IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: AR79/2025
In the matter between:
e-Sat TV (PTY) LTD FIRST APPELLANT
e-TV SECOND APPELLANT
and
THE STATE RESPONDENT
ORDER
On appeal from: Durban High Court (Balton J, sitting as court of first instance):
Having read the papers and after hearing counsel, the following order is made:
1. Condonation for the late filing of the appellants’ appeal record is granted.
2. The appeal is upheld with costs, including the costs of two counsel on scale
C, and including the costs of the applications for leave to appeal before the
court a quo and in the Supreme Court of Appeal.
3. The order of the court a quo dated 3 May 2024 is set aside and replaced with
the following:
3.1. The order of 28 July 2023 is rescinded.
2
3.2. The respondent is directed to pay the applicants’ costs of the
application, including the costs of two counsel on scale C.
4. The matter is referred back to the trial court with the direction that any future
application to vary the November 2022 order must be brought on affidavit, on
a witness -by-witness basis, supported by sworn objections, served on the
media and the accused, and after hearing all affected parties, with
consideration of less restrictive means before any restriction on broadcasting.
JUDGMENT
Date Delivered: 3 October 2025
Masipa J (Sibiya J et Moodley AJ concurring)
Introduction
[1] This is an appeal against the judgment and order of Balton J, delivered on 3
May 2024, dismissing the appellants’ urgent application to rescind, vary , or set aside
the ruling made on 28 July 2023 (‘the July Ruling’).
[2] The July Ruling imposed restrictions on the recording and broadcast of a
portion of the ongoing trial of Ms Zandile Gumede and 21 co -accused (‘the Gumede
trial’), who face charges of corruption, fraud, racketeering and related offences
arising from tender awards in the eThekwini Municipality. Specifically, the July Ruling
prohibited live television broadcast of an entire ‘thread’ of State witnesses, barred
publication of their identities and testimony, prohibited the use of cell phones and
recording devices by journalists, and permitted audio recordings only for archival
purposes, with delayed release after the conclusion of that thread.
[3] The appellants, who are licensed broadcasters and were parties to the earlier
November 2022 consent order (‘the November Order’) permitting coverage, contend
that the July Ruling unjustifiably infringed their constitutional rights, was granted
without hearing them, and was based on inadmissible hearsay evidence. They
further challenge the court a quo’s findings on urgency, standing, and costs.
3
Background
[4] In July 2022 , the presiding trial judge directed that no cameras would be
permitted in the Gumede trial. That ruling was challenged by S outh African National
Editors Forum and the appellants, resulting in the November 2022 consent order,
which allowed one television camera, audio recording, and pooling arrangements , all
subjected to guidelines to maintain the decorum of the court.
[5] The trial commenced in March 2023. On 22 July 2023, a State witness’s
home was subjected to a shooting incident . Then, on 24 and 26 July, the prosecutor
informed the court that witnesses scheduled to testify in a forthcoming thread of
evidence were fearful of testifying.
[6] On 28 July 2023, after discussions between the State and defence counsel ,
but without hearing the appellants, the presiding judge issued the July Ruling. Its
effect was to prohibit live broadcasting and impose strict restrictions on coverage for
the duration of that thread of evidence.
[7] On 17 August 2023 , the appellants launched an urgent application to rescind
or vary the July Ruling. They contended that their exclusion violated the audi alteram
partem rule, that the ruling infringed the constitutional principles of open justice and
freedom of expression, that the reliance on hearsay evidence was impermissible,
and that the ruling was disproportionate when measured against less restrictive
alternatives.
[8] The application was opposed by the State. On 3 May 2024 , Balton J
dismissed the application with costs. It is that judgment which forms the subject of
this appeal.
Standing
4
[9] Before turning to the grounds of appeal, it is necessary to first determine the
nature of the appellants legal standing in representing public interest . The court a
quo took the view that the appellants pursued commercial interests whereas the
State represented the public interest.
[10] The appellants , however, argued that they have standing both in their own
right, as parties to the November Order, and under s 38 of the Constitution , being in
the public interest. They emphasised s 16(1) (a) and (b) of the Constitution : which
protect the freedom of the press and ‘freedom to receive or impart information’. They
submitted that it is in the public interest that high -profile trials be broadcast live, so
that citizens know and are aware of events as they occur. In support, they relied on
South African Broadcasting Corp Ltd v National Director of Public Prosecutions and
Others,1 and South African National Editors Forum v Abbu.2
[11] This Court is mindful that the issue of standing in constitutional matters must
be approached generously. Section 38 of the Constitution expressly provides that
‘anyone acting in the public interest ’ may approach a court to vindicate rights
enshrined in the Bill of Rights. Our courts have consistently endorsed this broad
approach. In Freedom Under Law v Acting Chairperson: Judicial Service
Commission and Others ,3 the Supreme Court of Appeal stressed that the
Constitution envisages ‘public interest litigants’ whose role is to ensure accountability
and legality. The Court held that limiting standing too narrowly would undermine
constitutional democracy.
