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[2006] ZACC 15
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South African Broadcasting Corporation Limited v National Director of Public Prosecutions and Others (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC); [2006] JOL 18339 (CC); 2007 (1) SACR 408 (CC) (21 September 2006)

Links to summary

LANGA CJ
et al
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 58/06
SOUTH
AFRICAN BROADCASTING CORPORATION LIMITED Applicant
versus
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS First Respondent
SHAIK,
SCHABIR 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 Eighth 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
Heard
on : 13 September 2006
Decided
on : 21 September 2006
JUDGMENT
LANGA
CJ, KONDILE AJ, MADALA J, NKABINDE J, O’REGAN J, VAN HEERDEN AJ and
YACOOB J
:*
Introduction
Should
this Court intervene to require the Supreme Court of Appeal to
permit the national broadcasting corporation to broadcast
on radio
and television proceedings before the Supreme Court of Appeal?
This is the question raised in the present application
which has
been brought before this Court on the basis of urgency. The
judgment has therefore been prepared in haste to ensure
that the
proceedings in the Supreme Court of Appeal are not delayed.
The
applicant, the South African Broadcasting Corporation Limited (the
SABC), applies for leave to appeal against a judgment of
the
Supreme Court of Appeal refusing it permission to broadcast on
radio and television appeal proceedings brought by Mr Schabir
Shaik
which are to be heard soon. Mr Shaik and the National Director of
Public Prosecutions (NDPP) oppose the application for
leave to
appeal in this Court, as they did before the Supreme Court of
Appeal.
Background
The
case arises from the conviction of the second respondent, Mr Shaik,
by the Durban High Court (the High Court) in 2005 on several
counts
relating to corruption. The court found that Mr Shaik was guilty
of a contravention of section 1(1)(a) of the Corruption
Act, 94 of
1992,
1
in relation to payments he had made to the former Deputy President
of the Republic of South Africa, Mr Jacob Zuma, and that Mr
Shaik
had bribed Mr Zuma to protect a French armaments company from
exposure by official investigation. Mr Shaik was convicted
and
sentenced to 15 years’ imprisonment. The third to twelfth
respondents, all companies which Mr Shaik controls or in which
he
has a major interest, were also convicted and were required to pay
fines.
Mr
Shaik and the third to twelfth respondents sought leave to appeal
against the judgment of the High Court to the Supreme Court
of
Appeal. Mr Shaik also sought leave to appeal against an order of
civil forfeiture granted by the High Court in terms of the
Prevention of Organised Crime Act, 121 of 1998
. The appeals are
currently scheduled to be heard by the Supreme Court of Appeal on
25 – 29 September 2006.
On
3 August 2006, when the proceedings were still set to commence on
21 August, the applicant informally sought permission, through
the
Registrar of the Supreme Court of Appeal, to televise the
proceedings but was told that it would only be allowed to make
visual recordings without sound.
2
The SABC then made a formal application and sought an order from
the Supreme Court of Appeal in the following terms:
“
1. Granting the Applicant
permission to be present at and record for the purposes of live
broadcasting on television, with both
visuals and sound,
1.1 The hearing of the criminal
appeal under case No 410/2005 instituted by the Second to Twelfth
Respondents against the State
as represented by First Respondent.
1.2 The hearing of the criminal
appeal under case number 062/2006 instituted by Second to Twelfth
Respondents against the State
as represented by First Respondent and
1.3 The hearing of the criminal
appeal under case number 248/2006 instituted by Second to Sixth
Respondents against the State, as
represented by the First
Respondent,
which appeals are due to
commence on Monday 21 August 2006
3
in the above Honourable Court (“the criminal appeals”).
2. In the alternative to 1
above, granting the Applicant permission to be present at and record
the criminal appeals for the purposes
of delayed broadcasting on
television with both visuals and sound, by means of an edited
highlights package, on a daily basis and
for reporting on its daily
news bulletins, on various current affairs programmes and in the
news and public interest related programmes.
3. Granting the Applicant
permission to be present at and record the criminal appeals for the
purposes of live broadcasting on radio.
4. In the alternative to 3
above, granting the Applicant permission to be present at and record
the criminal appeals for the purposes
of delayed broadcasting on
radio, by means of an edited highlights package, on a daily basis
and for reporting on its daily news
bulletins, on various current
affairs programmes and in the news and public interest related
programmes.
5. Permitting the Applicant to
set up its electronic equipment in the manner contemplated in the
Applicant’s founding affidavit
in order that it may relay the
criminal appeals in the manner set out above.”
Before
both the Supreme Court of Appeal and this Court, it was accepted by
all parties that although prayers 1 and 2 and prayers
3 and 4 are
framed in the alternative, the applicant did not intend them to be
in the alternative. The relief sought therefore
included both the
right to broadcast the entire proceedings live on television and
radio, as well as the right to produce edited
highlights packages
for television and radio audiences.
The
Supreme Court of Appeal
Before
the Supreme Court of Appeal, the applicant argued that these
broadcasts were necessary to enable it to fulfil its constitutional
and statutory obligations to inform the public. The statutory
obligation it referred to arises from the Broadcasting Act, 4
of
1999 (Broadcasting Act). Noting that the case involved matters of
intense national interest, the applicant argued that broadcasting
by way of television and radio would have educational benefits and
would not disrupt the conduct of the hearing.
The
respondents argued that there was no constitutional right to
broadcast judicial proceedings. Section 173 of the Constitution
gives the courts the power to regulate their own processes and
accordingly constitutes a constitutional restriction on the ambit
of the free expression rights of the applicant. They argued that
the free expression rights of the media were protected by other
methods of reporting, and also that allowing the broadcast of the
appeal would violate the respondents’ right to a fair trial.

Specifically, the presence of cameras in the courtroom would
violate the second respondent’s right to privacy, inhibit
interactions
between counsel and the bench, and prejudice Mr Zuma’s
right to a fair trial.
The
issue of privacy should be put aside immediately. In the Supreme
Court of Appeal, the applicant undertook that neither Mr
Shaik nor
members of his family would be recorded with either visuals or
sound during the appeal hearing. That undertaking stood
in this
Court. The question of privacy therefore does not require further
consideration by us.
In a unanimous judgment, the Supreme Court of Appeal took the view
that the “applicant’s right to freedom of expression and
to
impart information, and the public’s right to receive such
information, collide four square with the respondents’ respective
rights.”
4
It noted that because of the power given to it by section 173 to
regulate its own processes, it had to do so by considering
how best
to accommodate the competing rights of the parties. The Court held
that a balancing exercise was required between the
right of the
applicant to freedom of expression and the right of the respondents
to a fair trial.
In
balancing the rights of free expression and fair trial, the Court
held that the proper test was one that favoured the right
to a fair
trial. It stated that “live or recorded sound broadcasting
should not be allowed unless the court is satisfied that
justice
will not be inhibited”.
5
What the test amounted to was that fair trial rights had to take
precedence over the right to free expression in the circumstances
of this case. The Supreme Court of Appeal characterised the
position as a “clash of rights” and held that if anyone has
to
give way, it should not be the litigant that faced a loss of
liberty if convicted.
6
The
Supreme Court of Appeal held that television and radio broadcasts
would violate fair trial rights for two reasons. First,
it would
put “stress” on both counsel and the judges, inhibiting
interaction that would “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.”
7
Second, there was a risk that television and radio broadcasts
might prejudice the rights of both the State and Mr Zuma to a
fair
trial in his case because extensive radio and television
broadcasting might deter witnesses from testifying in that trial
due to the critical exposure to which they might be subjected
during the appeal. Also the Court reasoned that the unfettered
questioning of counsel might create the perception in the public
mind that Mr Zuma’s innocence or guilt was being prejudged.
8
The
Supreme Court of Appeal thus took the view that it had a discretion
conferred by section 173 of the Constitution as to whether
to
permit radio and television broadcasts. In the light of the
foregoing considerations, it concluded that the application for
the
right to broadcast its proceedings live on radio and television
should be dismissed. It also held that, to the extent that
the
applicant sought the right to produce edited highlights packages,
such packages might create a risk of misrepresentation
and
misunderstanding. That relief too was accordingly refused. The
applicant was ordered to pay the costs of the second to
twelfth
respondents.
Does
the case raise a constitutional issue?
We
turn now to the question whether the case raises a constitutional
issue. In our view, this must be answered in the affirmative.

First, the SABC argues that the Supreme Court of Appeal’s
judgment has the effect of limiting the right to freedom of
expression
of radio and television broadcasters as enshrined in
section 16 of the Constitution.
9
Since the media’s role is to inform the public about the legal
system, restrictions on broadcasting limit the information
that may
be imparted by the media and received by the public.
10
It accordingly becomes necessary to consider the ambit of the
rights to freedom of the press and to receive information. The
applicant also argued that the decision of the Supreme Court of
Appeal flies in the face of what counsel referred to as the

“principle of open justice” which, he argued, forms part of our
constitutional fabric. The existence and role of this principle
is
also a constitutional matter.
Second,
this case raises a constitutional issue because of the potential
implications of broadcasting on fair trial rights. The
respondents
argue that broadcasting will violate the fair trial rights of both
Mr Shaik and Mr Zuma. Whatever the correct approach
to the right
to a fair trial, this case undoubtedly requires us to examine the
nature of that right under our constitutional
system.
Finally,
this case implicates the power of the Supreme Court of Appeal to
regulate its own process under section 173 of the Constitution.
In
determining whether we are entitled to interfere with the Supreme
Court of Appeal’s decision, we must also adopt a particular
construction of section 173. That in itself is a constitutional
matter.
Is it in the interests of justice to grant leave to appeal?
The
first respondent argues that we should not grant leave to appeal
because, while the clarification and protection of the powers
contained in section 173 are matters of substantial importance, the
Supreme Court of Appeal judgment does not affect the substance
of
section 173 in a way which renders it desirable for consideration
by this Court. We disagree. The reach of a court’s power
to
regulate its own process is an issue of great constitutional moment
and the current dispute raises the issue directly. In
addition,
this contention ignores the other constitutional issues of
importance in the case and in particular the ambit of the
constitutional protection of the freedom of the press.
All
the respondents argue that the applicant has placed insufficient
evidence before the Court to enable it make a ruling. They
also
note that the date of the hearing of the appeal was made public on
about 1 June 2006, yet the SABC did not approach the
Supreme Court
of Appeal for permission to televise the hearing until 3 August
2006. The second to twelfth respondents argue
that any urgency in
the matter is therefore of the applicant’s own making as it
should have been aware of a practice arrangement
in the Supreme
Court of Appeal, adopted in 1993 after discussions between members
of the Court and the media, in terms of which
filming of the
proceedings of that Court is permitted but not sound recording.
It
is, of course, desirable for parties to bring matters to court as
early as possible, and the SABC’s unexplained delay in
bringing
this case shows a lack of respect for both the parties to the
appeal and the programme of the Court. However, there
remains
sufficient information before this Court to decide this case. This
case, unlike
Bruce and Another v Fleecytex Johannesburg CC and
Others
, is not a case of direct access where the issues have
not been canvassed by lower courts.
11
Christian Education South Africa v Minister of Education
is
similarly inapposite, since this is not a case where the arguments
were not fully canvassed by the parties.
12
In argument, counsel for the second respondent admitted that the
applicant’s failure to launch proceedings timeously was more
properly relevant to the issue of costs than to the question of the
interests of justice.
We
conclude in the circumstances that it is in the interests of
justice to grant leave to appeal. Before considering the
application
for leave to appeal itself, we identify two important
constitutional considerations we consider relevant to the
application:
the first is the obligation of a criminal court to
ensure that the appeals it hears are conducted fairly; and the
second is the
importance of ensuring that appeals are public, which
includes a recognition of the public’s right to receive
information about
criminal appeals, as entrenched in section 16 of
the Constitution.
Obligations
of an appeal court in a criminal appeal
It
is important to start by noting that this is an application for
leave to appeal against the judgment of an appellate court
that had
to determine the conduct of its own proceedings. The task of an
appeal court in determining its own proceedings is
an important
one. Its primary constitutional responsibility is to ensure that
the proceedings before it are fair and it must
give content to that
obligation. This obligation has always been part of our law and is
now constitutionally enshrined as a
fundamental right in section
35(3) of the Constitution.
13
The task of ensuring that the proceedings are fair will often
require consideration of a range of principled and practical

