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[2007] ZASCA 56
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Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) (100/06) [2007] ZASCA 56; [2007] 3 All SA 318 (SCA); 2007 (9) BCLR 958 (SCA); 2007 (5) SA 540 (SCA); 2007 (2) SACR 493 (SCA) (18 May 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 100/06
REPORTABLE
In the matter between
MIDI TELEVISION (PTY) LTD
...............................
Appellant
and
DIRECTOR OF PUBLIC PROSECUTIONS
...............................
Respondent
(WESTERN CAPE)
Coram: HOWIE P, NUGENT, CLOETE, LEWIS JJA & SNYDERS AJA
Heard: 19 MARCH 2007
Delivered: 18 MAY 2007
Summary: Restricting press freedom – prohibiting broadcast of
documentary unless DPP permitted first to view it – whether
constitutionally permitted.
Neutral citation: This judgment may be referred to as Midi Television
(Pty) Ltd v Director of Public Prosecutions [2007] SCA 56 (RSA)
_______________________________________________________________
JUDGMENT
_______________________________________________________________
NUGENT JA
NUGENT JA
:
[1] On 15 June 2005 an awful crime was committed in Cape Town. Four
men gained access to the home of Ms Norton, who was away at work
at
the time, snatched her six month old child from the arms of her
domestic worker, and the child was deliberately stabbed to death.
What had occurred immediately captured the attention of the public
and received extensive media coverage, which continued as the
police
investigation progressed and suspects were arrested. (The trial of
the suspects commenced subsequent to the commencement of
these
proceedings and was not completed at the time this appeal was heard.)
[2] The appellant is a television broadcaster that broadcasts under
the name ‘e-tv’ and I will refer to it by that name
for
convenience. Soon after the crime was committed e-tv decided to make
a documentary relating to the events and their impact upon
the
child’s family for broadcast on a weekly current affairs
programme. On 22 June 2005 it recorded interviews with various
people, including Ms Norton’s brother and her domestic worker,
who had witnessed what had occurred. A decision was taken not
to
broadcast the documentary before the police had made arrests. By 9
July 2005 four men and a woman had been arrested and charged
and e-tv
proceeded to schedule its broadcast.
[3] It intended broadcasting the documentary on the night of Tuesday
2 August 2005. On Friday 29 July 2005 the Director of Public
Prosecutions for the Western Cape (DPP) became aware that the
documentary was to be broadcast. His representatives asked e-tv to
allow them to view the documentary so as to satisfy themselves that
the broadcast would not prejudice the forthcoming trial but e-tv
refused. Discussions ensued, certain undertakings were offered to the
DPP, but the impasse continued. On 2 August 2005 the DPP applied
to
the High Court at Cape Town as a matter of urgency for an order
prohibiting the broadcast until he had been furnished with a copy
of
the documentary and had been afforded 24 hours to institute any
further proceedings that he might consider to be necessary. E-tv
agreed to suspend its broadcast pending the outcome of the
application, thereby relieving the urgency, and answering and
replying
affidavits were filed. The matter came before Zondi AJ who
granted the relief that was claimed.
1
This appeal against that order is before us with his leave.
[4] There is a preliminary matter that can be disposed of briefly.
The DPP’s objection to the broadcast of the documentary
has
since been overtaken by events and he has withdrawn it. (As a result
of the objection being withdrawn the documentary had been
broadcast
at the time this appeal was heard.) It was submitted on his behalf
that this appeal will accordingly have no practical
effect and should
be dismissed on those grounds. Section 21A of the Supreme Court Act
affords us a discretion to dismiss an appeal
for that reason
2
but I do not think this is a case in which we should do so. The case
raises important questions of law on which there is little authority
and they are bound to arise again. With the benefit we have had of
full argument I think we should deal with those questions not
only to
resolve what was contentious between the parties but also for future
guidance.