[12] In National Director of Public Prosecution and Others v Freedom Under Law,4
the Supreme Court of Appeal reaffirmed that standing should not be denied merely
because the State is also a guardian of the public interest. The Court deals directly
with locus standi and states the following: ‘Included amongst these formal objections was a
with locus standi and states the following: ‘Included amongst these formal objections was a
challenge to FUL’s legal standing. However, this challenge was not pursued in argument. Suffice it
1 South African Broadcasting Corp L td v National Director of Public Prosecutions and Others [2006]
ZACC 15; 2007 (1) SACR 408 (CC) (SABC).
2 South African National Editors Forum v Abbu and Others (Leave to Appeal) [2023] ZAKZPHC 163
(SANEF).
3 Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others [2011] ZASCA
59; 2011 (3) SA 549 (SCA); [2011] 3 All SA 513 (SCA).
4 National Director of Public Prosecutions and Others v Freedom Under Law [2014] ZASCA 58; 2014
(4) SA 298 (SCA); 2014 (2) SACR 107 (SCA) (Freedom Under Law) para 18.
5
therefore to say that in my view the objection to FUL’s standing was unsustainable from the start.
FUL’s mission to promote accountability and democracy and to advance respect for the rule of law
and the principle of legality in this country has been recognised by this court (see eg Freedom Under
Law v Acting Chairperson: Judicial Service Commission and Others 2011 (3) SA 549 (SCA) paras
19–21). In addition, I agree with the finding by the court a quo that the matter is one of public interest
and national importance.’
The effect of these decisions is that standing cannot be denied merely because the
State is ordinarily the guardian of the public interest. Where the State fails to act, or
where its conduct is itself impugned, it is both necessary and appropriate for a civil
society body or media actor to “step into the breach” to vindicate constitutional rights.
[13] In SABC,5 Langa CJ emphasised at para graph 29 that television coverage
brings openness to millions who cannot physically attend court. This demonstrates
that broadcasters serve as conduits of constitutional rights rather than private actors
solely in their own interests . In SANEF,6 the High Court recognised the media’s
standing to litigate in defence of open justice, even where their commercial interests
coincided with the public interest. The Court explained that the coincidence of
interest does not dilute or undermine the public character of the litigation.
[14] Applying these principles, I conclude that the appellants clearly have standing.
First, they were directly affected as parties to the November Order, which was varied
without their participation. That alone suffices to establish standing. Second, their
litigation is quintessentially in the public interest: to secure transparency in the trial of
high-profile public officials. In SANEF,7 the High Court confirmed that the media may
approach the courts to defend openness and access. That case illustrates that the
approach the courts to defend openness and access. That case illustrates that the
coincidence of commercial and public interests does not negate standing. To hold
otherwise would be to construe standing in a manner inconsistent with s 38 and to
ignore the essential role of the media in a constitutional democracy. The objection to
standing must therefore fail.
[15] The State argued that it only represents the public interest and that the
appellants’ motivation was a commercial gain.
5 SABC above fn 1.
6 SANEF above fn 2.
7 Ibid.
6
[16] Section 38 (d) of the Constitution confers standing to ‘anyone acting in the
public interest’. In Freedom Under Law,8 the Supreme Court of Appeal stressed that
s 38 must be generously applied. SABC9 recognised that broadcasters vindicate the
public’s right to know. Section 16 of the Constitution protects not just the media’s
right to impart information, but the public’s right to receive it contemporaneously. The
appellants were parties to the November Order, and their rights were directly
affected. They also act in the public interest by facilitating real -time access to
proceedings. The objection to standing is therefore unfounded.
Mootness
[17] A preliminary issue arises as to whether the appeal has become moot, given
that the ‘thread’ of evidence covered by the July Ruling may have, by now ,
completed their testimony.
[18] The appellants argued that , at the time of appeal preparation , the relevant
thread had not yet been concluded. Moreover, they contended that, even if it had,
the issue remained of pressing systemic importance. They relied on JT Publishing
(Pty) Ltd v Minister of Safety and Security ,10 at paragraph 15, where the
Constitutional Court held that the Court has a discretion to hear matters which are
moot…where the interests of justice so demand, particularly if the issue is one
capable of repetition but evading review.
[19] The State argued that the July Ruling was temporary in nature and specifically
tailored to a defined segment of the trial; once that segment concluded, the order
lapsed and the appeal became academic.
