South African Broadcasting Corporation Ltd. v Downer NO and Shaik (435/06) [2006] ZASCA 90; [2006] SCA 89 (RSA) ; [2007] 1 All SA 384 (SCA) (24 August 2006)

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South African Broadcasting Corporation Ltd. v Downer NO and Shaik (435/06) [2006] ZASCA 90; [2006] SCA 89 (RSA) ; [2007] 1 All SA 384 (SCA) (24 August 2006)

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IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO 435/06
In the matter between
SOUTH AFRICAN BROADCASTING CORPORATION LIMITED
Applicant
and
WJ DOWNER SC N.O.
First Respondent
SCHABIR
SHAIK
Second Respondent
NKOBI
HOLDINGS (PTY) LIMITED
Third Respondent
NKOBI
INVESTMENTS (PTY) LIMITED
Fourth Respondent
KOBIFIN
(PTY) LIMITED
Fifth Respondent
KOBITECH
(PTY) LIMITED
Sixth Respondent
PROCONSULT
(PTY) LIMITED
Seventh Respondent
PRO CON
AFRICA (PTY) LIMITED
Eight Respondent
KOBITECH
TRANSPORT SYSTEMS (PTY) LIMITED
Ninth Respondent
CLEGTON
(PTY) LIMITED
Tenth Respondent
FLORYN
INVESTMENTS (PTY) LIMITED
Eleventh Respondent
CHARTLEY
INVESTMENTS (PTY) LIMITED
Twelfth Respondent
________________________________________________________________________
CORAM: HOWIE P, HARMS, STREICHER, NAVSA et HEHER JJA
________________________________________________________________________
Date Heard: 14 August 2006
Delivered: 24
August 2006
Summary: Live television and radio coverage of appeals in SCA
sought – competing constitutional rights of broadcaster and
litigant,
especially latter’s fair trial right – Court’s
discretionary power in s 173 of Constitution to regulate its own
‘process’
in the interests of justice – held in the
circumstances that such interests warranted disallowing the requested
broadcasts.
Neutral
citation: This judgment may be referred to as
SABC v Downer NO and
Shaik
[2006] SCA 89 (RSA)
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
HOWIE P
HOWIE P
[1] The applicant is, in terms of the
Broadcasting Act 4
of 1999
, the national public broadcaster. It applies for an order
granting it leave to televise and sound record the proceedings in two
related
pending appeals in this court. Its purpose is to employ such
recordings in live broadcasts and delayed, highlights-package news
broadcasts
on both television and radio. The appeals were due to be
heard consecutively in the week 21 to 25 August 2006 but have had,
unavoidably,
to be postponed for hearing in the week 25 to 29
September. The respective parties to the appeals have been cited as
respondents.
They oppose the application.
[2] The question of televising the appeal proceedings
was first broached by the applicant on 3 August. In line with
measures sanctioned
in previous appeals it was directed, through the
registrar, that the applicant was at liberty to make visual
recordings without sound.
The applicant was not satisfied with that
and launched the application on 8 August. This is the first time we
have been asked to
permit sound recording whether for television or
radio broadcasting.
[3] The appeals have their origin in a protracted
criminal trial in the Durban High Court. The first respondent was
leading counsel
for the prosecution. Why he, rather than the Director
of Public Prosecutions, has been cited as official representative of
the State
is unclear but nothing turns on that. The remaining
respondents were the accused. It was alleged that the second
respondent and the
third to twelfth respondents (companies which he
controlled or in which he had a major interest) committed a number of
different
offences the details of which are presently unimportant.
What are material now are the main prosecution allegations. One was
that
the second respondent, over a period of more than five years,
made a substantial number of corrupt payments to the erstwhile Deputy
President of the Republic, Mr Jacob Zuma (Zuma), to influence him to
use his various official capacities, both before and after his
becoming Deputy President, to benefit the second respondent’s
business activities. The other was that the second respondent, Zuma
and a French armaments company corruptly arranged to pay Zuma a bribe
in return for which the latter would protect the French entity
from
exposure by official investigations in South Africa into alleged
irregularities in the country’s arms procurement dealings
during
the second half of the 1990’s. (The French company was one of the
approved suppliers with which arms contracts were concluded.)
The
trial court found the prosecution case duly proved. The second
respondent was convicted on all the main counts he faced and was
sentenced to an effective 15 years’ imprisonment. Those of his
companies that were also convicted were sentenced to pay fines.