[5] Freedom of expression, which includes freedom of the press and
other media, is protected by s 16 of the Bill of Rights. That
a free
press (by which I mean the media in all its forms) is indispensable
to democracy is axiomatic and has been articulated so
often that
nothing is served by adding to what has been said in that regard. Yet
the constitutional promise of a free press, like
other constitutional
promises, is not absolute. In issue in this appeal is the extent to
which that protected freedom may be abridged
in favour of preserving
the integrity of the administration of justice.
[6] It is important to bear in mind that the constitutional promise
of a free press is not one that is made for the protection of
the
special interests of the press. As pointed out by Anthony Lewis, in a
passage that was cited by Cameron J in
Holomisa v Argus Newspapers
Ltd
:
3
‘Press exceptionalism – the idea that journalism has a
different and superior status in the Constitution – is not
only
an unconvincing but a dangerous doctrine.’ The constitutional
promise is made rather to serve the interest that all citizens
have
in the free flow of information, which is possible only if there is a
free press. To abridge the freedom of the press is to
abridge the
rights of all citizens and not merely the rights of the press itself.
[7] The extent to which the full enjoyment of a constitutionally
protected right might be limited is circumscribed by the Constitution
itself. Any such limitation is constitutionally permitted only if the
limitation has its source in law of general application and
only to
the extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality
and
freedom, taking into account, amongst others, the factors enumerated
in s 36.
4
[8] Law of general application that purports to curtail the full
exercise of a constitutionally protected right might take the form
of
legislation, or a rule of the common law, or even a provision of the
Constitution itself. In each case the extent to which the
intrusion
that it purports to make upon a protected right is constitutionally
valid is to be evaluated against the standard that
is set by the
provisions of s 36 because there are no other grounds upon which it
is permissible to limit protected rights.
[9] 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. They cannot be reconciled
by
purporting to weigh the value of one right against the value of the
other and then preferring the right that is considered to
be more
valued, and jettisoning the other, because all protected rights have
equal value. They are rather to be reconciled by recognising
a
limitation upon the exercise of one right to the extent that it is
necessary to do so in order to accommodate the exercise of the
other
(or in some cases, by recognising an appropriate limitation upon the
exercise of both rights) according to what is required
by the
particular circumstances and within the constraints that are imposed
by s 36. That they are to be reconciled within the constraints
of s
36 is apparent from the following observation of Langa DCJ in
Islamic
Unity Convention v Independent Broadcasting Authority:
5
‘
There is thus
recognition of the potential that [freedom of] expression has to
impair the exercise and enjoyment of other important
rights, such as
the right to dignity, as well as other State interests, such as the
pursuit of national unity and reconciliation.
The right is
accordingly not absolute; it is, like other rights, subject to
limitation under s 36(1) of the Constitution.’
[10] The proper enquiry when evaluating the extent to which protected
rights might be limited by a statute (which must apply equally
when
protected rights are to be reconciled) was summarised by O’Regan
J and Cameron AJ, in a passage from their dissenting
judgment in
S
v Manamela
6
that received the approval of the majority,
7
as follows:
‘
The approach to
limitation is, therefore, to determine the proportionality between
the extent of 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.’
[11] In determining the extent to which the full exercise of one
right or the other or both of them might need to be curtailed in
order to reconcile them what needs to be compared with one another
are the ‘extent of the limitation’ that is placed
upon
the particular right, on the one hand, and the ‘purpose,
importance and effect of the intrusion’, on the other hand.
To
the extent that anything needs to be weighed in making that
evaluation it is not the relative values of the rights themselves
that are weighed (I have said that all protected rights have equal
value) but it is rather the benefit that flows from allowing the
intrusion that is to be weighed against the loss that the intrusion
will entail. It is only if the particular loss is outweighed
by the
particular benefit, to an extent that meets the standard that is set
by s 36, that the law will recognise the validity of
the intrusion.
[12] It is an established rule of the common law that the proper
administration of justice may not be prejudiced or interfered with
and that to do so constitutes the offence of contempt of court. That
is now reinforced by the constitutional right of every person
to have
disputes resolved by a court in a fair hearing
8
and by the constitutional protection that is afforded to a fair
criminal trial.