[20] I agree with the appellants. The legality of restrictions on media coverage in
criminal trials is a recurring issue of constitutional importance. Such orders are
typically temporary, and without appellate scrutiny , they may consistently evade
8 Freedom Under Law above fn 4.
9 SABC above fn 1.
10 JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others [1996] ZACC 23;
1997 (3) SA 514 and President of the Republic of South Africa v Democratic Alliance and Others
2020 (1) SA 428 (CC).
7
review. This appeal therefore raises a live controversy in law even if the factual
thread has ended. The appeal is therefore not moot.
Grounds of appeal
[21] The appellants raise six grounds of appeal:
(a) That the court a quo erred in holding that the July Ruling did not infringe open
justice and freedom of expression.
(b) That the court erred in finding that there was a potential threat to witnesses,
admitting hearsay evidence not properly before it.
(c) That the court failed to apply the Van Breda 11 ‘witness-by-witness’ approach,
instead imposing a blanket prohibition for an entire thread.
(d) That the court failed to apply the audi alteram partem rule and s 34 of the
Constitution.
(e) That the court failed to consider the need for expeditious resolution of the
application while the trial was continuing.
(f) That the court erred in ordering the appellants to pay costs, contrary to the
Biowatch12 principle.
Respondent’s overall defence
[22] The State supported the judgment of the court a quo, contending that the
restrictions were a proportionate exercise of judicial discretion to protect and regulate
their own process under s 173 of the Constitution. The State pointed to the volatile
context, including the shooting incident and emails from witnesses expressing fear,
as sufficient justification for protective measures. The State maintained that the
appellants were not without recourse: they were later informed of the July Ruling and
exercised their right to seek rescission.
11 Van Breda v Media 24 Limited and Others; National Director of Public Prosecutions v Media 24
Limited and Others [2017] ZASCA 97; 2017 (2) SACR 491 (SCA) (Van Brenda).
12 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC)
(Biowatch).
8
[23] On urgency, the State argued that the appellants delayed in launching their
rescission application, and that the trial court was entitled to manage the case
considering the ongoing proceedings. Regarding costs, the State initially supported
the order of the court a quo but later conceded that it was difficult to reconcile with
Biowatch.13
Grounds of appeal analysed
Ground 1: Infringement of open justice and freedom of expression
[24] The court a quo14 held that open justice was not infringed because:
‘Members of the press and the public continued to have access to the courtroom. Journalists
could take notes and publish their reports. Audio recordings were permitted, albeit with
delayed release. In my view, justice remained visible.’
[25] The appellants argued that open justice requires more than physical access; it
requires meaningful accessibility to the public at large. They emphasised that unlike
media that is in print , the first appellant is a satellite broadcaster and the second a
free-to-air television broadcaster. Their core function is live broadcast. By prohibiting
them, the July Ruling struck directly at their constitutional role.
[26] The appellants contended that the court a quo failed to consider this
distinction and treated television broadcasting as though it were interchangeable with
print. They relied on SABC,15 where Langa CJ said that:
‘[27] Ultimately, however, what is central to the issue is not the responsibility and rights of the SABC
as a broadcaster. What is at stake is the right of the public to be informed and educated…
[28] The need for public information and awareness flows from the nature of our democracy. Public
participation on a continuous basis provides vitality to democracy…
[29] This case, then, is not essentially about the rights of the SABC. Rather it concerns the right of
South Africans to know and understand the manner in which one of the three arms of government
South Africans to know and understand the manner in which one of the three arms of government
functions, namely, the Judiciary. This is a strong constitutional consideration. The right of the people
to be informed of judicial processes presupposes that courts are open and accessible. The fact that
courts do their work in the public eye is a key mechanism for ensuring their accountability. As we
13 Ibid.
14 See paragraph 42 of the judgment of the court a quo.
15 SABC above fn 1.
9
have already said, this case is also about the obligation upon courts to ensure that accused people
have a fair trial.’
[27] Mokgoro J, in a separate concurring judgment,16 said the following:
‘[120] While the right of the SABC under s 16 consists primarily of the right and freedom to
disseminate information, this right correlates with its duty as the public broadcaster to inform the
public. The public in turn has the right to receive information. In an open democracy based on the
values of equality, freedom and human dignity, the right of the public to be informed is one of the
rights underpinned by the value of human dignity.’
The right of the public to be informed is the foundation for the right of the media to
broadcast court proceedings . As was argued by the appellants, television coverage
brings the reality of the courtroom into the homes and workplaces of millions of
people who would otherwise be unable to attend.
