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[2015] ZAWCHC 24
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Primedia Broadcasting, a Division of Primedia (Pty) Ltd and Others v Speaker of the National Assembly and Others (2749/2015) [2015] ZAWCHC 24 (10 March 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case Number: 2749/2015
DATE: 10 MARCH 2015
In the matter between:
PRIMEDIA BROADCASTING, a division of
PRIMEDIA (PTY) LTD
.....................
First
Applicant
SOUTH AFRICAN NATIONAL
EDITORS’FORUM
.............................................
Second
Applicant
RIGHT2KNOW
CAMPAIGN
.......................................................................................
Third
Applicant
OPEN DEMOCRACY ADVICE
CENTRE
...............................................................
Fourth
Applicant
MEDIA 24
LTD
................................................................................................................
Fifth
Applicant
And
SPEAKER OF THE NATIONAL
ASSEMBLY
.........................................................
First
Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL
OF PROVINCES
…..........
Second
Respondent
SECRETARY OF
PARLIAMENT
............................................................................
Third
Respondent
MINISTER OF STATE
SECURITY
.......................................................................
Fourth
Respondent
JUDGMENT
DELIVERED 10 MARCH 2015
THE COURT
[1] This is an application for interim
relief, Part A, against the first to third respondents, pending final
relief which is claimed
against all four respondents (Part B). In
this judgment we deal with Part A and the relief sought to the extent
necessary.
THE RELIEF SOUGHT
[2] In this application, the applicants
seek, in their amended notice of motion, the following relief against
the first to third
respondents (Part A) (we omit the relief
concerning the so-called signal jamming issue, which has fallen away
at the interim stage):
“1. Dispensing with the rules,
time limits, forms and procedures provided for in the Uniform Rules
of Court and granting leave
for this application to be heard as a
matter of urgency.
2. Pending the outcome of Part B of the
Application, in respect of all open sittings of the National Assembly
or the National Council
of Provinces, joint sitting of Parliament or
open meetings of their committees:..
2.2 The First to Third Respondents are
directed to ensure that the audio and visual feeds of such sittings
and meetings are not
interrupted and that during occurrences of
“grave disturbances” or “unparliamentary
behaviour”, a wide
angle shot of the chamber, including audio,
will be broadcast.’
[3] In a later application, Part B, the
applicants will seek the following declaratory relief in respect of
the policy:
“…1.2 The manner in which
the audio and visual feeds of the State of the Nation Address on 12
February 2015 were produced
and broadcast by the first to third
respondents was unconstitutional and unlawful.
1.3 The Policy on Filming and
Broadcasting of Parliament is invalid to the extent it requires that
audio and visual feed provided
by Parliament does not show ‘grave
disturbances’ or ‘unparliamentary behaviour’ that
takes place during
Parliamentary proceedings.”
as well as the following mandatory
order:
“2. In respect of all open
sittings of the National Assembly or the National Council of
Provinces, joint sittings of Parliament
or open meetings of the
committees:
…
2.2 The First to Third Respondents are
directed to ensure that the audio and visual feeds of such sittings
and meetings are not
interrupted and that during occurrences of
“grave disturbances” or “unparliamentary
behaviour”, a wide
angle shot of the chamber, including audio,
will be broadcast.”
BACKGROUND
[4] In August 2009, Parliament adopted
the Broadcasting Policy (the policy) through which it seeks to
“regulate all filming
within the precinct of Parliament and
provide guidelines on public broadcasting of proceedings of
Parliament and related matters,
including the use of photography and
bright camera lights.”
[5] The provisions of clause 8.3.3.2 of
the policy are the subject of this litigation ‒ they provide as
follows:
“8.3.3.2 Disorder on the floor of
the House:
a) Televising may continue during
continued incidents of grave disorder or unparliamentary behaviour
for as long as the sitting
continues, but only subject to the
following:
I. On occasions of grave disorder, the
director must focus on the occupant of the Chair for as long as
proceedings continue, or
until order has been restored; and
II. In cases of unparliamentary
behaviour, the director must focus on the occupant of the Chair.
Occasional wide-angle shots of
the chamber are acceptable.”
[6] On 21 August 2014, the effect of
the policy in respect of disorder in the House first manifested
itself. On that date, during
presidential question time, a member of
the Economic Freedom Front (the EFF) persisted in asking the
president when he intended
to repay some of the money spent on his
private residence, Nkandla. Although the Speaker disallowed the
question, the EFF member
persisted. The Speaker suspended the sitting
at which point members of the riot police entered the Chamber and
removed several
members of the EFF. The removal was not captured on
the official parliamentary feed.
[7] During the debate on the Grand Inga
Power Project, on 14 November 2014, the effect of the policy was
confirmed. On that day,
the official live video broadcast of the
proceedings was shut down while members of the South African Police
Services removed members
of parliament, apparently for
“unparliamentary” behaviour.