factors, some of which may pull in different directions.
The
right to a fair trial has been interpreted by this Court as
including the foundational values of dignity, freedom and equality
which lie “at the heart of a fair trial in the field of criminal
justice”
14
and as embracing “a concept of substantive fairness which is not
to be equated with what might have passed muster in our criminal
courts before the Constitution came into force.”
15
The
right of freedom of expression and the right of the public to
receive information about criminal appeals
Freedom of expression is another of the fundamental rights
entrenched in Chapter 2 of the Constitution.
16
This Court has frequently emphasised that freedom of expression
lies at the heart of democracy. It is valuable for many reasons,
including its instrumental function as a guarantor of democracy,
its implicit recognition and protection of the moral agency
of
individuals in our society and its facilitation of the search for
truth by individuals and society generally. The Constitution
recognises that individuals in our society need to be able to hear,
form and express opinions and views freely on a wide range
of
matters.
17
This
Court has also highlighted the particular role in the protection of
freedom of expression in our society that the print and
electronic
media play.
18
Thus everyone has the right to freedom of expression and the media
and the right to receive information and ideas. The media
are key
agents in ensuring that these aspects of the right to freedom of
information are respected. The ability of each citizen
to be a
responsible and effective member of our society depends upon the
manner in which the media carry out their constitutional
mandate.
The media thus rely on freedom of expression and must foster it.
In this sense they are both bearers of rights and
bearers of
constitutional obligations in relation to freedom of expression.
As was said in
Khumalo
–
“
In a democratic society . .
. the mass media play a role of undeniable importance. They bear an
obligation to provide citizens
both with information and with a
platform for the exchange of ideas which is crucial to the
development of a democratic culture.
As primary agents of the
dissemination of information and ideas, they are, inevitably,
extremely powerful institutions in a democracy
and they have a
constitutional duty to act with vigour, courage, integrity and
responsibility. The manner in which the media carry
out their
constitutional mandate will have a significant impact on the
development of our democratic society. If the media are
scrupulous
and reliable in the performance of their constitutional obligations,
they will invigorate and strengthen our fledgling
democracy. If
they vacillate in the performance of their duties, the
constitutional goals will be imperilled. The Constitution
thus
asserts and protects the media in the performance of their
obligations to the broader society, principally through the
provisions
of s 16”.
19
The
question whether the right to freedom of expression and the media
includes the right of the media to televise and broadcast
court
proceedings is not beyond doubt in other democratic jurisdictions.
20
Indeed, in the United States of America, there is a consistent
line of jurisprudence which makes it clear that the First
Amendment’s
guarantee of freedom of speech does not include a
constitutional right to record and broadcast court proceedings.
The United
States Supreme Court has held that state courts are free
to experiment with television cameras in the courtroom if they
wish,
as long as the right of an accused to a fair trial is
respected. However, they are not constitutionally required to do
so; it
is a matter of policy choice.
21
Similarly in the
Lockerbie Bombers
case, the High Court of
Justiciary held that there was no right under article 10 of the
European Convention on Human Rights,
which guarantees freedom of
expression, to televise legal proceedings.
22
The question, therefore, of whether the ambit of section 16 of our
Constitution does extend to confer a right on the applicant
to
televise court proceedings is not beyond debate. We prefer to
avoid answering the question one way or the other given the
urgent
nature of the present proceedings, and assume in favour of the
applicant that there is such a right.
It
should also be noted that the SABC, as the public broadcaster
provided for and regulated in terms of the
Broadcasting Act, has
a
special function to perform.
Section 8
of the
Broadcasting Act
identifies
the objectives of the corporation which include –
“
(b) to provide sound and
television broadcasting services, whether by analogue or digital
means, and to provide sound and television
programmes of
information, education and entertainment . . . ;
.…
(d) to provide, in its public
broadcasting services, radio and television programming that
informs, educates and entertains”.
23
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 as is acknowledged in the
Preamble to the
Broadcasting Act which
reads –
“
Noting that the South
African broadcasting system comprises public, commercial and
community elements, and the system makes use
of radio frequencies
that are public property and provides, through its programming, a
public service necessary for the maintenance
of a South African
identity, universal access, equality, unity and diversity . . . ”.
The
need for public information and awareness flows from the nature of
our democracy. Public participation on a continuous basis
provides
vitality to democracy. This was also recognized by the House of
Lords in
McCartan Turkington Breen (A Firm) v Times Newspapers
Ltd
that “[t]he proper functioning of a modern participatory
democracy requires that the media be free, active, professional and
inquiring.”
24
A vibrant and independent media encourages citizens to be actively
involved in public affairs, to identify themselves with public
institutions and to derive the benefits that flow from living in a
constitutional democracy. Access to information and the

facilitation of learning and understanding are essential for
meaningful involvement of ordinary citizens in public life. This
corresponds to the vision in the Preamble to the Constitution of
laying the foundations for a democratic and open society in
which
government is based on the will of the people. It also reflects
the foundational principle of democratic government which
ensures
accountability, responsiveness and openness.
25
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
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 have already
said, this
case is also about the obligation upon courts to ensure that
accused people have a fair trial.
Open
court rooms are likely to limit high-handed behaviour by judicial
officers and to prevent railroaded justice, to mention
two of the
risks of secret justice. It is not surprising then that section
35(3)(c) of the Constitution includes as one of the
aspects of the
right to a fair trial, the right to “a public trial before an
ordinary court”. Similarly, section 34 of the
Constitution
entrenches the right to have disputes resolved “in a fair public
hearing before a court”. Far from being intrinsically
inimical
to a fair trial, open justice is an important part of that right
and serves as a great bulwark against abuse.
It
should be remembered, however, that open justice is observed in the
ordinary course in that the public are able to attend all
hearings.
The press are also entitled to be there, and are able to report as
extensively as they wish and they do so. It is
clear that in this
case these ordinary conditions were to apply. In addition, the
Supreme Court of Appeal has permitted the
applicant to make
soundless recordings of the proceedings and televise these and any
extracts of these if it wishes. The narrow
issue raised by this
case concerns the further extension of the open justice principle
to include audio-recording and broadcasting
of the entire appeal
proceedings as well as edited highlights of those proceedings
against the background of the Court’s obligation
to ensure that
those proceedings are not only public but fair.
Courts
should in principle welcome public exposure of their work in the
court room, subject of course to their obligation to ensure
that
proceedings are fair. The foundational constitutional values of
accountability, responsiveness and openness apply to the
functioning of the judiciary as much as to other branches of
government. These values underpin both the right to a fair trial
and the right to a public hearing (ie the principle of open court
rooms). The public is entitled to know exactly how the judiciary
works and to be reassured that it always functions within the terms
of the law and according to time-honoured standards of

independence, integrity, impartiality and fairness.
During
argument before us, no one contended that the judicial function
should be shrouded in mystique and protected at all times
from the
prying eye of the camera or the invasive ear of the microphone. On
the other hand, no one suggested that the electronic
media should
be permitted to broadcast criminal trial proceedings when evidence
is led and witnesses are cross-examined. Ordinarily,
it will not
be in the interests of justice for trial proceedings to be
subjected to live broadcasts. Some of the reasons for
this were
identified in the case of
Midi Television (Pty) Ltd t/a E-TV v
Downer and Others
,
26
in which E-TV brought an application to televise the proceedings in
the criminal trial of the second to twelfth respondents –
“
[t]he right to privacy of
each individual witness was hence, in the view of Squires J, the
overriding factor in refusing the application.
Infringement thereof
by televised proceedings could lead to an unfair trial and conflict
with ‘the public interest in a democratic
criminal justice system’
which brings wrongdoers to book while ensuring that justice is done
to them. Unless both the State and
the defence witnesses consented
to the televising of their evidence, the Court would not accede to
their being prejudiced, intimidated,
inhibited or prevented from
communicating sensibly by the thought of having to appear on
television.
Inasmuch as this would
invariably constitute an infringement of the applicant’s right to
freedom of speech (in the sense of freedom
of the press), such right
should, on a proper weighing and balancing of the competing claims
and conflicting interests of the parties,
yield to the rights of the
witnesses.”
27
The
issue in this case is therefore restricted to appeals only. It is
also accepted that cameras and microphones should not distract
advocates or judges from the proceedings and that proper decorum of
the court room must be respected. The narrow issue, accordingly,
is not whether cameras should be allowed into courts; it is whether
this Court should interfere with the discretion of the Supreme
Court of Appeal and order that radio and television coverage be
permitted in this particular appeal before that Court, at this
particular time, in the particular circumstances of this case.
Section
173 of the Constitution: the approach on appeal
Section
173 provides that –
“
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.”
This
is an important provision which recognises both the power of courts
to protect and regulate their own process as well as their
power to
develop the common law. It is the former power that is of relevance
in this case. It must be understood in the context
of section 165
which provides that the judicial authority is vested in courts, that
they are independent and must apply the law
impartially and without
fear, favour or prejudice.
Courts,
therefore, must be independent and impartial. The power recognised
in section 173 is a key tool for courts to ensure
their own
independence and impartiality. It recognises that courts have the
inherent power to regulate and protect their own
process.
28
A primary purpose for the exercise of that power must be to ensure
that proceedings before courts are fair. It is therefore
fitting
that the only qualification on the exercise of that power contained
in section 173 is that courts in exercising this
power
must take
into account
the interests of justice.
When
courts exercise the power to regulate their own process, it is
inevitable that that power will affect rights entrenched in
chapter
2 of the Constitution. A court must regulate the way proceedings
are conducted and this will inevitably affect both
the right to a
fair trial (section 35 of the Constitution) and the right to have
disputes resolved by courts (section 34). Courts
are bound by the
provisions of the Bill of Rights
29
and therefore bear a duty to respect those rights. In exercising
the power, therefore, they must take care to ensure that those
rights are not unjustifiably attenuated.
It
is clear that in this case the Supreme Court of Appeal exercised a
section 173 power. The applicants argue that the power
was not
correctly exercised. The question that arises sharply for decision
is the approach of this court upon appeal to the
exercise of that
power. The approach of an appellate court to an appeal against the
exercise of a discretion by another court
varies. This Court has
accepted that an important consideration will be the nature of the
discretion concerned.
Where
the discretion is a discretion in the strict sense, in that the
court had a range of legal choices open to it, an appellate
court
will ordinarily only interfere with the exercise of that discretion
in narrow circumstances.
30
However, this Court has also recognised that there will be
occasions where a decision made by another court which does not

involve the exercise of a discretion in the strict sense will also
only be interfered with in narrow circumstances.
31
Relevant considerations in these cases will be the need for the
exercise of judgment by the Court to determine whether the fairness
of the proceedings before it is under threat. That judgment will
often have to be exercised in the light of a range of complex
factors, as this Court observed in relation to a different but
related question in
Basson
—
“
When a trial court assesses
the question whether the admission of evidence would render the
trial unfair, it has to consider a range
of factors: the nature of
the evidence in question, and how much of it is of advantage to the
parties; the need to be fair not
only to the accused but also to the
prosecution, in the interests of the broader community; the need to
ensure that a trial can
run efficiently and reasonably quickly; and
the reasons underlying the fact that the admission of the evidence
may render the trial
unfair. These are complex factors which may
well pull in different directions.”
32
It
may well be that the exercise of the powers recognised in section
173 are not capable of single characterisation for the purposes
of
determining the correct approach on appeal. However, in this case,
we are persuaded that this court should only interfere
in narrow
circumstances. Our reasons for so concluding are the following –
This
case concerns the detailed arrangements for the conduct of appeal
proceedings in the Supreme Court of Appeal.
In
the absence of a constitutional violation, it is generally
undesirable for this Court to instruct the Supreme Court of Appeal
33
how to regulate the conduct of its proceedings.
The
case required a value judgment by the Supreme Court of Appeal as to
how best to discharge its responsibility of ensuring that
the
proceedings before it were fair and to reconcile that obligation
with the public’s right to be informed of the conduct
of those
proceedings.
In
the exercise of the section 173 power, different courts might
legitimately come to different conclusions.
34
The
Supreme Court of Appeal prepared its judgment in haste, as have we,
in response to an urgent application. Its judgment must
therefore
be analysed with that in mind. In particular, that Court might not
have been able to formulate its reasons for its
order as fully and
meticulously as it would ordinarily do.
It
is difficult for an appellate court to second-guess the decision of
the Supreme Court of Appeal which is directly based on
its
first-hand knowledge of the record and all the circumstances of the
appeal.
Therefore
the question for this Court is not whether we would have permitted
radio and television broadcasting of the appeal in
the
circumstances of this case, but whether the Supreme Court of Appeal
did not act judicially in exercising its section 173
discretion, or
based the exercise of that discretion on wrong principles of law,
or a misdirection on the material facts. As
Cloete J formulated
the test more laconically in
Bookworks
, the question is
whether the Court committed some “demonstrable blunder” or
reached an “unjustifiable conclusion”.
35
As
indicated above,
36
we have assumed in favour of the applicant that the refusal by the
Supreme Court of Appeal to allow the SABC to make sound recordings
for television and radio broadcasting during the hearing of the
appeals before it does indeed affect rights to freedom of
expression
under section 16(1) of the Constitution. While the
SABC, as the national public broadcaster, is obviously a bearer of
section
16(1) rights, the general public also has a fundamental
constitutional right to freedom of expression; indeed, it may be
said
that the primary bearer of the right to “receive information
and ideas”
is
the general public. It is also true, as
contended by counsel for the SABC, that openness and accountability
are underlying values
of the Constitution and that, in accordance
with the principle of open justice, the public should, as far as
possible, be informed
and aware of what takes place in our courts.
37
Where a court exercises a discretion under section 173, it must
ensure that if, in so doing, it impinges upon rights entrenched
in
chapter 2 of the Constitution, the extent of the impairment of
rights is proportional to the purpose the court seeks to achieve.