[28] The appellants contended that the July Ruling effectively reversed the
November Order without hearing them. Additionally, that the court a quo in arriving at
its decision following the rescission application, ignored their ‘with prejudice ’ draft
order, which proposed less restrictive measures such as anonymisation, masking, or
sworn objections by individual witnesses. They submitted that Independent
Newspapers (Pty) Ltd v Minister of Intelligence Services: In re Masetlha v President
of the Republic of South Africa and Another 17 requires that any departure from open
justice as protected by the Constitution would be justified by evidence and after
hearing those affected.
[29] The appellants further relied on Multichoice (Proprietary Limited v National
Prosecuting Authority and Another ,18 where Mlambo JP stressed that less restrictive
means must be preferred, and on Van Breda,19 where the Supreme Court of Appeal
held that demonstrable prejudice must be shown.
[30] The State argued that open justice was not infringed as journalists could
[30] The State argued that open justice was not infringed as journalists could
attend and report on proceedings and the public could read reports. The State
16 Ibid.
17 Independent Newspapers (Pty) Ltd v Minister for Intelligence Services : In re Masetlha v President
of the Republic of South Africa and Another [2008] ZACC 6; 2008 (5) SA 31 (CC) (Independent
Newspapers).
18 Multichoice (Proprietary) Limited and Others v National Prosecuting Authority and Another 2014 (1)
SACR 589 (GP) (Multichoice).
19 Van Breda above fn 11.
10
further stressed that the trial court had a discretion under s 173 of the Constitution to
regulate its own proceedings in light of witness fears.
[31] The Constitutional Court has consistently emphasised that openness is the
default. In my view, as set out in SABC,20 television coverage brings the reality of
the courtroom into the homes and workplaces of millions of people who would
otherwise be unable to attend. SABC21 stands for the rule that openness is the
default, and limitations are the exception requiring justification. Therefore, t he
exercise of permitting or refusing broadcasting must strike an appropriate balance
between the rights at stake, but the starting point must always be that openness and
transparency are the default. Limitations must be justified by clear and compelling
considerations.
[32] The July Ruling imposed the most restrictive form of limitation, a complete
blackout of an entire thread, without sworn evidence linking broadcasting to risk. The
appellants’ compromise, consistent with Multichoice22 and Van Breda ,23 was not
considered.
[33] Crucially, the appellants are broadcasters rather than media that is in print.
Preventing them from broadcasting live is qualitatively different from delaying a
newspaper report. It denies the public the ability to observe justice
contemporaneously. Section 16(1) (a) and (b) of the Constitution protects both the
right to impart and the right to receive information. As the Constitutional Court noted
in Independent Newspapers,24 ‘the legitimacy of the courts is bolstered when their
functioning is subject to public scrutiny’.
[34] By equating openness with the physical presence of journalists and the
delayed release of an audio, the court a quo misapprehended the nature of the
constitutional right. Therefore, the July Ruling unjustifiably infringed open justice and
freedom of expression.
20 SABC above fn 1.
21 Ibid.
22 Multichoice above fn 18.
23 Van Breda above fn 11.
20 SABC above fn 1.
21 Ibid.
22 Multichoice above fn 18.
23 Van Breda above fn 11.
24 Independent Newspapers above fn 17.
11
Ground 2: Erroneous reliance on hearsay and finding of threats
[35] The court a quo 25 accepted that there was a potential threat to witnesses,
holding that:
‘The court has before it emails from witnesses expressing fear for their safety, a note from a
psychiatrist confirming anxiety, and the recent shooting incident at the home of a witness.
Taken together, these justify a cautious approach to media presence.’
[36] The appellants argued that the respondent never invoked s 3 of the Law of
Evidence Amendment Act 45 of 1988 ( ‘LEAA’). They submitted that hearsay
evidence was admitted without application, contrary to Knoop NO and Another v
Gupta (Execution),26 which held that an order made mero motu without pleadings,
without an application, and without affording the parties a hearing is a nullity. By
parity of reasoning, they contended that hearsay cannot be admitted mero motu
without compliance with s 3, since the statute sets out the exclusive framework for
admissibility.
[37] They relied further on Robert Paul Serne v Mzamomhle Educare ,27 where
reliance on untested hearsay evidence was held to be a misdirection.
[38] Substantively, the appellants contended that the materials did not establish a
nexus between the presence of cameras and any risk to the witnesses. The shooting
incident was not linked to broadcasting. The emails reflected only generalised fear,
and one witness requested to testify virtually which would still permit broadcasting. In
Van Breda,28 the Court stressed that speculation cannot suffice; prejudice must be
demonstrated by evidence from individual witnesses.
[39] They also pointed out that the emails and psychiatrist’s note were not before
the trial court on 28 July when the ruling was made. Their retrospective use to justify
25 See paragraph 42 of the judgment of the court a quo.
26 Knoop NO and Another v Gupta (Execution) 2021 (3) SA 135 (SCA) (Knoop)paras 27–33.
26 Knoop NO and Another v Gupta (Execution) 2021 (3) SA 135 (SCA) (Knoop)paras 27–33.
27 Robert Paul Serne NO and Others v Mzamomhle Educare and Others [2024] ZASCA 152 paras 20-
23.
