Van Breda v Media 24 Limited and Others; National Director of Public Prosecutions v Media 24 Limited and Others (425/2017, 426/2017) [2017] ZASCA 97; [2017] 3 All SA 622 (SCA); 2017 (2) SACR 491 (SCA) (21 June 2017)

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[2017] ZASCA 97
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Van Breda v Media 24 Limited and Others; National Director of Public Prosecutions v Media 24 Limited and Others (425/2017, 426/2017) [2017] ZASCA 97; [2017] 3 All SA 622 (SCA); 2017 (2) SACR 491 (SCA) (21 June 2017)

Links to summary

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 425/2017
In
the matter between:
HENRI
CHRISTO VAN BREDA

APPELLANT
and
MEDIA
24
LIMITED

FIRST RESPONDENT
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS

SECOND RESPONDENT
ADVOCATE
LOUISE BUIKMAN SC

THIRD RESPONDENT
And
in the matter between:
Case
no: 426/2017
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT
and
MEDIA
24
LIMITED

FIRST RESPONDENT
HENRI
CHRISTO VAN BREDA

SECOND RESPONDENT
ADVOCATE
LOUISE BUIKMAN SC

THIRD RESPONDENT
Neutral
citation:
The
NDPP v Media 24 Limited & others and HC Van Breda v Media 24
Limited & others
(425/2017)
[2017]
ZASCA 97
(21 June 2017)
Bench:
Ponnan, Leach, Mbha, Zondi and Van Der
Merwe JJA
Heard:
18 May 2017
Delivered:
21 June 2017
Summary:
Constitutional law –
application
by media to broadcast criminal proceedings – tension between
the right to freedom of expression and the open justice
principle, on
the one hand and the right to a fair trial, on the other –
those rights
should as far as possible be
harmonised with one another
–
court
must
exercise a proper discretion under s
173 of the Constitution in each
case by balancing the degree
of risk involved in allowing the cameras into the court room against
the degree of risk that a fair
trial might not ensue –
courts
ought not to restrict the nature and scope of the broadcast unless
prejudice is demonstrable and there is a real risk that
such
prejudice will occur – mere conjecture or speculation that
prejudice might occur ought not to be enough.
ORDER
On
appeal from
:
Western
Cape Division, Cape Town (Desai J sitting as court of first
instance):
(a)
The appeal succeeds to the extent that paragraph 1.3 of the order of
the high court is set
aside.
(b)
The matter is remitted to the high court for reconsideration in
accordance with the principles
set out in this judgment.
(c)
The costs of appeal of the appellant, Henri Christo Van Breda, shall
be paid by the
first respondent, Media 24.
JUDGMENT
Ponnan
JA (Leach, Mbha, Zondi and Van Der Merwe JJA concurring):
[1]
‘TV, or not TV, that is the question:’
[1]
According
to the Chief Justice of Canada, the Rt Hon Beverley McLachlin PC
,
‘Justice Brennan was right:
the media
and the courts are locked in a mutual, if sometimes uncomfortable
embrace’.
[2]
McLachlin CJ was referring to Justice Brennan’s observation in
1980 that:
‘
.
.
.
there exists a fundamental and necessary interdependence of the court
and the press. The press needs the court, if only for the
simple
reason that the court is the ultimate guardian of the constitutional
rights that support the press. And the court has a
concomitant need
for the press, because through the press the court receives the tacit
and accumulated experience of the nation,
and – because the
judgments of the court ought also to instruct and to inspire –
the court needs the medium of the
press to fulfil this task’
.
[3]
[2]
Undeniably communications technology has evolved – ‘from
a reporter’s prose description, to an artist’s
sketch pad
rendition, to the still and movie cameras with their bright lights,
and finally to the advanced portable video cameras
– the media
progressively has given the public a more intimate view of criminal
proceedings.’
[4]
However, attempts by the media to introduce modern technology into
the criminal trial court, have not been universally embraced.

Consequently, this appeal, against a successful application to the
high court to broadcast a criminal trial, requires us to examine
what
McLachlin
CJ described
as that
‘mutual,
if sometimes uncomfortable embrace’.
[3]
The issue arises for determination against the following factual
backdrop: The first appellant, Mr Henri Christo van Breda (the

appellant), is charged with murdering three of his family members
with an axe. The only survivor of the attack, which occurred
at the
family home in an exclusive security estate near Stellenbosch, is his
younger sister, M. The incident and appellant’s
trial, which is
currently  under way, before Desai J in the Western Cape
Division, Cape Town on charges of murder, attempted
murder and
defeating or obstructing the administration of justice – to
which the appellant has pleaded not guilty –
has
attracted widespread media attention.
[4]
Shortly before the trial was due to commence, the first respondent,
Media24, a publisher and purveyor of news to the general
public both
in South Africa and internationally, brought an urgent application
that it be allowed to install two video cameras
in the trial
courtroom in order to record and broadcast the proceedings,
alternatively to be permitted to broadcast the proceedings
by
microphone and sound. It also applied to be allowed to take still
photographs and video footage in court for 30 minutes before
the
commencement of court and after the adjournment of proceedings each
day.
[5]
Both parties to the criminal proceedings, the appellant and the
second appellant, the National Director of Public Prosecutions
(the
NDPP), opposed Media 24’s application.
[5]
Desai J heard the application on Friday, 24 March 2017 and issued the
following order on Monday, 27 May 2017:
‘
1.
Subject to what is ordered in paragraph 5 below:-
1.2.
For 15 minutes before the commencement of court each day, and after
the adjournment of proceedings,
the applicant may take still
photographs in court, and video footage in court;
1.3.
During the sitting of the court, the applicant is permitted to
install two video cameras to record
and or broadcast the proceedings,
with the following guidelines:
1.3.1.
The cameras shall be set up by not later than 15 minutes before the
commencement of proceedings every day, and
shall be removed by not
later than half an hour after the adjournment of proceedings at the
end of the day;
1.3.2.
The video cameras shall be stationary, erected on tripods, and shall
not be attended by a person;
1.3.3.
The video cameras shall be left to record and broadcast the
proceedings, and shall be located in such positions
as the court may
direct from time to time;
1.3.4.
The cameras shall be located discreetly to cause as little intrusion
in the proceedings of the court as possible.
2.
None of the arrangements above shall be extended to [M], in respect
of whom no
photographs, audio recordings or video footage shall be
taken before, during or after the hearings, whether she is present as
a
witness, spectator or in any other capacity, save with the prior
written consent of the third respondent;
3.
There is an absolute bar on:
3.1.
audio recordings or close-up photography of bench discussions; and
3.2.
audio recordings or close-up photography of communications between
legal representatives or between
clients and their legal
representatives;
4.
No exhibits shall be photographed, videotaped or published by the
media, unless
expressly permitted by the court.
5.
The parties are at liberty to approach the court for any variation or
amendment
of this order as the occasion warrants.’
[6]
The learned judge delivered reasons for the order on Tuesday, 4 April
2017. Both the appellant and the NDPP filed applications
for leave to
appeal against the judgment and order of the court below, which was
dismissed on 6 April 2017. Applications by both
for leave to appeal
directly to the Constitutional Court were refused on 13 April 2017 on
the basis that it was ‘not in the
interests of justice to hear
the matter at this stage’. The appellant thereafter applied to
this Court for leave to appeal,
as did the NDPP – the latter by
way of a separate application. On 26 April 2017 both the NDPP and the
appellant were granted
leave by this Court to appeal against the
whole of the judgment and order of Desai J. The operation of the
order was suspended
pending the outcome of the appeal. Practice
directives were issued for the filing of the record, practice notes
and heads of argument,
and the matter came to be heard by this Court
on an expedited basis on 18 May 2017. Media Monitoring Africa (MMA),
a non-profit
organisation, seeking to advance quality media and the
free flow of information to the public on matters of public interest,
was
admitted as an amicus curiae.
[7]
The appellant’s appeal is directed at the court’s
decision to allow Media 24 to record and broadcast the criminal

proceedings during sittings of the court as contemplated by paragraph
1.3 of the order of the high court. The appellant appears
to have no
difficulty with the recording and broadcast of counsel’s
argument and the rulings and judgment of the court. In
contrast, the
NDPP’s position was one of blanket opposition to any part of
the criminal proceedings being broadcast.
[8]
The issue raised by this appeal is not altogether new. Whether the
media should be allowed to broadcast court proceedings, and
if so,
the extent thereof has been debated for as long as audio-visual
technology has existed.
[6]
Nonetheless, what confronts us is in some respects unchartered
constitutional territory and thus calls all the more for a most

careful consideration.
Section 16
of the Constitution headed ‘freedom of expression’ is a
useful starting point. It provides:
‘
(1)
Everyone has the right to freedom of expression, which includes –
(
a
)
freedom of the press and other media;
(
b
)
freedom to receive or impart information or ideas;
(
c
)
freedom of artistic creativity; and
(
d
)
academic freedom and freedom of scientific research.
(2)
The right in subsection (1) does not extend to –
(
a
)
propaganda for war;
(
b
)
incitement of imminent violence; or
(
c
)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes
incitement to cause harm.’
[9]
In
R
v Secretary of State for the Home Department Ex Parte Simms
,
Lord Steyn stated:
[7]
‘
Freedom
of expression is, of course, intrinsically important: it is valued
for its own sake. But it is well recognised that it is
also
instrumentally important. It serves a number of broad objectives.
First, it promotes the self-fulfilment of individuals in
society.
Secondly, in the famous words of Holmes J (echoing John Stuart Mill),
“the best test of truth is the power of the
thought to get
itself accepted in the competition of the market”:
Abrams
v United States
[1919] USSC 206
;
(1919)
250 US 616
at 630 per Holmes J (dissent). Thirdly, freedom of speech
is the lifeblood of democracy. The free flow of information and ideas

informs political debate. It is a safety valve: people are more ready
to accept decisions that go against them if they can in principle

seek to influence them. It acts as a brake on the abuse of power by
public officials. It facilitates the exposure of errors in
the
governance and administration of justice of the country.’
[10]
The right of the media to gather and broadcast information, footage
and audio recordings flows from s 16 of the Constitution.
The right
to freedom of expression is one of a ‘web of mutually
supporting rights’ that holds up the fabric of the

constitutional order.
[8]
The right is not limited
to the right to speak, but also to receive information and ideas.
The
media hold a key position in society. They are not only protected by
the right to freedom of expression, but are also the ‘key

facilitator and guarantor’ of the right.
[9]
The media’s right to freedom of expression is thus not just (or
even primarily) for the benefit of the media: it is for the
benefit
of the public.
[10]
In
Khumalo
v Holomisa
[11]
the Constitutional Court emphasised:
‘
In
a democratic society, then, the mass media play a role of undeniable
importance. They bear an obligation to provide citizens
both with
information and with a platform for the exchange of ideas which is
crucial to the development of a democratic culture.
As primary agents
of the dissemination of information and ideas, they are, inevitably,
extremely powerful institutions in a democracy
and they have a
constitutional duty to act with vigour, courage, integrity and
responsibility.’
[11]
Free speech goes hand in hand with open justice. The latter is a
fundamental principle of the common law and has been described
as
‘one of the oldest principles of English law’.
[12]
It is often expressed by the maxim that ‘justice should not
only be done, but should manifestly and undoubtedly be seen to
be
done’. The principle is multifaceted.
[13]
It insists that trial proceedings be conducted publicly in open court
and ordinarily, that is how trials in our criminal justice
system are
held.
The principle of
open justice is one which strikes at the very heart of what South
Africa has been, and is still, trying to achieve
in the
post-apartheid era.
[14]
[12] The arguments in favour of open
justice are perhaps best summarised thus:
‘
First,
it assists in the search for truth and plays an important role in
informing and educating the public. Second, it enhances