9
It is not contentious in all open and democratic societies –
and it was not contentious before us – that the purpose
that is
served by those principles of law provides a proper basis for
limiting the protection of press freedom, and the reason for
that is
self-evident. The integrity of the judicial process is an essential
component of the rule of law. If the rule of law is itself
eroded
through compromising the integrity of the judicial process then all
constitutional rights and freedoms – including the
freedom of
the press – are also compromised.
[13] The exercise of press freedom has the potential to cause
prejudice to the administration of justice in various ways –
it
is prejudicial to prejudge issues that are under judicial
consideration, it is prejudicial if trials are conducted through the
media, it is prejudicial to bring improper pressure to bear on
witnesses or judicial officers – and it is not possible to
describe
exhaustively how prejudice might occur. What is more
relevant in all cases where there is the potential for prejudice is
to determine
when the risk of prejudice will be sufficient to
constitute an interference with the administration of justice that
justifies a corresponding
limitation being placed on press freedom.
For the administration of justice does not take place in private,
completely shielded from
public scrutiny and comment, and there is
always the potential for some element of prejudice when the media
report or comment on
judicial proceedings. What must be guarded
against, as pointed out by McLachlin J in a concurring opinion in
Dagenais v Canadian Broadcasting Corporation
10
(I will return to that decision), is the ‘facile assumption
that if there is any risk of prejudice to a fair trial, however
speculative, [a ban on publication] should be ordered.’
[14] I do not think that guidance
11
is to be had in that regard from decisions of the United States
Supreme Court in cases like
Near v Minnesota,
12
and
New York Times Co. v United States
.
13
The extensive protection that is afforded to the press in that
country is dictated by the text and the historical setting of the
First Amendment, which is not consonant with our Constitution. As
pointed out by Kriegler J in
Mamabolo
:
14
‘
[O]ur Constitution
ranks the right to freedom of expression differently [to the First
Amendment]. With us it is not a pre-eminent
freedom ranking above all
others. It is not even an unqualified right. The First Amendment
declaims a unequivocal and sweeping commandment;
section 16(1), the
corresponding provision in our Constitution, is wholly different in
style and significantly different in content.’
[15] Nonetheless, even in jurisdictions that do not recognise the
degree of protection that is afforded by the First Amendment, the
test to be overcome before publication will be susceptible to prior
restraint has always been considerable. In England, before the
introduction of the Contempt of Court Act 1981, Lord Scarman said in
Attorney-General v British Broadcasting Corporation
15
that
‘
[t]he prior restraint
of publication, though occasionally necessary in serious cases, is a
drastic interference with freedom of speech
and should only be
ordered where there is a substantial risk of grave injustice.’
Similarly in
Attorney-General v Times Newspapers Ltd
16
it was said that a ban on publication to protect the administration
of justice would be allowed only if there was ‘a real risk
[of
prejudice], as opposed to a remote possibility’,
17
or a risk of prejudice that was ‘serious or real or
substantial’.
18
In Canada, before the decision of the Supreme Court in
Dagenais
,
19
a publication ban could be ordered only if a ‘real and
substantial risk of interference with the right to a fair trial’
could be demonstrated.
20
The Australian High Court held in
Hinch and Macquire Broadcasting
Holdings Ltd v Attorney General for the State of Victoria
21
that a publication constituted contempt only if there was a
‘substantial risk of serious interference with the trial’.
[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 and to
the
extent that the pre-constitutional decisions of this court in
Van
Niekerk
22
and
Harber
23
might suggest otherwise
24
I do not think they are consistent with what is to be expected in
contemporary democracies. But merely to ask whether there is indeed
a
risk of prejudice that meets those criteria does not end the enquiry.
For as I indicated earlier, the limitation must not only
be directed
towards a permitted end, but must also be no more than is necessary
to achieve its permitted purpose.