28 Van Breda above fn 11 at para 72.
12
the order contravened Molusi and Others v Voges N.O. and Others29 and Four
Wheel Drive Accessory Distributors CC v Rattan NO,30 which prohibit courts from
introducing issues not pleaded. Accordingly, the appellants argued that the court a
quo’s finding of a potential threat rested on inadmissible and inadequate evidence.
[40] The State argued that the fears expressed by witnesses were genuine, that
the trial court was entitled to take them into account given the volatile context of
witness intimidation, and that the Court acted within its discretion under s 173 of the
Constitution to regulate its own process in the interests of protecting vulnerable
witnesses.
[41] I cannot endorse the approach of the court a quo. Section 3 of the LEAA
prescribes three gateways for the admission of hearsay: (a) consent of the parties;
(b) testimony by the declarant; or (c) an application and a finding that admission is in
the interests of justice. None of these requirements were met. The respondent made
no application, and the trial court admitted the hearsay mero motu. The admission of
the hearsay evidence was a misdirection by the court a quo.31
[42] Knoop32 stressed that a court may not act outside the statutory framework or
invoke inherent powers to override statutory limits. Where a court purports to do so,
its order is a nullity. That reasoning applies here: admitting hearsay without following
s 3 is ultra vires. Moreover, these materials were not before the court at the time the
July Ruling was made on 28 July 2023. To invoke them retrospectively to justify the
ruling was to exceed the record.33
[43] Moreover, the substance of the hearsay materials did not justify the
conclusion drawn. There was no causal link between broadcasting and the alleged
threats. At most, the material revealed generalised anxiety. As Van Breda34 makes
clear, speculation cannot suffice; concrete evidence of specific prejudice is required.
clear, speculation cannot suffice; concrete evidence of specific prejudice is required.
29 Molusi and Others v Voges N.O. and Others [2016] ZACC 6; 2016 (3) SA 370 (CC) (Molusi).
30 Four Wheel Drive Accessory Distributors CC v Rattan NO [2018] ZASCA 124; 2019 (3) SA 451
(SCA) (Four Wheel Drive) paras 19-23.
31 Knoop above fn 26.
32 Ibid.
33 Molusi above fn 29.
34 Van Breda above fn 11.
13
[44] Finally, the retrospective invocation of these documents to justify the July Ruling
was impermissible. As Molusi35 and Four Wheel Drive 36 emphasise, courts may not
raise and decide issues that were not pleaded or supported by the record before
them. The use of hearsay materials not before the trial court on 28 July 2023
amounted to an impermissible reconstruction of justification after the fact.
[45] The court a quo therefore misdirected itself in admitting hearsay without
compliance with s 3, and in relying on material that was inadequate and irrelevant to
the issue of broadcasting. Its conclusion that there was a potential threat to
witnesses cannot stand.
Ground 3: Failure to apply the Van Breda37 witness-by-witness approach
[46] The court a quo38 held that imposing restrictions to a thread of evidence was a
proportionate compromise:
‘While the order is broader than witness -by-witness adjudication, it is confined to a defined
sequence of evidence. This is administratively manageable and protects vulnerable
witnesses.’
[47] The appellants strongly contested this reasoning. They argued that the Van
Breda39 principle is categorical: any limitation on openness must be justified by
demonstrable prejudice to a specific witness, tested through evidence. They
contended that t he danger of thread -based restrictions is that they operate as
blanket orders, thereby silencing broadcast rights in respect of witnesses who may
have no objection at all. The appellants submitted that their own ‘with prejudice’ draft
order squarely addressed this difficulty. It proposed that any witness who objected
should depose to an affidavit identifying the basis of prejudice; the court a quo would
then assess each objection on its individual merits. This approach, they argued, was
both practicable and constitutionally compliant, aligning with the less restrictive
means test under s 36 of the Constitution.
35 Molusi above fn 29.
36 Four Wheel Drive above fn 30.
37 Van Breda above fn 11.
35 Molusi above fn 29.
36 Four Wheel Drive above fn 30.
37 Van Breda above fn 11.
38 See paragraph 62 of the judgment of the court a quo.
39 Van Breda above fn 11.
14
[48] The State argued that a witness-by-witness adjudication was impractical in a
trial of this scale, and that a thread-based approach fell within the court’s discretion.