[4] Subsequent to the criminal trial the National
Director of Public Prosecutions applied under the
Prevention of
Organised Crime Act 121 of 1998
for a civil order against second
respondent and those of his companies found to have benefited from
certain of the corrupt acts,
that they forfeit such benefits. The
application succeeded and a forfeiture order was made.
[5] Leave to appeal was sought in both matters. The
learned trial judge, who also heard the forfeiture case, granted
leave to appeal
in that matter but only limited leave in the criminal
case. An application to this court for unrestricted leave in the
criminal case
was partly successful. Where it was not successful (I
except those respects in which it failed outright) the application
was referred
to this court for argument as part of the appeal
proceedings. For present purposes it suffices to refer, as I have
done, to both
matters as appeals in the full sense.
[6] The applicant alleges, apparently with good reason,
that there is intense public interest in the appeals. Accordingly it
claims,
by way of the order prayed, to fulfil its statutory duty to
inform the public, and to exercise its constitutional right to
freedom
of expression and to impart information.
[7] In elaboration of its request the applicant
maintains that televising the proceedings will also have public
educational benefits
and that the recording process will in any event
not audibly or visually disrupt the conduct of the hearing.
[8] The respondents contend, on the other hand, that
live television coverage in particular, quite apart from radio
coverage, will
cause the proceedings to be conducted before possibly
millions of viewers. The persistent consciousness of this fact, they
say, will
present a continual distraction to counsel on both sides,
and the judges, from the minutely careful attention to the
presentation
and progress of the argument which the conduct of fair
appellate proceedings essentially requires. Part and parcel of an
appeal hearing
are the exchanges between judges and counsel whereby
submissions are clarified and tested. The awareness of a mass
audience, they
argue, carries the risk of disruption of that
essential line of forensic communication with attendant prejudice to
the parties and
the attainment of a fair hearing.
[9] The first respondent goes on to advance a further
reason for his opposition. Two of the charges are the subject of a
pending prosecution
of Zuma. Many of the witnesses who testified in
the criminal trial in the present case will be liable to be called to
testify in
the pending matter. It is contended that the exposure
which the applicant proposes, or its after-effects, may inhibit them
from testifying,
or while testifying, in the Zuma trial.
[10] Similarly, the second respondent also offers an
additional ground for his opposition. It is that television coverage
of the appeals
would subject him to an invasion of privacy such as he
was obliged to endure when delivery of the judgment in his trial was
televised.
One of the cameras, which was continually focused on him
on that occasion, delivered constant close-up footage of his
reactions to
the trial court’s findings.
[11] No replying affidavit was filed. The respondents’
factual allegations are therefore unchallenged.
[12] In the founding papers the applicant summarised its
case by asserting that it had the right to broadcast the appeal
proceedings
by way of television and radio with both visuals and
sound. In the alternative it said that this court had a discretion to
permit
such broadcasts. In argument, however, counsel for the
applicant, having considered the implications of the respondents’
respective
rights to a fair hearing and to privacy, took up the
position that the applicant was entitled of right to have its
equipment in court
but that its operation was subject to the court’s
discretionary control and direction.
[13] Accepting for present purposes that the applicant’s
cameras and recording equipment are capable of operation without
visual
or audible disturbance of the court’s proceedings, the
question in this matter nevertheless involves conflicting
constitutional
rights. The applicant’s right to freedom of
expression and to impart information
1
,
and the public’s right to receive such information, collide four
square with the respondents’ respective rights. All the respondents
have the right in s 34 of the Constitution to have the disputes
raised by the allegations in the indictment decided in a fair public
court hearing.
2
In addition, the second to twelfth respondents have the right under
s 35(3) to a fair trial.
3
The fair trial right includes the right to an appeal. For obvious
reasons the appeal must be as subject to considerations of fairness
as the trial which gives rise to it.
[14] Counsel
for the applicant set great store by the statement in a previous case
that ‘to prevent a radio broadcaster from utilising
its
broadcasting and recording equipment constitutes an infringement of
its rights contemplated by s 16(1)(a) of the Constitution’.
4
Assuming that statement to be correct and that it applies to the
equivalent constitutional right of a television broadcaster it
nevertheless
begs the question. The very issue here is whether that
right should prevail at the expense of the respondents’ competing
constitutional
rights. To obtain the answer requires us to undertake
a balancing exercise in which the rival rights are weighed up against
each
other after having regard, in the process, to the particular
facts of the case.