[8] On 27 January 2015, representatives
of Parliament and representatives of the broader media interest met
“to discuss concerns
regarding the live feed broadcast.”
(record 29) Parliamentary representatives confirmed “as
encapsulated in the Broadcasting
Policy at clause 8.3.3”, that
“on occasions of “grave disorder” and
“unparliamentary behaviour”,
the policy was that the
camera focus would be on the occupant of the presiding officer’s
chair, or in the case of “unparliamentary
behaviour”, the
presiding officer’s chair or wide angle shot.”
[9] On 30 January 2015, media
representatives, through their attorney, recorded their concerns in a
letter in which they requested
“…that the feed not be
cut off, that it was essential that a complete picture of what was
happening in Parliament
be shown, including disturbances, and that
the Broadcasting Policy be urgently amended accordingly, before the
President’s
address on the State of the Nation.” (record
29)
[10] The State of the Nation address
was scheduled for 12 February 2015; on that day, Parliament responded
to the 30 January 2015
request indicating “…
[Parliament] cannot operate outside its own policy….”
[11] The State of the Nation address on
12 February 2015, a joint sitting of the houses of parliament, was
presided over by the
Speaker of the National Assembly and the
Chairperson of the National Council of Provinces. Mr Godrich Gardee,
a member of parliament
and a representative of the EFF, interrupted
the president’s address by raising a question of privilege. The
Speaker sought
to continue the scheduled proceedings while members of
the EFF sought to pursue their questioning of the president. The
Speaker
requested the relevant members either to allow the
proceedings to continue or to leave. When they refused, the Speaker
“called
upon the Sergeant at Arms and parliamentary security
personnel to ‘assist’ the representatives of the EFF to
leave
the Chamber.” EFF members were forcibly removed.
[12] During the removal, apart from a
glimpse of security personnel entering the Chamber, the camera
focused on the Speaker and
the Chairperson and remained so focused
until the EFF members had been removed from the Chamber ‒ a
period of approximately
5 minutes. During that time, the attention of
those in the Chamber, including that of the Speaker and the
Chairperson, was focused
on the altercation between the EFF members
and the security personnel. Members of the press and the public
recorded the altercation
on their cellular telephones.
[13] The debate on the State of the
Nation Address was scheduled for 17 to 19 February 2015. On 13
February 2015, fearing a similar
implementation of the policy, the
first applicant sought an undertaking from the respondents “…that
they would not
prevent full access to the debate on the State of the
Nation address by either allowing signal jamming to take place, and
would
ensure that live feed accurately reflected the material events
taking place in Parliament.” (record 35) The respondents were
requested to respond to the letter by 16 February 2015, at 10h00. The
respondents failed to respond by the deadline; the applicants,
therefore, launched this application later that same day. The
applicants no longer seek relief in respect of signal jamming in
Part
A (though it remains relevant to Part B); we therefore do not deal
with the allegations pertaining to it in this judgment.
Urgency
[14] The policy has been operative
since August 2009. The applicants first experienced the impact of the
“disturbance clause”
in August 2014, yet only met with
the respondents in January 2015, and thereafter recorded their
concerns and demands in correspondence.
The applicants launched this
application on 16 February 2015, with the aim of ensuring, “that
all South Africans will be
able to follow the upcoming debate on the
President’s State of the Nation Address from 17 to 19 February
2015 (and all other
parliamentary sessions until finalisation of Part
B).”
[15] The application was only heard on
6 March 2015, well after the debate scheduled for 17 to 19 February
2015. At the hearing,
the applicants relied on the reference to “…all
other parliamentary sessions until finalisation of Part B” for
their submission that interim relief was still appropriate. The
application is now directed at 11 March 2015, being the date on
which
the president is scheduled to answer parliamentary questions –
an event which might quite possibly give rise to further
disruption.
The applicants anticipate a situation that could result in another
cut in the live feed.
Requirements for interim relief
[16] The requirements for an interim
interdict are well known:
(a) A prima facie right though open to
some doubt;
(b) A well-grounded apprehension of
irreparable harm if the interim relief is not granted and the
ultimate relief is eventually
granted;
(c) That the balance of convenience
favours the granting of an interim interdict;
(d) The absence of another adequate
remedy.
DISCUSSION
[17] This application can be disposed
of with reference to requirements (b) and (c). Below, we deal only
with them. The applicants
relied on the provisions of sections
59(1)(b) and 72(1)(b) of the Constitution as authority for the
proposition that Parliament
is obliged to conduct its proceedings in
an open and transparent manner. The applicants acknowledged
Parliament’s right to
“regulate public access, including
access to the media,” although the applicants stressed that
such measures should
be reasonable. It is in issue whether the
measures currently in place in respect of “unparliamentary
behaviour” and
“grave disturbances” are reasonable.
