Brief Summary

Constitutional Law — Freedom of Expression — Right to Broadcast Court Proceedings — Application by Fields of Green for All NPC to broadcast civil trial proceedings concerning the constitutionality of cannabis laws — State appellants opposed the application on grounds of potential prejudice and lack of media status — High Court permitted live streaming, emphasizing the need for a balance between open justice and fair trial rights — Appeals by State appellants and Doctors for Life International against the ruling dismissed, with costs awarded to the respondents.

Comprehensive Summary

Summary of Judgment

1. Introduction

These proceedings concerned two appeals against a decision of the Gauteng Division of the High Court, Pretoria (Ranchod J), which had permitted the live-stream broadcasting of a civil trial involving a constitutional challenge to cannabis-prohibition legislation. The appeals were heard together because they were “almost identical” in substance and were directed at the same ruling and the written reasons subsequently furnished.

The parties to the appeals were, on the one hand, the National Director of Public Prosecutions and various national Ministers (collectively referred to in the judgment as the State appellants) in appeal case number A641/2017, as well as Doctors for Life International Incorporated (DFL) as appellant in appeal case number A133/2018. On the other hand, the primary respondent in both appeals was Fields of Green for All NPC (FOGFA), with Julian Christopher Stobbs, Kathleen (Myrtle) Clarke, and Clifford Alan Neale Thorp (the plaintiffs in the main action) also cited. DFL was a respondent in the State appeal and the State parties were respondents in the DFL appeal, reflecting the overlapping interests in opposing the broadcast request.

The procedural history was central to the dispute. FOGFA made an informal, email-based request shortly before the commencement of a 19-day civil trial (scheduled to begin on 31 July 2017) to live-stream the proceedings. After extensive correspondence between the parties, Ranchod J issued a ruling on 28 July 2017 (communicated by email) allowing live-streaming subject to conditions to be discussed at the commencement of the trial. The appellants sought to have that ruling reconsidered on the first day of trial, but Ranchod J declined, indicating he was functus officio, and he furnished written reasons on 31 July 2017. Leave to appeal was refused by the court a quo but granted by the Supreme Court of Appeal. The appeals were ultimately determined by a Full Court (Molopa-Sethosa, Louw and Adams JJ), with Adams J delivering the judgment.

The general subject-matter of the dispute was open justice and the broadcasting of court proceedings, specifically whether a non-media entity closely associated with the plaintiffs could be permitted to live-stream civil proceedings, and whether the trial court was procedurally obliged to require a formal application and/or to hear oral argument before granting such permission.

2. Material Facts

The underlying litigation arose from events in August 2010, when the second and third respondents (Stobbs and Clarke) were arrested in a police raid at their residence and charged with possession of and dealing in cannabis, after police found approximately 1.87 kilograms of cannabis. Their criminal prosecution in the Krugersdorp Magistrates’ Court remained pending at the time of these appellate proceedings.

A significant development was that the criminal trial was stayed by an order of the High Court (Bertelsmann J) pending the outcome of constitutional proceedings to be instituted by the accused, challenging the constitutionality of the statutory provisions criminalising cannabis. In compliance with that order, the second to fourth respondents instituted a civil action in the High Court, issuing summons and citing (among others) the NDPP and relevant Ministers as defendants. The civil trial was set down for nineteen days commencing 31 July 2017.

The specific facts relevant to the broadcast dispute concerned FOGFA’s request to live-stream the civil trial. FOGFA is a non-profit company whose stated objective is advocating for rational cannabis law and policy. The second and third respondents were founding members of FOGFA. FOGFA was not a party to the civil action, but it was closely associated with the plaintiffs and their objectives. The appellants characterised FOGFA as the plaintiffs’ alter ego and contended that this meant the plaintiffs were effectively seeking to broadcast proceedings to which they were parties.

The request for broadcasting permission was initiated by correspondence from FOGFA’s attorneys to the other parties’ attorneys on 5 June 2017, requesting consent, and by a communication to the Deputy Judge President’s office indicating that permission would be sought. The parties then exchanged correspondence from 5 June 2017 until 28 July 2017, when Ranchod J issued his ruling permitting the live-stream broadcast. The State appellants indicated on 14 July 2017 that they objected, and DFL indicated on 24 July 2017 that it did not consent.