We do not need to consider here whether this is a section 36
limitation analysis or not. It is clear that it is a
proportionality
enquiry that a court exercising its section 173
powers must undertake.
On
the other hand, in exercising its discretion in terms of section
173, the Supreme Court of Appeal bore the primary obligation
of
ensuring that the proceedings before it were fair. As pointed out
by the Supreme Court of Appeal in its judgment, “the
fair trial
right includes the right to an appeal [and] . . . the appeal must
be as subject to considerations of fairness as the
trial which
gives rise to it.”
38
In
deciding whether or not to allow sound recording of the appeal
proceedings before it, the Supreme Court of Appeal reasoned
as
follows –
39
“
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.
40
In the end, however, what will be decisive in a case like the
present will be the exercise of the courts’ discretion.
. . . [G]iven 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 . . .
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.
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 in
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 this 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.”
The
test adopted by the Supreme Court of Appeal was therefore that the
broadcasting should not be permitted unless that Court
was
satisfied that it would not inhibit justice in that Court. In our
view, this test impliedly recognises that the Supreme
Court of
Appeal bears a primary obligation to ensure that the appeal
proceedings before it are fair. It also recognises that
it should
not permit further extension of the principle of open justice
beyond that already afforded unless it was satisfied
that the
fairness of the proceedings before it would not be threatened.
In
our view, this establishes an appropriate relationship of
proportionality between the right to freedom of expression and the
court’s obligation to ensure that the proceedings before it are
fair. While it may well be that this Court would not have
adopted
an identical test, that is not the issue in these proceedings. The
adoption of this test is far from a “demonstrable
blunder” on
the part of the Supreme Court of Appeal. It incorporates a
recognition of the primary obligation of the Court
to ensure fair
proceedings without denying the importance of the principle of open
justice and the right to freedom of expression.
In particular, it
must be emphasised that this is not a case where there was to be a
ban on reporting or a closing of the doors
of the court. It
concerns only a further and unprecedented – in the history of the
Supreme Court of Appeal – extension of
the principle of open
justice to include full audio recording and broadcasting of the
proceedings.
It
is against this background that the SABC’s submissions must be
examined. Counsel for the SABC contended that the approach
of the
Supreme Court of Appeal in this regard was seriously flawed in
three respects. First, what was at issue before the Supreme
Court
of Appeal was not simply a “clash” of the competing rights to a
fair trial and to freedom of expression. According
to counsel, the
need for the SABC to broadcast does not merely arise due to the
right of freedom of expression; on the contrary,
it is a
consequence of the principle of open justice which itself flows
from the values of openness, accountability and the rule
of law in
the Constitution and also flows directly from the requirement in
sections 34 and 35(3)(c) that civil and criminal proceedings
must
be “public”. The question before the Supreme Court of Appeal
should not, therefore, have been which right prevailed,
but rather
how best to give effect to the requirement of the Constitution that
the appeal hearing be
both
“fair”
and
“public”.
In counsel’s submission, the Supreme Court of Appeal completely
failed to address this question.
Second,
even in respect of freedom of expression, the Supreme Court of
Appeal was, so counsel contended, incorrect to rely on
a model of
“clashing” rights in which one right had to prevail at the
expense of the other. Referring to foreign jurisprudence,
counsel
submitted that freedom of expression can bring substantial benefits
to the notion of a fair hearing. A far richer, more
nuanced
analysis was required of the Supreme Court of Appeal – rather
than simply concluding that there was a “clash of rights”
and
that the right to freedom of expression had “to give way”. It
was incumbent upon the Supreme Court of Appeal to investigate
and
evaluate how preventing or allowing the SABC broadcasts would
impact on the right to freedom of expression, the right to
a “fair”
“public” hearing, the principle of open justice and the
administration of justice. This, said counsel, the
Supreme Court
of Appeal did not do.
Third,
counsel submitted, the Supreme Court of Appeal materially
misdirected itself in adopting the “test” set out above,
41
such test being inconsistent with the jurisprudence of this Court
in cases such as
S v Mamabolo
42
and
Laugh It Off Promotions CC
,
43
and with the jurisprudence of foreign courts. This test allowed
the Supreme Court of Appeal to refuse to grant broadcast rights
unless it was “satisfied that justice will not be inhibited”,
thereby allowing for freedom of expression to be limited without
the Court having concluded that the broadcast “really was likely
to damage”
44
the right to a fair trial and the administration of justice and
notwithstanding that the harm speculated consisted merely of
“conjecture alone”.
45
Moreover, the test adopted by the Supreme Court of Appeal
inevitably and permanently privileges the right to a
fair
trial
over the right to a
public
trial, the right to freedom of
expression and the principle of open justice. In doing so, counsel
argued, it creates a hierarchy
of rights inappropriate for a
Constitution such as ours.
Each
of these arguments needs to be considered separately. There can be
no doubt, as we have observed earlier, that the right
to a fair
trial does include the right to a trial in public and that the
principle that underlies that right may aptly be called
a principle
of “open justice”. This principle does promote the
accountability of courts and the administration of justice.
It has
traditionally been understood to mean that court hearings must be
open to members of the public who wish to observe them
and to
journalists who wish to report upon them. Traditionally the
principle has never been absolute. Trials and parts of trials
may
be, and often are, held behind closed doors to protect the privacy
or security of witnesses.
The
right to a public hearing does not automatically mean that trials
must necessarily be broadcast live in all circumstances.
Indeed,
as we have noted above, it will often not be in the interests of
justice for a trial, where oral evidence is to be led,
to be
broadcast on radio and television. While the situation with appeal
proceedings is different, in some circumstances, such
as rape cases
or those involving the testimony of minors, it may not be in the
interests of justice to broadcast appeal proceedings.
Moreover,
many applications for leave to appeal are dealt with on the papers,
without a hearing in open court. This court has
held that such
proceedings are not necessarily always inconsistent with the
Constitution.
46
All this however need not finally be determined in this case.
It
was admitted in argument before us that the principle of open
justice as conceptualised by counsel for the applicant in this
Court was not put to the Supreme Court of Appeal in the same way,
if at all. Be that as it may, contrary to what the applicant
contended, on a fair reading of its judgment, the Supreme Court of
Appeal did make the effort to determine how best to give effect
to
the requirements of the Constitution that the appeal hearing be
both fair and public. It held that these requirements could
best
be accommodated by ensuring that no extension of the openness of
the court room to permit broadcasting should be permitted
unless it
was satisfied that no threat to the fairness of the appeal
proceedings would ensue. The test must be understood on
the basis
that the proceedings were to be open to the public and the press.
The only issue was whether that openness should
extend to radio and
television broadcasts. Understood in its context, the test adopted
by the Supreme Court of Appeal did seek
to accommodate both the
need to ensure that the proceedings took place in public and that
the proceedings were fair. The fact
that that accommodation might
have been differently achieved by another court is not sufficient
to suggest that the accommodation
adopted by the Supreme Court of
Appeal may be interfered with on appeal. Accordingly this
criticism raised by the applicant
is misconceived.
The
second criticism by applicant’s counsel is the “clash of
rights” model adopted by the Supreme Court of Appeal. In our
view, as set out above,
47
when a court is seeking to determine whether the broadcasting of
proceedings before it are “in the interests of justice”
or not,
it should seek to reconcile the fundamental rights at issue with
its obligation to ensure that the proceedings before
it are fair.
Although the Supreme Court of Appeal may have used the language of
a clash, what it did was to seek to reconcile
appropriately its
obligation to ensure that the proceedings before it were fair with
the extension of the principle of open justice
sought by the
applicant. It held that it would not permit broadcasting unless it
was certain that the fairness of the proceedings
would not be
threatened. This being so, the second argument raised by the
applicant mischaracterises what the Supreme Court
of Appeal in fact
did.
The
third argument raised by counsel related to the test set by the
Supreme Court of Appeal to determine whether the application
to
broadcast the proceedings should be granted. The applicant
criticises the test on a number of grounds. First, it argues
that
it is inconsistent with the jurisprudence of this Court in that it
posits a hierarchy of rights inconsistent with our constitutional
order. Second, it argues that it fails to consider the trends in
other open democracies.
As
to the first argument, although it is correct that our Constitution
does not postulate a hierarchy of rights in the abstract,
there are
circumstances in which one right will take precedence over others.
Given that a court has a primary obligation to
ensure that the
proceedings before it are fair, that obligation will always figure
large in the exercise of discretion under
section 173. We cannot
agree that the Supreme Court of Appeal erred in recognising this in
the particular circumstances of this
case. We repeat that it may
well be that another court might have perceived the interests of
justice differently in relation
to proceedings before it, but that
is not the test on appeal here. The question is whether the
Supreme Court of Appeal committed
a “demonstrable blunder” in
adopting the test it did. It did not.
As
to the second, most, if not all, of the foreign judgments relied on
by counsel for the SABC are not directly on point. They
deal
either with considerations applicable to a total ban on the
publication of court proceedings or with proceedings before
an
organ of state other than a court.
48
As against all these foreign cases relied on by the applicant that
are not on point, reference should be made to a fairly recent
decision of the German Federal Constitutional Court
49
relied on by counsel for the first respondent. In this case, the
court upheld a federal law which bans recording and filming
in
courts for broadcast purposes, holding that the legislature had
properly decided to limit the openness of court proceedings
to
persons physically present during the proceedings. Broadcasting
journalists were perfectly free to attend and to report