[49] The Supreme Court of Appeal in Van Breda40 held that:
‘[72] The default position has to be that there can be no objection in principle to the media
recording and broadcasting counsel's address and all rulings and judgments (in respect of both
conviction and sentence) delivered in open court. When a witness objects to coverage of his or her
testimony, such witness should be required to assert such objection before the trial judge, specifying
the grounds therefor and the effects he or she asserts such coverage would have upon his or her
testimony. This approach entails a witness -by-witness determination and recognises as well that a
distinction may have to be drawn between expert, professional (such as police officers) and lay
witnesses. Such an individualised enquiry is more finely attuned to reconciling the competing rights at
play than is a blanket ban on the presence of cameras from the whole proceeding when only one
participant objects. Under this approach cameras are permitted to film or televise all non -objecting
witnesses. Spurious objections can also be dealt with. It is for the court concerned to ensure that in
balancing the public's interest in the coverage of criminal proceedings against those of objecting
participants, the trial process, already time-consuming and expensive, must not be allowed to become
further unnecessarily protracted. Every objection should not represent an unneeded incursion into the
trial court's discretion in managing a fair trial.
[73] If the judge determines that the witness has a valid objection to cameras, alternatives to
regular photographic or television coverage could be explored that might assuage the witness's fears.
For example, television journalists are often able to disguise the identity of a person being interviewed
by means of special lighting techniques and electronic voice alteration, or merely by shielding the
witness from the camera. In other instances, broadcast of testimony of an objecting witness could be
delayed until after the trial is over. If such techniques were used in covering trials, the public would
have more complete access to the testimony via television, and yet the witness could maintain some
degree of privacy and security.
[74] Whenever an accused person in a criminal trial objects to the presence of cameras in the
courtroom, the objection should be carefully considered. If the court determines that the accused's
objection to cameras is valid, that may require that cameras be excluded. By framing the inquiry in
these terms, courts will be better able to strike a constitutionally appropriate balance between policies
favouring public access to legal proceedings and the accused's right to a fair trial. The court would
accordingly have regard to all the relevant circumstances in identifying whether the right to a fair trial
in a particular case is likely to be prejudiced.’
This imposes a constitutional discipline: openness is the rule, departure is the
exception, and the exception must be individually motivated.
40 Ibid.
15
[50] The July Ruling was not consistent with this standard as mentioned above. It
prohibited broadcasting for an entire thread of evidence without any sworn evidence
from individual witnesses and without testing their claims of prejudice. While the
State relied on emails and unsworn expressions of fear, these do not satisfy the
evidential threshold described in Van Breda.41 To accept such generalised material
is to invert the burden of justification. Moreover, the appellants’ compromise proposal
demonstrated that a workable, less restrictive path was available. By failing to
consider that proposal, and by preferring convenience over constitutional rigour, the
court a quo misdirected itself.
Ground 4: Failure to apply audi alteram partem and s 34 of the Constitution
[51] The court a quo held that the appellants’ subsequent rescission application
‘afforded them a full opportunity to be heard’ and thus cured any earlier omission.42
[52] The appellants argued that audi alteram partem was denied twice: first when
the July Ruling was made without them, and second when the rescission judgment
rationalised instead of adjudicating. They relied on President of the Republic of
South Africa v South African Rugby Football Union and Others ,43 De Beer NO v
North-Central Local Council and South -Central Local Council and Others
(Umhlatuzana Civic Association Intervening) ,44 Premier Foods v Manoim NO,45
Mazetti Management Services (PTY) Ltd and Another v Amabhungane Centre for
Investigative Journalism NPC and Others ,46 and Vodacom (Pty) Ltd v M akate and
Another.47
[53] The State argued that the rescission application afforded the appellants a fair
hearing.
41 Ibid.
42 See paragraph 70 of the judgment of the court a quo.
43 President of the Republic of South Africa and Others v South African Rugby Football Union and
Others (SARFU) [1999] ZACC 11; 2000 (1) SA 1 para 216.
44 De Beer NO v North -Central Local Council and South -Central Local Council and Others
44 De Beer NO v North -Central Local Council and South -Central Local Council and Others
(Umhlatuzana Civic Association Intervening) [2001] ZACC 9; 2002 (1) SA 429 (CC) para 11.
45 Premier Foods v Manoim NO [2015] ZASCA 159; 2016 (1) SA 445 (SCA) para 34.
46 Mazetti Management Services (Pty) Ltd and Another v Amabhungane Centre for Investigative
Journalism NPC and Others 2023 (6) SA 578 (GJ) para 79.