It was undisputed that Ranchod J made the ruling without a formal notice of motion or a conventional opposed application, and that he acted on the basis of the correspondence and the applicable procedural guidance (chapter 12 of the Division’s Practice Manual read with an SCA practice note). It was also undisputed that the ruling contemplated that conditions would be dealt with at the commencement of trial, but the matter did not proceed to that stage because of the ensuing procedural challenges and appeals.

The appellants’ stated basis for opposition, as reflected in the judgment’s account of their submissions, included the contention that FOGFA was not a conventional media house subject to recognised regulatory oversight, and that the issue required fuller ventilation through formal proceedings and argument. A further factual aspect recorded by the Full Court was that the appellants ultimately did not identify concrete prejudice to their fair trial rights beyond concerns that the public might be misled given FOGFA’s status and platform.

3. Legal Issues

The central legal questions were whether a court may permit live-stream broadcasting of civil proceedings at the request of an entity that is not a conventional media house, including where that entity is closely aligned with (and allegedly the alter ego of) the litigants; and whether the court a quo committed a reviewable misdirection by granting permission without requiring a formal substantive application and/or without hearing oral argument in open court.

The dispute therefore concerned a combination of law (the applicable constitutional and common-law principles governing broadcasting of proceedings and the source of the court’s power), procedure (the permissibility of using the Practice Manual mechanism and correspondence rather than motion proceedings), and the application of law to fact (whether, on the facts, the court properly balanced open justice against fair trial considerations and whether demonstrable prejudice was shown).

The question also engaged a discretionary evaluation under section 173 of the Constitution, namely whether the presiding judge exercised a proper discretion to regulate the court’s process in the interests of justice when authorising broadcasting, and whether any limitation on broadcasting (or refusal thereof) was justified by demonstrated risk of prejudice to a fair trial.

4. Court’s Reasoning

The Full Court treated the Supreme Court of Appeal’s decision in Van Breda v Media 24 Limited and Others; National Director of Public Prosecutions v Media 24 Limited and Others as providing the governing framework. It emphasised that the trial court must exercise a proper discretion by balancing the degree of risk involved in allowing cameras into the courtroom against the degree of risk that a fair trial might not ensue. It further highlighted the principle that courts should not restrict the nature and scope of broadcasting unless prejudice is demonstrable and there is a real risk of such prejudice, and that mere conjecture or speculation is insufficient.

Applying those principles, the Full Court rejected the appellants’ attempt to distinguish the case on the basis that FOGFA was not a conventional media house and was not subject to external regulatory bodies. The judgment reasoned that this distinction did not advance the underlying aim of broadcasting court proceedings, namely open justice. It found no logical basis to allow a television journalist to broadcast proceedings but to refuse broadcasting by another entity (including one associated with a litigant), particularly in a modern context where live text-based communication from the courtroom through social media platforms can occur even in the absence of audio-visual coverage.

The Full Court therefore concluded that the objection premised on FOGFA’s alleged alter-ego status should fail. It held that the rationale for open justice and the accessibility of court proceedings applies equally in this context and that the appellants had not shown why the identity of the broadcaster, in and of itself, justified refusal where prejudice was not established.

On the procedural complaint, the Full Court relied on the approach endorsed in Van Breda that it is undesirable to lay down rigid rules about how requests to broadcast should be considered, and that courts must avoid unnecessarily protracting already expensive and time-consuming trial processes. The Full Court accepted that while a formal application might be desirable in certain circumstances, it is not an inflexible requirement. The judgment held that if the presiding judge is appraised of the relevant facts, there is no necessity in every case for oral submissions or a substantive motion proceeding before granting permission.

In this matter, the Full Court held that Ranchod J had before him the full run of correspondence, and that the issues had been properly ventilated in writing. It noted that, even on appeal, the appellants did not point to additional considerations that were not already before the court a quo and that could have materially affected the decision. The judgment characterised the appellants’ prejudice case as falling short of establishing demonstrable prejudice or a real risk to fair trial rights, particularly given that the appellants accepted that broadcasting by conventional media houses would have been unobjectionable in principle.

The Full Court also endorsed the relevance of chapter 12 of the Division’s Practice Manual, read with the SCA practice guidance, as prescribing a cost-effective and efficient mechanism to deal with filming and recording requests, including written objections and the possibility of withdrawing leave or changing conditions for good cause. It held that Ranchod J’s approach accorded with those procedures and that his decision constituted a proper exercise of the discretion conferred by section 173 of the Constitution to regulate court process in the interests of justice.