accountability and deters misconduct. Third, it has a therapeutic
function, offering an assurance that justice has been done [a
sense
of communal catharsis]’.
[15]
In
City
of Cape Town v SANRAL,
which
concerned public access to records filed in court
,
it was stated:
[16]
‘
Not
all information is readily revealed by the state and even powerful
media organizations sometimes face great difficulties in
obtaining
information in some areas. In an environment of secrecy, journalists
become vulnerable to off the record briefings and
strategic leaks by
government. In this context, open justice is particularly important
because through court cases information
can be exposed and tested in
ways that may not otherwise be possible. The judicial process
generally shrinks from hearsay. Witnesses
swear to the truth and if
they lie make themselves open to perjury.  The rules of
evidence, which regulate what is revealed,
are applied by an
independent judiciary. The whole process is thus designed to limit
the extent to which parties can craft and
shape information for
public consumption. In
Scott
,
Lord Shaw of Dunfermline famously warned ‘in the darkness of
secrecy, sinister interest and evil in every shape have full
swing
against the dangers of justice behind closed doors’.
[13] In
Independent
Newspapers
,
[17]
where a newspaper sought access to portions of a court record that
had been kept confidential on the grounds of national security,
the
Constitutional Court held that open justice had essentially become a
right of its own, stating:
[18]
‘
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. The constitutional imperative of dispensing
justice in the
open is captured in several provision of the Bill of Rights. First,
section 16(1)(
a
)
and (
b
)
provides in relevant part that everyone has the right to freedom of
expression, which included freedom of the press and other
media as
well as freedom to receive and impart information or ideas. Section
34 does not only protect the right of access to courts
but also
commands that courts deliberate in a public hearing. This guarantee
of openness in judicial proceedings is again found
in section
35(3)(
c
)
which entitles every accused person to a public trial before an
ordinary court.
.
. .
From
the right to open justice flows the media’s right to gain
access to, observe and report on the administration of justice
. . .’
[14]
Recently, in
SANRAL
,
[19]
this Court emphasised: ‘[I]t may be said that the right to
public courts, which is one of long standing, does not belong
only to
the litigants in any given matter, but to the public at large. . . .’
This vital rationale was recognised by the
Constitutional Court in
Mamabolo
:
[20]
‘
Since
time immemorial and in many divergent cultures it has been accepted
that the business of adjudication concerns not only the
immediate
litigants but is a matter of public concern which, for its
credibility, is done in the open where all can see. Of course
this
openness seeks to ensure that the citizenry know what is happening,
such knowledge in turn being a means towards the next
objective: so
that the people can discuss, endorse, criticise, applaud or castigate
the conduct of their courts.’
[15]
The principle of open courtrooms is not new. According to Deputy
Chief Justice Moseneke:
‘
In
traditional African culture, the shade of a tree was the place where
disputes of society were mediated and resolved. It was on
this soil
that the community would meet for a “lekgotla”. There was
room for all to have their say. Everybody was an
active participant
of the process. This is how justice was done. It is the age-old
concept of justice under a tree.’
[21]
This
principle has indeed evolved and is now constitutionally
entrenched.
[22]
It provides to all
criminal accused the right to a fair and public trial.
[23]
In that regard s
152
of the
Criminal Procedure Act 51 of 1977
provides
‘
[e]xcept
where otherwise expressly provided by this Act or any other law,
criminal proceedings in any court shall take place in
open court, and
may take place on any day.’ That provision is echoed in s 5 of
the Magistrates’ Court Act 32 of 1944
[24]
and
s 32
of the
Superior Courts Act 10 of 2013
.
[25]
However, trials (or parts of trials) may be, and often are, held
behind closed doors, amongst others, to protect the privacy or

security of witnesses.
Section 153
of the
Criminal Procedure
Act sets
out the circumstances in which proceedings shall not take
place in open court.
[26]
[16]
Freedom of the press and the principle of open justice are closely
interrelated. The media, reporting accurately and fairly
on legal
proceedings and judgments, make an invaluable contribution to public
confidence in the judiciary and, thus, to the rule
of law itself.
The
Constitutional Court has made plain that in interpreting s 16 of the
Constitution: ‘We are obliged to delineate the bounds
of the
constitutional guarantee of free expression generously. . . [and] . .
. [U]nless an expressive act is excluded by s 16(2)
it is protected
expression.’
[27]
While the right of the media, under s 16 consists primarily of the
right and freedom to disseminate information, the public in
turn, has
the right to receive information. And, in an open democracy based on
the values of equality, freedom and human dignity,
the right of the
public to be informed is one of the rights underpinned by the value
of human dignity.
[17]
The broadcasting of court proceedings involves the use by the media
of the video camera and sound recordings to communicate
public events
directly to members of the public. This is an activity that has
expressive content
[28]
and is therefore plainly an expressive act. In the United States,
there is ‘strong evidence that suggests that television
is a
more pervasive medium than newsprint . . . reports show that
television is the number one source of news across the nation’.
[29]
The same would appear to hold true for this country – given the
high levels of illiteracy, the print media is the preserve
of a few.
The majority of South Africans rely principally on radio and
television for their news and information. This was recognised
by the
full court in
Dotcom
Trading
.
[30]
In that case, which was concerned with an application to broadcast
the proceedings of a Commission of Enquiry
,
Brand
J noted:
[31]
‘
It
is almost self-evident in my view that the prohibition of the direct
radio transmission of proceedings by a radio broadcaster
constitutes
a limitation on what is essential to the activities of that medium of
communication. I have heard no argument and I
can see no reason in
logic why a limitation on what constitutes the very essence and
distinguishing feature of the radio broadcaster’s
medium of
communication does not constitute an infringement of the radio
broadcaster’s freedom which is enshrined by s 16(1)(
a
).
It is not without reason, so it appears to me, that s 16(1)(
a
)
of the Constitution does not limit its guarantee to the freedom of
the press, but specifically extends this freedom to other media
of
communication and expression as well. In modern times there are many
forms of communication. Each of these media communication
and
expression has its own distinguishing features and each of them can
be limited in a different way. The video camera most probably

provides the ultimate means of communication. But radio also has its
advantages over the print media. Not only the words spoken,
but the
emphasis, the tone of voice, the hesitations, etcetera can be
recorded and communicated. To prevent the radio broadcaster
from
recording the evidence is to deprive him of that advantage over the
print media.’
[18]
The first instance of
trial proceedings being broadcast by audio-visual technology to a
remote public, albeit against the instructions
of the court, was the
Bruno Hauptmann
case.
The trial before the New Jersey court in 1935, which concerned the
alleged kidnapping and murder of the Lindbergh baby by
Hauptmann,
attracted intense media attention.
[32]
In the aftermath of the overwhelming media coverage of the
Hauptmann
trial, the American Bar Association (ABA) House of Delegates adopted
Judicial Canon 35, which recommended a ban of all photographic
and
broadcast coverage of courtroom proceedings. Notwithstanding Canon
35,
[33]
in the years following
Hauptmann,
some States began to
embrace television. The State of Texas saw the first challenge to the
prejudicial impact of cameras in the
courtroom. In 1965, the United
States Supreme Court considered the constitutionality of television
coverage of trial proceedings
.
In reversing the trial
court and the Texas Court of Criminal Appeals, the Supreme Court in
Estes v Texas
[34]
found that televising and broadcasting portions of a trial in which
there was widespread interest, over the objection of the criminal

defendant, infringed upon the Due Process Clause of the Fourteenth
Amendment.
[35]
However, the court left for another day the question whether the
Constitution absolutely prohibited the televising of State criminal

trials.
[36]
[19] In
1981, the
US
Supreme Court had occasion to revisit the issue in
Chandler
v Florida
.
[37]
By then, television was very much a part of mainstream life and many
State courts had begun to experiment with cameras in the court
room.
Chandler
involved
the constitutionality of the revised Canon 3A(7) of the Florida Code
of Judicial Conduct, which permitted electronic media
and still
photography coverage of judicial proceedings, subject to the control
of the presiding judge, and which implemented guidelines
on trial
judges obligating the court to protect the fundamental right of the
accused in a criminal case to a fair trial.
[38]
The question
for the
Chandler
court
was rather narrow:
[39]
‘May a State allow broadcasting of a criminal trial without
violating a defendant’s constitutional right in spite of
the
defendant’s objection?’ The court answered: ‘[T]he
Constitution does not prohibit a State from experimenting
with
[televising criminal trials]’. It held that televising a
criminal trial does not automatically make the trial unfair
to the
defendant.
[40]
Chief Justice Burger stated:
[41]
‘
An
absolute constitutional ban on broadcast coverage of trials cannot be
justified simply because there is a danger that, in some
cases,
prejudicial broadcast accounts of pre-trial and trial events may
impair the ability of jurors to decide the issue of guilt
or
innocence uninfluenced by extraneous matter…The risk of juror
prejudice in some cases does not justify an absolute ban
on news
coverage of trials by the printed media; so also the risk of such
prejudice does not warrant an absolute constitutional
ban on all
broadcast coverage.’
Calling
the psychological impact of broadcasting coverage on trial
participants ‘a subject of sharp debate’, the Chief

Justice suggested making a distinction between ‘general
psychological prejudice’ and ‘particularized’
prejudicial impact.
[42]
Again, he emphasized the judicial authority to prohibit broadcast
coverage if it were demonstrated that the ‘mere presence’

of visual and broadcasting equipment in the courtroom would
‘invariably and uniformly’ affect the judges, witnesses,

and lawyers, and other trial participants. ‘[A]t present,’
he said, ‘no one has been able to present empirical
data
sufficient to establish that the mere presence of the broadcast media
inherently has an adverse effect on that [judicial]
process.’
[43]
[20]
Thus, whilst the US Supreme Court refused to hold that television
coverage is constitutionally prohibited, it also refused
to hold that
television coverage is constitutionally mandated.
[44]
In the combination of
Estes
and
Chandler
,
so it has been observed, ‘the Supreme Court struck with
Solomon-type wisdom, holding that the Constitution neither prohibited

nor mandated televised coverage of trial proceedings where there were
safeguards in place to ensure the court could honour the
defendant's
right to a fair trial and there was no showing of specific
prejudice.’
[45]
As a result of
Chandler
,
the States that had already permitted television coverage or still
photography in courtrooms were free to continue to do so, while
a
number of additional States opted for electronic and photographic
courtroom coverage.
[46]
Further, some States that permitted cameras in the courtroom subject
to the consent of defendants stopped requiring that consent.
[47]
All 50 States now have some form of televised court proceedings –
44
allow television
coverage of both trials and appellate proceedings, while the rest
restrict courtroom coverage to appellate arguments.
[48]
A number of
State courts allow the broadcast of both civil and criminal trials at
first instance, subject to the discretion of the
judge.
[49]
However, the Supreme Court of the United States has never permitted
cameras into its courtroom or live broadcast of its oral
arguments.
[50]
The case against having
television cameras recording hearings of the Supreme Court was
articulated by Justices Kennedy and Breyer
at a congressional
hearing.
[51]
Recently, Justices Kagan and Sotomayor also expressed concerns that
allowing cameras might lead to grandstanding that could fundamentally

change the nature of the court.
[52]
Regardless
of the complete prohibition on visual footage in its courtroom, the
Supreme Court does publish audio recordings of all
oral argument on
its website.
[53]
These recordings are generally released at the end of each sitting
week.
[54]
[21]
In September 1990, the United States Federal Judicial Conference
authorised the running of a three-year pilot programme allowing

electronic media coverage – filming, recording and broadcasting
– of civil proceedings in trial and appellate courts
in six
federal districts. At the end of the pilot project, those carrying
out this programme recommended that it should continue
and expand
across all federal districts. This recommendation, however, was not
followed by the Judicial Conference, which asserted
that ‘the
intimidating effect of cameras on some witnesses and jurors was cause
for concern’.
[55]
In 2011, a new three-year pilot programme was authorised to be
carried out in 14 districts. In this programme, the cameras were
to
be operated by the courts, the consent of all parties was required
and no filming of jurors was allowed. The programme was set
to
conclude in July 2015. However, it has been extended to continue
under the same ‘terms and conditions to provide longer
term
data and information to the Committee on Court Administration and
Case Management.’
[56]
[22]
The general practice in Canada is precisely the opposite of that in
the United States. As a general rule, both at the federal
and
provincial levels, trial courts in Canada do not permit their
hearings to be recorded or broadcast where witnesses are
involved.
[57]
Before
appellate courts in Canada, the practice has been more liberal. The
Supreme Court of Canada has permitted television coverage
of hearings
since the mid-1990s and most hearings are now webcast live or
live-streamed on the court’s website.
The Canadian
Supreme Court first allowed the broadcasting of its decision in the
Patriation
Reference
case
[58]
in 1981, but the court did not permit any further camera access for a
number of years.
[59]
Between 1993 and 1995, the Supreme Court of Canada ran a trial
programme allowing the recording and broadcasting of certain court

proceedings.
[60]
Since 1995, the court
has permitted television coverage of all its hearings. In the main,
these hearings are broadcast by the Canadian
Parliamentary Affairs
Channel and since 2009, have been webcast live on the court’s
website.
[61]
[23]
England and Wales have a Statute, the Criminal Justice Act of 1925,
which bans certain coverage of court proceedings, except
for
proceedings in the relatively new United Kingdom Supreme Court.
More recently, in terms of the Crime and Courts Act 2013,
the Lord
Chancellor and Lord Chief Justice can exempt specific instances of
coverage from the operation of the Criminal Justice
Act.
[62]
The Supreme Court has adopted a more open approach to media coverage
and has allowed its hearings to be broadcast since its opening
in
October 2009, when it replaced the House of Lords. In a history
making moment for UK law, the Criminal Division of the Court
of
Appeal allowed television cameras to film the ‘Speechley
Appeal’ in November 2004.
[63]
The UK Supreme Court has entered into an arrangement with British
television broadcasters to allow for live, free streaming of

proceedings on the internet. At present, the proceedings are
broadcast live by Sky News and all court hearings are accessible
online through the live stream.
[64]
The operational rules that govern the filming and broadcasting of the
Supreme Court proceedings were formulated by national broadcasters
in
the UK such as the BBC, ITN and Sky News.
[24]
Northern Ireland also has a Statute that bans electronic media
coverage of court proceedings.
[65]
Scotland, which does not have a statutory prohibition like England,
Wales and Northern Ireland, allowed a pilot programme with
numerous
restrictions, but the media found it difficult to gain the consent of
all of the participants and so it did not provide
a workable
model.
[66]
However, Scotland does allow filmed witness testimony to be used for
educational purposes, such as in documentaries.
[67]
In October 2012, in
response to the ‘development of social media, the use of
instant text-based communication and the broadcasting
of proceedings
before the UK Supreme Court’,
[68]
the Lord President commissioned a review of the Scottish policy on
recording and broadcasting proceedings in court and the use
of live
text based communication from court. A report on the findings of this
review was published in January 2015. This report
recommended that:
‘
(a)
the filming of civil and criminal appeals and legal debates in civil
first instance proceedings
should be allowed for live transmission
and subsequent news broadcasting and documentary film-making subject
to clear and comprehensive
guidelines;
(b)
criminal and civil trials could only be filmed for documentary
purposes, subject to restrictions where parties were
particularly
vulnerable; and
(c)
filming of the delivery of sentencing remarks of the judge should be
allowed, however
the filming should focus on the judge.’
[69]
[25]
In
Australia, all jurisdictions have admitted television cameras into
their courtrooms on an ad hoc basis, but in many jurisdictions
this
has only been for ceremonial proceedings
.
Specific guidelines dealing with electronic media coverage have been
developed and implemented in Western Australia. They allow
for the
recording and broadcasting of court proceedings upon application to
the presiding judge. Despite making provision for this,
its use has
been, at best, sporadic.
[70]
Since October 2013, the High Court of Australia has published
audio-visual recordings of full court hearings online via an archive