proceedings; only live coverage was prohibited. The Court held
that the ban took account of the parties’ constitutional right
to
privacy, the importance of a fair procedure and the correct finding
of facts. A majority of the Court also held that the
law need not
give courts a discretionary power to allow television coverage and
filming in exceptional cases as media pressure
would place an
impossible burden on courts if they were to be given that
discretion.
Furthermore,
as is evident from the wide-ranging discussion of the legislation
and case law in other jurisdictions undertaken
by Van Zyl J in
SABC
v Thatcher and Others
,
50
it is by no means the case that the majority of such other
jurisdictions allow the kind of broadcasting of court proceedings
that the applicant seeks.
Not
only have courts not recognised a right to broadcast live court
proceedings,
51
but academic experts on freedom of expression have also expressed
severe doubts as to whether such a right exists. Eric Barendt
in
his recent work on freedom of speech writes as follows –
“
But the case for recognition
of a right to televise as an integral aspect or consequence of free
speech is very weak. First, we
should recall the doubts expressed
earlier concerning the coherence of access rights for the press and
public to attend legal
proceedings (as distinct from the right of
the defendant to a fair public trial or a weaker open justice
principle). Even if
access
rights are accepted, it would not
follow that they confer rights to film and televise proceedings.
For the arguments which can
be deployed to support access rights do
not justify recognition of these further rights. It is difficult to
see why and how public
confidence in the legal system and judicial
accountability would be enhanced by the provision of rights going
beyond the freedom
of the public and press to attend legal
proceedings and the media right to report them. Further, a right to
film and televise
would necessarily give the broadcasting media
privileges which could not practically be enjoyed by others, say, by
amateur film-makers
who wanted to record trials for educational
purposes. Another point is that in practice broadcasters would
choose the trials they
wished to cover and which parts or extracts
to broadcast; that discretion is far removed from an access right
which in principle
belongs to the members of the general public as
it does to the institutional media.”
52
It
should also be emphasised that an application of this sort to
broadcast appeal proceedings on radio and television where all
of
the parties to the appeal vigorously oppose it, is unprecedented in
our legal system. Indeed, as stated above, as far as
we have been
able to ascertain in the short time available to us, there is no
analogous precedent anywhere else in the world.
None of the cases
relied upon by the applicants is in any way similar to this one.
Given
the absence of acceptance of the existence of the right in other
open and democratic societies, it cannot in our view be
said that,
in its application of legal principles and its consideration of the
constitutional rights at stake, the Supreme Court
of Appeal acted
in such a way as to justify the conclusion that its decision was
not judicially made.
As
regards the facts, counsel for the SABC contended that the Supreme
Court of Appeal misdirected itself in finding that allowing
the
SABC to sound record the proceedings would distract and inhibit
counsel and the Court to such an extent that an unfair hearing
might well result. According to counsel, this finding was based on
mere speculation which is not borne out by experience. We
must
disagree with this contention. The decision was reached
unanimously by five judges of the Supreme Court of Appeal who are
by definition experienced judges and familiar with the conduct of
proceedings in their own court room. Whatever the situation
may be
in future it held that, the particular circumstances of this
complex case make it an inappropriate starting point for
experimentation with live broadcasting. This conclusion cannot be
said to be manifestly wrong.
It
is moreover important to bear in mind that, in arriving at their
conclusion, the Supreme Court of Appeal had the benefit of
having
before it the entire record of the trial proceedings containing, in
the words of the Supreme Court of Appeal, “a mass
of facts and a
myriad of factual issues laced with a variety of legal points.”
53
Issues arising from a consideration of the full trial record that
were clearly present to the mind of the Supreme Court of Appeal
include the factual role of Mr Zuma, the “backdrop of foreign
commercial interests jostling for political patronage in the
early
years of the new democracy; . . . the involvement of the so-called
arms deal and allegations of irregularities that beset
it; and . .
. profound implications for the pending case against Mr Zuma.”
54
As pointed out by the Supreme Court of Appeal in its judgment –
“
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.. .
. 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.
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.” (our emphasis)
55
Counsel
for the SABC also submitted that the Supreme Court of Appeal
misdirected itself on the facts in taking the view that allowing
the sound broadcasting of the appeal hearing might threaten or
undermine any future prosecution of Mr Zuma in a material way.
In
this regard, the Supreme Court of Appeal pointed out that –
“
. . . the prosecution will
need to rely on many of the same 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.”
56
The
ground upon which the SABC seeks to counter this finding by the
Supreme Court of Appeal is not convincing. The SABC argues
that
witnesses may be subpoenaed, but this argument does not address the
fact that a reluctant witness is much less likely than
a willing
one to be found credible and reliable. Furthermore, while there is
merit in the submission by counsel for the SABC
that distorted
versions of criticisms advanced against witnesses during the course
of the appeal hearing may in any event be
a product of allowing
only “second-hand” reports on the argument during the course of
such hearing, on the SABC’s account
television will have a much
greater impact on a far larger audience.
The
same considerations apply to the criticism by the SABC of the
finding that another difficulty which justified the NDPP’s
opposition to the application before it was the fact 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.”
57
It
is likely that, as contended by counsel for the SABC, the same risk
will exist whether or not sound recording and broadcasting
of the
appeal proceedings is allowed. However, the submission by counsel
that allowing a full broadcast of the appeal hearing
to take place
will ensure that members of the public witnessing the case will
understand that the appeal is primarily about the
second respondent
and not about Mr Zuma, underplays the impact of the actual spoken
words of counsel and of the judges in comparison
with “second-hand”
reports of the appeal proceedings. Moreover, the possible impact
on witnesses remains a sufficient justification
for the Supreme
Court of Appeal decision to prohibit live broadcasting in this
case.
In
conclusion, it cannot in our view be said that the Supreme Court of
Appeal reached its decision other than judicially. Even
if this
Court might well have come to a different decision, no basis has
been established for intervening in the exercise by
the Supreme
Court of Appeal of its discretion to regulate its own process and
to ensure that the arrangements within its own
court room do not
interfere with the administration of justice.
Before
turning to the question of the order, we consider it helpful to set
out some considerations which in our view need to be
taken into
account in the future when the question of televising court
proceedings is raised. The time has come for courts to
embrace the
principle of open justice and all they imply. However, in our
view, it should be borne in mind that the electronic
media create
some special difficulties for the principle of open justice.
Broadcasting, whether by television or radio, has
the potential to
distort the character of the proceedings. This can happen in two
ways: first, by the intense impact that television,
in particular,
has on the viewer in comparison to the print media; and second, the
potential for the editing of court proceedings
to convey an
inaccurate reflection of what actually happened. This is
particularly dangerous given that visual and audio recordings
can
be edited in a manner that does not disclose the fact of editing.
This distorting effect needs to be guarded against. It
arises not
so much from the presence of cameras and microphones interfering
with the court proceedings themselves. But more
dangerously, it
may arise from the manner in which coverage can be manipulated,
often unwittingly, to produce communications
which may undermine
rather than support public education on the workings of the court
and may also undermine the fairness of
the trial. Such distortions
are much more likely to arise from edited highlights packages than
from full live broadcasts.
The
interests of justice require that appropriate guarantees be in
place to ensure both accuracy and balance. Sound bytes from
political discourse, sometimes played over and over again on
television, may or may not be justified in news or current affairs
programmes. In the case of judicial proceedings, however, similar
sound bytes carry the real risk of trivialising complex issues
and
converting what should be public education into public
entertainment.
This
problem is by no means insuperable. As Howie P emphasised –
“
[D]elayed ‘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.”
58
Indeed, in the open and democratic society envisaged by the
Constitution, in which the public have a right of access to the
workings
of the judicial system, the question is not necessarily
whether the electronic media should be able to cover appeals, but
how guarantees
can be put in place to ensure that the public is
indeed well informed about how the courts function when hearing
appeals. Television
and radio may not be the only ways to ensure
that this is achieved, and in addition may not necessarily be the
best ways.
In
this connection reference was made to an agreement entered into
between the media and the judiciary in 1993.
59
It would seem that the advent of a democratic constitution,
technological advances and growing acceptance throughout the world
of the power and impact of the electronic media may require this
agreement to be reconsidered. The answer, however, is not to
treat
it as non-existent but rather to renovate and update it. It would
be inappropriate for this Court at this stage to prejudge
such a
process. It is for the judiciary to work out the modalities
working in cooperation with the media. The objective will
be to
get fair and balanced reporting of legal proceedings while
maintaining the fairness and integrity of those proceedings.
It
might well be considered advisable to start with coverage on a
trial basis.
60
It is certainly not in the interests of any of the parties to this
litigation or the viewing public in general for the process
to be
impelled by a last-minute application followed by hastily
improvised procedures.
Costs
The
applicant has sought the right to televise proceedings to which it
was not a party. Inevitably, the parties to the proceedings
were
entitled to come to this Court to oppose that order. In the
circumstances, it is appropriate that the applicant be required
to
pay the costs of the second to twelfth respondents’ opposition in
this Court. We do not think it appropriate to order the
applicant
to pay the costs of the NDPP who litigates on behalf of the public.
Order
The
following order is accordingly made:
1. The application for leave to appeal is granted.
2. The appeal is dismissed
3. The applicant is ordered to pay the costs of the second to
twelfth respondents, such costs to include the costs consequent upon
the employment of two counsel.
MOSENEKE DCJ:
Introduction
Regrettably,
this judgment is prepared in great haste. Our decision must be
made known within a few days of hearing oral argument.
We owe this
unseemly rush to the fact that the South African Broadcasting
Corporation (“SABC”) is aggrieved that the Supreme
Court of
Appeal has refused it permission to record and broadcast live on
television, with visuals and sound, or on radio, two
appeals by Mr
Schabir Shaik, the second respondent and ten other respondents due
to be heard by the Supreme Court of Appeal on
25 to 29 September
2006. In the alternative, the public broadcaster had asked for
permission to record the appeal proceedings
for delayed
broadcasting
on television or radio as edited highlight packages to be reported
on daily news bulletins and current affairs programmes.
For that
reason the SABC seeks to move us to grant it urgent leave to appeal
the decision.
I
have had the benefit of reading the majority judgment. I am
indebted to its rendition of the background. I support its
discussion
on the importance and relative space of free expression,
free press and courts in our constitutional setting. Whilst I
agree
with the majority judgment on the proper approach to be
adopted by an appellate court towards the exercise of discretion by
another
court, I regret that I am constrained to part ways on the
manner in which the main judgment characterises the discretion
conferred
to a court by section 173 of the Constitution. I also
disagree on whether the decision of the Supreme Court of Appeal is
vitiated
by a misdirection which entitles this Court to interfere.
In
order to know whether grounds exist which permit this Court to
interfere with the impugned decision I have to answer three
primary
questions. They are: (a) what is the source and nature of the
decision of the Supreme Court of Appeal when it disallows
live
sound television or radio broadcast of its appeal proceedings? (b)
what is the proper test an appellate court should adopt
towards the
exercise of the discretion granted by section 173 where the
exercise limits a right and affects founding values entrenched
in
the Constitution? (c) has the discretion been exercised properly?
Before
I traverse each of these issues, it is perhaps convenient to
describe briefly the reasoning of the Supreme Court of Appeal
in
refusing leave to broadcast its appeal proceedings on television
with sound or on radio. The Court approached the matter
on the
footing that the broadcaster’s constitutional right to freedom of
expression and to impart information and, in turn,
the right of the
public to receive the information “collide four square”
1
with the right of all respondents to a fair public court hearing
under section 34
2
and with the right of the second to twelfth respondents to a fair
trial and subsequent appeal under section 35(3).
3
The Court considered the “very issue”
4
before it to be whether the television broadcasters’ right should
prevail at the expense of the respondents’ fair trial right.
The
answer, the Supreme Court of Appeal finds, lies in undertaking a
balancing exercise in which the rival rights are assessed
against
each other taking into account the facts. This weighing up is made
possible, the Supreme Court of Appeal held, by section
173
5
of the Constitution which gives that court the inherent power to
regulate its own process. The Supreme Court of Appeal takes
the
view that, given the nature of the balancing exercise and the
discretion the court enjoys under section 173 none of the parties
should bear an onus. This will allow the court a free hand in
evaluating the evidence on live or delayed broadcasting without
any
litigant being encumbered by the burden of proof. The Supreme
Court of Appeal sees the competition between the broadcaster’s
right and the appellants’ fair trial rights as one which must be
assessed on a case by case basis as it does not to permit
a general
rule.
However,
the Supreme Court of Appeal concludes its approach to the balancing
exercise by observing that:
“
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.”
6
The
Supreme Court of Appeal then considered what might inhibit justice
in this case should live sound broadcast be permitted and
advanced
two main reasons. The first is that a combination of factors “will
place a double burden on counsel and the court”
7
and the live sound television coverage “will add an inhibiting
dimension which will, whether by way of being the last straw
or in
combination with all circumstances, create the material risk that
justice will be impaired and the respondents’ ss 34
and 35(3)
rights to fair hearings infringed.”
8
The combination of factors mentioned include that: television
impacts on and impresses the viewer more readily than radio and
newspaper; when the appeals are heard those “on camera” for
several days to a country-wide audience will experience “a
stress
all its own”,
9
the trial from which the appeals arise was long and demanding with
many witnesses and many factual and legal issues; the appeal
record
runs to over 12 600 pages; the liberty and substantial personal
estate of Mr Shaik are at stake; counsel and the court
will have to
manage the appeal hearing with the distraction of extensive
publicity and the appeal will be heard in an atmosphere
of
heightened political tension.
The
second ground for refusing live sound broadcast relates to the
pending criminal trial of the country’s former Deputy President,
Mr Zuma. The Supreme Court of Appeal observed that in the pending
criminal trial the prosecution will rely on many witnesses
whose
testimony is in dispute in the criminal appeals and therefore will
be subject to “searching examination and very likely
trenchant
criticism.”
10
Furthermore, the Court found that live radio and sound television
will increase the exposure to an extent which could disadvantage
the pending prosecution by causing the witnesses to refuse to
testify in the trial of Mr Zuma. Another consideration advanced
by
the Supreme Court of Appeal is that in the appeals there will be
frequent reference to Mr Zuma and that it is in the interests
of
justice in relation to his pending criminal trial to reduce or
remove the likely popular perception that the decision on his
guilt
has already been made. The court took the view that both live and
delayed radio and sound television will create that
risk.
What
this case is not about
Before
I move onto issues relating to the inherent jurisdiction of the
court and its exercise in relation to public broadcasting,
it may
be expedient to clear some undergrowth by flagging what this case
is not about. First, this case is not about recording
and
televising trials and the concerns associated with vulnerability of
witnesses “on camera”. It is rather about leave
to record and
televise appeal proceedings, which involve the forensic exchanges
between the bench and counsel. Second, this
case is not about
whether the SABC may record and televise the appeals. The Supreme
Court of Appeal has already issued directions
permitting the
recording on camera and televising of the appeals provided that the
public broadcaster may not record and disseminate
the images with
sound. Therefore, the target of the publication ban is indeed
narrow but mortal. It silences speech. Images
may flourish but
the spoken word may not. Third, the case before us is not about
delayed sound coverage on television or radio.
The Supreme Court
of Appeal chose not to resolve that issue. Fourth, the privacy
interests of the second respondent, which
he had invoked in
opposition to the broadcaster’s application, are no longer in
issue. This is so because the public broadcaster
has put up a
draft order in which it agrees to be directed not to record and
broadcast the second respondent or his family for
the duration of
the appeals.
Source
and nature of the power to disallow live sound broadcast
The
Supreme Court of Appeal conceived of its power to ban the public
broadcaster from disseminating sound recording of the appeals
to
derive from section 173 of the Constitution. The section affirms
the “inherent power” of the Supreme Court of Appeal,
and indeed
of this Court and High Courts, to protect and regulate its own
processes taking into account the interests of justice.
In
argument before us all parties, correctly so in my view, accepted
that section 173 conferred on the Supreme Court of Appeal
a
discretion to regulate its process if it is in the interests of
justice to do so and that the words “own process” are wide
enough to include, not only written notices and pleadings but also
the actual proceedings before a superior court. It follows
that
when the Supreme Court of Appeal declined the application of the
public broadcaster it exercised an authority derived, not
from
legislation or the common law, but from the Constitution itself. I
deal with the importance of this distinction later.
However, first
it is crucial to understand the nature and scope of the authority
in issue.
The
text of section 173 suggests that the jurisdiction to control
“process” is “inherent” in superior courts by reason
only
of their very nature as superior courts. That indeed was the
approach of superior courts before the advent of constitutional
democracy. The reservoir of inherent jurisdiction is described as
“the unwritten power without which the court is unable to
function with justice and good reason” and derives neither from
the common law nor from legislation but is modelled on the
powers
of an English superior court.
11
The
scope of the inherent jurisdiction to regulate a court’s own
procedure in the pre-constitutional era was considered in
Universal
City Studios Inc and Others v Network Video (Pty) Ltd
,
12
in which the Appellate Division held that although the court
does not have an inherent power to create substantive law, the
dividing
line between substantive and adjectival law is not always
an easy one. In the end the court accepted the distinction that
substantive
law is concerned with “the ends of the administration
of justice” whilst procedural law prescribes “the means and
instruments”
by which the ends are to be attained.
13
Therefore, the court held that in its essence the inherent
jurisdiction of the Supreme Court was procedural.
In
Moch v Nedtravel (Pty) Ltd t/a American Travel Express Service
,
14
the court declined to entertain under its inherent jurisdiction an
appeal against an order that was not otherwise appeallable.

