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[2016] ZAGPPHC 601
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Combined Artistic Productions CC and Another v Graham and Others (61790/2012) [2016] ZAGPPHC 601 (11 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 61790/2012
In
the matter between:
COMBINED
ARTISTIC PRODUCTIONS CC First
Applicant
ELECTRONIC
MEDIA NETWORK LIMITED Second
Applicant
And
JENNIFER
GRAHAM First
Respondent
MATTHEW
GRAHAM Second
Respondent
LAW
SOCIETY OF THE NORTHERN
PROVINCES Third
Respondent
RONALD
BOBROFF & PARTNERS INC Fourth
Respondent
RONALD
BOBROFF Fifth
Respondent
DARREN
BOBROFF Sixth
Respondent
JUDGMENT
Tuchten
J:
The
applicants apply urgently for orders permitting them to film the
proceedings in this court set down before two judges of this
Divisionfor hearing on 14 to 16 March 2016 in which the first and
second respondents (the Grahams) apply in what I shall call the
main
application for orders striking the fifth and sixth respondents
(together and, where the context so indicates collectively
with their
firm, the fourth respondent, the RBP respondents) from the roll of
attorneys.
1
Urgency was in issue. Clearly, the applicants will not be able to
secure relief in the normal course.
The urgency is not self-created.
The practice in this court allows parties to make requests through
the Registrar for permission
to film 24 hours before the anticipated
hearing. In this instance the applicants began the process of
obtaining permission a month
or so ago. The attorneys for the
applicant and the attorneys forthe RBP respondents both corresponded
with the Deputy Judge President
putting their respective contentions.
The Deputy Judge President directed that the matter come before me as
an urgent special motion
on 10 March 2016. Both sides delivederd
affidavits and submitted heads of argument. I am satisfied that the
RBP respondents were
not prejudiced in the conduct of their case by
the procedure adopted. I hold that the matter is urgent.
2
The main application has a lengthy history but it is not necessary
for present purposes to recite
it. The RBP respondents are personal
injury litigation specialists. Usually it is the Law Society
operating in the province concerned
which applies for an allegedly
errant attorney to be disciplined by the court. But in the present
case, the Grahams are asking
the court to exercise its disciplinary
powers in relation to the RBP respondents. This arose because the
Grahams were once clients
of the RBP respondents. They believe that
they and many other RBP clients were egregiously overcharged by the
RBP respondents.
They complained to the third respondent, the law
society having jurisdiction (the Law Society), but believe that the
Law Society
has not dealt properly with their complaint.
3
The main application concerns, but may not be limited to, alleged
systemic overcharging (called
in this context overreaching ) by the
RBP respondents of clients who successfully brought claims in the
courts for damages for
bodily injury. Our system makes it easy for an
unscrupulous attorney so to overreach such a client. For one thing,
the almost invariable
rule is that the award, agreed or mandated by
order of court, is paid into the trust account of the practitioner. A
lay client,
relieved at the prospect of compensation and ignorant of
the rules which govern his attorney’s remuneration, is an easy
target
for this misconduct. The attorney simply deducts the fee the
attorney has decided to charge from the money paid into his trust
account and then either does not account to the client at all or does
so in an unacceptably cursory manner.
4
I do not say this because I believe that the RBP respondents have
made themselves guilty of this
kind of misconduct. I have not even
seen the papers in the main application. But the ventilation of the
Grahams’ claim that
there has been such misconduct on the part
of the RBP respondents is a matter of legitimate public interest. The
broad issue is
whether the RBP respondents are fit to continue to
practise as attorneys or should otherwise be sanctioned by the court.
An allegation
that an attorney has made himself guilty of grave
impropriety in the conduct of his practice is a matter of substantial
public
importance. Practitioners in our courts must display absolute
personal integrity and scrupulous honesty. The protection of the good
name and reputation of the attorneys’ profession in the eyes of
the public and the confidence which the public have in that
good name
are of great importance.
5
None of this was disputed by the RBP respondents. But they oppose
this application on a ground I
shall deal with below. The other
respondents abide.
6
The first applicant is a production house. It is the production
entity that produces the television
program Carte Blanche, which is
broadcast on Sunday evenings at 19h00 on a television channel called
the M-Net channel. Carte Blanche
has been broadcast since 1988. The
second applicant provides certain subscription television channels
including the M-Net channel.
7
Carte Blanche specialises in investigative journalism. It routinely
covers matters of public importance
including alleged abuses of
public and private power and corruption. It primarily engages in what
it calls second phase journalism.
This means that it does not simply
convey news to the public but also tries to interpret and bring
meaning to current affairs in
a way which not only informs but also
educates the public. This inevitably means that Carte Blanche
develops and communicates its
own opinions on the subjects with which
it deals.