on the court’s website. These recordings are generally
published a few business days after the hearing.
[71]
In addition to these recordings and as part of its commitment to open
justice, the court also provides access, again via its website,
to
detailed case-specific information, including the submissions of the
parties and transcripts of oral argument.
[72]
Filming is
permitted in special circumstances during proceedings in the Supreme
Courts of New South Wales, Northern Territory, Western
Australia and
Tasmania, on application to either the judge or registrar.
[73]
Recently, the New South Wales Parliament enacted the Courts
Legislation Amendment (Broadcasting Judgments) Act 2014 No 44, which

amended the Supreme Court Act 1970 No 52 (NSW), to allow for the
recording and broadcasting of court proceedings. This enactment

creates a presumption in favour of granting applications by the media
to record and broadcast ‘judgment remarks’ delivered
in
open court.
[74]
Despite this apparently liberal approach, the substance of what can
be recorded and broadcast is very limited. Judgment remarks
in
relation to a criminal trial, are  defined as – ‘the
delivery of the verdict, and any remarks made by the court
when
sentencing the accused person, that are delivered or made in open
court, and … in relation to any other proceedings
– any
remarks made by the court in open court when announcing the judgment
determining the proceedings’.
[75]
[26]
With New Zealand, until the 1990s, there were no guidelines that
related to the coverage of court proceedings by the media.
There were
no cameras allowed in court and as a matter of general practice
recording in court was not permitted (as distinct from
taking
shorthand notes) even by reporters. New Zealand established a pilot
programme that ran from 1995 until 1998, which permitted
the filming
of high court cases. An evaluation of the pilot project
[76]
revealed that most judges were distracted by the cameras though
lawyers were not and that 58 per cent of the public thought that
they
would be less willing to appear as a witness if there were cameras,
but the evaluation did not find any witnesses unwilling
to appear.
While public support for cameras rose from 25 per cent in 1996 to 38
per cent in 1998, 67 per cent of those polled in
1998 did not think
that the experiment had educational value.
[77]
In spite of the mixed results and findings that arose from the
evaluation, the programme has been extended.
Following
the pilot programme, New Zealand has permitted the recording and
broadcasting of court proceedings since 1999. Under that
system,
should a media outlet wish to record proceedings in court for
broadcast either on radio or television, it must apply to
the court.
The application is then forwarded to the parties involved and,
following the receipt of submissions, is determined by
the trial
judge. Any permission is regulated by extensive guidelines, which
outline both how the footage is to be recorded and
how it is to be
distributed.
Criminal
trials at first instance may be filmed and broadcast provided that
certain conditions are met, including that any witness
who objects
must be made ‘not recognisable’ in the broadcast.
[78]
New Zealand courts do
not, however, publish or provide this footage on their own website or
via a public broadcaster. The Chief
Justice of New Zealand recently
commissioned and has received a draft report on ‘In-Court Media
Coverage’. The report
reviews the existing guidelines and
practices relating to cameras and recording in court. It concludes
that the presence of film
recording, cameras and audio recording has
‘facilita[ted] a more open and accessible court system’,
but also has given
rise to some procedural challenges. Ultimately, it
was considered that the present level of coverage was to be preferred
over none
at all and no fundamental changes to the 1995 reforms or
the guidelines were recommended.
[79]
[27]
In Germany, s 169 of the Court Constitution Act 1975
(Gerichtsverfassungsgesetz (GVG)) provides:
‘
The
hearing before the adjudicating court, including the pronouncement of
judgments and rulings, shall be public. Audio and television
or radio
recordings as well as audio and film recordings intended for public
presentation or for publication of their content shall
be
inadmissible.’
In
1995 and 1999 respectively, the news channel N-TV instituted action
on constitutional grounds for permission to broadcast the
trials of
former members of the East German Politburo and to film a hearing
concerning the legality of hanging a crucifix in a
public school
classroom.
[80]
Both cases reached the Federal Constitutional Court (FCC) in 2001,
which ruled against the broadcaster. However, as these cases
were
making their way through the justice system, the FCC decided to allow
the filming of its reasons for judgment, which began
in 1998.
[81]
In 2016, the Federal Ministry of Justice put forward a proposal that
would allow TV cameras into the highest courts of the five
branches
of the judiciary in Germany. The TV cameras would be allowed to roll
only when the presiding judge delivers judgment,
but not during the
hearing.
[82]
[28]
There is a legal presumption against audio-visual coverage of courts
in Israel. Permits to record and broadcast hearings have
been granted
in only five cases over a period of more than sixty years.
[83]
One of the first televised courtroom trials was that of Nazi SS
Lieutenant Colonel, Adolf Eichmann, before a Jerusalem court
in
1961. Israel’s Prime Minister, David Ben Gurion, wanted the
trial broadcast to educate a generation that had come of age
after
World War II about the atrocities of the Holocaust. The event was
emotionally explosive and revealed for the first time to
a shocked
world audience the Nazi campaign to exterminate European Jewry. It
has been said that one of the extraordinary aspects
of the Eichmann
trial was that no one knew very much about the Holocaust when the
trial began.
[84]
To many, the Holocaust was an unspeakable remembrance and survivors
did not readily speak about their ordeal. But the trial was
a
cathartic experience. Over 100 witnesses testified and after a trial
lasting 16-weeks, Eichmann was found guilty on all 15 counts
of the
criminal indictment against him.
[85]
The second instance was
in the 1970s, when an Israeli district court allowed the recording
and broadcast of the decision in the
Mizrachi case - a defamation
lawsuit filed against one of the leading Israeli newspapers,
Ha’aretz
.
[86]
The next instance was at the end of the 1980s, this time for the
broadcasting live on TV and radio of another trial related to
the
Holocaust – the trial of John Demjanjuk, who had been accused
of having committed war crimes while serving as a guard
at the Nazi
extermination camp in occupied Poland. The fourth occasion was in
1996, when the verdict in relation to Yigal Amir,
charged with the
assassination of the Israeli Prime Minister, Yitzhak Rabin, was
rendered. It was discovered after the fact that
permission had
actually been granted only to film the judges entering the courtroom,
but due to a mistake the recording and broadcasting
were extended to
the complete reading of the verdict.
[87]
The fifth and final instance was in 1999 when the Jerusalem District
Court allowed the decision given in the criminal case of Arye
Deri, a
former Israeli Minister, who had recently returned to the public
life, to be broadcast.
[88]
[29]
Of the countries that permit cameras, one of the most unusual is
Brazil, which allows cameras not only within the Brazilian
Supreme
Court, but also, the chambers where the Justices deliberate.
[89]
There are thus no private deliberations by the Justices. The court
allows the filming of oral argument as well as the judicial

deliberations, which commence as soon as the hearing comes to an end.
In 2012, the court established its own broadcast networks,
TV Justica
and Radio Justica. The sessions are also accessible on the internet
and the court maintains its own Twitter Feed and
YouTube
channel.
[90]
[30] As
can be seen, none of the foreign jurisdictions examined above appear
to have recognized an explicit constitutional right
to allow cameras
in courtrooms. Moreover, some jurisdictions, like the US, have
refused to expressly acknowledge such a right.
That notwithstanding,
‘all of these jurisdictions experienced - and are still
experiencing - a massive growth in the presence
of cameras within
their courtrooms. The process by which such expansion occurred in
these jurisdictions also bears similarities
- it is characterized by
patterns which allow courts to control the implementation of policies
pertaining to constitutional matters
that directly affect them, thus
preserving their institutional strength’.
[91]
[31] The
first reported instance of a South African court having to engage
with the issue arose in 2000 in the
Dotcom
Trading
matter. On 7 April
of that year, Indian police revealed that they had a recording of a
conversation between the then South African
cricket captain, Hansie
Cronje, and a representative of an Indian betting syndicate that
implicated him in match-fixing allegations.
[92]
Three other South African players were also implicated. After initial
denials, Cronje admitted that he took money from an international

bookmaker for supplying information regarding an international
cricket match. The President of the Republic, in consultation with

the Minister of Justice then set up a Commission of Enquiry into
‘Cricket Match-Fixing and Related Matters’.
[93]
When the chairperson of the Commission, Justice Edwin King, ruled
that he would not allow television or radio broadcasts of the

proceedings of the Commission, an application was launched as a
matter of urgency before the Cape Provincial Division, Cape Town
on
14 June 2000. A full court was convened to hear the application.
Brand J (with whom Hlophe JP and Traverso J concurred) held
that the
‘blanket exclusion of broadcasting and recording equipment from
the sittings of the Commission is inconsistent with
the Constitution
and therefore invalid’
[94]
and to the extent that the Chairperson of the Commission had excluded
all electronic media and not considered a less restrictive
means
(such as allowing radio broadcasting, which is what was sought) his
decision was flawed. The court considered that the matters
being
enquired into by the Commission were matters of widespread national
and international interest. The rulings by the Chairperson,
which
were held to constitute an infringement of the broadcasters’
rights guaranteed by s 16 of the Constitution, were accordingly
set
aside. The Commission was directed to allow the media to operate
their radio broadcasting and recording equipment during sittings
of
the Commission in such manner as to be determined by the
Chairperson.
[95]
[32] Some
four years later, in 2004, the high court had occasion to once again
consider the issue – this time in the context
of a criminal
trial. During October of that year, Midi TV (Pty) Ltd, t/a e-TV
(eTV), the holder of a private free-to-air television
broadcast
licence, applied for permission to the KwaZulu-Natal Local Division,
Durban (per Squires J) to broadcast the criminal
trial of Mr Schabir
Shaik and 10 companies, which Mr Shaik controlled or in which he had
a major interest.
[96]
Mr Shaik was indicted on several counts relating to corruption, in
relation to payments he had made to the then Deputy President
of the
Republic of South Africa, Mr Jacob Zuma. It was alleged that Mr Shaik
had bribed Mr Zuma to protect a French armaments company
from
exposure to official investigation.
[97]
The application was opposed by both the State and the accused.
Squires J approached the application thus:
‘
.
. . weighing and balancing the competing claims against each other as
best I can, I am eventually of the view that the individual
rights of
the witnesses and the objections of the accused should be accepted as
prevailing and such right as the applicant may
have . . . should
yield’
.
[98]
[33]
Squires J took the view that the
Dotcom
Trading
judgment was no
‘authority for holding that criminal trial proceedings should
also be televised in the public interest’.
[99]
The right to privacy of individual witnesses was, in his view, the
overriding factor in refusing the application. Infringement
thereof
by televised proceedings could lead to an unfair trial and conflict
with ‘the public interest in a democratic criminal
justice
system’ which brings wrongdoers to book while ensuring that
justice is done to them.  Although he refused the
application,
Squires J did give the applicant leave to approach him ‘later
if a stage is reached in the trial where the instant
objections are
not present, to see if some accommodation can be achieved’.
[100]
[34] Mr
Shaik was convicted and sentenced to 15 years’ imprisonment.
The companies were also convicted and required to pay
fines.
[101]
They sought and obtained leave to appeal to the Supreme Court of
Appeal (SCA).  Shortly before the appeal was due to be heard
by
the SCA, the national broadcaster, the South African Broadcasting
Corporation (
SABC
)
applied for permission ‘to be present at and record for the
purposes of live broadcast on television, with both visuals
and sound
. . .’
[102]
The SCA held that in balancing the right of free expression and fair
trial, the proper test was one that favoured the right to
a fair
trial. It concluded that television and radio broadcasts would
violate fair trial rights and accordingly dismissed the
application.
[103]
In dismissing the further appeal to it by the
SABC
,
the majority of
the Constitutional Court
(CC) approached the matter thus:
‘
The
narrow issue, accordingly, is not whether cameras should be allowed
into courts; it is whether this court should interfere with
the
discretion of the Supreme Court of Appeal and order that radio and
television coverage be permitted in this particular appeal
before
that court, as this particular time, in the particular circumstances
of this case’.
[104]
On that
issue, the CC was satisfied that the SCA had not committed a
‘demonstrable blunder’.
[105]
[35] The
issue arose once again before the Cape Provincial Division, Cape Town
in August 2005. Earlier that year, Mark Thatcher,
the son of the
former British Prime Minister, was arrested and arraigned in South
Africa on charges relating to funding a coup
in Equatorial
Guinea.
[106]
His plea of guilty to a lesser charge was accepted by the South
African prosecuting authorities and he was duly sentenced. Two
days
after his arrest, the government of Equatorial Guinea requested the
South African government in writing to allow it to question
Mr
Thatcher on a number of matters relating to the alleged coup. The
South African Minister of Justice approved the request and
thereupon
a subpoena was issued, which required Mr Thatcher to attend the
Wynberg Magistrates’ Court in Cape Town for the
purposes of
responding to certain questions contained in two lists annexed to the
subpoena. His failure to comply therewith would
constitute a criminal
offence and, if convicted of such offence, he would be exposed to a
penal sanction in the form of a fine
or imprisonment not exceeding
three months. Mr Thatcher brought an urgent application to
review
[107]
and set aside the various decisions taken by the South African
authorities that gave rise to him having to appear in court to answer