[15] Implementation of the required balancing exercise
is facilitated by the existence of s 173 of the Constitution which
declares
this court’s inherent power to regulate its ‘own
process’.
5
Ordinarily ‘process’ can mean the documentation by means of
which legal proceedings are initiated or it can mean the proceedings
themselves. In s 173 it at least has the latter meaning. The
interests of justice will naturally encompass the requirements of ss
34 and 35(3) but in addition the court is empowered to decide how
best the parties’ competing rights can be accommodated. It is
to be
noted that there is much that is interesting and informative to be
gained in surveying the legislation and case law in other
jurisdictions. Such a comparative survey is summarised in a recently
reported judgment in this country.
6
In the end, however, what will be
decisive
in a case like the present will be the exercise of the courts’
discretion.
[16] One
may begin the discussion with reference to the second respondent’s
right to privacy. Although nothing in the founding affidavit
indicated either way whether such right might be infringed or not by
the applicant’s requested recording activities, counsel for
the
applicant annexed a draft order to their heads of argument in terms
of which the applicant would be ‘directed not to record
and
broadcast the second respondent or members of his family for the
duration of the appeals, either inside or outside the court
during
the proceedings’. In argument an undertaking to similar effect was
repeated. Counsel for second respondent therefore accepted
that the
exercise of his client’s privacy right was no longer an issue.
[17] Turning, then, to a weighing of the applicant’s
right to free expression and the respondents’ respective fair
hearing rights,
it was submitted for the second and further
respondents that the requested recording should only be permitted
were we ‘entirely
satisfied that justice would not be inhibited’.
These words come from an address by the Deputy Lord Chief Justice of
England and
Wales at a seminar in the United Kingdom on the subject
of televising court proceedings.
7
[18] The words ‘entirely satisfied’ could lend
themselves to some debate as to whether it is for the broadcaster to
make out the
case that entirely satisfies the court. However, given
the nature of the necessary balancing exercise and the role of the
court under
s 173 of the Constitution it would be wrong to place an
onus on the broadcaster. The court must have a free hand in
evaluating the
pros and cons of live or delayed broadcasting based on
the evidence without either side being encumbered by the burden of
proof.
Nevertheless there may be times where the decision could go
either way and a basic criterion will be sought. Should it be to
allow
broadcasting unless satisfied that justice would be inhibited
or, as in the suggested test quoted above, should it be the other
way?
[19] The nature of the problem makes it clear, at least,
that there can be no general rule where it comes to a contest between
the
broadcaster’s right and the appellate litigant’s right. It
will have to be a case by case assessment.
[20] Apart from the consideration that it is difficult
to conceptualise adequate reasons to truncate the free trial right,
and the
applicant did not advance any, it is a fact that the
broadcaster can roam widely in its search for news. Its hunting
ground is not
limited to the courtroom. For the criminal trial
accused, however, what happens in the courtroom on trial and on
appeal is the be
all and end all as far as maintaining reputation and
liberty is concerned. Were anyone to have to give way in this clash
of rights
it should not be the accused litigant. For that reason I
think one is justified in adopting the approach that live or recorded
sound
broadcasting should not be allowed unless the court is
satisfied that justice will not be inhibited rather than to adopt the
converse
test. I am hesitant to use the term ‘entirely satisfied’
because if, as I think, no onus lies, it is best to shed the language
of onus, in which, depending on the weight of the onus, one could
understandably refer to degrees of satisfaction. Without any onus
a
court would surely be satisfied or not and, if satisfied, it would
not assist to express any degree of satisfaction.
[21] Coming now to consider what might inhibit justice
in this case should the application be granted, the inescapable fact
is that
television has an impact on the viewer unrivalled by any
other news medium. It conveys actuality with greater accuracy and
force
and visual images tend to impress more readily than a radio
transmission or a newspaper article.
[22] From the point of view of the person filmed the
prospect of being ‘on camera’ carries, for the inexperienced, a
stress all
its own. That stress can only be magnified by the
realisation that one’s image is being conveyed for hours a day, and
for several
days, to a countrywide audience. I do not mean to shield
the unduly retiring in our midst from television exposure should all
other
considerations justify the grant of leave for live television
coverage. As counsel for the applicant rightly emphasised, television
recording cannot be evaded simply by counsel protesting their
diffidence.