47 Vodacom (Pty) Ltd v Makate and Another (Makate) [2025] ZACC 13 para 64.
16
[54] The Constitutional Court in SARFU48 made plain that:
‘[216] Indeed, any such expectation could not in the circumstances of this case have been
considered to be legitimate, giving rise to a right to be heard by the President. The question whether
an expectation is legitimate and will give rise to the right to a hearing in any particular case depends
on whether, in the context of that case, procedural fairness requires a decision -making authority to
afford a hearing to a particular individual before taking the decision. To ask the question whether
there is a legitimate expectation to be heard in any particular case is, in effect, to ask whether the duty
to act fairly requires a hearing in that case. The question whether a “legitimate expectation of a
hearing” exists is therefore more than a factual question. It is not whether an expectation exists in the
mind of a litigant but whether, viewed objectively, such expectation is, in a legal sense, legitimate; that
is, whether the duty to act fairly would require a hearing in those circumstances. It is for this reason
that the English courts have preferred the concept of “legitimate expectation” to that of “reasonable
expectation”…’
The July Ruling was taken in the absence of the appellants, who were directly
affected parties. That omission was not merely procedural; it was constitutional in
nature.
[55] In Makate,49 it was reaffirmed that the right to a fair hearing under s 34
encompasses more than access to a courtroom; it requires that disputes are properly
decided. The Court stressed that judicial errors are inevitable, but where flaws in
reasoning or evidence assessment are so fundamental and pervasive as to vitiate
the judgment, there is a failure of justice. Such a failure amounts to a denial of the
right to a fair hearing. The Court went further, holding that a decision marred by this
kind of malperformance is no decision at all, since litigants come to court to have
kind of malperformance is no decision at all, since litigants come to court to have
disputes decided. Section 34 protects not only access but also the right to have
disputes properly adjudicated in a fair process. This imposes on courts a duty of
proper consideration: to have regard to all material evidence and submissions and to
bring reasoned judgment to bear on them. Without such proper consideration, there
is no fair hearing within the meaning of the Constitution. The rescission judgment did
not cure the initial denial of audi alteram partem but entrenched it by retrospectively
rationalising the July Ruling.
48 SARFU above fn 43.
49 Makate above fn 47 paras 43-45.
17
[56] The July Ruling excluded the appellants, who are directly affected parties.
The rescission judgment did not remedy the breach: instead, it entrenched it by
rationalising the decision. The court a quo erred in finding otherwise.
Ground 5: Failure to ensure expeditious resolution
[57] The court a quo held that the application was not urgent , reasoning that the
appellants ‘waited three weeks before approaching this Court ’ and that the trial
needed to continue without disruption.
[58] The appellants argued that they acted speedily and with urgency, launching
the application within a matter of weeks, and that the real delay was attributed to the
failure to hear and determine the matter promptly. They further argued that,
meanwhile, the trial proceeded under unconstitutional restrictions. They relied on
MEC for Education, in Gauteng Province and Other v Governing Body of Rivonia
Primary School and Others.50
[59] The State argued that the appellants delayed in bringing the application and
that the court reasonably managed the trial’s progress.
[60] In Rivonia Primary School,51 the Constitutional Court held that urgency is
contextual, especially where constitutional rights are impaired. Here, the ongoing trial
meant that witnesses testified under restrictions while the rescission application was
pending. That continuation was itself prejudice. Thus, t he court a quo erred in
dismissing urgency.
Ground 6: Costs granted despite Biowatch52
[61] The court a quo ordered costs against the appellants, applying the rule that
costs follow the result.
[62] The appellants relied on Biowatch,53 paragraph 24, Print Media South Africa
50 MEC for Education in Gauteng Province and Other v Governing Body of Rivonia Primary School
and Others [2013] ZACC 34; 2013 (6) SA 582 (CC) (Rivonia Primary School).
51 Ibid.
52 Biowatch above fn 12.
53 Ibid.
18
and Another v Minister of Home Affairs and Another ,54 paragraph 54, and Harrielall v
University of KwaZulu-Natal.55 They argued that they acted in good faith to vindicate
constitutional rights.
[63] The State initially defended the costs order but conceded in oral argument
that it would be difficult to sustain the defence in view of Biowatch.56
[64] In Biowatch,57 the Constitutional Court laid down the guiding principle that in
constitutional litigation between a private party and the State, an unsuccessful
private litigant should not ordinarily be mulcted in costs. O’Regan J explained at
paragraph 24 that this principle protects access to courts, ensuring that ‘those who
seek to assert constitutional rights in good faith are not deterred by the risk of an
adverse costs order’.
[65] In Print Media,58 the Court reinforced that the chilling effect of costs orders is
especially severe where media freedom is at stake. At para graph 54, the Court
stressed that ‘constitutional litigation by the media serves not their private
commercial interests alone, but more importantly the public’s right to receive
information.’ Accordingly, imposing costs on the media for bringing bona fide
challenges risks discouraging them from fulfilling their democratic role.
