access could serve to allow the trial to be subjected to public scrutiny, thereby supporting open justice and the public’s right to receive information.

In designing relief, the court rejected both extremes presented in argument. It did not accept that a relatively large number of journalists in the courtroom would have no likely impact on the child accused’s rights, and it did not accept that the appropriate solution was to open the courtroom broadly (including by allocating a large portion of the public gallery to the media). It instead chose a more restrictive mechanism: permitting nominated media (and, in the final order, nominated members of the deceased’s family) to follow the proceedings via closed-circuit television, rather than physically attending in the same courtroom as the child accused, while also enforcing strict non-publication rules regarding any identifying details of the minor.

In supporting the possibility of limiting children’s rights where justified, the court relied on authority that children’s rights, like other constitutional rights, are subject to reasonable and justifiable limitation under section 36 (with reference to De Reuck v Director of Public Prosecutions, Witwatersrand Local Division and Others [2003] ZACC 19; 2004 (1) SA 406 (CC)). It further emphasised statutory protection against publication of a child accused’s identity through section 63(6) (incorporating section 154(3) of the Criminal Procedure Act). It also referred to international-law instruments and comparative material in highlighting the need for sensitivity to the child’s age, including the potential prejudicial effects of extensive publicity.

On rescission and variation, the court explained that there had been a misunderstanding about the earlier order’s meaning (particularly whether journalists could sit in the courtroom or only in the CCTV room). Applying the principles governing Rule 42 and the limited circumstances in which a court may clarify, correct, or rescind its own order notwithstanding functus officio, the court relied on the approach summarised in Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) and explained in Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA). It treated the amendment to paragraph 1 as a permissible clarification to give effect to its true intention, and it rescinded and replaced paragraph 5 (which had initially allowed members of the general public access via CCTV) so as to exclude the general public entirely, consistent with the later settlement and the protective approach adopted.

5. Outcome and Relief

The court granted the applicants limited permission under section 63(5) of the Child Justice Act 75 of 2008 for nominated journalists to attend the proceedings for the duration of the trial, but only by observing and hearing the proceedings in a closed-circuit television room, rather than sitting in the courtroom with the child accused. The court also imposed strict protective measures, including prohibitions on publication of information revealing or potentially revealing the identity of the minor accused, and directions allowing removal of observers if their presence impeded the minor’s rights to privacy, dignity, or a fair trial.

Following the rescission/variation process, the court rescinded and varied the earlier order and substituted it with a revised order that (i) clarified that media attendance would be in the CCTV room, (ii) permitted a limited number of nominated members of the deceased’s family to attend via CCTV, (iii) excluded the general public from the CCTV room (reserving remaining space for court officials), and (iv) required that the minor accused’s identity be obscured on the CCTV feed by camera placement, blurring, or other means.

The judgment, as provided, does not record a distinct costs order.

Cases Cited

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (7) BCLR (CC)

S v Mokoena; S v Phaswane [2008] ZAGPHC 148; 2008 (2) SACR 216 (T)

S v Du Toit en ander 2005 (1) SACR 47 (T)

Progress Office Machines CC v South African Revenue Services and Others 2008 (2) SA 13 (SCA)

Director of Public Prosecutions v Minister of Justice and Constitutional Development and Others 2009 (4) SA 222 (CC)

S v Staggie and Another 2003 (1) BCLR 43 (C)

Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another [1993] ZASCA 3; 1993 (2) SA 451 (A)

Lion Laboratories Ltd v Evans and Others [1984] 2 All ER 417 (CA)

South African Broadcasting Corporation v Avusa Limited and Another 2010 (1) SA 280 (GSJ)

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division and Others [2003] ZACC 19; 2004 (1) SA 406 (CC)

Giddey NO v JC Barnard and Partners [2006] ZACC 13; 2007 (5) SA 525 (CC)

Dotcom Trading 121 (Pty) Ltd v King and Others 2000 (4) SA 973 (C)

Mpange and Others v Sithole 2007 (6) SA 578 (W)

eTV (Pty) Ltd and Others v Judicial Service Commission and Others 2010 (1) SA 537 (GSJ)