[23] What are crucial in this matter are, predictably,
its own peculiar circumstances. The trial ran from October 2004 to
June 2005.
The testimony of very many witnesses was heard. There was
lay evidence and expert evidence. There was a mass of facts and a
myriad
of factual issues laced with a variety of legal points. The
record runs to 12 600 pages. Thus far the experienced practitioner
might
well ask how all that distinguishes the case from any other
long and demanding trial. The answer lies in those very circumstances
which have aroused the public interest on which the applicant relies.
The second respondent was a loyal supporter of the ruling political
party and a substantial contributor to its funds; he was a close
friend and admirer of Zuma who had by the time of some of the events
in issue become the country’s Deputy President; there is a backdrop
of foreign commercial interests jostling for political patronage
in
the early years of the new democracy; there is the involvement of the
so-called arms deal and allegations of irregularities that
beset it;
and there are profound implications for the pending case against
Zuma. These considerations heighten the expected tensions
of what is
in any event a major case. The long and demanding trial with this
unusual overlay has given rise to a long and demanding
appeal with
the same overlay and in which the second respondent’s liberty and
substantial personal estate are set to stand or fall.
In the result
there is a great deal at stake on both sides in a matter which will
undoubtedly be fought out in the unrelenting glare
of press
publicity, whether with or without the television visuals which the
applicant has already been given leave to record.
[24] The combination of circumstances thus sketched will
place a double burden on counsel and the court. Their respective
primary
tasks will be to cope with the presentation and evaluation of
argument and counter argument canvassing manifold references to a
massive
record. Their additional burden will be to handle that task
subjected to the distraction of the extensive publicity that will
ensue.
[25] Although live television coverage may always, as
far as most participants in court proceedings are concerned, be
inhibiting,
the nature and extent of the case in a given instance
might be such that the court is nevertheless satisfied that justice
would
not be impaired. That is not the position here. In my view to
permit live television coverage in this case will add an inhibiting
dimension which will, whether by way of being the last straw or in
combination with all the other circumstances, create the material
risk that justice will be impaired and the respondents’ ss 34 and
35(3) rights to fair hearings infringed. I would add that the
applicant does not need the relief it requests in order to inform the
public of the nature of the issues, the essentials of the argument
or
the outcome. It can also, in terms of the directive referred to,
provide visuals of all the participants in the proceedings.
[26] Considering next the problem of the pending Zuma
trial, it is not apparent why the prosecuting authorities did not
charge both
accused in one case. Their present predicament could well
be of their own making. The fact is nevertheless that they did not
do
so and that difficulties exist which justify the first
respondent’s opposition to this application.
[27] I say that for two main reasons. The first is that
the prosecution will need to rely on many of the witnesses it called
in the
present instance. That is because two of the three charges
preferred against the second respondent will also be preferred
against
Zuma. The evidence of those witnesses whose testimony is in
dispute in the pending criminal appeal will be subject to searching
examination
and very likely trenchant criticism. This process of
courtroom debate, sometimes acerbic, is unavoidable and it is
counsel’s duty
to conduct it with the greatest freedom that
forensic procedure and propriety will permit. The debate will of
course be exposed to
press coverage as it is but live television and
radio coverage will enlarge such exposure to an immense degree which
could well disadvantage
the pending prosecution. The appellate
court’s findings on credibility could of course be adverse to such
witnesses and reported
in the press but expression of those findings
in suitable terms would also be an unavoidable consequence of the
present matter. What
must be minimised as far as possible, in the
interests of justice, is exposure of such witnesses that might cause
them to refuse
to testify in the Zuma trial. And the risk of that
happening would not necessarily be undone even if the appellate
court’s credibility
findings were favourable to them. Similar
considerations correspondingly apply in respect of witnesses called
in the second respondent’s
defence.
[28] The second reason is that although Zuma’s alleged
guilt is not in issue in the pending criminal appeal discussion and
consideration
of the case against the second respondent will
necessarily involve exhaustive reference to Zuma and may even appear
to the outside
observer or listener to portray him as a co-accused
and even as criminally liable. Obviously it will not be anyone’s
intention
in the pending criminal appeal to consider or pronounce
upon Zuma’s alleged guilt but again it is in the interests of
justice pertinent
to the pending trial to minimise, if not eradicate,
the risk that popular perception will regard the crucial question in
the Zuma
case as having already been made. In regard to this second
reason live or delayed coverage by radio would serve to create that
risk
just as much as live or delayed television coverage.