Following
Universal City Studios Inc and Others v Network Video
(Pty) Ltd
,
the court held that “the inherent reservoir
of power to regulate its procedures in the interest of the proper
administration
of justice does not extend to the assumption of
jurisdiction not conferred upon it by statute” and that its
“inherent power
is in any event reserved for extraordinary cases
where grave injustice cannot otherwise be prevented.”
15
It
must however be stated that nowadays in our constitutional
architecture all public power, so too judicial power, flows from
the Constitution itself. No judicial power inheres in a superior
court if not derived from the supreme law whose obligations
must be
fulfilled. It is the Constitution which vests judicial authority
in courts, it makes their orders and decisions binding
on all
concerned and declares them independent subject only to the
Constitution and the law, which the courts must apply “impartially
and without fear, favour and prejudice.”
16
Also important in this regard is that the Constitution is not
silent on court procedures. Courts must function in terms of
national legislation and their rules and procedures must themselves
derive from national legislation.
17
Recently in
Phillips v NDPP
18
this Court made a similar point that since courts derive their
power from the Constitution itself, they do not enjoy original
jurisdiction conferred by a source other than the Constitution.
In
S v Pennington and Another
19
this Court said of section 173:
“
It is a power which has to
be exercised with caution. It is not necessary to decide whether it
is subject to the same constraints
as the ‘inherent reservoir of
power to regulate its procedures in the interests of the proper
administration of justice’ which
vested in the Appellate Division
prior to the passing of the 1996 Constitution." [footnotes
omitted].
The Court emphasized that when this power is exercised it must be
done in a way that accords with the requirements of the
Constitution.
Again in
Parbhoo and Others v Getz NO and Another
20
this Court turned to its “inherent power” to meet an
“extraordinary” procedural situation pending the enactment of
relevant
legislation and the promulgation of rules of procedure.
The Court made the point that ordinarily the power in section 173 to
protect
and regulate relates to the process of court and arises when
there is a legislative
lacuna
in the process. The power must
be exercised sparingly, after having taken into account the
interests of justice in a manner consistent
with the Constitution.
In
my view it must be added that the power conferred on the High
Courts, Supreme Court of Appeal and this Court in section 173
is
not an unbounded additional instrument to limit or deny vested or
entrenched rights. The power in section 173 vests in the
judiciary
the authority to uphold, to protect and to fulfill the judicial
function of administering justice in a regular, orderly
and
effective manner. Said otherwise it is the authority to prevent
any possible abuse of process and to allow a court to act
effectively within its jurisdiction. However, the inherent power
to regulate and control process and to preserve what is in
the
interests of justice does not translate into judicial authority to
impinge on a right that has otherwise vested or has been
conferred
by the Constitution.
21
In
our constitutional scheme a right entrenched in the Bill of Rights
is certainly not absolute. Nor do we subscribe to a hierarchy
of
entrenched freedoms and fundamental rights. A right may be
limited, but only in terms of a 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
or by any other provision of the Constitution.
22
The National Director of Public Prosecutions, the first
respondent, argued that the broadcaster’s right to free
expression
and freedom of the press under section 16(1) is limited
by section 173 of the Constitution. The question that arises is
whether
the manifestly procedural character of the jurisdiction
under section 173 serves the same purpose as the limitation of
rights
standard in section 36(1) of the Constitution. I think not.
If
a court seeks to limit an entrenched right, such as the free
expression of the media, relying only on the power to regulate
procedure under section 173 and not on a law of general application
that confers a discretion to limit an entrenched right, as
was the
case in
Giddey
,
23
the Court itself is imposing the limitation. It must follow that,
at a bare minimum, the limitations must, in substance, fall
within
the bounds imposed by section 36(1). It seems to me plain that
under section 173 the court does not have a strict discretion
in
the sense that it has more than one legitimate option. On the
contrary, it is obliged to give effect to the entrenched right
unless it is reasonable and justifiable to limit the right and even
so only to the extent necessary to achieve the purpose of
the
limitation.
The
proper test
Before
us all parties argued this case on the basis that the Supreme Court
of Appeal exercised a discretion conferred by section
173 of the
Constitution when it refused the application of the public
broadcaster. I have described the nature of the discretion
section
173 permits. However, for present purposes it is unnecessary to
characterise the discretion as strict or not. Suffice
it to draw
attention to some differences between the discretion here and the
one we were concerned with in
Giddey.
Most
instances of discretion in the strict sense only affect the parties
involved in the dispute. These include a decision to
grant a
postponement, a decision regarding condonation,
24
a decision regarding security for costs
25
or
the discretion regarding the admission of a bail record.
26
In contrast, the discretion exercised in this case affects not
only the public broadcaster and the parties involved, but also
every member of the public who might wish to observe the criminal
appeals. Decisions involving broadcast rights relate to the
limitation of fundamental rights and have a substantial impact on
the broader public. It would therefore be inappropriate to
conclude that in making such a decision on a particular set of
facts, a court has a free choice regarding whether to grant such
broadcasting rights or not. Another crucial difference is that
here the Supreme Court of Appeal, on it own accord, has limited
the
right to free expression. This is not a case where the legislature
itself has chosen to limit the rights. If it does limit
enumerated
rights, it may do so only in a manner compatible with the rights
limitation precepts of the Constitution.
I
shall nonetheless approach this matter on a standard more
favourable to the respondents and that is as if the appeal were

against the exercise of a discretion in the strict sense. That
means that I am obliged to interfere only if the Supreme Court
of
Appeal has not exercised its discretion judicially; has been
influenced by wrong principles of law or by a misdirection on
the
facts; has taken into account irrelevant considerations; or has
reached a decision which could not reasonably have been made
by a
court properly directing itself to all the relevant facts and legal
principles.
27
Has
the discretion been exercised properly?
First,
it bears repetition that the right of media, such as the SABC, to
gather and broadcast information, footage and audio recordings
flows from section 16(1) of the Constitution. Equally important is
that the SABC is a public broadcaster and has the licence
and
obligations to broadcast under legislation and particularly the
Broadcasting Act 4 of 1999
. At the threshold enquiry, the rights
to freedom of expression, freedom of the media and freedom to
impart information and ideas
must carry a generous import. It
seems entirely apposite that its reach must include the right of
the media to gather information,
video footage and audio recordings
for dissemination to the public. The right to freedom of
expression would serve little purpose
if the media, though entitled
to convey information and broadcast footage and recordings, were
not entitled to gather information,
footage and recordings. The
suggestion that the scope of the right of freedom of the media
should be limited at the threshold
on a context sensitive, case by
case basis may well be inconsistent with the jurisprudence of this
Court on the limitation of
rights. In my view the Supreme Court of
Appeal misappreciated the nature of the enquiry it was called upon
to make, which is
whether there exist reasonable and justifiable
grounds to limit the right asserted by the public broadcaster.
Second,
there is much to be said for the submission of the public
broadcaster that the Supreme Court of Appeal counted freedom
of
expression as the only interest in favour of broadcasts. It
omitted to bear in mind that the principle of open justice, which
is well entrenched in our law, provides a powerful reason for
allowing the broadcast of court proceedings. The principle of
open
justice is an incident of the values of openness, accountability
and the rule of law, as well as a core part of the notion
of a
participatory democracy. All these are foundational values
entrenched in the Constitution. Its preamble contemplates “a
democratic and open society in which government is based on the
will of the people” whereas section 1(d) requires that our
democracy shall ensure accountability, responsiveness and openness.
In
the judicial sphere, notions of openness are even more important.
The public is entitled to have access to the courts and
to obtain
information pertaining to them. There is no gainsaying that the
gathering of information pertaining to how courts
function is
indivisibly linked to representative democracy. Once more,
sections 34 and 35(3)(c) of the Constitution require
that court
proceedings in this country must be “public”. After all,
courts of law exercise public and often coercive power.
What they
do and do not do is of legitimate public concern. In
S v
Mamobolo
28
this court makes the point in telling terms:
“
Since time immemorial and in
many divergent cultures it has been accepted that the business of
adjudication concerns not only the
immediate litigants but is a
matter of public concern which, for its credibility, is done in the
open where all can see. Of course
this openness seeks to ensure
that the citizenry know what is happening, such knowledge in turn
being a means towards the next
objective: so that the people can
discuss, endorse, criticise, applaud or castigate the conduct of
their courts. And, ultimately,
such free and frank debate about
judicial proceedings serve more than one vital public purpose.
Self-evidently such informed and
vocal public scrutiny promotes
impartiality, accessibility and effectiveness, three of the
important aspirational attributes prescribed
for the Judiciary by
the Constitution.”
The
principle of open justice is well settled in many democracies. A
few examples will suffice. The House of Lords in
Scott v Scott
29
endorsed the principle on the following terms:
“
Publicity is the very soul
of justice. It is the keenest spur to exertion and the surety of
all guards against improbity. It keeps
the judge himself, while
judging, under trial.”
In
Richmond Newspapers Inc v Virginia
30
Chief Justice Warren Burger, writing for an 8-to-1 majority of the
US Supreme Court about the necessity for open courtrooms, observed:
“
People in an open society do
not demand infallibility from their institutions, but it is
difficult for them to accept what they
are prohibited from
observing.”
In
Edmonton Journal v Attorney General for Alberta
, the Supreme
Court of Canada, in endorsing the open justice principle, recognised
its educational value:
“
It is also worth noting that
there is an important educational aspect to an open court process.
It provides an opportunity for
the members of the community to
acquire an understanding of how the courts work and how what goes on
there affects them.”
31
It
is perhaps appropriate to draw attention to the fact that
permitting audio-visual recording and broadcast of appellate
proceedings
is by no means without precedent. The Supreme Court of
Canada provides a live feed of all appeals to the Canadian
Parliamentary
Press Gallery. The Court holds copyright over all
video recordings. The Court has an arrangement with the Canadian
Public Affairs
Channel which allows the Channel to broadcast
hearings at a later date. Upon written request, permission may be
given to allow
limited use of video recording of cases for
educational, non-commercial purposes. Members of the media write
to the Registrar
to obtain permission.
32
In
concluding the discussion on the principle of open justice it is
important to recognise that its relevance in our context is
even
greater. On the papers the evidence suggests that the majority of
South Africans receive news and information principally
by means of
radio and television. The printed media is a preserve of a few.
This is so partly on account of the extensively
high level of
illiteracy. We are told that daily newspapers average a
circulation of approximately 1.6 million. Whereas the
national
television network reaches approximately 18 million people and the
radio has a daily adult audience of around 20 million
people.
These facts indeed make the point of the full bench in
Dotcom
Trading 121 t/a Live African Network News v King NO and Others
33
that:
“
In modern times there are
many forms of communication. Each of these media of communication
and expression has its own distinguishing
features and each of them
can be limited in a different way. The video camera most probably
provides the ultimate means of communication.
But radio also has
its advantages over the print media. Not only the words spoken,
but the emphasis, the tone of voice, the
hesitations, etcetera can
be recorded and communicated.”
It is
no answer to this telling point that the court will be open to the
public during the appeal hearings. Besides obvious distance
and
space limitations, the vast majority of citizens prefer to rely on
the media rather than personal attendance at court proceedings.
Fourth,
the dictates of our Constitution are that a court hearing must be
not only fair but also public. The Supreme Court of
Appeal started
its analysis by pitting the right to freedom of expression against
the right to a fair hearing. In doing so,
in effect the Supreme
Court of Appeal failed to bring to account the fact that the right
to a fair hearing itself includes the
right to a “public”
hearing. Therefore, the issue is not one of a choice but of how
best a court can reconcile the two elements
of fairness and
openness in the hearing. Freedom of expression does not
necessarily threaten fair hearing rights. It can bring
considerable benefits to the requirement. That means that courts
are required to embark upon a nuanced analysis rather than
simply
opting, as the Supreme Court of Appeal did, for one right to
prevail over another.
Fifth,
earlier in this judgment I alluded to the test developed by the
Supreme Court of Appeal to determine when broadcasting
should be
allowed. Its view is that “live or recorded broadcasting should
not be allowed unless the court is satisfied that
justice will not
be inhibited, rather than to adopt the converse test.” Clearly,
the test privileges the right to a fair trial
over the right to
freedom of expression and the open justice considerations and
implies an inappropriate and unwarranted hierarchy
of rights, which
from the outset prejudices the rights of broadcasters.
Lastly,
on the facts, the Supreme Court of Appeal concluded that there was
a reasonable possibility that allowing the public broadcaster
to
record the proceedings and to broadcast them on sound television
and radio would “inhibit justice” because counsel and
the court
will be distracted by the extensive publicity surrounding the
appeals such that an unfair hearing would result contrary
to the
fair trial guarantees in sections 34 and 35(3) of the Constitution.
There is no doubt that the appeals have elicited
unprecedented
public interest and the political stakes are high. The record is
indeed long and trying. The evidence therein
will be subjected to
incisive analysis and often trenchant criticism. A variety of
legal arguments will be made and refuted.
And certainly there will
be searching and sometimes robust exchanges between counsel and the
bench. This however seems to me
as par for the course. It
certainly comes with the territory. I have agonised much over the
reasonable prospects of judges
and counsel alike being inhibited in
discharging their solemn duties. I am not persuaded, nor do the
facts indicate any material
risk that counsel, very senior ones at
that, would shirk their responsibility to advance as vigorously as
is permissible the
cause of their clients. I can find no real
likelihood that senior counsel would not address the court “with
their customary
dignity, erudition and helpfulness”.
34
Nor am I persuaded that judges would not discharge their
obligations “impartially and without fear, favour or prejudice”.
35
For
the sake of completeness, I point out that during the hearing of
this matter all counsel were invited to draw attention to
any other
manner in which the fair trial rights envisaged in section 35(3) of
the appellants might be endangered by the sound
broadcasting. None
was advanced.
In
any event, there is a possible safeguard available during the
hearing of the appeals. The Supreme Court of Appeal could at
any
stage halt the sound recording of proceedings should actual
distraction take place. At this stage, as the first respondent
submitted that we accept the “predictive analysis” of the
effect of filming and recording the appeals. The difficulty, it
seems to me, is to shore up with facts the prediction that
demonstrated a reasonable likelihood that fair trial rights are in
jeopardy.
The
Supreme Court of Appeal refused to allow the sound broadcast of
proceedings on the further ground that it would threaten or
undermine the subsequent trial of Mr Zuma in a material way. It is
common cause that the hearing will not be closed to other
media.
The question must arise whether the Supreme Court of Appeal’s
decision to refuse broadcast rights is not likely to
lead to
greater distortions in the public eye than would be the case if
broadcast rights had been granted. The public will then
have to
settle for second hand accounts derived from other forms of media.
In my view, preventing the SABC from broadcasting
will in no way
avoid or minimise the risk of distortion. Rather, an unfiltered
relay of the proceedings on sound broadcast or
television can only
assist to quell the perception that the second respondent, the
State or Mr Zuma are not being given a fair
hearing.
Another
concern of the Supreme Court of Appeal related to the risk that
witnesses in the trial of Mr Zuma to be held later will
refuse to
testify. This risk is attributed to increased exposure through
live television and radio coverage. Two quick points
need to be
made in this regard. First, a ban on radio and sound television
coverage will not prevent “searching examination
and very likely
trenchant criticism”, as is anticipated by the Supreme Court of
Appeal, from being reported widely in other
media. Secondly, the
risk that witnesses in a trial may opt not to testify is ever
present in the face of profuse media reporting.
It is however a
hard fact that witnesses duly subpoenaed are obliged to testify in
an open court except if there are justifiable
factors which compel
a closed hearing. In these circumstances it seems to me that the
prohibition of sound dissemination by
the Supreme Court of Appeal
is not an effective means of preventing the purported harm.
It
is not without significance that the judgments of the High Court
against which the appeals lie were delivered not only in an
open
court, but were disseminated on radio and live sound television.
The broad public, over a few days, heard the reasons for
judgment
directly from the mouth of the presiding trial judge. It may well
be said that the public has a valid expectation to
hear and perhaps
see the court that set aside, varies or confirms the decisions of
the trial court which were much of a public
affair.
Finally,
in imposing the sound broadcast ban, the Supreme Court of Appeal,
in my view, was obliged to consider whether there were
less
restrictive means to prevent the mischief at which the prohibition
was directed. In its reasoning, the Court concentrated
on sound
television broadcast and to a lesser degree radio. However, in the
order it made it appears to have conflated the different
forms of
relief sought by the SABC. In particular, there is no evidence
that the Court considered whether it could allow sound
broadcast to
some extent or under particular circumstances in the proceedings.
In argument before us, counsel for the respondents
conceded that
radio relay of the proceedings may well be less inhibiting than
sound television and yet would reach millions of
listeners. It is
so that the Supreme Court of Appeal chose not to make any firm
decision about delayed broadcasting on television
or radio by means
of edited highlight packages.
In
the last instance the fair trial rights of an accused person are
indeed important. In this case the second appellant faces
a
significant risk to his liberty and to a substantial portion of his
estate. It is also important that he opposes the sound
broadcasting of the appeal. The State too resists an order
permitting a live sound broadcast. And it is so that ordinarily
a
court seized with a particular hearing is best positioned to
determine what is in the interests of justice in relation to fair
hearing rights. However, in my view, at a factual level there must
be a demonstration of a substantial likelihood of harm relied
upon.
Moreover, none of these factors taken alone or together are
decisive if it is not reasonable and justifiable to limit
entrenched rights and founding values of our Constitution,
particularly where the public itself is the beneficiary of the
rights
and values that are implicated.
In
the result I would uphold the appeal but order the SABC to pay the
costs of the second to the twelfth respondents in the Supreme
Court
of Appeal and in this Court. In both Courts the SABC moved for
relief on an urgent basis. The purported urgency was manifestly
self-induced to the considerable inconvenience of this Court, the
Supreme Court of Appeal and all respondents who are in the
thick of
things preparing for the forthcoming appeal hearings
For
no good reason, the public broadcaster was dilatory in moving the
court for relief. It is just and equitable that private
litigants
such as the second to the twelfth respondents are not unduly out of
pocket on account of fault which is not of their
own making. I
would order costs against the applicant in this Court and the
Supreme Court of Appeal on the normal scale. The
costs would be
inclusive of costs for the employment of two counsel.
This
being a minority judgment I need not formulate a formal order.
MOKGORO J:
I
have read the judgment of the majority of the Court and the
dissenting judgment of Moseneke DCJ in this matter. I concur in
Moseneke DCJ’s judgment for the reasons he gives.
I
consider that it is important to emphasise by means of this brief
concurring judgment, the constitutional values and principles
that
the Supreme Court of Appeal should have taken into account when it
exercised its power under section 173 to limit the right
to freedom
of expression of the SABC provided for in section 16 of the
Constitution.
The
permission sought by the SABC in the Supreme Court of Appeal was to
broadcast live on radio and television the criminal appeals
concerned. For those purposes, they sought to record with both
visuals and sound for television and radio. Alternatively,