[17] In England, where s 4 of the Contempt of Court Act 1981 permits
a ban on publication only where it is ‘necessary’
for
avoiding a substantial risk of prejudice to the administration of
justice, the Court of Appeal in
R v Sherwood, ex parte Telegraph
Group
25
expressed the proper approach to the enquiry as follows:
‘
[Would a publication
ban eliminate the risk?] If not, obviously there could be no
necessity to impose such a ban…. On the other
hand, even if
the judge is satisfied that an order would achieve the objective, he
or she would still have to consider whether the
risk could
satisfactorily be overcome by some less restrictive means. If so, it
could not be said to be ‘necessary’ to
take the more
drastic approach…. Suppose that the judge concludes that there
is indeed no other way of eliminating the perceived
risk of
prejudice; it still does not follow necessarily that an order has to
be made. The judge may still have to ask whether the
degree of risk
contemplated should be regarded as tolerable in the sense of being
“the lesser of two evils”. It is at
this stage that value
judgments may have to be made as to the priority between “competing
public interests”.’
[18] That approach replicates the material elements of the analysis
that was adopted by the Supreme Court of Canada in
Dagenais,
26
which in my view also reflects what is required by s 36 of our
Constitution. In that case the Chief Justice, writing for the
majority,
said the following:
‘
The party seeking to
justify the limitation of a right (in the case of a publication ban,
the party seeking to limit freedom of expression)
bears the burden of
justifying the limitation. The party claiming under the common law
rule that a publication ban is necessary to
avoid a real and serious
risk to the fairness of the trial is seeking to use the power of the
state to achieve this objective. A
party who uses the power of the
state against others must bear the burden of proving that the use of
state power is justified in
a free and democratic society. Therefore,
the party seeking the ban bears the burden of proving that the
proposed ban is necessary,
in that it relates to an important
objective that cannot be achieved by a reasonably available and
effective alternative measure,
that the proposed ban is as limited
(in scope, time, content, etc.) as possible, and there is a
proportionality between the salutary
and deleterious effects of the
ban. At the same time, the fact that the party seeking the ban may be
attempting to safeguard a constitutional
right must be borne in mind
when determining whether the proportionality test has been
satisfied.’
[19] 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.
[20] 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,
27
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.
28
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.
[21] Turning to the present case the papers reflect a curious game of
cat-and-mouse between the DPP and e-tv concerning the contents
of the
documentary: the DPP surmises what the documentary might contain,
e-tv responds that he is wrong, the DPP challenges e-tv
to
demonstrate that he is wrong by producing the documentary, e-tv
responds that it is not obliged to do so, and so it goes round
in
circles. I do not think we can become caught up in that. We cannot
attach any weight to fragments of secondary evidence as to
what the
document might or might not contain. On the evidence that is before
us the documentary is related to the crime and it contains
interviews
with at least two people who allege that they witnessed it, but
beyond that we are in the dark as to its contents and
the appeal must
be considered on that basis. (The documentary has been broadcast
since the order in this case was made but we cannot
take account of
that for purposes of this appeal.)
[22] The DPP did not ask for an outright ban on publication and the
reason for that is obvious: he did not know what the documentary
contained and so he could not say that the administration of justice
would be prejudiced if it was broadcast. All he could say was
that
the documentary might possibly have that effect, depending upon its
contents, and he pointed to how that might occur. He suggested,
for
example, that in their interviews the witnesses might have given
accounts that differed from what they told the police, with
the
result that the discrepancies might be used to discredit their
evidence. It was also suggested that the safety of witnesses might
be
at risk if their identities were revealed to the public. As to the
DPP’s first concern I would have thought that if witnesses
have
indeed given discrepant accounts of what they observed it would be
more conducive to the interests of justice and of a fair
trial that
the discrepant accounts be exposed rather than that they be hidden.
And bearing in mind the wide exposure that had been
given to the
identity of the witnesses by the time the documentary was to be
broadcast the prospect that their safety would be further
endangered
by the broadcast seems to me to be remote. In any event those
possibilities exist as no more than conjecture that falls
altogether
short of justifying an outright ban on publication and that is no
doubt why such a ban was not sought.