the questions and to declare their conduct, in coming to such
decisions, unconstitutional.
[108]
[36] The
SABC
applied to televise the review proceedings.
[109]
Van Zyl J (with whom Moosa J and Dlodlo J concurred) granted
permission to the
SABC
to record the proceedings.
[110]
The court, however,  directed that ‘the recording may be
used only in the form of an edited daily highlights package
for the
purposes of delayed broadcasting in television news bulletin and in
programmes relating to current affairs or matters of
public
interest’.
[111]
After a consideration of the position in comparable foreign
jurisdictions, Van Zyl J presciently observed ‘in considering

the development of electronic media coverage of court proceedings in
South Africa, as compared with the similar developments, or
lack
thereof, in a number of other countries, it seems clear that the
electronic media, and their associated issues, are here to

stay’.
[112]
[37] In
June of that same year, four men gained access to the home of Ms
Norton in Cape Town, snatched her six month old baby from
the arms of
her housekeeper and stabbed the baby to death. eTV decided to make a
television programme about the murder which had
attracted a great
deal of public attention.
[113]
It recorded interviews with various people. A decision was taken not
to broadcast the documentary until arrests were made by the
police.
By 9 July 2005 four men and a woman had been arrested and charged and
eTV proceeded to schedule the broadcast. Representatives
of the
Director of Public Prosecutions (DPP) asked to see the television
programme so as to satisfy themselves that it would not
prejudice the
pending murder trial, but eTV refused. The DPP then successfully
applied to the Cape Provincial Division, Cape Town
for an interdict
to prohibit the broadcast, until he had been furnished with a copy
and had been afforded 24 hours to consider
whether further
proceedings should be instituted. In upholding eTV’s appeal,
the SCA laid down the test to be applied when
a court is asked to
restrict freedom of expression in order to protect the administration
of justice or to protect some other right.
Nugent JA held:
[114]
‘
In
summary, a publication will be unlawful, and thus susceptible to
being prohibited, only if the prejudice that the publication
might
cause to the administration of justice is demonstrable and
substantial and there is a real risk that the prejudice will occur
if
publication takes place. Mere conjecture or speculation that
prejudice might occur will not be enough. Even then publication
will
not be unlawful unless a court is satisfied that the disadvantage of
curtailing the free flow of information outweighs its
advantage.’
He
observed that it is ‘not merely the interests of those
associated with the publication that need to be brought to account

but, more important, the interests of every person in having access
to information.’
[115]
The learned judge further emphasised the broad reach of these
principles thus:
‘
Those
principles would seem to me to be applicable whenever a court is
asked to restrict the exercise of press freedom for the protection
of
the administration of justice, whether by a ban on publication or
otherwise. They would also seem to me to apply, with appropriate

adaptation, whenever the exercise of press freedom is sought to be
restricted in protection of another right.
’
[116]
[38] Our
courts next had occasion to consider the issue in 2010. On diverse
occasions during March of that year Mr Julius Malema,
the then
President of the African National Congress Youth League (ANCYL), had
reportedly sung ‘Kill the Boer’. Kill
the Farmer’.
Those utterances, which were understood by many to have been an
attack on the Afrikaans speaking sector of the
community, attracted
much negative media attention. And, in consequence, a complaint that
those remarks constituted hate speech
came to be lodged with the
Equality Court.
[117]
In response to an application to broadcast the proceedings, the
Equality Court held:
[118]
‘
On
the day of the hearing I granted leave to eTV (Pty) Ltd and eSAT
(Pty) Ltd to record and broadcast the proceedings.  The
ruling
followed the principles and procedures set out in the Practice
Direction in the Supreme Court of Appeal concerning cameras.
Live
transmission was permitted.  The witnesses who would testify
were, in the main, accustomed to speaking in public and
to the
presence of the Press.  The public was entitled to see the
events transpiring in court so as not only be able to form
its own
judgment but also to re-live events as part of a process of healing.
I directed that any party including a witness could
at any time
request the process to be stopped; that it was then to stop
immediately pending further orders. This never happened
during the
trial. In addition a big screen was attached to the railings at the
outside entrance to court. This enabled the public,
the supporters of
parties and passersby access to the proceedings without the need for
them to physically be in my court.
’
[39]
Undoubtedly, the most significant case of the use of cameras in the
South African courtroom was the
Pistorius
matter. Approximately one decade after Squires J had ruled against
the media in
Shaik
,
the high court was required once again to confront squarely whether
the media should be allowed to broadcast criminal proceedings.
[119]
On Valentine’s Day 2013, model Reeva Steenkamp was killed by
her Paralympian boyfriend, Oscar Pistorius, who claimed that
he
believed that she was an intruder hiding in his bathroom.
[120]
Pistorius was found guilty of culpable homicide at his trial the
following year and sentenced to a term of five years
imprisonment.
[121]
On 3 December 2015, the SCA substituted his conviction for one of
murder.
[122]
From the time that reports of the incident first began to filter
through, it captured the public attention. The killing of Ms
Steenkamp and Mr Pistorius’ subsequent trial inspired articles,
informed television programming and clogged social media for
months
on end. The
Pistorius
trial was of great interest, both at home and abroad (international
journalists flocked to the country to cover the trial). In
response
to an application brought by several major South African media
outlets, Mlambo JP allowed the media to broadcast audio
recordings of
the full trial, and to televise parts of it.
[123]
[40] The
learned Judge President reasoned:
‘
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.
’
[124]
He issued
a detailed order, the relevant part of which reads:
[125]
‘
3.
MultiChoice and Primedia are permitted to broadcast the audio
recording of the entire trial in live transmissions, delayed
broadcasts
and/or extracts of the proceedings.
4.
MultiChoice and Primedia are permitted to broadcast the audio-visual
recording of the following portions of the trial only, in
live
transmissions, delayed broadcasts and/or extracts from the
proceedings:
4.1
Opening argument of the state and accused;
4.2
Any interlocutory applications during the trial;
4.3
The evidence of all experts called to give evidence for the state,
excluding evidence of the accused and his witnesses;
4.4
The evidence of any police officer or former police officer in
relation to the crime scene;
4.5
The evidence of all other witnesses for the state unless such a
witness does not consent to such recording and broadcasting
and the
presiding judge rules that no such recording and broadcasting can
take place;
4.6
Closing argument of the state and the accused;
4.7
Delivery of the judgment on the merits; and
4.8
Delivery of the judgment on sentence, if applicable.’
[41] The
coverage of the trial was extensive. Following the judgment, an
entire 24-hour television channel was created for the sole
purpose of
televising and then analysing the proceedings. That was made possible
because Mlambo JP did ‘what no South African
court had before
dared to do: media organisations were given permission to broadcast,
live and in full Technicolor, a criminal
trial’.
[126]
Thus with
Pistorius
,
the Rubicon had been crossed. The
Pistorius
trial, or more accurately the outcome of the pre-trial application to
broadcast the proceedings, changed irreversibly the manner
in which
the media and the justice system of our country converge.
[127]
[42]
The
question whether, and under what circumstances, cameras should be
permitted in South African courtrooms provokes tension between
the
rights of the press, on the one hand and the fair trial rights of an
accused person, on the other. The right to a fair trial
has been
interpreted as including the foundational values of dignity, freedom
and equality which lie ‘at the heart of a fair
trial in the
field of criminal justice’.
[128]
When two constitutional
rights (such as the right to freedom of expression and the right to a
fair trial) butt heads it is not a
matter of determining which right
is more deserving so that courts may declare a victor and jettison
the loser.
[129]
Instead, as
Midi
Television (Pty) Ltd v Director of Public Prosecutions (Western Cape)
made plain
‘where constitutional rights themselves have the potential to
be mutually limiting – in that the full enjoyment
of one
necessarily curtails the full enjoyment of another and vice versa –
a court must necessarily reconcile them’.
[130]
Accordingly, freedom of expression and the fair administration of
justice, which are both essential to the proper functioning of
any
true democracy, should as far as possible be harmonised with one
another.
[43]
It is difficult to accept that a total bar on the broadcasting of
judicial proceedings does not at least limit the s 16 right.
As the
Constitutional Court has explained, even where expression is
regulated this limits the right concerned:
‘
Because
freedom of expression, unlike some other rights, does not require
regulation to give it effect, regulating the right amounts
to
limiting it. The upper limit of regulation may be set at an absolute
ban, which extinguishes the right totally. Regulation to
a lesser
degree constitutes infringement to a smaller extent, but infringement
nonetheless. . . .’
[131]
[44]
Conventional
media
reporting will inevitably be limited and incomplete. And, despite
their importance,
newspapers
(and even television) are yesterday’s technology.
[132]
Pencils and sketch pads are now considered anachronistic. There is no
restriction regarding filming outside the court. Nor is there
any
restriction regarding attending in court and taking notes, drawing
pictures or upon accessing exhibits. The restriction relates
to the
means of gathering the information and the place where it may be
gathered. There simply can be no logic in a court permitting

journalists to utilise the reporting techniques of the print media
but not permitting a television journalist to utilise his or
her
technology and method of communication, being the broadcasting and
recording of proceedings, despite the fact that ‘live
camera
footage will be more accurate than a reporter’s after-the-fact
summary’.
[133]
[45]
The right to freedom of expression confers on the media the
discretion to determine what means of communication would be most

effective in relation to engaging the public and communicating and
relaying information and events to it. As the European Court
of Human
Rights explains, albeit in a different context:
‘
The
court recalls that it is not for the court, or for the national
courts for that matter, to substitute their own views for those
of
the press as to what technique of reporting should be adopted by
journalists. Article 10 protects not only the substance of
ideas and
information but also the form in which they are conveyed.’
[134]
This
is especially so when the restriction on the means of communication
would undermine the quality or timeliness of the communication,

because ‘delayed information is as good as denied
information’.
[135]
[46]
It is thus important to emphasise that giving effect to the principle
of open justice and its underlying aims now means more
than merely
keeping the courtroom doors open. It means that court proceedings
must where possible be meaningfully accessible to
any member of the
public who wishes to be timeously and accurately apprised of such
proceedings. Broadcasting of court proceedings
enables this to occur.
Television presents the
complete picture instantaneously. Television cameras do so by
creating a comprehensive and instantaneous
feedback loop between the
trial participants and the television audience.
[136]
In contrast, the print media simply does not operate with the same
kind of interactive speed or attract so wide and responsive
an
audience.
[47]
The
media plays a vital watchdog role in respect of the court process.
One of the aspirational goals of the media is to make governmental

conduct in all of its many facets (including courts) transparent.
Cameras in the courtroom aid that process, so too microphones.

Televised proceedings thus aid in the public oversight of the
judiciary. According to Justice Potter Stewart ‘the primary

purpose of the constitutional guarantee of a free press was  . .
.  to create a fourth institution outside Government
as an
additional check on the three official branches’
[137]
This oversight role was recognised in
Sheppard
v Maxwell
,
[138]
where the court observed that: ‘the press does not simply
publish information about trials but guards against the miscarriage

of justice by subjecting the police, prosecutors, and the judicial
process to extensive public scrutiny and criticism.’
[139]
At its core therefore, a bar on cameras and microphones
means that one sector of the media is precluded from taking
their
particular tools of trade into the courtroom. And, it has been
pointed out that there has been a failure to articulate reasons
for
treating electronic media differently to print media in the courtroom
context.
[140]
In the light of the fact that members of the public acquire most of
their news through the electronic media, it has to be somewhat

counter-intuitive that they are not able to ‘utilize the
principle of open justice to their advantage to the same extent
as
the print media.’
[141]
In that, the section 16(1) rights of both the media and the public
are self-evidently limited.
[48]
As this Court explained in
Primedia
regarding the right to an
open Parliament:
‘
The
Constitution thus affords all South Africans the right to see and
hear what happens in Parliament. . . . 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.
. .
.’
[142]
Lewis
JA there pointed out:
‘
The
public has a right to witness [incidents in Parliament]. 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 evicts
them
from the Chamber. The public has a right to know how the legislative
arm of government operates.’
[143]
That
accords with the Constitution’s general endorsement of openness
and transparency in all public affairs. While
Primedia
concerned the right to an open Parliament, rather than the right to
open justice, the same logic must apply in both contexts. After
all,
the judiciary as a branch of government should be accountable in the
same way as the executive and legislative branches. Moreover,
courts
can hardly prescribe to other arms of government that they should be
open, whilst endorsing a
judicial
system that is ‘shrouded in mystique and protected at all times
from the prying eye of the camera or the invasive
ear of the
microphone’.
[144]
[49]
Television allows viewers to feel that they are present in the
courtroom. And, there are many articulate arguments put forward
to
support cameras in the courtroom based on almost two decades of
experience with cameras in some US States. Advocates in favour
of
coverage argue that it provides education about the workings of the
court to those who themselves cannot be present in the courtroom.