8
The applicants want to film the proceedings in the main application
so that they can, at a later
date, use excerpts from the proceedings
in a program which they are considering producing for broadcasting in
Carte Blanche. Consistent
with the practice of this court, the
applicants offer to submit to an order directing them to share the
material so filmed with
other media organisations who request it. So
although the applicants themselves will not broad cast the material
live, the possibility
exists that another media organisation may
decide to do so.
9
The RBP respondents’ objection to the application by the
applicants to film proceedings in
the main application is that they
fear:
... that [the applicants]
will splice and dice excerpts from the court proceedings unfairly so
as to present the respondents in
an unjustifiably poor light, thus
infringing on our constitutional rights to human dignity.
10
The RBP respondents have this fear because of two things: firstly, a
program broadcast on the M-Net channel
on 22 March 2015, which they
say quoted the fifth respondent selectively, distorted what he had to
say and generally showed him
and the RBP respondents in a poor light;
and, secondly, because one of the applicants’ investigators, a
Mr Beamish, has demonstrated
himself to be a person who has firmly
taken sides against the RBP respondents generally and the fifth
respondent in particular.
11
The background to the broadcast was the decision by the
Constitutional Court affirming the position uniformly
taken by
the High Court and the Supreme Court of Appeal through which the case
in question progressed to our apex court, that the
so-called common
law contingency fee agreement was illegal.
12
The broadcast of 22 March 2015 was made available to me on an
electronic medium as part of the papers in this
application. I
watched it for the first time in preparation for this case. In my
view Carte Blanche, through its presenter, Ms
Govender, and otherwise
firmly took sides against the RBP respondents. It gave a platform to
an attorney, Mr Millar, who was at
the time acting for the Grahams
and firmly, indeed stridently, took sides with his clients against
the RBP respondents. The tone
of the program was, I think
deliberately, indignant in relation to the conduct of the RBP
respondents.
13
But against that, it portrayed the suffering of certain former
clients of the RBP respondents with compassion
and sensitivity and
made a contribution to the public debate on this important subject,
The fifth respondent volunteered to be
interviewed. His views were
given considerable prominence, as was Ms Govender’s skepticism
when the fifth respondent advanced
these views. The crux of the fifth
respondent’s defence was asserted in the program by the fifth
respondent himself. The
fifth respondent’s defence was that the
RBP respondents charged the fees they did because they believed in
the legitimacy
of the common law contingency fee agreement and,
moreover, were entitled to conduct themselves professionally in
accordance with
that belief until the Constitutional Court had
finally pronounced,
14
The RBP respondents do not suggest that they ever brought any
proceedings against the applicants for allegedly
splicing and dicing
excerpts from the interview conducted with him by Ms Govender. The
transcript of the interview was put up in
the present case by the RBP
respondents. I can find no justification in that transcript for the
accusation of splicing and dicing.
15
Counsel for the RBP respondents submitted that the applicants had not
quoted the fifth respondent as fully
as they might have when he set
out his side of the story. Two points in this regard were made by
counsel in argument. The first
is that while the program included the
fifth respondent’s assertion that the Law Society had stated
publicly that in its
view common law contingency fee agreements were
legitimate, it omitted the fifth respondent’s assertion that
the Law Society
had done so on more than one occasion, including in
correspondence with the Deputy Judge President of this Division. I do
not think
this omission constituted a distortion of the facts. The
second such point was that the applicants left out of the program
assertions
by the fifth respondent during the interview with Ms
Govender that on his reading of the judgment of the Constitutional
Court in
De La Guerre, supra, what the court said in paragraph 2 of
its judgment supported his case that attorneys who had used
common
law contingency fee agreements had acted reasonably. I think
that it may well be that the program omitted a point made by the
fifth
respondent in his favour but I do not think that it can be
taken further than that. The main point made by the fifth respondent
in this regard was that he and other attorneys had reasonably
believed that they was entitled to charge fees based on common law
contingency fee agreements. That point came through in the program.
16
In the result, I cannot accept that there is any substance in the
contention that the applicants were guilty
in the production of the
Carte Blanche program of a distortion of the facts or the position
adopted by the RBP respondents.
17
As to the second ground of complaint: it is clear that Mr Beamish has
taken sides against the RBP respondents.
For the purpose of the
present application I shall assume to be correct the version of the
RBP respondents that Mr Beamish also
put into the public domain
material regarding the RBP respondents which many would regard as
hurtful and gloating, even scurrilous.
But on the facts, Mr Beamish
has no say in determining the nature of any program regarding the RBP
respondents which may be broadcast
after the main application has
been heard and determined. It is not suggested by the RBP respondents
that those within the applicants
who have the actual power to produce
a distorted television program are likely to do so.
18
Counsel accepted that the raw material to be harvested from any
filming of the proceedings in the main application
will consist of no
more than the words of counsel and the members of the court, together
with visual images of the same persons.