[18] The respondents, however,
submitted that they are compliant with their constitutional duty in
that they have reasonable measures
in place to balance the public’s
right to access to its proceedings with the obligation to preserve
the dignity of Parliament.
[19] It is common cause that on 12
February 2015, the public had access to the proceedings in Parliament
both through audio-visual
feed and through members of the media and
public being present in the Chamber. Although the feed was restricted
to a view of the
Speaker and Chairperson for approximately 5 minutes
because of the “grave disturbance”, public access was
still possible
via the presence of the media and general public
present in the Chamber for the period of shut down. We accept that
members of
the public are interested in those incidents but we also
accept that Parliament may be entitled to regulate public access to
them.
The interim relief sought by the applicants seeks to compel
Parliament to abandon, in part, the policy that has been in place for
5 years. Mr S Budlender, however, who appeared for the applicants,
stressed that the applicants sought only a wide angle shot of
the
disturbances and not a close up. Even in that measured form, the
relief sought does not seek to maintain the status quo; instead,
it
seeks to introduce a new regime.
[20] In our view, given the limited
restriction of the public’s access to parliamentary proceedings
(5 minutes on 12 February
2015), the 5 year period during which the
measures have been operative and the imminent expedited hearing in
respect of Part B
in April 2015, the balance of convenience militates
against granting an interim interdict that will introduce a new
regime as distinct
from preserving a status quo. (Cf LAWSA Vol 11 2nd
Ed para 401; National Gambling Board v Premier, KwaZulu-Natal, &
Others
[2001] ZACC 8
;
2002 (2) SA 715
(CC) para 49.)
[21] In addition, in these proceedings
the constitutionality of the relevant provisions of the policy ‒
that is their reasonableness
or otherwise ‒ has not been fully
ventilated. Both parties have expressed the need to file
supplementary affidavits prior
to the Part B hearing.
[22] Even though we accept that in the
present climate occurrences of “unparliamentary behaviour”
or “grave disturbances”
are a possibility, we are
nevertheless persuaded that, given the period for which the
restrictions have already been in operation
and the fact that they
will continue to apply only for a relatively short period pending the
determination of the Part B relief,
the applicants have not shown
irreparable harm in these proceedings justifying intervention on an
urgent interim basis. The applicants
have been able, and will
continue to be able, to report on proceedings in Parliament through
traditional reporting methods, even
during those relatively brief
periods (if they recur) in which, because of “grave
disturbance”, the visual feed does
not display the disruption.
[23] The respondents in turn have
alleged that to “compel Parliament to run its proceedings under
court order would undermine
the principle of separation of powers.”
In our view, an order of court directed at compliance with the
provisions of the
Constitution would not undermine the principle of
separation of powers. At this stage of the proceedings, however, it
would be
premature to pronounce on the constitutionality of the
relevant provisions. We are disinclined, therefore, in the absence of
irreparable
harm and where the balance of convenience does not favour
the applicants, to grant interim relief that would in part suspend
the
policy.
CONCLUSION
[24] The applicants could have
approached this court sooner; nevertheless, we are persuaded that the
matter warrants an expedited
hearing, being sufficiently urgent and
involving constitutional issues of national importance.
[25] In the circumstances of the
matter, interim relief is not justified. However, since important
constitutional issues are to
be determined in Part B, it is
appropriate to order that each party pay its own costs. (See Biowatch
Trust v Registrar, Genetic
Resources
2009 (6) SA 232
(CC))
[26] The timetable and hearing date for
the Part B relief, as set out in the order which follows, is one to
which all the parties
(including the fourth respondent, who was not
represented at the hearing of the Part A relief) have agreed,
regardless of the outcome
of the Part A relief. For the avoidance of
doubt, the expedited hearing of the Part B relief in accordance with
the order below
covers all the relief sought in Part B, including the
relief relating to the so-called signal jamming issue.
[27] We make the following order:
(a) The application for interim relief
in terms of Part A is dismissed.
(b) Each party is directed to bear its
own costs in respect of the said application for interim relief.
(c) The application for the relief
claimed in Part B is postponed for hearing on 20 April 2015.
(i) The applicants are directed to file
supplementary founding affidavits, if any, on or before 18 March
2015.
(ii) The respondents are directed to
file further supplementary answering affidavits, if any, on or before
27 March 2015.
(iii) The applicants are directed to
file supplementary replying affidavits, if any, by 2 April 2015.
(iv) Heads of argument must be
delivered as follows: the applicants by 7 April 2015 and the
respondents by 14 April 2015.
Baartman J
Rogers J
Dolamo J