[23] But what the DPP sought instead was an order prohibiting e-tv
from broadcasting the documentary until it provided a copy to
the DPP
and allowed him sufficient time to apply for a further order if he
considered it to be necessary. In effect what he sought,
and was
granted, was an order compelling e-tv to disclose the documentary as
a precondition to exercising its ordinary right to broadcast,
which
had the effect of banning publication unless e-tv submitted to the
condition.
[24] The learned judge in the court below was alive to the importance
of protecting press freedom and referred extensively to cases
to that
effect both in this country and abroad. Against that he said that the
right of the state to mount an effective prosecution
must be balanced
and he concluded as follows:
‘
In my view in the
interest of the administration of justice and the public, the right
to freedom of expression should give way to
a right to a fair trial.
It is in the interest of the public that the [state] should
effectively prosecute cases so that its safety
and security is
ensured. It will accordingly not be for the public good that
information upon which the [state] will rely in prosecuting
a case is
used in a manner which undermines its obligation to fight crime’.
To the extent that he meant that the conduct of a fair trial could
not be permitted to be compromised by the exercise of press freedom
the observation that he made is unexceptionable. But without a
reasonable apprehension that the conduct of the trial would indeed
be
compromised by the broadcast of the documentary, that in itself
provided no grounds for prohibiting the broadcast. If the documentary
is broadcast and it is indeed unlawful then e-tv will be liable to
prosecution but it cannot be prohibited without grounds for
apprehending
that it will be unlawful. The judge went on to express
his reasons for granting the relief as follows:
‘
In this matter the
[DPP] does not seek to arbitrarily interfere with [e-tv’s]
editorial independence. All that it seeks is to
have access to the
broadcast material in order to satisfy itself that its right to a
fair trial is protected. The limitation to [e-tv’s]
right to
freedom of expression claim is in the circumstances reasonable. It is
reasonable in relation to the interest that is sought
to be protected
and does not go beyond that interest. The restriction is not only
rationally connected to a legitimate objective
that is sought to be
protected and does not go beyond that interest’.
[25] The basis upon which the order was made, as appears from the
passage that I referred to above, was to allow the DPP to satisfy
himself that the administration of justice would
not
be
prejudiced if the broadcast took place, and in that respect the
learned judge erred. What was before the learned judge was an
application
for a final interdict (albeit that the duration of the
interdict was limited to the period that e-tv resisted submitting to
the condition)
and it fell to be determined in accordance with
ordinary principles.
29
The question to considered was whether any law obliged e-tv to
furnish a copy of the documentary to the DPP before it was broadcast,
and not whether it was reasonable to require e-tv to do so. I have
already pointed out that the law prohibits e-tv from broadcasting
material that prejudices the administration of justice. But there is
no general principle of our law, whether in the common law,
or in a
statute, or to be extracted from the Constitution, that obliged e-tv
to furnish its material to the DPP before it was broadcast,
30
and least of all a law that prohibited it from broadcasting the
material unless it could first demonstrate that the publication would
not be unlawful. The law generally allows freedom to publish and
freedom is not subject to permission. In the absence of a valid
law
that restricts that freedom a court is not entitled to impose a
restriction of its own.
[26] Counsel for the DPP submitted that the
Promotion of Access to
Information Act 2000
entitles the DPP to have access to the
documentary, and that the effect of the order was merely to grant him
such access. Perhaps
the Act does entitle him to have access to the
documentary, but access to information in terms of that Act is
subject to compliance
with a comprehensive process that contains its
own checks and balances. There was no compliance in this case and the
Act does not
authorise a court to simply bypass those procedures. But
even if the DPP were to be entitled to a copy of the documentary in
terms
of the Act it would not follow that he is entitled to a
prohibition on publication until it is furnished. It was also
submitted on
his behalf that his request for disclosure of the
documentary was eminently reasonable and again, perhaps it was, but
that misses
the point. The question is not whether it might have been
reasonable for e-tv to have submitted to the request but rather
whether
it was obliged to do so in law. It was not. In the absence of
a law obliging e-tv to furnish the documentary to the DPP before it
was broadcast the first requirement for the grant of a final
interdict – a clear right – was not met and the interdict
ought to have been refused.