Proponents urge that cameras make lawyers and judges more accountable
for their behaviour. Five decades ago, one of the principle
reasons
against unrestricted media coverage was that flashbulbs and
microphones were inconsistent with the dignity and decorum
of the
courtroom.
[145]
Today, the decorum argument has largely dissipated as modern
technology has advanced significantly, with the result that cameras

are now neither obtrusive, nor disruptive.
[50]
A court is a place where citizens can take their disputes in the
knowledge that the rule of law will be applied. It is governed
by
rules of evidence and procedures designed to seek out the truth, not
in a general way, but in the context of specific dispute
resolution
and administration of justice. These rules also endeavour to ensure
the fairness of the trial process.
[146]
Moreover, a criminal trial follows a well-established order, with the
prosecutor in a criminal case trying to establish, through
the
presentation of evidence, the guilt of the accused beyond a
reasonable doubt.
[147]
With each witness, there is the opportunity for direct examination
followed by cross-examination and re-examination. Objections
are
ruled on by the judge. The formality of the setting and the
proceedings contributes to the dignity and decorum of the courtroom

and serves as a constraint. A discreetly placed camera would capture
the formality of the proceedings and enable people to observe
from
afar the dignity of the proceedings and imbibe the same lessons of
respect for the judicial process as those who are physically
present.
[51]
Arguably, complete
broadcast coverage of the trial is important to achieve the valuable
ends served by increasing public access
to judicial proceedings.
In
that regard,  ‘gavel to gavel’ coverage, as it has
sometimes been described, may be preferable to no (or limited)

coverage. The way in which stories that have been told in court and
re-told by the media, may make a difference as to how the law
is
appreciated and the functioning of the court understood. With gavel
to gavel coverage the role of the media more closely approximates

that of a conduit rather than a processor and interpreter of court
proceedings.
[148]
By keeping cameras out of the courtroom, court reporters continue to
be relegated to conveying information about judicial proceedings
from
the steps of the courtroom (as has traditionally been the case),
despite the fact that the ‘aural and visual nature
of
broadcasting would give the public a more direct sense of what has
transpired than a verbal report in a highly summarised form.’
[149]
[52]
One of the most persuasive remaining objections is the possible
effect that cameras, and the larger audience they represent,
may have
on the testimony of witnesses in criminal trials.
[150]
In considering this objection, it must be accepted that the courtroom
is already a public place with a physical public presence
–
proceedings are transcribed and members of the press and public are
free to be present. Television broadcasts provide members
of the
public with a virtual presence in the courtroom. If the physical
presence of members of the public cannot be said to inhibit
or
distract counsel, the judges and witnesses, it has to be open to
debate that a virtual presence will have that effect.  ‘Moreover,

the public interest may be as much involved in the circumstances of a
remarkable acquittal as in a surprising conviction. Informed
public
debate is necessary about all such matters. Full contemporaneous
reporting of criminal trials in progress promotes public
confidence
in the administration of justice.’
[151]
[53]
Those in favour of cameras, point to the 50 US states that have
allowed cameras in some courtrooms and report no discernible
effect
on participants.
[152]
In fact, most studies conducted on the effect of cameras on witnesses
have found that allowing cameras into courtrooms had no effect,

positive or negative, on the legal proceedings.
[153]
It is worth noting however, that these studies have been criticised
for their methodological limitations.
[154]
However,
the results
from the US State studies were unanimous: the impact of electronic
media coverage of courtroom proceedings, whether
civil or criminal,
show minimal side effects on witnesses and the few studies that did
lacked rigorous design.
[155]
Most importantly, all jurisdictions agreed that those effects could
be addressed through appropriate policy design.
[156]
[54]
There is as well the argument that
notwithstanding
a witness taking the oath or affirmation, he or she may be affected
either consciously or subconsciously by the
evidence of the other
witnesses given during the course of the trial.
By viewing other evidence during the televised proceedings, so the
argument goes, the memory and recollection of a prospective
witness
would be impermissibly refreshed, which might serve to enhance the
credibility of that witness’ testimony and corrupt
the
truth-seeking function of a trial. In
Shabalala
v
Attorney-General of the Transvaal,
[157]
the Constitutional Court dealt with a similar contention in the
context of docket privilege as follows:
‘
A
recurrent theme which asserts itself in some of the cases is that the
disclosure of witnesses’ statements might enable an
accused
person to “tailor” evidence and to give perjured
testimony because he or she becomes alive to the fact that
the
falseness of such evidence may not be detected by the prosecution on
the information available to. This objection is conjectural
and it
must be balanced against other factors which have to be weighed in
dealing with an accused’s insistence that he or
she has a right
to a fair trial. An alert prosecutor and a competent court would be
able to make adequate allowance for the fact
. . .’
[158]
To
be sure, the risk of witness exposure does present a problem that
cannot lightly be wished away. One way to address this concern
would
be for the judge to direct witnesses to base their answers solely on
their personal knowledge. This can be achieved for example
by
precisely and cautiously instructing trial witnesses to testify based
solely on their personal knowledge.
[159]
It goes without saying that the essential character of a court is
that it is invested with the power to maintain its authority
and to
prevent its process being obstructed and abused.
[55]
Following on
Shabalala
,
witness statements are now generally made available to the defence in
advance of the commencement of the trial. The defence, equipped
with
such evidence, should be able to point to specific instances of
tainted testimony. The adversarial nature of criminal proceedings
and
the pivotal role that cross-examination plays in it should enable the
judge to safely make findings as to whether or not a
witness'
testimony has been tainted by the exposure. In any event, the reality
of court reporting today is that even without any
form of audio or
audio-visual reportage, the media provide live text-based
communications through various social media platforms
such as Twitter
and Facebook from inside the courtroom. In truth therefore the risk
of ‘tailoring’ already exists.
Thus, whether that risk
will be materially exacerbated by audio-visual coverage remains moot.
[56]
It has also been contended that commercial imperatives will likely
impel the media to focus on the high-profile or cases concerning
the
unusual or gruesome. By focussing on the sensational, particularly in
a country like ours with deep patterns of racial and
economic
inequality, so the contention goes, public confidence in the judicial
system may actually suffer, because citizens are
likely to feel that
only cases involving the privileged receive due and proper
consideration. As long ago as 1921, CP Scott, the
editor of the
Manchester Guardian, wrote:
‘
A
newspaper has two sides to it. It is a business, like any other, and
has to pay in the material sense in order to live. But it
is much
more than a business; it is an institution; it reflects and it
influences the life of the community . . . it has, therefore,
a moral
as well as a material existence, and its character and influence are
in the main determined by the balance of these two
forces.’
[160]
It
needs to be underscored, however, that it cannot be for us to
prescribe to the media which trials they should cover – that

remains their call.
Moreover,
it may well be that in high profile cases, it is even more critical
that the public receive the maximum amount of
information about the
process by which a particular result has been achieved. As it was put
in
Richmond Newspapers
:
[161]
‘
When
a shocking crime occurs, a community reaction of outrage and public
protest often follows .... Thereafter the open processes
of justice
serve an important prophylactic purpose, providing an outlet for
community concern, hostility and emotion. Without an
awareness that
society's responses to criminal conduct are underway, natural human
reactions of outrage and protest are frustrated
and may manifest
themselves in some form of vengeful "self-help," as indeed
they did regularly in the activities of vigilante
"committees"
on our frontiers.... It is not enough to say that results alone will
satiate the natural community desire
for "satisfaction."
A
result considered untoward may undermine public confidence, and where
the trial has been concealed from public view an unexpected
outcome
can cause a reaction that the system at best has failed and at worst
has been corrupted.
To
work effectively, it is important that society's criminal process
"satisfy the appearance of justice" ... and the appearance

of justice can best be provided by allowing people to observe
it.’(Italics for emphasis)
[57]
Concerns of privacy and security may also justify limits on how the
media go about gathering and transmitting information about
judicial
proceedings.
However,
in accordance with the public-centred perspective, when individuals
appear in a courtroom, their privacy interests might
have to give way
because their disputes are being resolved in a public forum that must
be open to public scrutiny. As held in
Cox
Broadcasting Corp v Cohn
,
[162]
a judicial proceeding is a public event and information on the public
record may be broadcast despite its highly sensitive nature.
However,
the court did acknowledge that there may be interests in need of
protection.
[163]
Thus judges who have to balance the presence of cameras with privacy
interests can do so by imposing appropriate restrictions.
Deputy
Chief Justice
Moseneke
pointed out that there are a myriad of measures available to protect
witnesses:
[164]
‘
These
range from: anonymity orders to protect vulnerable witnesses
identities and allowing witnesses to testify through intermediaries

or with the help of a support person, to closing the courtroom so
that only certain people are present, or even allowing witnesses
to
testify from a remote location via closed-circuit television. Other
measures might include suppression orders such as that ordered
in
Multichoice
when
judge Mlambo prohibited the media from photographing or broadcasting
the testimony of Mr Pistorius or his witnesses, or even,
as the
United States has started experimenting with, allowing witnesses to
wear disguises in court.’
[58]
It is important to emphasise that whilst greater access by the public
to the court system by means of televised proceedings
would result
in: (i)       demystification of the
judicial process; (ii)

greater informed deliberation and critical assessment of the
judiciary based on the public’s ability to readily observe
judicial proceedings; (iii) increased understanding of and respect
for the judiciary based on the public’s increased ability
to
observe the daily working of the courts; (iv) improved journalistic
standards relative to court reporting resulting from greater
coverage
of court proceedings and the development of court reporters
specialising in judicial matters; and (v)
heightened
public awareness of deep seated societal problems,
[165]
the right to
a public hearing does not automatically mean that trials must
necessarily be broadcast live in all circumstances.
[59]
Where there is a debate about whether given court proceedings should
be broadcast, a court is vested with the power to limit
the nature
and scope of the broadcast where necessary to ensure the fairness of
the proceedings before it. The power of the court
to do so is an
inherent one flowing from s 173 of the Constitution
[166]
and must be exercised in the interests of justice. As it was put by
the Constitutional Court in
SABC
Ltd v National Director of Public Prosecutions and others
:
[167]
‘
This
is an important provision which recognises both the power of courts
to protect and regulate their own process as well as their
power to
develop the common law. . . .  The power recognised in s 173 is
a key tool for courts to ensure their own independence
and
impartiality. It recognises that courts have the inherent power to
regulate and protect their own process. A primary purpose
for the
exercise of that power must be to ensure that proceedings before
courts are fair. It is therefore fitting that the only
qualification
on the exercise of that power contained in s 173 is that courts in
exercising this power
must
take into account
the interests of justice.’
Accordingly,
a court has the inherent power to make any order in relation to the
publicity of the proceedings. However, such order
must be consistent
with constitutional requirements.
[60]
The NDPP impermissibly adopts a blanket one-size-fits-all approach.
Not just for this matter, but, as I understood the argument,
for all
criminal proceedings. The NDPP claims that there should be no
broadcast whatsoever – whether, visual or audio. Such
an
approach cannot amount to the proper exercise of the s 173 power to
limit the   nature and extent of the broadcast.
This is
made clear by the decision of this Court in
Primedia
.
There, in the context of restrictions on the right to broadcast
Parliamentary proceedings, this Court held:
[168]
‘
The
right to see and hear what happens in Parliament is not unlimited. .
. . Any measure adopted by Parliament must be objectively
reasonable.
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 . . . 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.”
[61]
Manamela,
[169]
I daresay, precludes a rigid one-size-fits-all approach. There will
be cases, one imagines, that rest exclusively on circumstantial

evidence. It may well be difficult in such a situation to justify
excluding cameras from the courtroom. There may also be cases
that
rest on the evidence of a single eyewitness. In those cases the risk
of witness exposure or tailoring of evidence would not
arise. There
too, it may well be difficult to justify excluding cameras.
Moreover, the fact that witness X might be severely
intimidated by
having to testify on camera, does not justify prohibiting the
broadcast of witness Y’s testimony, who has
not raised the same
concern. Nor would it, without more, justify prohibiting the audio
broadcasts of witness X’s testimony.
Such an approach, does
afford appropriate appreciation for the different types of witnesses,
who would testify in the course of
criminal proceedings. What
warrant, can there be, it must be asked, for treating expert
witnesses, lay witnesses and professional
witnesses (such as police
officers) on the same footing?  I venture that it may be
fanciful to suggest that an audio broadcast
can have the same
distressing or embarrassing effects as an audio-visual broadcast.
[62]
MultiChoice
[170]
endorsed a regime whereby:
(a)
the evidence of all expert witnesses was to be broadcast using visual
and sound broadcasts; (b) any lay witness who objected
to having
their evidence televised would have these wishes respected and no
video coverage of that witness would be allowed; (c)
however, a full
audio of the evidence would be broadcast, as well as audio-visuals of
the legal practitioners and the judge and
assessors, even where
objecting witnesses give evidence; and (d) even then, the presiding
judge would from time to time have the
power to make rulings in
respect of a specific witness as and when required. Such an approach
adequately balances the rights of
open justice and free speech, with
legitimate objections from lay witnesses and the need for a fair
trial. A blanket ban on all
broadcasting or adopting a
one-size-fits-all approach, does not.
[63]
The NDPP seeks to make much of the decisions of this Court and the
Constitutional Court in the
SABC
matter. But it is necessary to view that case in its proper context
if the s 173 power is to be properly exercised. The
SABC
cases were decided over a decade ago. Then, the live broadcasting of
court proceedings, including appeals, was (with rare exceptions)