Mail and Guardian Limited and Others v Judicial Service Commission and Others 2010 (6) BCLR 615 (GSJ)

South African Broadcasting Corporation Limited v National Director of Public Prosecutions and Others [2006] ZACC 15; 2007 (1) SA 523 (CC)

Khumalo and Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC)

Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632 (CC)

T v United Kingdom [2000] 30 E.H.R.R. 121

Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA)

Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A)

Children’s Estates Stores v Standard Bank of South Africa Limited 1924 OPD 163

De Wet and Others v Western Bank Limited 1979 (2) SA 1031 (A)

Legislation Cited

Child Justice Act 75 of 2008, sections 63(4), 63(5), and 63(6)

Criminal Procedure Act 51 of 1977, section 153(4) (repealed) and section 154(3)

Constitution of the Republic of South Africa, 1996, sections 12, 16, 28(2), 35, 35(3)(c), 36, and 39(2)

Convention on the Rights of the Child, Article 40

African Charter on the Rights and Welfare of the Child, Article 4

Rules of Court Cited

Uniform Rules of Court, Rule 16A

Uniform Rules of Court, Rule 42

Held

The court held that section 63(5) of the Child Justice Act 75 of 2008 establishes a default position that child justice court proceedings are closed to the public, reflecting the need to protect a child accused’s best interests, privacy, dignity, and fair-trial rights. However, the section confers a discretion on the presiding officer to permit attendance by persons whose presence is not necessary, and that discretion must be exercised in light of constitutional values, including freedom of expression, the public’s right to receive information, and the principle of open justice.

The court held that permission for media attendance in child-accused proceedings should be granted only in exceptional circumstances, assessed on a case-by-case basis, and that the circumstances surrounding the Terre’blanche murder trial justified a limited exception due to acute public interest and pervasive speculation. The court held that access could be granted in a manner that protected the child accused by restricting observation to a closed-circuit television facility, by limiting the number of authorised observers, by ensuring the minor’s identity was not disclosed and was obscured on the CCTV feed, and by reserving a power to exclude observers if their presence prejudiced the child’s rights.

In later proceedings, the court held that it was entitled, within the limits of the law governing variation and rescission of orders, to clarify its earlier order to reflect its true intention and to rescind and replace parts of it, including the provision that had allowed members of the general public to attend via CCTV, thereby excluding the general public and limiting access to nominated media, nominated members of the deceased’s family, and court officials.

LEGAL PRINCIPLES

Section 63(5) of the Child Justice Act 75 of 2008 creates a presumptive exclusion of public attendance at child justice court proceedings, grounded in the protection of the child accused’s best interests and associated rights, but it simultaneously confers a judicial discretion to permit attendance by specific persons.

The discretion under section 63(5) is not to be exercised by opening proceedings to broad classes such as “the media” or “the public” as a general rule; rather, any permission should be framed narrowly and tailored to the circumstances, with safeguards directed at preserving the child accused’s privacy, dignity, and fair-trial entitlements.

When discretion implicates constitutional rights, it must be exercised in a manner that promotes the spirit, purport, and objects of the Bill of Rights, balancing the child’s interests and fair-trial rights against the constitutional values of open justice and the public’s right to receive information through freedom of expression.

Children’s rights, including those arising under section 28(2) of the Constitution, are not absolute and may be limited where the limitation is reasonable and justifiable under section 36; correspondingly, media access and open justice may also be limited to protect the integrity and fairness of proceedings involving child accused persons.

Statutory protections against identification of child accused persons, including the prohibition on publishing information revealing or potentially revealing a child’s identity, are integral to the balancing exercise and may be reinforced by court-crafted safeguards such as obscuring the minor’s image on any broadcast or closed-circuit feed.

A court may rescind or vary aspects of its own order only within narrowly defined limits, including the power to clarify an ambiguous order to give effect to its true intention without altering its sense and substance, and the power to act under Rule 42 where an order was erroneously sought or granted, subject to the constraints imposed by the doctrine of functus officio.

Media 24 Limited and Others v National Prosecuting Authority and Others (55656/10) [2011] ZAGPPHC 64; 2011 (2) SACR 321 (GNP) (29 April 2011)