But counsel submitted that
the influence of Mr Beamish in the production process in regard to
any potential new program is likely
to be such that those whose
actual task is to produce the program may take parts of the record so
obtained and quote them out of
context in any new program.
I
cannot see that there is any basis for this submission. In my view, I
may safely discount
as speculative the suggestion that Mr Beamish’s
animus against the RBP respondents will translate into a distorted
program
being broadcast on Carte Blanche.
19
But even were there such a risk, I would rule in favour of the
applicants, it is now settled law that an application
to film court
proceedings must be considered under the inherent power of the court
to regulate its own process, taking into account
the interest of
justice. Primarily, two groups of rights are engaged. On the part of
the applicant, the right to freedom of expression
and the right of
the public to have access to court proceedings; on the part of the
RBP respondents, the right to a fair hearing
and to dignity during
that hearing.
20
When this approach to questions such as these was articulated in
September 2006, the issue could perhaps have
been described as novel
and the approach adopted a departure from the way courts had
previously done business. But the experiment,
if such it was, has
been successful. It cannot be doubted that the starting point must be
that, leaving aside cases in which the
most intimate personal spheres
of the litigants and witnesses are implicated, it is generally in the
public interest that television
broadcasting of court proceedings,
when conducted in a responsible manner, be allowed so that persons
who choose to view the proceedings
through electronic media and, by
extension media participants who wish to use audio-visual depictions
of such proceedings in their
publications, are empowered to do so. Of
course, each case must be decided on its own facts.
21
In this Division, an order of Mlambo JP6 permitting the filming and
live broadcast of a murder trial by the
second applicant and others
did not result in any interference with the administration of justice
and enabled a very large electronic
audience to view the way in which
justice is administered in this country. That was a case in which the
personal lives and passions
of those involved in the case were put
into the public domain and the testimony of witnesses was heard by
the electronic audience
unmediated by the opinions and prejudices of
those who reported on the case. I have no doubt that events proved
that the order
of the Judge President advanced the interests of
justice.
22
The main application is far removed from that situation. No witnesses
will testify. Only counsel and the members
of the court will speak
during the proceedings. The personal lives of the RBP respondents are
not in issue. What is very much in
issue, though, is the probity with
which they conducted their professional lives. The learned judges
before whom the main application
will serve, will see to it, as
judges of this Division do in all cases, that no counsel succumbs to
any temptation to behave improperly
during argument.
23
So, on analysis and as counsel for the respondents submitted, the RBP
respondents’ case is not that they
will suffer harm (except for
the risk that counsel may say something unkind about them) during the
proceedings themselves but that
they fear that the proceedings
themselves might form the raw material for a distorted television
program which might be produced
in the future.
24
This translates to the argument that the interests of the public
directly to be informed on this matter of
considerable public
interest should be subordinated to the risk, as the RBP respondents
see it, of harm to them at some later stage.
I think that the RBP
respondents have misconceived their remedy. The appropriate attack
should be made when there is a real risk
that a distorted and unfair
representation of the court proceedings may be broadcast.
25
Counsel for the respondents submitted that in the light of authority,
the RBP respondents would, regardless
of the strength of their case,
not succeed in interdicting the publication of such a program because
that would amount to pre-censorship.
Counsel argued that this was the
effect of Midi Television (Pty) Ltd t/a E-TV v Director of Public
Prosecutions (Western CapeJ.
Thus, said counsel, the RBP
respondents’ only remedy was to prevent the harvesting of
material which could be used in the
contemplated program, if and when
it was produced. I do not agree with this submission. Midi involved
an application by the respondent
to interdict the broadcast of a
television documentary which dealt with a dreadful crime. The alleged
perpetrators were due to
come before the Cape High Court. The
respondent feared that the broadcast of the documentary might
adversely affect the state’s
prospects of success in the trial.
26
Dealing with the test for publication bans in other jurisdictions,
the court held at para 16:
What is required by all
those tests (implicitly, even if not always expressed) before a ban
on publication will be considered is
a demonstrable relationship
between the publication and the prejudice that it might cause to the
administration of justice; substantial
prejudice if it occurs; and a
real risk that the prejudice will occur. In my view nothing less is
required in this country ...
27
And at paras 19 and 20:
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. In making that evaluation it is
not only the interests of those who are associated with the
publication that need to
be brought to account but, more important,
the interests of every person in having access to information.
Applying the ordinary
principles that come into play when a final
interdict is sought, if a risk of that kind is clearly established,
and it cannot be
prevented from occurring by other means, a ban on
publication that is confined in scope and in content and in duration
to what
is necessary to avoid the risk might be considered.