virtually unknown in this country. While the majority of the
Constitutional Court dismissed the appeal – on the basis that

there was no warrant for interference with the exercise of this
Court’s discretion – it held tellingly that ‘the

time has come for courts to embrace the principle of open justice and
all it implies’.
[171]
It went on to explain that changes would likely be required in
relation to the approach towards broadcasting of court
proceedings.
[172]
The position has changed fundamentally since the
SABC
judgments. In 2009, three years after the
SABC
cases, this Court issued a practice directive allowing, as a default
position, the full audio-visual broadcasting of all of its

proceedings.
[173]
Other courts, including the Constitutional Court and the Gauteng
Division, Pretoria, follow the same approach.
[64]
The
SABC
judgments must therefore yield to a new reality. For, even as we
grapple with television in the courtroom, there are many
(particularly
younger viewers) who are increasingly turning to the
internet to keep up to date with news and current affairs.
Many people
now use social media as their main source of information, resulting
in a shift in how information is disseminated and
received. As
McLachlin CJ observed:
[174]
‘
The
explosive growth of new media signals a shift in who reports on legal
proceedings. Court decisions may no longer be the preserve
of trained
professional journalists. Anyone with a keyboard and access to a blog
can now be a reporter. And who is to say they
are not? Some bloggers
will be professionals and academics providing thoughtful commentary
and analysis. Others will fall short
of basic journalistic standards.
Will accuracy and fairness be casualties of the social media era?
What will be the consequences
for public understanding of the
administration of justice and confidence in the judiciary? How can a
medium such as Twitter inform
the public accurately or adequately in
140 characters or less? If witness or juror contamination is a
concern with television,
is it not even more so with ubiquitous
social media accessed or received automatically via a hand-held
device?’
[65]
There is a growing trend of openness and permitting of the broadcast
of evidence in international and foreign criminal tribunals.
Since
the International Military Tribunal at Nuremberg broadcast its trial
of Nazi leaders in connection with World War II atrocities
in 1945,
several regional human rights courts and international criminal
courts have opened their proceedings to cameras not as
the exception,
but the rule.
[175]
[66]
The Inter-American Court of Human Rights (IACHR) is required to keep
its hearings and deliberations ‘on audio recordings’

under its rule of procedure, as approved by the court in November
2009.
[176]
Some of the most extensively televised international court
proceedings are those at the International Criminal Tribunal for the

former Yugoslavia (ICTY), a United Nations Court in The Hague, which
adjudicates the war crimes that occurred during the conflicts
in the
Balkans in the 1990s. Since it first heard cases in 1994, the ICTY
has routinely recorded its proceedings and distributed
them to the
world’s media
[177]
.
The audio-visual recording of the ICTY proceedings was designed ‘to
make sure that justice would be seen to be done, to
dispel any
misunderstandings that might otherwise arise as to the role and the
nature of the Tribunal proceedings and to fulfil
the educational task
of the Tribunal.’ The ICTY proceedings, ‘other than
deliberations of the Chamber’, are held
in public, unless
otherwise provided. Proceedings can be televised ‘in a modified
manner,’ for example, with the witness’s
voice or image
distorted if a witness is ‘protected’ under Rule 75 on
‘Measures for the Protection of Victims
and Witnesses’ of
the ICTY Rule of Procedure and Evidence. The ICTY thus has the
discretion to close its proceedings to protect
witnesses where
necessary.
[178]
The full proceedings of the International Criminal Tribunal are
recorded and broadcast using court equipment. Footage is made
available to carriers like the BBC and CNN.
[179]
[67]
The approach to the recording of proceedings in the International
Criminal Court (ICC) in the Hague is similar to the ICTY.
Where
necessary for the protection of a witness, the image or voice of the
person is distorted and rendered unrecognizable in the
audio-visual
feed. In addition, the court retains the discretion to exclude
certain testimony from broadcast. According to the
Rome Statute for
the International Criminal Tribunal, trials ‘shall be held in
public’.
[180]
Like the ICTY, the ICC Trial Chamber may find special circumstances
that require that certain proceedings be closed for the purposes
of
the protection of the victims and witnesses and to protect
confidential or sensitive information to be given in evidence.
[181]
The ICC Statute also provides for similar ‘protective measures’
for a victim, a witness, or another person at risk
due to testimony
given by a witness. In those instances, the trial chamber may hold an
in camera hearing to decide whether to order
preventive measures
against releasing the information on the identity or the location of
the victim, the witness, or the other
person who is vulnerable to the
consequences of the testimony provided.
[182]
The ICC Regulations provide for the recording and broadcast of
proceedings, including witness testimony.
[183]
Videos of both ICTY and ICC trials are posted on the courts’
websites and can be streamed in full, subject to a 30 minute

delay.
[184]
[68]
The European Court of Human Rights (ECHR) uses a written procedure
that allows it to make rulings primarily on the basis of
‘written
observations’ submitted by the parties, although it holds oral
hearings occasionally. When the ECHR holds
public hearings, they are
required to be public unless the Chamber of seven judges or the Grand
Chamber of seventeen judges otherwise
decides.
[185]
The ECHR states: ‘All hearings are filmed and broadcast on the
court’s website on the day itself, from 14:30 (local

time).’
[186]
[69]
The law evolves gradually. Often, technology is far ahead of both the
legislature and the courts. However, institutions, courts
included,
are not fixed in stone. A
s society becomes more attuned to
cameras in the courtroom, the novelty will dissipate and cameras will
fade into the background.
Although the arguments
put forward in favour of allowing cameras in the court room are
compelling, it needs to be accepted that
South Africa is very much at
the experimental stage of examining the possibilities brought about
by new and improved media technology.
There are a number of interests
at stake in a matter such as this. These include:
(a)
the interests of the NDPP, the appellant and the public in holding a
trial that is fair
and is seen to be fair;
(b)
the interests of the media and the public in maintaining freedom of
the press and
in ensuring open justice;
(d)
the interests of participants in the trial process; and
(e)
the interests of the court and the public in maintaining the dignity
and decorum in the
administration of justice.
The
goal has to be to achieve a balance of these competing interests.
[70]
In permitting the televising of court proceedings this Court is doing
no more than recognising the appropriate starting point.
It will
always remain open to a trial court to direct that some or all of the
proceedings before it may not be broadcast at all
or may only be
broadcast in (for example) audio form. It remains for that court, in
the exercise of its discretion under s 173
of the Constitution to do
so.
It shall be for the media to request access from the
presiding judge on a case-by-case basis.  In that regard it is
undesirable
for this Court to lay down any rigid rules as to how such
requests should be considered. It shall be for the trial court to
exercise
a proper discretion having regard to the circumstances of
each case.
[71]
It remains the duty of the trial court to examine with care each
application.
That court should exercise a proper discretion in
such cases by balancing the degree of risk involved in allowing the
cameras into
the court room against the degree of risk that a fair
trial might not ensue. In acceding to the request, the judge may
issue such
directions as may be necessary to:
(a)
control the conduct of proceedings before the court;
(b)
ensure the decorum of the court and prevent distractions; and
(c)
ensure the fair administration of justice in the pending case.
In making
that decision, the judge may consider whether there is a reasonable
likelihood that such coverage would: (i) interfere
with the rights of
the parties to a fair trial; or (ii) unduly detract from the
solemnity, decorum and dignity of the court. There
shall be no
coverage of: (a) communications between counsel and client or
co-counsel; (b) bench discussions; and (c) in camera
hearings. A
judge may terminate coverage at any time upon a finding that the
rules imposed by the judge have been violated or the
substantial
rights of individual participants or the rights to a fair trial will
be prejudiced by such coverage if it is allowed
to continue.
[72] The
default position has to be that there can be no objection in
principle to the media recording and broadcasting counsel’s

address and all rulings and judgments (in respect of both conviction
and sentence) delivered in open court.  When a witness
objects
to coverage of his or her testimony, such witness should be required
to assert such objection before the trial judge, specifying
the
grounds therefor and the effects he or she asserts such coverage
would have upon his or her testimony. This approach entails
a
witness-by-witness determination and recognises as well that a
distinction may have to be drawn between expert, professional
(such
as police officers) and lay witnesses. Such an individualised enquiry
is more finely attuned to reconciling the competing
rights at play
than is a blanket ban on the presence of cameras from the whole
proceeding when only one participant objects. Under
this approach
cameras are permitted to film or televise all non-objecting
witnesses. Spurious objections can also be dealt with.
It is for the
court concerned to ensure that in balancing the public’s
interest in coverage of criminal proceedings against
those of
objecting participants, the trial process, already time consuming and
expensive, must not be allowed to become further
unnecessarily
protracted. Every objection should not
represent
an unneeded incursion into the trial court's discretion in managing a
fair trial.
[73] If
the judge determines that the witness has a valid objection to
cameras, alternatives to regular photographic or television
coverage
could be explored that might assuage the witness’ fears. For
example, television journalists are often able to disguise
the
identity of a person being interviewed by means of special lighting
techniques and electronic voice alteration, or merely by
shielding
the witness from the camera. In other instances, broadcast of
testimony of an objecting witness could be delayed until
after the
trial is over. If such techniques were used in covering trials, the
public would have more complete access to the testimony
via
television, and yet the witness could maintain some degree of privacy
and security.
[74]
Whenever an accused person in a criminal trial objects to the
presence of cameras in the courtroom, the objection should be

carefully considered. If the court determines that the accused’s
objection to cameras is valid, that may require that cameras
be
excluded. By framing the inquiry in these terms, courts will be
better able to strike a constitutionally appropriate balance
between
policies favouring public access to legal proceedings and the
accused’s right to a fair trial. The court would accordingly

have regard to all the relevant circumstances in identifying whether
the right to a fair trial in a particular case is likely to
be
prejudiced.
[75]
A decision on whether to restrict the broadcast of court proceedings
raises the same set of rights as occupied the attention
of this Court
in
Midi
Television
.
[187]
It follows that the same approach should apply; namely that courts
will not restrict the nature and scope of the broadcast unless
the
prejudice is demonstrable and there is a real risk that such
prejudice will occur. Mere conjecture or speculation that prejudice

might occur ought not to be enough.
[188]
[76]
It follows from what I have said that not all of the reasoning of
Desai J can be supported and, in consequence, paragraph 1.3
as framed
by him, falls to be set aside. The matter will accordingly have to be
remitted to the learned judge for reconsideration
in accordance with
the principles set out herein.
[77]
That leaves costs: The NDPP did not seek costs. Both the appellant
and Media 24 did. The appellant has achieved a substantial
measure of
success in the appeal. What is more, Media 24 delayed launching its
application before Desai J. This had the consequence
that the matter
had to be dealt with on an urgent basis before the high court and an
expedited basis on appeal before this Court.
Thus in circumstances
where his criminal trial had already commenced and was ongoing before
the high court, the appellant had to
also contend with this appeal.
He was forced at fairly short notice to cause counsel, other than
counsel representing him in his
criminal trial, to be briefed to
argue the appeal before this Court. It follows that Media 24 should
be held liable for the appellant’s
costs.
[78]
In the result:
(a)
The appeal succeeds to the extent that paragraph 1.3 of the order of
the high court is set
aside.
(b)
The matter is remitted to the high court for reconsideration in
accordance with the principles
set out in this judgment.
(c)
The costs of appeal of the appellant, Henri Christo Van Breda, shall
be paid by the
first respondent, Media 24.
_________________
V
M Ponnan
Judge
of Appeal
APPEARANCES:
1.
Case no: 425/2017
For
Appellant:

F van Zyl SC
Instructed
by:
Cluver
Markotter Inc, Stellenbosch
McIntyre
& Van Der Post, Bloemfontein
For
First Respondent:

J.C. Butler SC (with him M Maddison)
Instructed
by:
Werksmans
Attorneys, Stellenbosch
Phatshoane
Henney Attorneys, Bloemfontein.
2.
Case no: 426/2017
For
First Appellant:

H Epstein SC (with him L G Nkosi Thomas SC)
Instructed
by:
The
State Attorney, Cape Town
The
State Attorney, Bloemfontein
For
Amicus Curiae:

S Budlender SC (with him T Mosikili)
Instructed
by:
Webber
Wentzel, Johannesburg.
Honey
Attorneys, Bloemfontein.
[1]
I borrow
from C Lassiter: ‘TV or Not TV? That is the Question’
(1996) 928
Journal
of Criminal Law and Criminology
86 available at:
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6882&context=jclc
[2]
Remarks of
the Right Honourable B McLachlin PC the Chief Justice of Canada ‘The
Relationship between the Courts and the
Media’
Carleton
University Ottawa, Ontario
31 January 2012 available at:
http://www.scc-csc.ca/court-cour/judges-juges/spe-dis/bm-2012-01-31-eng.aspx
.
[3]
W.J. Brennan Jr. ‘Why Protect the Press?’ (1980) 18
Columbia Journalism Review
59. Justice Brennan added:
‘This partnership of the court and the press is not unique; it
is merely exemplary of the function
that the press serves in our
society. As money is to the economy, so the press is to our
political culture: it is the medium
of circulation. It is the
currency through which the knowledge of recent events is exchanged;
the coin by which public discussion
may be purchased.’
[4]
G K
McCall,
‘Cameras in the Criminal Courtroom: A Sixth Amendment
Analysis’ (1985) 1546,
Columbia
Law Review
85 at
1546–1547.
[5]
Advocate Louise Buikman SC, M’s curator, was cited as the
third respondent, but took no part in the proceedings either
before
the court below or this Court on appeal.
[6]
Lassiter fn 1 above, at 936.  See also McCall fn 4 above, at
1547.
[7]
R v
Secretary of State for the Home Department Ex Parte Simms
[1999] UKHL 33
;
[1999] 3 All ER 400
at 408.
[8]
Case & another v
Minister of Safety and Security & others
,
Curtis v Minister of Safety
and Security   others
[1996] ZACC 7
;
1996 (3) SA 617
(CC) para 27.
[9]
South African Broadcasting
Corporation Limited v National Director of Public Prosecutions
[2006] ZACC 15
;
2007 (1) SA 523
(CC) para
24 (
SABC
CC). See also
Brümmer
v Minister for Social Development & others
[2009]
ZACC 21
;
2009 (6) SA 323
(CC) para 63.
[10]
Midi Television (Pty) Ltd
t/a e-tv v Director of Public Prosecutions (Western Cape)
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA) para 6.
[11]
Khumalo & others v
Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at para 24. See also
De
Reuck v Director of Public Prosecutions (Witwatersrand Local
Division) & others
[2003]
ZACC 19
;
2004 (1) SA 406
(CC) para 49.
[12]
Open
justice has a very long history – so long, in fact, that its
precise origin is unclear. In
Terry
(previously ‘LNS’) v Persons Unknown
[2010] EWHC 119
(QB), Tugendhat J described it as ‘one of the
oldest principles of English law, going back to before Magna Carta’.