[66] The principle was reaffirmed in Harrielall,59 where the Court emphasised at
paragraph 17 that even where constitutional litigants are unsuccessful, costs should
not be awarded against them unless their conduct was frivolous, vexatious, or
manifestly abusive.
[67] The appellants here acted bona fide, raising issues at the core of ss 16 and
34 of the Constitution. There was no indication that their conduct was vexatious. To
penalise them with a costs order would disregard the substantive law set down in
54 Print Media South Africa and Another v Minister of Home Affairs and Another [2012] ZACC 22;
2012 (6) SA 443 (CC) (Print Media).
55 Harrielall v University of KwaZulu-Natal [2017] ZACC 38 (Harrielall).
55 Harrielall v University of KwaZulu-Natal [2017] ZACC 38 (Harrielall).
56 Biowatch above fn 12.
57 Ibid.
58 Print Media above fn 54.
59 Harrielall above fn 55.
19
Biowatch60 and its progeny and failed to appreciate the chilling effect identified in
Print Media .61 The court a quo therefore erred in principle, and this Court must
correct that misdirection.
Remedy and conclusion
[68] Having found that the July Ruling unjustifiably infringed the principles of open
justice and freedom of expression, relied on inadmissible hearsay, failed to apply the
Van Breda62 witness-by-witness standard, violated the audi alteram partem principle,
and wrongly burdened the appellants with costs, the question now arise as to the
appropriate remedy. The appellants urged us to declare the July 2023 order pro non
scripto. They relied on Knoop,63 and argued that the order was a ‘nullity’.
[69] While there is force in that submission, this Court is mindful that judicial
orders, even if flawed, are binding until set aside. 64 The more appropriate remedy is
rescission.65 This recognises jurisdiction but annuls the order retrospectively for
misdirection and constitutional breach, in a manner consistent with judicial comity.
[70] As to costs , the appellants have succeeded on every ground of appeal. It
follows that they are entitled to their costs of the appeal, including the costs of the
application for leave to appeal before the court a quo and in the Supreme Court of
Appeal. In accordance with Biowatch,66 successful constitutional litigants should be
protected from adverse costs. Moreover, the appellants were compelled to vindicate
not merely their commercial interests, but the public’s constitutional right of access to
information and open justice.
[71] I am further persuaded that the engagement of two counsel was justified in
this matter. The issues were factually complex, involving a voluminous record, and
constitutionally weighty, implicating ss 16, 34, 36, and 38 of the Constitution. The
60 Biowatch above fn 12.
61 Print Media above fn 54.
62 Van Breda above fn 11.
63 Knoop above fn 26.
61 Print Media above fn 54.
62 Van Breda above fn 11.
63 Knoop above fn 26.
64 Municipal Manager O.R. Tambo District Municipality and Another v Ndabeni [2022] ZACC 3; 2023
(4) SA 421 (CC).
65 Van Dyk v Rhodes 2025 (4) SA 313 (GJ).
66 Biowatch above fn 12.
20
legal questions traversed multiple decisions of the Constitutional Court, Supreme
Court of Appeal, and comparative authority. In such circumstances, the retention of
senior and junior counsel was both prudent and reasonable. As was held in S v
Leepile and Others67 and reaffirmed in Van Breda68 at paragraph 73, where litigation
raises constitutional principle s and matters of public interest of the highest order, a
higher scale of costs is justified. I therefore award costs on scale C, including the
costs of two counsel.
Order
[72] Having read the papers and after hearing counsel, the following order is
made:
1. Condonation for the late filing of the appellants’ appeal record is granted.
2. The appeal is upheld with costs, including the costs of two counsel on scale
C, and including the costs of the applications for leave to appeal before the
court a quo and in the Supreme Court of Appeal.
3. The order of the court a quo dated 3 May 2024 is set aside and replaced with
the following:
3.1. The order of 28 July 2023 is rescinded.
3.2. The respondent is directed to pay the applicants’ costs of the
application, including the costs of two counsel , where employed on
scale C.
4. The matter is referred back to the trial court with the direction that any future
application to vary the November 2022 order must be brought on affidavit, on
a witness -by-witness basis, supported by sworn objections, served on the
media and the accused, and after hearing all affected parties, with
consideration of less restrictive means before any restriction on broadcasting.
_________________________________
MASIPA J
67 S v Leepile and Others (1) 1986 (2) 333 (W).
68 Van Breda above fn 11.
21
APPEARANCE DETAILS:
For the Appellant: Mr Du Plessis (SC)
With Ms T Palmer
Instructed by: Rosengarten & Feinberg Attorneys
Westcliff, Johannesburg
For the Defendant: Mr Kisson-Singh (SC)
With Ms Siraramen
Instructed by: State Attorneys
Matter heard: 5 September 2025
Judgment delivered: 3 October 2025