[29] The considerations explained above are sufficient
for the decision of the application without specifically discussing
delayed
sound coverage, whether by television or radio. It needs to
be emphasised, however, that delayed ‘highlights’ packages, which
will most times contain ‘sound bites’, present a considerable
risk of misrepresentation (even if unintended) and consequent
misunderstanding.
This is not the occasion on which to try to resolve
that problem but resolution will unquestionably be necessary at some
future stage.
[30] I accordingly conclude that the application cannot
succeed. I would add that I have not lost sight of the applicant’s
contention
that live coverage can serve to educate the public as to
how appeals are conducted. I happen to believe that public education
in
the workings of the courts is long overdue and that television is
the most effective means of instruction. What I am clear about,
however, is that this is not the instance by means of which to reach
that goal. I am equally clear that educational enhancement was
not
the motive for the application. The motive was in my view the
perfectly understandable one of securing the commercial advantage
of
enhanced viewer- and listenership.
[31] As to costs in the event of dismissal of the
application, the applicant and the first respondent left the matter,
as their respective
counsel put it, in the hands of the court. For
the second and further respondents it was urged that they were
private litigants who
should not have to bear their own costs. I
think this last submission is right. As the application was made for
a commercial purpose
there is no reason why the applicant should not
be liable for the second to twelfth respondents’ costs. Because the
first respondent
did not ask for costs whether in his opposing
affidavit or his heads of argument or through his counsel, no costs
order in his favour
will issue.
[32] The application is dismissed. The applicant is
ordered to pay the costs of the second to twelfth respondents,
including the costs
of two counsel.
_____________________
CT
HOWIE
PRESIDENT
SUPREME
COURT OF APPEAL
CONCUR:
HARMS
JA
STREICHER
JA
NAVSA
JA
HEHER
JA
1
Sec
16(1) of the Constitution provides
‘
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; ...
2
Sec
34 reads:
Everyone has the
right to have any dispute that can be resolved by the application of
law decided in a fair
public
hearing before a court or, where appropriate, another independent
and impartial tribunal or forum.
3
Sec
35(3) provides:
Every accused
person has a right to a fair trial, which includes the right –
(a)
to be informed of the charge with sufficient detail to answer it;
(b)
to have adequate time and facilities to prepare a defence;
(c)
to a public trial before an ordinary court;
(d)
to have their trial begin and conclude without unreasonable delay;
(e)
to be present when being tried;
(f)
to choose, and be represented by, a legal practitioner, and to be
informed of this right promptly;
(g)
to have a legal practitioner assigned to the accused person by the
state and at state expense, if
substantial
injustice would otherwise result, and to be informed of this right
promptly;
(h)
to be presumed innocent, to remain silent, and not to testify
during the proceedings;
(i)
to adduce and challenge evidence;
(j)
not to be compelled to give self-incriminating evidence;
(k)
to be tried in a language that the accused person understands or,
if that is not practicable, to have the
proceedings
interpreted in that language;
(l)
not to be convicted of an act or omission that was not an offence
under either national or international
law
at the time it was committed or omitted;
(m)
not to be tried for an offence in respect of an act or omission for
which that person has previously
been
either acquitted or convicted;
(n)
to the benefit of the least severe of the prescribed punishments if
the prescribed punishment for the
offence
has been changed between the time that the offence was committed at
the time of sentencing;
(o)
to appeal to, or review by, a higher court.
4
Dotcom
Trading 121 t/a Live Africa Network News v King NO
2000 (4) 973 (C), 987F.
5
Sec
173 says:
The Constitutional
Court, Supreme Court of Appeal and High Courts have the inherent
power to protect and
regulate
their own process, and to develop the common law, taking into
account the interests of justice.
6
SA
Broadcasting Corporation Ltd v Thatcher and others
[2005] 4 All SA 353
(C), 369e-388b; and see
Courtroom Television
Network LLC v The State of New York
, decided 16 June 2005 in the
New York Court of Appeals in which the judgment was available at the
time of this hearing but not
the official report citation.
7
Broadcasting
Court Seminar organised by the Department of Constitutional Affairs
and held on 10 January
2005 in London.