In
Raybos
Australia Pty Ltd v Jones
(1985)
2 NSWLR 47
,
Kirby
J declared that ‘[t]he courts of England were open from the
earliest times’, and pointed to evidence of the
existence of
open justice in both the Saxon and Norman periods. In
Richmond
Newspapers Inc v Virginia
[1980] USSC 154
;
448
US 555
(1980), Burger CJ traced it back ‘beyond reliable
historical records’. See also S Rodrick ‘Achieving the
Aims
of Open Justice? The Relationship between the Courts, the Media
and the Public’
(2014) 124
Deakin
Law Review
19
at 130.
The
idea that South African civil courts should be open to the public
goes back to 1813.
Marais
J explained in
Financial Mail (Pty) Ltd v Registrar of Insurance
& others
1966 (2) SA 219
(W) at 220F-G: ‘Until 1813,
in consonance with the then universal practice in Holland . . .
whilst judgments and orders
of the Cape courts had to be pronounced
in public, evidence and argument in trial cases were heard in
camera, with only the parties
and their lawyers in attendance. The
British Governor of the Cape, in 1813, issued a proclamation
requiring all judicial proceedings
in future to be carried on with
open doors as a matter of “essential utility, as well as the
dignity of the administration
of justice”; it would imprint on
the minds of the inhabitants of the Colony the confidence that equal
justice was administered
to all in the most certain, most speedy and
least burdensome manner.’
[13]
Kamasaee
v Commonwealth of Australia & Ors
[2017]
VSC 171.
[14]
Deputy
Chief Justice  Moseneke ‘The Media, Courts and
Technology: Remarks on the Media Coverage of the Oscar Pistorius

Trial and Open Justice’ 15 May 2015 available at:
http://www.constitutionalcourt.org.za/site/judges/justicedikgangmoseneke/The-Media-CourtsandTechnology-Speech-by-DCJ%20Moseneke-on-15-May-2015.pdf
.
[15]
City of Cape Town v South
African National Roads Authority Limited & others
[2015] ZASCA 58
;
2015 (3) SA 386
(SCA) para 12. See also
Moseneke
fn 14 above, at 5.
[16]
City of
Cape Town
fn
15 above, para 21.
[17]
Independent Newspapers
(Pty) Ltd v Minister for Intelligence Services (Freedom of
Expression Institute as Amicus Curiae)
In
re:
Masetlha v President of
the Republic of South Africa & another
[2008] ZACC 6; 2008 (5) SA 31 (CC).
[18]
Ibid, paras 39–41.
[19]
City of
Cape Town
fn
15 above, para 18.
[20]
S v Mamabolo
[2001] ZACC 17
;
2001 (3) SA 409
(CC) para 29. See also
S
v Shinga (Society of Advocates (Pietermaritzburg)) as Amicus
Curiae); S v O'Connell & others
[2007]
ZACC 3
;
2007 (5) BCLR 474
(CC) para 25: ‘Closed court
proceedings carry within them the seeds for serious potential damage
to every pillar on which
constitutional democracy is based.’
[21]
Moseneke fn 14 above, at 4.
[22]
Independent Newspapers
fn
17 above, para 39.
[23]
Moseneke fn 14 above, at 7.
[24]
Section
5(1) reads: ‘Except where otherwise provided by law, the
proceedings in every court in all criminal cases and the
trial of
all defended civil actions shall be carried on in open court, and
recorded by the presiding officer or other officer
appointed to
record such proceedings.’
[25]
Section
32 reads: ‘Save as is otherwise provided for in this Act or
any other law, all proceedings in any Superior Court
must, except in
so far as any such court may in special cases otherwise direct, be
carried on in open court.’
[26]
‘
(1)
In addition to the provisions of
section 63
(5) of the
Child Justice
Act, 2008
, if it appears to any court that it would, in any criminal
proceedings pending before that court, be in the interests of the

security of the State or of good order or of public morals or of the
administration of justice that such proceedings be held behind