permission was sought to broadcast edited highlights on radio and
television. The Supreme Court of Appeal held that to allow
such a
request would interfere with fair trial hearing rights because it
may inhibit interaction between the court and counsel.
The Court
held further that in view of the overlap between issues in their
appeals and a possible prosecution of the former
Deputy President,
Mr Zuma, abroadcast of the proceedings in the Shaik case might
impair the willingness of witnesses to testify
in the Zuma case.
The SABC submits that neither of these grounds was well founded and
that the decision of the Supreme Court
of Appeal dismissing its
application violated its freedom of expression rights under section
16 of the Constitution.
1
Although the inherent power that courts have under section 173 to
regulate their own processes is an important power for courts
to
determine how proceedings are to be conducted before them, it is
critical in our constitutional democracy that power is exercised
subject to the Constitution. In particular, section 173 provides
that courts have to take into account the interests of justice.
For
convenience I set out the provisions of section 173 of the
Constitution. It provides:
“
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.”
Section
173 therefore affords the Supreme Court of Appeal the power to
determine the extent to which the SABC may exercise its right
to
freedom of expression
.
The
Judiciary too, is bound by it.
2
As
Moseneke DCJ does, I too will assume without deciding, that the
discretion exercised by the Supreme Court of Appeal under section
173 is a strict discretion. I therefore agree that it can only be
interfered with if it is shown that the Supreme Court of Appeal,
in
exercising that discretion, materially misdirected itself on the
law or the facts; took into account factors which are not
relevant
or came to a conclusion which no reasonable court would have come
to on the basis of the law or the facts before it.
3
In
South African National Defence Union v Minister of Defence and
Another
,
4
the importance of the right to freedom of expression protected
in section 16 of the Bill of Rights was emphasised when this Court
held that:
“
Freedom of expression lies
at the heart of democracy. It is valuable for many reasons,
including its instrumental function as a
guarantor of democracy, its
implicit recognition and protection of the moral agency of
individuals in our society and its facilitation
of the search for
truth by individuals and society generally. The Constitution
recognises that individuals in our society need
to be able to hear,
form and express opinions freely on a wide range of
matters.”[footnotes omitted]
While
the right of the SABC under section 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.
Thus,
in
Laugh It Off Promotions CC v SAB International (Finance) BV
t/a SabMark International (Freedom of Expression Institute as
Amicus
Curia
e
)
5
this Court held that freedom of expression is a vital incident of
dignity, equal worth and freedom with its own inherent worth
and
serving a collection of constitutional ends in an open and
democratic society.
6
In
Khumalo and Others v Holomisa
7
(
Khumalo
) this Court recognised the crucial role which
the media plays with regard to freedom of expression:
“
The print, broadcast and
electronic media have a particular role in the protection of freedom
of expression in our society. Every
citizen has the right to
freedom of the press and the media and the right to receive
information and ideas. The media are key
agents in ensuring that
these aspects of the right to freedom of information are respected .
. . In a democratic society, then,
the mass media play a role of
undeniable importance. They bear an obligation to provide citizens
both with information and with
a platform for the exchange of ideas
which is crucial to the development of a democratic culture. As
primary agents of the dissemination
of information and ideas, they
are, inevitably, extremely powerful institutions in a democracy and
they have a constitutional duty
to act with vigour, courage,
integrity and responsibility . . . ”
8
.
It is with that constitutional
duty and responsibility in mind that the SABC asks this Court to set
aside the order of the Supreme
Court of Appeal prioritising the
right to a fair trial and denying the public broadcaster its right
to freedom of expression.
It
is important to acknowledge the right to freedom of expression of
the SABC. Like any other right in the Bill of Rights, the
right to
freedom of expression may be limited.
9
In circumstances where the right competes with other rights in the
Bill of Rights, its limitation may be justified. However,
that
justification has to be subject to the Constitution.
10
In
Islamic Unity Convention v Independent Broadcasting Authority
and Others
11
Langa CJ stated:
“
There is thus recognition of
the potential that expression has to impair the exercise and
enjoyment of other important rights, such
as the right to dignity,
as well as other State interests . . . . The right is accordingly
not absolute; it is, like other rights,
subject to limitation under
section 36(1) of the Constitution.”
12
Clearly
therefore, when freedom of expression does conflict with other
rights a court must balance the conflicting rights proportionally.

Our Constitution does not envisage a hierarchy of rights where
courts simply prefer one right over the other.
13
Although
the right to freedom of expression is of cardinal importance in our
constitutional democracy, in the context of this
case, the Supreme
Court of Appeal was well within its discretion under section 173 of
the Constitution to limit this right.
In considering the SABC’s
right to freedom of expression, the Court held the view that that
right was in conflict with the
litigants’ right to a fair trial.
The Supreme Court of Appeal recognised the need to engage in a
balancing of the conflicting
rights, an approach consistent with
our constitutional rights limitation jurisprudence.
However,
the Court proceeded to hold that in the event of a “clash of
rights”, the accused should not be the one to give way.
14
In coming to this conclusion the Court adopted a test that would
in its terms logically favour the right to a fair trial over
that
of freedom of expression. The further application of the test, the
Supreme Court had negligible regard to the imposition
of the
constitutional by the principle of open justice, which manifests in
the notion of public trials in open court.
The
Supreme Court of Appeal, as indicated above, recognised the need to
balance conflicting rights.
15
The Court, however, approached that balancing exercise by adopting
a test which determined that audio recording will be permitted
only
if the court was satisfied that “justice will not be inhibited”.
16
The application of that test clearly prioritised the right to a
fair trial – a result that is not permitted in our Bill of
Rights. For reasons stated above and these, I conclude, as he
does, that the Court did not exercise its discretion judicially.
The
applicants also argued that the reasons of the Supreme Court of
Appeal for concluding that the respondents’ right to a fair
trial
would be jeopardised were highly conjectural. They argued further
that the Court should only have concluded that the respondents’
right to a fair trial would be jeopardised if the respondents
established that there was a real likelihood of this happening.
In
addition, the Supreme Court of Appeal based its refusal of the
SABC’s application on the possibility that counsel and judges
might be inhibited to the extent that the respondents’ right to a
fair trial would be infringed. In a democratic society such
as
ours, the impracticality of accommodating millions of the
interested public in our courtrooms makes it reasonable that the
SABC be permitted to extend the court room into the homes of South
Africans. This is particularly so in matters of profound
interest
and concern to them such as the one at hand.
The
request of the SABC to record live proceedings of the Court or to
record with sound for later broadcasting is in my view,
not a novel
idea in a system which conducts criminal trials in open court. The
principle of open justice insists that trial
proceedings be
conducted publicly in open court and ordinarily, that is how trials
in our criminal justice system are held.
There is then a physical
public presence in court, a value integral to the idea of public
trials, where the public trial in turn,
is an enhancement of the
right to a fair trial, rather than a detraction from it. In
effect, the request of the SABC aims to
extend the court room into
the homes of the South African public, providing them with a
virtual presence in open court. If their
physical presence in open
court does not inhibit counsel and the judges and witnesses, it is
not convincing that a virtual presence
will have that effect.
Although
appeal proceedings do not often have a public audience, a public
presence is not barred. It is therefore part of the
ordinary
course of all trials that judges and counsel operate in the public
eye. They cannot be heard to say a public presence
in court,
virtual in this case, inhibits their performance. Besides, once
the cameras are stationary and fairly unobtrusive,
any
consciousness of the cameras is likely to be overcome within no
time. Further, the SABC was mindful to ask for a variety
of less
intrusive, optional ways for them to exercise their right,
including the possibility of the Court setting conditions
that it
deems proper or reasonable in carrying out the recording and
broadcasting. In the circumstances of this case and against
the
background of the importance of open justice in our democracy,
those options should have been appropriately considered.
I
am of the view that the SABC broadcasts of the appeal proceedings
would give effect to the principle of open justice and the
right to
freedom of expression, which is fundamental to our democratic
society, without undermining the right to a fair trial.
It would
make the appeal proceedings a matter of utmost public interest and
concern, accessible to millions of viewers as the
statistics cited
by Moseneke DCJ in his judgment show, bringing the courtroom into
their houses and allowing them to be
firsthand
witnesses to the appeal proceedings. In balancing the conflict
between the relevant rights, the SCA adopted an approach
which
created a hierarchy of rights which prioritised the right to a fair
trial, contrary to the Bill of Rights in the Constitution.
The
Court did not exercise its discretion judicially.
I
therefore agree with Moseneke DCJ that the application should be
upheld.
SACHS J:
I
agree with paragraphs 1-34 and 47 of the majority judgment but do
not accept the main thrust of reasoning in paragraphs 35-46
which
deal with the manner in which the exercise of the Supreme Court of
Appeal’s discretion should be looked at. I would
not uphold the
appeal, but for reasons different to those given by the majority.
In
my view full electronic coverage of appellate court proceedings
must await the establishment of appropriately negotiated procedures
for guaranteeing accurate, balanced and fair broadcasting. The
time has come for the judiciary, particularly in appellate courts,
to look the question of television and radio coverage squarely in
the eye. In this respect I fully endorse the spirit and reasoning
of the judgment by Moseneke DCJ. Our constitutional order obliges
appellate courts to facilitate the widest possible communication
with the public. This is not in order to promote judicial vanity
or to improve the ratings of the public broadcaster. It is
to
account to
the
general public for the functioning of the courts and to do so in the
way that best enables the people at large to be well-informed
and to
make up their own minds as to how well or badly the judiciary goes
about its work.
In
reviewing the judgment of the Supreme Court of Appeal, two things
stand out for me. The first relates to what I would term
the last
straw argument. The second concerns what I will refer to as how
best to cross the Rubicon.
A
careful reading suggests that at the heart of the Supreme Court of
Appeal’s judgment lies the conviction that being compelled
to
function in the glare of live television coverage would be the last
straw on the backs of the already overburdened participants.
Given
the intense public interest and wide ramifications of the case,
this additional pressure might not break anyone’s back
but,
according to the judgment threatens to create sufficient skeletal
discomfort as to inhibit the achievement of a fair trial.
1
While
I accept that any major innovation in the practice of courts can
have an unnerving effect on participants, I cannot see
that the
fact that proceedings are widely communicated to the public can
ever in itself be seen as a threat to their fairness.
In this
respect I would say that in principle, and as a general rule,
appellate courts have no discretion, either broad or narrow,
as to
whether they should permit live coverage of their proceedings. As
I understand the Constitution, they are obliged to provide
the
greatest possible access of the public to their proceedings. In
particular cases, there might be good reasons for limiting
such
access, and courts from time to time will have to apply their minds
as to whether such exceptional circumstances exist.
But broadly
speaking, their discretion is limited if they are being compliant
with the open and participatory nature of our
democracy.
As
Moseneke DCJ’s judgment establishes, the ineluctable logic of
living in an open and democratic society is that where major
institutions of state are engaged in the public aspects of
law-making and law-enforcement, there should be the greatest degree
of public involvement that can reasonably be achieved. Such
facilitation should not be looked upon as an inconvenient intrusion
by the public, or as a favour to be granted or withheld from the
broadcasters. It involves fulfilment of an obligation. The
standards which this Court set for the legislature in the recent
case of
Doctors For Life,
2
should apply with no less exigency to the functioning of the
courts themselves. The powers of the Court do not originate from