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. And where a temporary
interdict is sought, as pointed out by this Court in Hix Networking
Technologies the ordinary rules, applied with those principles
in
mind, are also capable of ensuring that the freedom of the press is
not unduly abridged. Where it is alleged, for example, that
a
publication is defamatory, but it has yet to be established that the
defamation is unlawful, an award of damages is usually capable
of
vindicating the right to reputation if it is later found to have been
infringed, and an anticipatory ban on publication will
seldom be
necessary for that purpose. Where there is a risk to rights that are
not capable of subsequent vindication a narrow ban
might be all that
is required if any ban is called for at all. It should not be
assumed, in other words, that once an infringement
of rights is
threatened, a ban should immediately ensue, least of all a ban that
goes beyond the minimum that is required to protect
the threatened
right.
In
my view, the harm suggested by the RBP respondents is merely
speculative. The effect of a ban on filming in the present case
would
not even achieve the status of pre-censorship, a description given to
the relief sought in Midi. In that case the program
had already been
produced. In the present case, there is only the possibility that a
program might be produced in which the raw
material harvested by
filming the proceedings in the main application might be used. Not
only would the RBP respondents potentially
be able, if they met the
legal requirements, to obtain an interdict against publication but
they would have actions for damages
as envisaged in Midi para 20.
28
Ultimately, this case requires that I balance the rights I have
identified. I have no hesitation in concluding
that in this case the
RBP respondents’ rights to dignity must be limited and the
rights of the public to be informed must
be given their full effect.
The result is that the latter rights must in this instance prevail
over the former. Counsel were
agreed that costs should follow the
result.
29
I make the following order:
1 To
the extent necessary, the Rules in relation to time limits and
service are dispensed with and, in accordance
with the provisions of
Rule 6 (12), any such non-compliance with the as there may have been
on the part of the applicants is condoned.
2 Two
authorised representatives of the first applicant are permitted to
film the proceedings (which film includes
audio recordings) in the
main application under case no 61790/12 held on 14, 15 and 16 March
2016 and any such proceedings subsequent
thereto that may be
necessitated by the matter not being finalised on those dates (“the
proceedings”).
3 The
applicants are permitted to broadcast the film of the proceedings,
portions of such film and edited versions
of the film.
4 The
filming and broadcasting shall comply with the following
requirements:
4.1 Two
cameras may be used in the process of the filming of the proceedings;
4.2 The
locations of the cameras shall not change while the court is in
session;
4.3 The
cameras will be in position at least 15 minutes before the start of
proceedings and may be moved or removed
only when the court is not in
session. Cameras, cables and the like will not interfere with the
free movement within the court;
4.4 No movie
lights, flash attachments or artificial lighting devises will be used
during the court proceedings;
4.5 No
visible or audible light or signal shall be used on any equipment;
4.6 Static
microphones shall be placed before each of the Judges hearing the
matter and counsel appearing in the application.
The applicants may
install such audio recording equipment as may be necessary to record
audibly the proceedings, subject to the
applicable terms of this
order;
4.7 The
applicants shall operate an open and impartial distribution scheme,
in terms of which the film will be distributed
in a clean form, with
no visible logos and the like, to any other media organisation
requesting it and it would be archived in
such a manner that it
remains freely available to other media;
4.8
Representatives of the applicants will conduct themselves consistent
with the decorum and dignity of the court;
4.9 The
applicants shall not use on their equipment or clothing of their
representatives any identifying names, marks,
logos or symbols;
4.10
Representatives of the applicants, including their camera crew, will
be appropriately dressed;
4.11 The equipment
used by the applicant will be positioned and operated to minimise any
distraction whilst the court is in
session;
4.12 Whilst the
court is in session:
4.12.1
equipment will not be placed in or removed from
the court room;
4.12.2
any audio - recording system will be unobtrusive, will not interfere
with the proceedings and cassettes
will not be changed while the
court is in session;
4.12.3
no film will be changed.
4.13 There
shall be no:
4.13.1
audio-recordings or close-up photography of bench discussions;
4.13.2
audio-recordings or close-up photography of communication between
legal representatives or between clients and
their legal
representative;
4.13.3
close-up photographs or filming of judges, lawyers or parties in
court;
4.13.4
recordings, regardless of the form, being used for commercial or
political advertising purposes thereafter.
4.14 Extracts
from recorded proceedings may be used.
5 The
court shall at all times retain the discretion to reconsider this
order in whole or in part on good cause
shown.
6 The
judges presiding over the proceedings shall be entitled to call upon
the applicants, if deemed necessary,
to produce the broadcast(s)
and/or raw footage in order for the judges to determine that the
footage and/or authorised recording
and/or broadcast adhere to the
provisions of this order and the restrictions imposed hereby.
5 The
fourth to sixth respondents are to make payment, jointly and
severally, of the costs of the application,
including the costs of
both senior and junior counsel.
TUCHTEN
J
Judge
of the High Court
Date:
11 March 2016