closed doors, it may direct that the public or any class thereof
shall not be present at such proceedings or any part thereof.
(2)
If it appears to any court at criminal proceedings that there is a
likelihood that harm might result to any person, other
than an
accused, if he testifies at such proceedings, the court may direct-
(a)
that such person shall testify behind closed doors and that no
person shall be present when such evidence is given unless
his
presence is necessary in connection with such proceedings or is
authorized by the court;
(b)
that the identity of such person shall not be revealed or that it
shall not be revealed for a period specified by the court.
(3)
In criminal proceedings relating to a charge that the accused
committed or attempted to commit-
(a)
any sexual offence as contemplated in
section 1
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
, towards
or in connection with any other person;
(b)
any act for the purpose of furthering the commission of a sexual
offence as contemplated in
section 1
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007
, towards or in
connection with any other person; or
(c)
extortion or any statutory offence of demanding from any other
person some advantage which was not due and, by inspiring fear
in
the mind of such other person, compelling him to render such
advantage, the court before which such proceedings are pending
may,
at the request of such other person or, if he is a minor, at the
request of his parent or guardian, direct that any person
whose
presence is not necessary at the proceedings or any person or class
of persons mentioned in the request, shall not be present
at the
proceedings: Provided that judgment shall be delivered and sentence
shall be passed in open court if the court is of the
opinion that
the identity of the other person concerned would not be revealed
thereby.
(3A)
Any person whose presence is not necessary at criminal proceedings
referred to in paragraphs (a) and (b) of subsection (3),
shall not
be admitted at such proceedings while the other person referred to
in those paragraphs is giving evidence, unless such
other person or,
if he is a minor, his parent or guardian or a person in loco
parentis, requests otherwise.
(4)
. . .
(5)
Where a witness at criminal proceedings before any court is under
the age of eighteen years, the court may direct that no
person,
other than such witness and his parent or guardian or a person in
loco parentis, shall be present at such proceedings,
unless such
person's presence is necessary in connection with such proceedings
or is authorized by the court.
(6)
The court may direct that no person under the age of eighteen years
shall be present at criminal proceedings before the court,
unless he
is a witness referred to in subsection (5) and is actually giving
evidence at such proceedings or his presence is authorized
by the
court.’
[27]
Laugh It
Off Promotions CC v South African Breweries International (Finance)
BV t/a Sabmark International & another
[2005]
ZACC 7
;
2006 (1) SA 144
(CC) para 47.
[28]
Canadian
Broadcasting Corp v Canada (Attorney General)
2011 SCC 2.
[29]
Nancy T Gardner ‘Cameras in the Courtroom: Guidelines for
State Criminal Trials’
Michigan
Law Review
Vol 84 No 3
(1985) 475 at 490 available at:
http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1403&context=fac_schol
[30]
Dotcom Trading 121 (Pty)
Ltd t/a Live Africa Network News v King NO
2000 (4) SA 973 (C).
[31]
Ibid, para 43.
[32]
Hauptmann
appealed to the New Jersey Court of Errors and Appeals, which
affirmed his conviction (
State
v Hauptmann
115 N J L 412
(N J 1935)). His petition to the United States Supreme
Court for certiorari was denied (
Hauptmann
v New Jersey
[1935] USSC 181
;
296 US 649
(1935)).
[33]
ABA
canons are advisory and do not bind the State or Federal Courts.
[34]
Estes v
Texas
[1965] USSC 138
;
381 US 532
(1965)
[35]
The Fourteenth Amendment to the US Constitution was ratified in
1868.
It,
amongst other things, forbids States from denying any person ‘life,
liberty or property, without due process of law’
or ‘the
equal protection of the laws.’
[36]
Lassiter fn
1 above, at 940.
[37]
Chandler
v Florida
[1981] USSC 18
;
449 US 560
(1981).
[38]
Lassiter fn
1 above, at
940.
[39]
K.H Youm ‘Cameras In The Courtroom In The Twenty-First
Century: The US Supreme Court Learning From Abroad?’ (2012)
Brigham Young University
Law Review
at 1999
available at:
http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2699&context=lawreview
.
[40]
Ibid.
[41]
Ibid, at
2000-2001.
[42]
Ibid, at
2001.
[43]
Chandler
fn
37 above. See also Youm fn 39 above, at 2001.
[44]
Gardner fn 29 above, at 475.
[45]
Lassiter fn
1 above, at 942.
[46]
Youm fn 39 above, at 2001.
[47]
Ibid, at 2001-2002.
[48]
Ibid.
[49]
For example, see: California: Rule 1.150. ‘Photographing,
Recording, and Broadcasting in Court’, 2014 California
Rules
of Court; Massachusetts: Massachusetts Supreme Judicial Court Rule
1:19 ‘Electronic Access to the Courts’;
Missouri:
Missouri Supreme Court Operating Rule 16.02; New Jersey: Code of
Judicial Conduct Canon 3A(9) and ‘Supreme Court
Guidelines for
Still and Television Camera and Audio Coverage of Proceedings in the
Courts of New Jersey’; Tennessee: Tennessee
Supreme Court Rule
30; Utah: Judicial Council Rules of Judicial Administration, Rule
4-401.01; Virginia: Va. Code 19.2-266.
[50]
Youm fn 39
above, at 1989.
[51]
The judges were concerned about how televising proceedings might
interfere with how they interact with each other and counsel
in
testing arguments and the fact that questions and statements may be
taken out of context for a ‘sound bite’ on
network
television news.
[52]
Justice Kagan was wary that ‘it might upset the dynamic of the
institution and was reported as saying:
‘
If
you look at different experiences, when cameras come into a place,
the nature of a conversation often changes.’ Associated
Press,
‘Two Justices Once Open to Cameras in Court Now Reconsider’
The New York Times
(2 February 2015, New York)
http://www.nytimes.com/aponline/2015/02/02/us/politics/ap-us-supreme-court-cameras.html?
r=0.
[53]
See
Electronic Publication of Court Proceedings. Issues Paper –
June 2015 (2015) Supreme Court of Queensland at 20 available
at:
http://www.jca.asn.au/wp-content/uploads/2013/10/P71_02_01-SC-Qld-Issues-Paper-June-2015.pdf
.
[54]
See Supreme
Court of the United States ‘Argument Audio’ available
at:
https://www.supremecourt.gov/oral_arguments/argument_audio.aspx
[55]
Electronic
Publication of Court Proceedings fn 53 above, at 21.
[56]
See
http://www.uscourts.gov/about-federal-courts/cameras-courts
.
[57]
In 2016,
Justice Denny Thomas granted the media permission to have his
verdict in the Travis Vader double-murder trial to be broadcast
via
a live-streaming TV camera in the courtroom. As part of his order,
one camera was allowed in the courtroom but it was only
permitted to
show Justice Thomas reading his judgment and it was not allowed to
show the accused or any person in the public
gallery. (See:
http://edmontonjournal.com/news/local-news/judge-allows-camera-in-courtroom-for-accused-killer-travis-vader-verdict-later-this-week
).
[58]
T McFeat
‘Cameras in the Courts’
Canadian
Broadcasting Corporation
12 March 2010 available at:
http://www.cbc.ca/news/canada/cameras-in-the-courts-1.869497
;
See also Youm fn 39 above, at 2012.
[59]
Youm fn 39
above, at 2006.
[60]
Those cases
included, inter alia, the following: whether an individual has the
right to assisted suicide (See
Rodriguez
v British Columbia (Attorney General)
[1993]
3 SCR 519)
; the tax deductibility of nanny expenses (See
Symes
v Canada
,
[1993] 4 SCR 695)
and spousal support payments for a homosexual
couple (See
Egan
v Canada
[1995] 2 SCR 513).
[61]
N S Marder ‘The Conundrum of Cameras in the Courtroom’
(2012)
Chicago-Kent College
of Law Research Paper
44
at 63.
[62]
Section 32
of the Crime and Courts Act, as read with s 41 of the Criminal
Justice Act of 1925 and s 9 of the Contempt of Court
Act of 1981.
See further Court of New Zealand Media Review Panel, ‘Report
to Chief Justice on In-Court Media Coverage’
(Report to Chief
Justice) para 56 available at:
https://www.courtsofnz.govt.nz/In-Court-Media-Review/In-Court-Media-Review/ReporttoChiefJusticeonincourtmediacoverageF6_7_15_20150720.pdf.
[63]
S Bucks
‘Court on Camera: Appeals in Action’
The
Observer
5 March 2005 available at:
http://www.guardian.co.uk/media/2005/mar/06/business.broadcasting2
.
The ‘Speechley Appeal’ involved former Lincolnshire
County Council Leader, Jim Speechley, who had been convicted
of
misconduct as a public official and sentenced to eighteen months in
jail. See also: ‘Cameras Record High Court Appeal’
BBC
News
16 November 2004 available at:
http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/uk_news/england/lincolnshire/4015977.stm
.
[64]
Youm fn 39
above, at 2006.
[65]
Marder fn
61 above, at 1560.
[66]
Ibid, at
1560.
[67]
The conditions governing the broadcast of proceedings in Scottish
courts are set out in Lord Hope’s Practice Direction
(1992),
which is quoted in
X v
British Broadcasting Corporation and Lion Television Limited
[2005]
CSOH 80
para 4.
[68]
Report of
the Review of Policy on Recording and Broadcasting of Proceedings in
Court, and the Use of Live Text-Based Communications
from Court
(Scottish Report) 15 January 2015 available at:
http://www.scotland-judiciary.org.uk/25/1369/Report-of-the-Review-of-Policy-on-Recording-and-Broadcasting-of-Proceedings-in-Court--and-Use-of-Live-Text-Based
-Communications.
[69]
Scottish Report fn 68 above, at 29–30.
[70]
Electronic Publication of Court Proceedings fn 54 above, at 18.
[71]
Ibid.
[72]
Ibid.
[73]
Report to
Chief Justice para 58.
[74]
Electronic
Publication of Court Proceedings fn 53 above, at 18.
[75]
Section 127
of the
Supreme Court
Act 1970 No 52 (NSW).
[76]
Marder fn
61 above, at 1561.
[77]
Ibid.
[78]
New Zealand Ministry of Justice ‘In-Court Media Coverage
Guidelines’ (2016) available at:
https://www.courtsofnz.govt.nz/going-to-court/media/rules-and
resources/INCOURTMEDIACOVERAGEGUIDELINES2016T.pdf.
[79]
Electronic
Publication of Court Proceedings fn 53 above, at 19.
[80]
Blueprints
for Transparency ‘How High Courts Everywhere but the US Have
Limited Judicial Tenure and Allowed Broadcast Access’
22
September 2016 available at
http://fixthecourt.com/wp-content/uploads/2016/09/Foreign-courts-on-broadcast-tenure-FTC-FINAL-1.pdf
.
[81]
Ibid.
[82]
P Bert ‘TV
Cameras to be allowed in German Courtrooms?’ 8 April 2016
Dispute
Resolution in Germany
available
at:
http://www.disputeresolutiongermany.com/2016/04/tv-cameras-to-be-allowed-in-german-courtrooms/
.
[83]
I Ravid
‘Tweeting #Justice Audio-Visual of Court Proceedings in a
World of Shifting Technology’ (2017) 41 at 93 available
at:
http://www.cardozoaelj.com/wp-content/uploads/2017/02/35.1-Ravid.pdf
.
[84]
‘
Introduction:
The Trial of Adolf Eichmann’ available at:
http://remember.org/eichmann/intro
.
[85]
Ibid.
[86]
Ravid fn 83
above, at 94.
[87]
Ibid.
[88]
Ibid.
[89]
Youm fn 39
above, at 1990.
[90]
Blueprints
for Transparency fn 80 above, at 4.
[91]
Ravid fn 83 above, at 85.
[92]
ESPNcricinfo
Staff ‘The Cronje chronicles’ 22 July 2013 available at:
http://www.espncricinfo.com/ci/content/story/654219.html
.
[93]
The
Honourable Mr. TM Mbeki, President of the Republic of South Africa
‘Commission of Inquiry into Cricket Match Fixing
and Related
Matters’ (2000) available at:
http://www.gov.za/sites/www.gov.za/files/kingfinal_0.pdf
.
[94]
Dotcom
Trading
fn
30 above, para 63.
[95]
Ibid.
[96]
Midi
Television (Pty) Ltd
fn
10 above, at 2.
[97]
S v
Shaik & others
2007 (1) SACR 142
(D) at 143–144.
[98]
Midi
Television (Pty) Ltd
fn 10 above, at 9.
[99]
Ibid, at
13.
[100]
Ibid, at
14.
[101]
S v
Shaik
fn
97 above,
at
147–148.
[102]
SABC
CC fn 9 above, para 5.
[103]
South
African Broadcasting Corporation Ltd. v Downer NO and Shaik
[2006] ZASCA 90
;
[2007] 1 All SA 384
(SCA) (
SABC
SCA) para 30.
[104]
Ibid, para
34.
[105]
Ibid, para 55.
[106]
Thatcher
v Minister of Justice and Constitutional Development & others
2005 (4) SA 543
(C);
2005 (1) SACR 238
paras 1 – 6.
[107]
Ibid.
[108]
Ibid.
[109]
South
African Broadcasting Corporation Limited v Thatcher & others
[2005] ZAWCHC 63; [2005] 4 All SA 353 (C).
[110]
Ibid, para
1.
[111]
Ibid.
[112]
Ibid, para
119.
[113]
Midi
Television (Pty) Ltd
fn
10 above, paras 1–2.
[114]
Ibid, para
19.
[115]
Ibid.
[116]
Midi
Television (Pty) Ltd
fn
10 above, para 20.
[117]
Afri-Forum
& another v Malema & others
[2011]
ZAEQC 2; 2011 (6) SA 240 (EqC).
[118]
Ibid, para
47.
[119]
Multichoice
(Proprietary) Limited & others v National Prosecuting Authority
& another, In Re; S v Pistorius, In Re; Media
24 Limited &
others v Director of Public Prosecutions North Gauteng & others
[2014]
ZAGPPHC 37; 2014 (1) SACR 589.
[120]
S v
Pistorius
[2014] ZAGPPHC 793 at 2-3
[121]
Ibid.
[122]
Director
of Public Prosecutions, Gauteng v Pistorius
[2015] ZASCA 204
;
2016 (2) SA 317
(SCA)       para
55.
[123]
Multichoice
fn
119 above, para 30.
[124]
Ibid, para
21.
[125]
Ibid, 30.
[126]
Moseneke fn 14 above, at 9.
[127]
Ibid, at 2.
[128]
S v Dzukuda & others; S
v Tshilo
2000 (4) SA 1078
(CC);
2000 (11) BCLR 1252
(CC) para 11.
[129]
Moseneke fn
14 above, at 9.
[130]
Midi
Television (Pty) Ltd
fn
10 above, para 9.
[131]
Print Media South Africa &
another v Minister of Home Affairs & another
2012
(6) SA 443
(CC) para 51.
[132]
Live
streaming is increasingly becoming commonplace. ‘
Streaming
media is a method by which data is delivered by an internet provider
in a continuous stream to an end-user’s device,
such as a
computer, iPad or web-enabled television’. (See
Carol
Ann Matthews v SPI Electricity (Pty) Ltd (CAN) 064 651 118
& Ors
[2013]
VCS 37 para 15.)
[133]
Moseneke fn 14 above, at 12.
[134]
News Verlags GmbH &
CoKG v Austria
[2000] ECHR
5
, 31457/96
[2000] ECHR 5
; ,
(2001) 31 EHRR 8
para 39 (emphasis added).
[135]
Moseneke fn 14 above, at 12.
[136]
Lassiter fn 1 above, at 935.
[137]
Address by Justice Stewart, Yale Law School (Nov 2, 1974) c/f
Gardner fn 29 above, at 492-493.
[138]
Sheppard
v Maxwell
[1966] USSC 109
;
384 US
333
(1966).
[139]
Ibid, at
350. See also
Gardner
fn 29 above, at 493.
[140]
Ibid, at 479.
[141]
Rodrick fn
12 above, at 156.
[142]
Primedia Broadcasting (a
division of Primedia (Pty) Ltd) & others v Speaker of the
National Assembly & others
[2016]
ZASCA 142
;
[2016] 4 All SA 793
(SCA);
2017 (1) SA 572
(SCA) para 1.
[143]
Ibid, para 38.
[144]
Moseneke fn
14 above, at 8.
[145]
McCall fn 4 above, at 1546.
[146]
R v
Pilarinos and Clark
2001 BCSC 1332
para 156.
[147]
Marder fn 61 above, at 1519.
[148]
Rodrick fn 12 above, at 155.
[149]
Rodrick fn 12 above, at 156.
[150]
McCall fn 4 above, at 1546.
[151]
In Re S
(a child) (Identification: Restriction on Publication):
HL 28 Oct
2004, [2004] UKHL 47, 17 BHRC 646, 4 All ER 683, [2005] Crim LR 310,
[2004] 3 WLR 1129.
[152]
Marder fn 61 above, at 1509-1510.
[153]
This is, for example, the conclusion of the first Federal Judicial
Centre FJC report, which evaluated a pilot program between
1991 and
1993, in which cameras in six district courts and two courts of
appeal were allowed.
[154]
Marder fn 61 above, at 1546–1547.
[155]
Lassiter fn 1 above, at 964-965.
[156]
Ravid fn 83
above, at 50.
[157]
Shabalala
& others v Attorney-General of the Transvaal & another
[1995] ZACC 12; 1996 (1) SA 725.
[158]
Ibid
,
para
46.
[159]
A judicial
admonition can be delivered individually to each witness, along the
following lines: ‘You are not to testify
to any matter, except
for matters you know of your own personal knowledge.  You are
not to testify to anything that you
learned because you heard, read
or listened to any portion of the proceedings thus far. See
United
States v Oliver L North
920 F 2d 940
(D C Cir 1990).
[160]
Rodrick fn
12 above, at 150.
[161]
Richmond
Newspapers Inc v Virginia
[1980] USSC 154
;
448
US 555
(1980) at 571-572.
[162]
Cox Broadcasting Corp v
Cohn
[1975] USSC 44
;
420 US 469
(1975).
[163]
Gardner fn 29 above, at 489.
[164]
Moseneke fn
14 above, at 14.
[165]
R v
Pilarinos and Clark
fn
146 above,
para 159.
[166]
Section
173 of the Constitution provides:
‘
The
Constitutional Court, Supreme Court of Appeal and High Courts each
has the inherent power to protect and regulate their own
process,
and to develop the common law, taking into account the interests of
justice.’
[167]
SABC
CC fn 9 above, paras 35-36.
[168]
Primedia Broadcasting
fn
142 above, paras 30-31.
[169]
S v
Manamela & another (Director-General of Justice Intervening
)
[2000] ZACC 5; 2000 (3) SA 1; 2000 (5) BCLR 491.
[170]
Multichoice
fn
119 above, at 17-19.
[171]
SABC
CC
fn 9 above,
para 68.
[172]
Ibid,
paras 71-72.
[173]
Supreme
Court of Appeal Practice Directions available at:
http://www.justice.gov.za/sca/practice/Practice%20Directions%20-%2017%20August%202007.pdf
.
[174]
Remarks of
the Right Honourable B McLachlin
fn
2 above.
[175]
Youm fn 39
above, at 2015.
[176]
Ibid, at
2016.
[177]
Youm fn 39
above, at 2015-2016.
[178]
Ibid.
[179]
International Criminal Tribunal for the Former Yugoslavia Rules of
Court, Rule 81(d). See website announcements regarding broadcasts:

‘Courtroom Broadcast’ available at
http://www.icty.org/sid/252
;
‘Courtroom Technology’ available at
http://www.icty.org/sid/167
;
‘Broadcast of Proceedings at the ICTY through the Internet’
15 February 2002, available at
http://www.icty.org/sid/81222
.
[180]
UN General
Assembly ‘Rome Statute of the International Criminal Court’
A/CONF
.
183/9, art.68, (last amended 2010) 17 July 1998 ISBN No.
92-9227-227.
[181]
Youm fn 39
above, at 2019.
[182]
Ibid, at
2020.
[183]
International Criminal Court Regulation 21 and ICC Regulations of
the Registry, Regulation 94.
[184]
For ICC
broadcasts see ICC Regulation 21(2) and ‘Video Streaming’
at
http://www.icc-cpi.int/enmenus/icc/Pages/default.aspx
and
‘Hearing Schedule’ at
http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/hearing%20schedule/Pages/next%20week.aspx
.
For
ICTY broadcasts see ‘Courtroom Broadcast’ available at
http://www.icty.org/sid/252
.
[185]
In
accordance with Rules 58 & 59 of the Rules of the European Court
of Human Rights (1 September 2012).
[186]
Youm fn 39 above, at 2015.
[187]
Midi
Television (Pty) Ltd
fn
10 above.
[188]
See:
S v Mamabolo
fn
20 above, para 45 and
Laugh
It Off Promotions CC
fn
27
above,
para 59.