any discretionary power, but are derived from the character and
foundational values of our Constitution. Exposure to the public
gaze is particularly important in a country where historically all
the major instruments of public power in general functioned
in a
way that was oppressive, distant, unresponsive and frequently
mysterious. The combination of the achievement of democracy
and
the development of the electronic media, opens up new
possibilities. For the first time, the workings of government can
reach in an immediate and effective way to all parts of our society
in all parts of the country.
The
fact that the proceedings are already open in the sense that family
and friends of the litigants, as well as interested members
of the
public and the press, can crowd into the court chamber, cannot in
itself serve as a reason for limiting further access.
Press
reports are important, but reach only a limited section of the
public. By their nature they will be compressed. There
is no
logical reason why coverage should not be extended beyond the
portals of the court room, or why such broader coverage should
be
restricted to the print media only. This is not a matter for
case-by-case analysis to be conducted by the judges of how

comfortable or otherwise they might feel in the presence of cameras
and microphones. The starting-off point of the analysis must
be
that the public has a right to know what is going on in the courts,
and that the courts have a duty to encourage public understanding
of their processes. The base-line, accordingly, is determined by
the fact that we live in a participatory democracy, and not
by the
principle of business as usual.
This
is not to say that in a participatory democracy there cannot be
limits on the right of the public to see and hear what is
going on
in the courts. It is well recognised, for example, that the
interests of justice may require that the identity of children
be
protected, and that the names of complainants in cases involving
sexual offences be withheld. In many countries cases involving
matters of extreme importance to national security are held
in
camera
(though this has frequently been criticized for leading
to abuse). At a more general level, it has been widely held that
televising
trials where oral testimony is involved, risks imposing
special pressures on the witnesses and thereby distorting the
evidence
and subverting the fairness of the trial.
These
are circumstances where context and proportionality should be
decisive. They do not challenge the principle that the public
work
of courts should be as accessible as possible. They simply provide
narrowly-tailored exceptions of recognised provenance,
which ensure
that other important constitutional values are maintained.
What
is at stake in each case, therefore, is not the comfort of the
judicial officers - some of whom might in fact welcome moments
in
the limelight - but the fairness of the proceedings. Nor is it
automatically related to whether the case involves a trial
or an
appeal. Thus in two trials in which Mr Jacob Zuma has been
involved, one directly as the accused, and the other indirectly
through the nature of the charges, the trial judges welcomed
cameras into the court room at the stage of handing down judgments,
and both judgments were widely communicated to the public at large.
The educational value of such communication cannot be

over-estimated. Viewers and listeners were able to see and hear
the analyses of the evidence and the processes of reasoning which
led to the ultimate decisions. This was accountability by the
judiciary carried to its highest conclusion. The public gained
far
more than they could have done through reading snippets in the
press. And they certainly benefited in a way that they could
not
have done if the judgments had only been published in full some
months later in the law reports.
In
the present matter, where senior judges and experienced counsel are
involved, it is difficult to see how fair trial rights
are
implicated at all. There is only one possible way in which the
fair trial dimension could be engaged, namely, in respect
of the
participants being so subjectively affected as to be put off their
stride and not able to do their work to the best of
their ability.
The unfamiliarity of all to cameras and microphones functioning in
the court is indeed a factor that cannot be
ignored, and should not
be treated in a cavalier fashion or with attitudes of superiority.
Yet to my mind this raises a question
of process rather than of
substance.
Appeal
Courts in particularly sensitive matters will inevitably have the
character of heated kitchens. But it is part of the
judicial
function to bring a cool mind to bear however great the
temperature.
Fidelity
to the Constitution requires us do more than we have done in the
past. We have to break out of the vicious circle in
terms of which
cameras are excluded from courts because judges and counsel are
unfamiliar with them, and judges and counsel are
unfamiliar with
cameras because they are excluded.
3
This
is where the Rubicon factor comes in. We need to transform the
whole manner in which the judiciary has become used to considering
its responsibilities in this area. In our open and democratic
society we have to cross an imaginary river which cuts us off
from
the full reach of what we can and must do so as best to fulfil our
responsibilities. To extend the Rubicon analogy, tradition
can be
a treacherous stream. Some of its currents can help keep legal
thought flowing so as to promote time-honoured notions
of human
dignity, equality and freedom. Others can tug us away from
reaching and exploring the further shores of accountability,
openness and responsiveness. In general terms the story of justice
needs to be played out in as public an arena as possible.
We need
to shift from expectations of participating in a relatively cosy
forensic drama, in which the public plays bit parts
by sitting in
the back of the court. We have to embrace the full potential for
public access by engaging the nation as a whole.
My
concern, then, is not about whether cameras should be allowed to
capture the proceedings in appeal courts. As a general rule
I
would say that appeal courts are under a constitutional obligation
to facilitate public understanding of how they work, and
this
ordinarily would require granting of full access to electronic
media. There might be exceptional cases where special factors
regarding privacy or national interest might justify limiting
exposure, but these would apply to the press as well as to the
electronic media. There is one systemic problem however that has
specific relevance to television and radio. This relates to
the
special dangers of distortion brought about by selective
presentation.
As
the majority judgment indicates,
4
participatory democracy is not enhanced by unbalanced and selective
reporting that provides entertainment for the public at the
cost of
dumbing-down the issues, and, possibly, misrepresenting them.
These are serious concerns that need to be dealt with
in a serious
manner. It is true that serious problems may relate to press
coverage, where inevitably snippets appear and, as
many a judge
will ruefully claim, under misleading headlines. Yet the potential
damage from the electronic media is far greater.
In the case of
the press, by-lines are given and the public know that they are
getting mediated reports. The very factor which
gives television,
and to a lesser extent, radio, its force and credibility, namely
that you are seeing and hearing actuality,
constitutes its danger.
The public feel that they are getting ‘the real thing’.
Extracting highlights and giving balanced
reports requires great
expertise and sensibility. Potential broadcasters must establish
that they have developed the requisite
capacity, coupled with
objective and independent forms of control, before they can expect
to have free use of their cameras and
microphones.
To
sum up: the courts have their responsibilities, and the SABC and
other broadcasters have theirs. The courts have the double
function of zealously protecting rights to a fair trial and
actively encouraging public understanding of the judicial function.
In general terms and particularly at the appeal court level, as
the majority judgment indicates, these two court responsibilities
should not be in tension with each other. Any possible tension
should be reduced, if not eliminated, by means of discussion
between the broadcasters and the judiciary. In particular,
guarantees must be established so as to ensure that broadcasting
of
proceedings is accurate, intelligent, appropriately focused and,
above all, balanced. On the one hand, to have a camera in
court
but to muzzle it, makes no sense at all. On the other, to allow
electronic broadcasting to be controlled by ordinary processes
of
news-oriented selection and editing, would be imprudent in the
extreme, and do a disservice to the promotion of public
understanding
of how the courts actually work.
The
reconciliation of all the different interests involved cannot be
achieved by privileging one interest over another. Nor can
it be
accomplished by leaving each case to be determined in an ad hoc
manner according to the robustness or sensitivity of the
judges
concerned. Nor should it be influenced by the extent of the
clamour of broadcasters, who understandably will be interested
in
improving their ratings. Clear guidelines need to be established
in advance so as to provide a principled and functionally
operational basis for the granting or refusal of access to the
electronic media. They should also deal with whether access should
be made subject to any particular conditions. As I see it, such
guidelines could well give to courts a certain margin of
appreciation
in terms of the application of these guidelines on a
case-by-case basis. Pre-established and principled guidelines,
subject
to periodic review, would assist broadcasters in their
planning. They would also substantially relieve the courts of the
duty
to make invidious judgments concerning their own capacities
and responsibilities in particular cases. In addition they would

save courts from having to hear appeals from these decisions, and
from having to evaluate the assessments of their colleagues
faced
with the situation in their own court rooms.
In
the result, I would agree with the majority that the appeal should
not be allowed. But I do so on the limited grounds that
the SABC
erred in not raising the question of electronic broadcasts in a
timeous manner so as to ensure that proper safeguards
were put in
place. Complete coverage would have met many of my objections and,
if it were possible, I would wish to see the question
of full radio
coverage being explored even at this late stage. But I do feel it
is not in the interests of justice for matters
such as these to be
resolved under a sword of Damocles. All the questions concerning
accurate and balanced broadcasting should
be worked out through an
appropriate process of negotiation. This not only establishes
clear points of reference. It gives
sufficient time for all those
involved to accustom themselves to the major changes involved.
If
this present case does no more than to act as a spur to the
interested parties to engage in appropriate discussions with one
another, and to encourage the applicant to negotiate over
modalities rather than litigate over abstractions, I believe that