Finally, the Full Court accepted that the trial court retained the power to impose terms and conditions on broadcasting to safeguard decorum and fairness, and it considered that the matter should return to Ranchod J for the determination of those practical conditions so that the trial could proceed without further delay.

5. Outcome and Relief

The Full Court dismissed both appeals with costs. In case number A641/2017, the appeal by the State appellants was dismissed, and the State appellants were ordered to pay FOGFA’s costs of appeal, including costs of the leave to appeal applications in the High Court and the Supreme Court of Appeal, and the costs consequent upon the employment of two counsel where applicable.

In case number A133/2018, the appeal by Doctors for Life International Incorporated was dismissed, and DFL was ordered to pay FOGFA’s costs of appeal on the same basis, including the costs of leave to appeal applications and the costs of two counsel where applicable.

Although the formal order recorded in the judgment relates to the dismissal of the appeals and costs, the court also indicated that the matter should be referred back to Ranchod J for him to impose the appropriate terms and conditions applicable to the live-stream broadcast and for the trial to continue without further delay.

Cases Cited

Van Breda v Media 24 Limited and Others; National Director of Public Prosecutions v Media 24 Limited and Others [2017] 3 All SA 622 (SCA); 2017 (2) SACR 491 (SCA)

Supreme Court of Appeal Practice Note, reported at 2009 (3) SA 1 (SCA)

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 34

Constitution of the Republic of South Africa, 1996, section 173

Drugs and Drug Trafficking Act 140 of 1992, section 4(b)

Drugs and Drug Trafficking Act 140 of 1992, section 5(b)

Drugs and Drug Trafficking Act 140 of 1992, Part III of Schedule 2

Rules of Court Cited

Gauteng Division, Pretoria, Practice Manual, Chapter 12 (procedure relating to filming or recording of proceedings)

Supreme Court of Appeal Practice Notice (as referenced in the judgment and reported at 2009 (3) SA 1 (SCA))

Held

The court held that the principles governing the broadcasting of court proceedings, as articulated by the Supreme Court of Appeal in Van Breda, apply equally where the entity seeking to broadcast is not a conventional media house. The decisive inquiry remains whether the trial court, exercising its discretion under section 173 of the Constitution, properly balanced open justice against the risk of prejudice to fair trial rights, and whether any alleged prejudice was demonstrable and posed a real risk.

The court further held that the objection founded on FOGFA’s close association with the plaintiffs did not, without more, justify refusing permission to broadcast. In the court’s view, open justice is not logically advanced by drawing a categorical distinction between conventional media and other entities when the substance of the inquiry is whether broadcasting will prejudice the fairness and integrity of proceedings.

The court also held that it is undesirable to impose rigid procedural requirements for broadcast requests. A formal substantive application and oral argument are not invariably required, provided the presiding judge is properly apprised of the relevant facts and can exercise a proper discretion, and provided that speculative claims of prejudice do not substitute for demonstrated harm or a real risk thereof. On the facts, the appellants failed to demonstrate prejudice or a real risk to fair trial rights.

LEGAL PRINCIPLES

The judgment applied the principle that open justice now entails more than physical access to a courtroom and includes, where appropriate, facilitating meaningful public access through broadcasting, subject to judicial control to safeguard fairness, decorum, and the administration of justice. Broadcasting is not to be restricted merely on the basis of conjecture; limitations must be justified by demonstrable prejudice and a real risk that such prejudice will occur.

It reaffirmed that the presiding court must exercise a discretion under section 173 of the Constitution to regulate its own process in the interests of justice, including making orders permitting or limiting recording and broadcasting. That discretion requires a contextual balancing of competing rights and interests and may be implemented through practical directions governing the conduct of coverage.

On procedure, the judgment endorsed the approach that courts should avoid rigid, formalistic requirements for broadcast requests. Mechanisms contained in practice directives—such as notification to the registrar and written objections—may provide a cost-effective and efficient means of determining such requests, particularly where the relevant issues have been ventilated and no concrete prejudice has been shown.

National Director of Public Prosecutions and Others v Fields of Green for ALL NPC and Others, Doctors For Life International Incorporated v Fields of Green For All NPC and Others (A641/2017, A133/2018, 2011/58664) [2019] ZAGPPHC 316; [2019] 3 All SA 866 (GP); 2019 (2) SACR 564 (GP) (11 July 2019)