[27] Counsel for the DPP asked what the DPP could be expected to have
done to ensure that an imminent publication did not compromise
an
impending trial. I fear that he must do what any person must do in
similar circumstances: he must expect that freedom will not
be abused
until he has adequate grounds for believing the contrary. But he may
not require the press to demonstrate that it will
act lawfully as a
precondition to the exercise of the freedom to publish in the absence
of a valid law that accords him that right.
[28] The appeal is upheld with costs that include the costs of two
counsel. The order of the court below is set aside and the following
order is substituted:
‘The application is refused with costs that include the costs
of two counsel.’
___________________
R W NUGENT
JUDGE OF APPEAL
CONCUR
:
HOWIE P)
CLOETE JA)
LEWIS JA)
SNYDERS AJA)
1
Reported
as
Director of Public Prosecutions (Western Cape) v Midi
Television (Pty) Ltd t/a E TV
2006 (3) SA 92
(C).
2
Cf
Coin Security Group (Pty) Ltd v SA National Union for Security
Officers
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) para 8 and
Land en
Landbouontwikkelingsbank van Suid Afrika v Conradie
2005 (4) SA
506
(SCA).
3
1996
(2) SA 588
(W) at 610E.
4
36(1)
The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is
reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom, taking into account
all
relevant factors, including –
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose and
(e) less restrictive means to achieve the purpose.’
5
[2002] ZACC 3
;
2002
(4) SA 294
(CC) para 30. See, too, Moseneke DCJ in
South African
Broadcasting Corporation Ltd v National Director of Public
Prosecutions
2007 (1) SA 512
(CC) para 96 to similar effect, but
cf Langa CJ et al para 42.
6
S
v Manamela (Director-General of Justice Intervening)
2000 (3) SA
1
(CC) para 66.
7
See
the majority in paras 33 and 34.
8
Section
34.
9
Section
35(3).
10
(1995)
25 CRR. (2d) 1 at 47.
11
Cf
Mandela v Falati
1995 (1) SA 251
(W);
Government of the
Republic of South Africa v ‘Sunday Times’ Newspaper
1995 (2) SA 221
(T).
12
[1931] USSC 154
;
283
US 697.
13
[1971] USSC 145
;
403
US 713.
14
S
v Mamabolo (E-tv, Business Day and the Freedom of Expression
Institute intervening)
[2001] ZACC 17
;
2001 (3) SA 409
(CC) para 41.
15
(1981)
AC 303
(CA) at 362.
16
1974
AC 273
(HL).
17
Lord
Reid at 299A.
18
Lord
Morris of Borth-y-Gest at 303B-C.
19
Cited
above.
20
Dagenais
,
above, at 27-28.
21
(1987)
164 CLR 15.
22
S
v
Van Niekerk
1972 (3) SA 711
(A) at 724H.
23
S
v Harber
1988 (3) SA 396
(A) at 422H-I.
24
In
both cases it was held that a publication is capable of sustaining a
charge of contempt if it ‘tends’ to prejudice
the
administration of justice.
25
(2001)
1 WLR 1983
at 1991G-1992A.
26
Cited
above, at p 39.
27
Hix
Networking Technologies v System Publishers (Pty) Ltd
[1996] ZASCA 107
;
1997 (1)
SA 391
(A) at 401D-G.
28
Cf
Cream Holdings Ltd v Banerjee
[2004] UKHL 44
;
[2004] 4 All ER 617
(HL),
interpreting s 12(3) of the Human Rights Act 1998, which allows for
a interim restraint on publication only if the court
is satisfied
that at trial the applicant is ‘likely to establish that
publication should not be allowed’.
29
Setlogelo
v Setlogelo
1914 AD 222
at 227.
30
Cf
the
Films and Publications Act 1996
, which is not applicable in the
present case.