it will have served the interests of justice very well.
Counsel for the Applicant G.J. Marcus SC, M. Sikhakhane, S.
Budlender
Instructed by: SB Sithole Inc.
Counsel for the First Respondent P.J. Olsen SC, A.A. Gabriel
Instructed by: State Attorney, Johannesburg
Counsel for the Second to Twelfth Respondent J.J. Gauntlett SC, R
Patrick
Instructed by: Hassan, Parsee and Poovalingam
1
*
Justice Van der Westhuizen was unable to participate in the Court’s
judgment.
Section
1(1) of that Act provides as follows –
“
(1) Any person
(a) who corruptly gives or offers or agrees to give any
benefit of whatever nature which is not legally due, to any person
upon
whom –
(i) any power has been conferred or who has been
charged with any duty by virtue of any employment or the holding of
any office
or any relationship of agency or any law or to anyone
else, with the intention to influence the person upon whom such
power has
been conferred or who has been charged with such duty to
commit or omit to do any act in relation to such power or duty; or
(ii) any power has been conferred or who has been
charged with any duty by virtue of any employment or the holding of
any office
or any relationship of agency or any law and who
committed or omitted to do any act constituting any excess of such
power or any
neglect of such duty, with the intention to reward the
person upon whom such power has been conferred or who has been
charged with
such duty because he so acted; or
(b) upon whom any power has been conferred or who has
been charged with any duty by virtue of any employment or the
holding of any
post or any relationship of agency or any law and who
corruptly receives or obtains or agrees to receive or attempts to
obtain
any benefit of whatever nature which is not legally due, from
any person, either for himself, or for anyone else, with the
intention
–
(i) that he should commit or omit to do any act in
relation to such power or duty, whether the giver or offeror of the
benefit has
the intention to influence the person upon whom such
power has been conferred or who has been charged with such duty, so
to act
or not; or
(ii) to be rewarded for having committed or omitted to
do any act constituting any excess of such power or any neglect of
such duty,
whether the giver or offeror of the benefit has the
intention to reward the person upon whom such power has been
conferred or who
has been charged with such duty, so to act or not,
shall
be guilty of an offence.”
2
This is in line with the current practice in the Supreme Court of
Appeal in terms of which: “Die opname(s) moet stil wees –
geen
klankopnames nie.”
3
The proceedings were subsequently postponed to 25 – 29 September
for reasons unrelated to this matter.
4
SABC v Downer NO and Shaik
[2006] SCA 89 (RSA), Case No
435/06, 24 August 2006, as yet unreported at para 13.
5
Id at para 20.
6
Id.
7
Id at para 25.
8
Id at para 28.
9
Section 16(1)(a) provides that:
“
Everyone
has the right to freedom of expression, which includes –
freedom
of the press and other media”.
10
Section 16(1)(b) provides that:
“
Everyone
has the right to freedom of expression, which includes –
(b) freedom to receive or impart information or ideas”.
11
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at para 7.
12
[2000] ZACC 11
;
2000 (4) SA 757
(CC);
2000 (10) BCLR 1051
(CC) at para 27.
13
Section 35(3) of the Constitution provides as follows:
“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 for 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 and
the time of sentencing; and
(o) of appeal to, or review by, a higher court.”
14
S v Dzukuda and Others; S v Tshilo
2000 (4) SA 1078
(CC);
2000 (11) BCLR 1252
(CC) at para 11.
15
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 16.
16
Section 16 of the Constitution provides as follows:
“
(1)
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;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific
research.
(2)
The right in subsection (1) does not extend to –
(a) propaganda for war;
(b) incitement of imminent violence; or
(c)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.”
17
In
South African National Defence Union v Minister of Defence &
Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
at para 7,
O’Regan J reasoned as follows:
“
Freedom of expression lies at the heart of a
democracy. It is valuable for many reasons, including its
instrumental function as
a guarantor of democracy, its implicit
recognition and protection of the moral agency of individuals in our
society and its facilitation
of the search for truth by individuals
and society generally. The Constitution recognises that individuals
in our society need
to be able to hear, form and express opinions
and views freely on a wide range of matters.” [Footnotes omitted]
See also
S
v Mamabolo (E TV and Others Intervening)
[2001] ZACC 17
;
2001 (3) SA 409
(CC);
2001 (5) BCLR 449
(CC) at paras 29-31,
Islamic Unity Convention v
Independent Broadcasting
Authority and Others
[2002] ZACC 3
;
2002 (4) SA
294
(CC); 2002 (5) 433 BCLR (CC) at paras 26-28;
Laugh It Off
Promotions CC v SAB International (Finance
)
BV t/a SabMark
International (Freedom of Expression Institute as
Amicus Curiae
)
[2005] ZACC 7
;
2006 (1) SA 144
(CC);
2005 (8) BCLR 743
(CC) at paras 45-46.
18
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8)
BCLR 771
(CC) at paras 22-24.
19
Id at para 24.
20
For a full and helpful discussion of the legislation and case law in
other jurisdictions see
SA Broadcasting Corporation Ltd v
Thatcher and Others
[2005] 4 All SA 353
(C) at paras 51–109.
21
See
Courtroom Television Network v State of New York
5 NY 3d
222;
833 NE 2d 1197
;
Westmoreland v Columbia Broadcasting System
[1985] USCA5 96
;
752 F 2d 16
(1984). See also the discussion in Eric Barendt
Freedom of Expression
2
nd
ed (2005) at 349; see
also the full discussion in M David Lepofsky “Cameras in the Court
Room – not without my consent” (1996)
6
National Journal of
Constitutional Law
161 at 168 and 223–224.
22
Petition No 2 of the BBC
[2000] HRLR 423.
23
See also
section 10(1)
of the
Broadcasting Act which
obliges the
Corporation to –
“
(d) provide significant news and public affairs
programming which meets the highest standards of journalism, as well
as fair and
unbiased coverage, impartiality, balance and
independence from government, commercial and other interests”.
24
[2000] UKHL 57
;
[2000] 4 All ER 913
(HL) at 922.
25
Section 1 of the Constitution provides as follows:
“
The Republic of South Africa is one, sovereign,
democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the
advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters
roll, regular elections and a multi-party system of democratic
government,
to ensure accountability, responsiveness and openness.”
26
Case number 15927/04 (D), 12 October 2004, as yet unreported.
27
SA Broadcasting Corporation Ltd v Thatcher and others,
above
n 20, at paras 44-45, summarising the reasoning of Squires J above n
26 at 8-11.
28
Parbhoo and Others v Getz NO and Another
1997 (4) SA 1095
(CC);
1997 (10) BCLR 1337
(CC) at para 4;
S v Pennington and
Another
1997 (4) SA 1076
(CC);
1997 (10) BCLR 1413
(CC) at paras
22 and 26.
29
Section 8(1) of the Constitution provides:
“
The Bill of Rights applies to all law, and binds the
executive, the legislature, the judiciary and all organs of state.”
30
See
Mabaso v Law Society, Northern Provinces and Another
[2004] ZACC 8
;
2005
(2) SA 117
(CC),
2005 (2) BCLR 129
(CC) at para 20;
S v Basson
2005 (12) BCLR 1192
(CC) at para 110;
Giddey NO v JC Barnard
and Partners
CCT 65/05, 1 September 2006 as yet unreported at
para 19.
31
Basson
above n 30 at para 111.
32
Id at para 113.
33
The Supreme Court of Appeal is the highest court of appeal except in
constitutional matters (section 168(3) of the Constitution).
See
also
Mabaso
above n 30 at para 20.
34
This criterion is an important criterion in the determination of
whether the discretion is a discretion in the narrow sense or
not.
See
Giddey
above n 30 at para 19.
35
Bookworks (Pty) Ltd v Greater Johannesburg Transitional Metropolitan
Council and Another
1999 (4) SA 799
(W) at 808B; and see also
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC),
2000 (1)
BCLR 39
(CC) at para 11.
36
Para 25 above.
37
See section 34 and section 35(3)(c) of the Constitution, which make
it clear that both civil and criminal proceedings are to be
“public”.
38
SABC v Downer NO and Shaik
above n 4 at para 13.
39
Id at paras 15 and 18-20.
40
Namely
SABC v Thatcher and Others
above n 27 at paras 51-109.
41
See paras 43–44 above.
42
Above n 17.
43
Id
44
See
Mamabolo
above n 17.
45
See
Laugh It Off Promotions CC
above n 17.
46
S v Rens
[1995] ZACC 15
;
1996 (1) SA 1218
(CC);
1996 (2) BCLR 155
(CC) at
para 25;
Besserglik v Minister of Trade, Industry and Tourism and
Others (Minister of Justice Intervening)
[1996] ZACC 8
;
1996 (4) SA 331
(CC);
1996 (6) BCLR 745
(CC) at paras 9-10.
47
At para 43.
48
Counsel for the SABC
relied
primarily upon the following cases:
Richmond
Newspapers Inc et al v Virginia et al
[1980] USSC 154
;
448 US
555
(1980) – this case is distinguishable on the basis that it
deals with a jury trial and a blanket exclusion of everyone,
including
the media, from the court room.
New
Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of
Assembly)
13 CRR (2d) 1 (SCC) is also
clearly distinguishable as it deals, not only
with the effect of a total ban on television coverage, but also with
the televising
of parliamentary proceedings and not court
proceedings as in the present case. It is self-evident that
different considerations
apply to the publication of parliamentary
proceedings, which is in any event already fully allowed in South
Africa
.
Canadian
Broadcasting Corp. v. New Brunswick (Attorney General)
[1996] 3 SCR. 480
deals with a total exclusion
of the public, including media reporters, from a court room at the
sentencing stage of criminal proceedings
where the accused has
pleaded guilty. It is obviously distinguishable from the present
case on a whole variety of grounds
.
Dagenais
v Canadian Broadcasting Corp.
[1994] 25 CRR
(2d)
is
also
distinguishable
from the present appeal. Not only does it deal with jury trials, but
it also concerns a ban prohibiting a third
party from broadcasting a
fictional television series until the jury trials in question were
completed. It does not deal with
a ban on the broadcast of court
proceedings, the issue that is under consideration before this
Court. It is also worth noting
that the case of
Edmonton
Journal v Attorney General for Alberta et al; Attorney General of
Canada, Intervener
[1989] 2 SCR 1326
, 64 DLR
(4
th
) 577, ,
which was cited with approval by the majority in
Dagenais
and relied on by the applicant before us in support of the principle
of open justice, concerned the constitutionality of certain
statutory restrictions on the broadcasting of information arising
out of civil proceedings, not criminal proceedings – it is
hence
also distinguishable from the present case.
R
v Mentuck
2001 SCC 76
;
[2001] 3 SCR 442
is
also not on point. It deals with a publication ban relating to the
participants in a police investigation, the purpose of which
was to
prevent a serious risk to the efficacy of similar operations which
had already commenced. The circumstances of the ban
were very
different to those we have before us in the present case and the
considerations weighed by the SCC were also very different
to those
with which we are grappling.
Ex parte The
Telegraph Group plc and others
(2001) 1 WLR
1983
(CA), while factually analogous to the present case in many
respects; differs crucially in that it deals with a total ban on
press
coverage of the trial, whereas in the current case only sound
recording is prohibited. Moreover, in dismissing the appeal, the
reasoning of the Court of Appeal and its conclusion actually support
the reasoning of the SCA rather than the reverse, particularly
insofar as the impact of sound recording and broadcasting of the
appeal proceedings on the fairness of the subsequent Zuma trial
is
concerned.
49
BVerfGE 103, 44 (2002).
50
Above n 20 at paras 51-109. See also Lepofsky above n 21 at
203–206.
51
In this regard, see the authorities cited in notes 21 and 22 above.
52
Above n 21 at 347–348.
53
SABC v Downer NO and Shaik
above n 4 at para 23.
54
Id.
55
Id at paras 23-25.
56
Id at para 27.
57
Id at para 28.
58
Id at para 29.
59
Counsel referred to it as the Goldstone Concordat, because it was
negotiated by Goldstone J on behalf of the judiciary with
representatives
of the media. Its principal provision was that
sound and film recording could be made but sound would not be
broadcast save for
the delivery of judgment. It was also agreed that
the recording should be done in a non-intrusive manner.
60
A further factor that might be considered is whether or
not to start purely with radio coverage. Although print, radio and
television
are all instruments of the media, each presents its own
possibilities and each carries its own dangers for inappropriate
use.
Radio is, accordingly, less amenable to being used in such a
way as to risk misrepresentation and misunderstanding than is
television.
1
SABC v Downer NO and Shaik
[2006] SCA 89 (RSA), Case No
435/06, 24 August, as yet unreported at para 13.
2
Section 34 provides:
“
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
Section 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 for 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 and
the time of sentencing; and
(o) of appeal to, or review by, a higher court.”
4
SABC v Downer NO and Shaik
above n 1 at para 14.
5
Section 173 provides:
“
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
SABC v Downer NO and Shaik
above n 1 at para 20.
7
Id at para 24.
8
Id at para 25.
9
Id at para 22.
10
Id at para 27.
11
For a critical discussion of the inherent powers of superior courts
prior to the advent of the Constitution and in particular the
formulation of section 173 see: Taitz
The Inherent Jurisdiction
of the Supreme Court
(Juta 1985). See also Jacob “The
Inherent Jurisdiction of the Court”
Current Legal Problems
(1970) 23, LAWSA vol 3 at 3-4.
12
[1986] ZASCA 3
;
1986 (2) SA 734
(A).
13
Id at 754J.
14
1996
(3)
SA
1
(A) at 7
E.
15
Id at 7E-H. For examples of cases where our courts have exercised,
or declined to exercise inherent power, see LAWSA vol 3 above
n 11
at 4.
16
See section 165(2) of the Constitution, which provides:
“
The courts are independent and subject only to the
Constitution and the law, which they must apply impartially and
without fear,
favour or prejudice.”
17
Section 171 provides:
“
All courts function in terms of national
legislation, and their rules and procedures must be provided for in
terms of national legislation.”
18
Phillips and Others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (1) SACR 78
(CC) at para 47.
19
1997 (10) BCLR 1413
(CC);
1997 (4) SA 1076
(CC) at para 22.
20
1997 (10) BCLR 1337
(CC);
1997 (4) SA 1095
(CC) at paras 4-5.
21
The notion that the inherent power to regulate and control process
does not translate into judicial authority to impinge on otherwise
vested rights was fully recognised prior to the advent of the
Constitution. For example, see
Chunguete v Minister of Home
Affairs and Others
1990 (2) SA 836
(W), in which the Court
held, at 841H-I:
“
The inherent jurisdiction does not…influence the
inability of the Court to impinge upon a right which has accrued to
a party according
to law except when the impingement is needed to
protect the Court's functions and the fairness thereof.”
See also
Jacob above n 11 and
Halsbury
Laws of England
vol 37
at para 12.
22
Section 36(2) of the Constitution provides:
“
Except as provided in subsection (1) or in any other
provision of the Constitution, no law may limit any right entrenched
in the
Bill of Rights.”
23
Giddey NO v JC Barnard and Partners
CCT 65/05, 1 September
2006, as yet unreported.
24
See for example,
Mabaso v Law Society of the Northern Provinces
and Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC),
2005 (5) BCLR 129
(CC).
25
See for example,
Giddey
above n 23.
26
S v Basson
2005 (12) BCLR 1192
(CC).
27
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC),
2000 (1)
BCLR 39
(CC) at para 11;
Mabaso
above n 24 at para 20;
Basson
above n 26 at para 117;
Giddey
above n 23 at para 19.
28
[2001] ZACC 17
;
2001 (3) SA 409
(CC) at para 29.
29
[1913] AC 417
at 477.
30
[1980] USSC 154
;
448 US 555
(1980) at 572.
31
Edmonton Journal v Attorney General for Alberta, Attorney General
of Canada and Attorney General of Ontario
[1989] 2 SCR 1326
at
1360j.
32
See “Access to the Court” Supreme Court of Canada website,
online:
http://www.scc-csc.gc.ca/mediaportal/accesscourt/index_e.asp
(accessed 20 September 2006).
33
2000 (4) SA 973
(C) at para 44.
34
SA Broadcasting Corporation Ltd v Thatcher and Others
[2005] 4 All
SA 353
at para 113.
35
Section 165(2) of the Constitution. See also Schedule 2
Oath or
solemn affirmation of Judicial Officers
, para 6(1) which reads:
“
Each judge or acting judge, before the Chief Justice
or another judge designated by the Chief Justice, must swear or
affirm as follows:
I, A.B., swear/solemnly affirm that, as a Judge of the
Constitutional Court/Supreme Court of Appeal/High Court/ E.F. Court,
I will
be faithful to the Republic of South Africa, will uphold and
protect the Constitution and the human rights entrenched in it, and
will administer justice to all persons alike without fear, favour or
prejudice, in accordance with the Constitution and the law.
(In the case of an oath: So help me God.)”
1
Section 16 provides, in relevant part, that:
“
(1) 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
Section 8(1) of the Constitution provides:
“
The Bill of Rights applies to all law, and binds the
legislature, the executive, the judiciary and all organs of state.”
3
S v Basson
2005 (12) BCLR 1192
(CC) at paras 110 and 154.
4
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) at para 7.
5
[2005] ZACC 7
;
2006 (1) SA 144
(CC);
2005 (8) BCLR 743
(CC);
[2005] JOL 14579
(CC).
6
Id at para 45.
7
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC).
8
Id at paras 22-24.
9
Section 36 of the Constitution provides:
“
(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.
(2) Except as provided in subsection (1) or in any
other provision of the Constitution, no law may limit any right
entrenched in
the Bill of Rights.”
10
Section 7(3) of the Constitution provides:
“
The rights in the Bill of Rights are subject to the
limitations contained or referred to in section 36, or elsewhere in
the Bill”.
11
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC).
12
Id at para 30. See also
Khumalo
above n 7 at para 25 where
the Court held that although freedom of expression is fundamental to
our democratic society, it is not
a paramount value and must be
construed in the context of other values enshrined in our
constitution.
13
See in this regard
S v Mamabolo (E TV and Others Intervening)
[2001] ZACC 17
;
2001 (3) SA 409
(CC);
2001 (5) BCLR 449
(CC) at para 41.
14
At para 20.
15
At para 14.
16
At para 20.
1
SABC v Downer NO and Shaik
[2006] SCA 89 (RSA), Case No
435/06, 24 August 2006, as yet unreported at para 25.
2
Doctors for Life International v The Speaker of the National
Assembly and Others
Case No. CCT 12/05, 17 August 2006 as yet
unreported.
3
Though in fact cameras are physically present in the court, they are
effectively neutered because they cannot record the dialogue
which
is at the heart of the proceedings.
4
At paras 68-69.
98