Primedia Broadcasting, A Division of Primedia (Pty) Ltd and Others v Speaker of the National Assembly and Others (2749/2015) [2015] ZAWCHC 72; 2015 (4) SA 525 (WCC); [2015] 3 All SA 340 (WCC); 2015 (7) BCLR 835 (WCC) (28 May 2015)

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[2015] ZAWCHC 72
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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 72; 2015 (4) SA 525 (WCC); [2015] 3 All SA 340 (WCC); 2015 (7) BCLR 835 (WCC) (28 May 2015)

Links to summary

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO. 2749/2015
DATE:
28 MAY 2015
REPORTABLE
In
the matter between:
PRIMEDIA
BROADCASTING,
A DIVISION OF
PRIMEDIA [PTY]
LTD
.................................................................
1
ST
APPLICANT
SOUTH AFRICAN
NATIONAL EDITORS’
FORUM
............................................
2
ND
APPLICANT
RIGHT2KNOW
CAMPAIGN
...................................................................................
3
RD
APPLICANT
OPEN
DEMOCRACY ADVICE
CENTRE
..............................................................
4
TH
APPLICANT
AND
SPEAKER OF THE
NATIONAL
ASSEMBLY
.....................................................
1
ST
RESPONDENT
CHAIRPERSON OF
THE NATIONAL COUNCIL
OF
PROVINCES
.....................................................................................................
2
ND
RESPONDENT
SECRETARY TO
PARLIAMENT
........................................................................
3
RD
RESPONDENT
MINISTER OF STATE
SECURITY
.....................................................................
4
TH
RESPONDENT
CORAM:
DLODLO, J et HENNEY, J et SAVAGE, J
JUDGMENT
DELIVERED
ON THURSDAY, 28 MAY 2015
DLODLO,
J
[1]
On 12 February 2015 the President’s annual State of the Nation
Address (SONA) was characterised and almost marred by two
incidents
forming the subject matter of the present application. These
incidents are that in the first place the State Security
Agency
employed a device that jams mobile telecommunication signals.
Consequently journalists and MPs attending SONA were rendered
unable
to use their cellphones in order to inform members of the public not
in attendance about the happenings in Parliament. This,
however,
lasted for a short period as it was swiftly addressed by the relevant
authorities. Secondly, the Applicants aver that
members of the public
were denied the right to see for themselves events of national
importance occurring on the floor of the Parliamentary
Chamber when
the following took place:
(a)
Members of the Economic Freedom Fighters
(EFF) sought to ask the President questions relating to payments of
some money spent on
his Nkandla residence. The First Respondent the
(Speaker) refused to allow the questions. However, the EFF MPs
refused to obey
the directive by the Speaker. Following the order of
the Speaker a number of security personnel entered the Chamber and an
altercation
took place between the security personnel and the EFF
MPs. Eventually the security personnel removed the EFF MPs from the
Chamber.
(b)
The Applicants contend that apart from the
initial EFF questions these events of significance were not captured
in the official
Parliamentary feed. Instead the feed showed only the
face of the Speaker and the Second Respondent (the Chairperson) while
the
MPs were forcefully removed from Parliament.
(c)
It is maintained by the Applicants that
members of the public who wished to know what occurred relied on
subsequently distributed
cellphone footage or second-hand accounts
from those who had been present.
[2]
The application launched had two parts known as Part A and Part B. It
is common cause that in Part A the Applicants sought an
interdict in
respect of all open sittings of the National Assembly or National
Council of Provinces, joint sitting of Parliament
or open meetings of
their Committees pending the outcome of Part B of the application.
The second relief sought in Part A was couched
as follows:
“
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.”
The
urgent application for interim relief (Part A), was, however,
unsuccessful and was dismissed by the Court.
[3]
There are two issues that arise from the amended Part B relief sought
by the Applicants. These are (a) the Constitutional validity
of
paragraph 8.3.3.2 (a) of Parliament’s Policy on Filming and
Broadcasting (“the Policy”) and (b) whether any
order is
to be made regarding the jamming incident that occurred shortly
before the SONA on 12 February 2015. The Applicants seek
an order
declaring paragraph 8.3.3.2 (a) of the Policy unconstitutional and
invalid. Additionally, the Applicants (in their fourth
notice of
motion accompanied by Supplementary Replying Affidavit) seek a
similar order in respect of the relevant rule contained
in
Parliament’s Rules of Coverage (‘the Rules’).
[4]
In the alternative to the attack on paragraph 8.3.3.2 (a) of the
Policy [and the relevant rule], the Applicants seek an order

declaring the whole of the Policy to be unconstitutional and invalid.
The Applicants also seek an order declaring the use of the
jamming
device shortly before the SONA unconstitutional and invalid. It may
be mentioned that initially the Applicants sought relief
of a
structural interdict to direct the Respondents’ investigations
into the jamming incident. This, however, has been abandoned
in the
fourth notice of motion. The application is of course opposed by the
Respondents.
BACKGROUND
AND A BRIEF OVERVIEW OF
RELEVANT
LEGISLATIVE FRAMEWORK
[5]
The Speaker of the National Assembly (‘NA’) is elected in
terms of section 52 of the Constitution of the Republic
of South
Africa, 1996 (‘Constitution’). She is cited as the First
Respondent in these proceedings. In terms of section
3 of the Powers,
Privileges and Immunities of Parliament and Provincial Legislatures
Act 4 of 2004 (“the Powers and Privileges
Act”), the
Speaker of the NA, together with the Chairperson of the National
Council of Provinces (“NCOP”), jointly
exercise control
over the precincts (as defined in the Powers and Privileges Act) on
behalf of Parliament. The Chairperson of the
NCOP is cited as the
Second Respondent in these proceedings. In terms of section 5 (1) of
the Financial Management of Parliament
Act 10 of 2009 (“FMPA”)
the Speaker of the NA and the Chairperson of the NCOP act jointly as
the executive authority
of Parliament. In terms of section 6 (1) and
(2) of the FMPA the Secretary to Parliament is the accounting officer
who is accountable
to the executive authority for the financial
management of Parliament. The Secretary is cited as the Third
Respondent in these
proceedings.
[6]
As highlighted in the introductory portion of this judgment the
application arises mainly from the SONA which took place on
12
February 2015. The SONA is called by the President of the Republic of
South Africa in terms of section 84 (2) (d) of the Constitution
read
with Joint Rule 7 (1) of the 6
th
edition of the Joint Rules of Parliament (“Joint Rules”).
The two Houses of Parliament (the NA and the NCOP) convene
a joint
sitting to afford the President of the Republic of South Africa the
opportunity to address the Nation on the State of the
Republic of
South Africa. Thus for purposes of the joint sitting the Speaker of
the NA and the Chairperson of the NCOP are the
Presiding Officers.
[7]
Parliament applies its Policy on Filming and Broadcasting which was
approved and became effective in August 2009. The Policy
on Filming
and Broadcasting is described by the Respondents as an administrative
document aligned with international best practice
of filming and
broadcasting in Commonwealth Parliaments. In terms of section 3 of
the Policy “
Parliament will allow filming and taking of
pictures of its precinct and the recording of proceedings for public
broadcasting that
is in the public interest and related to the main
business of Parliament in conformity with acceptable standards of
dignity, appropriate
behaviour and conduct.”
The main
purposes of the Policy are:
(a)
“
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 flash photography and bright camera lights” (section 1 of
the Policy);
(b)
“
[t]o manage filming, taking pictures
of precinct of Parliament and broadcasting of the business of
Parliament” (section 4
of the Policy);
(c)
“
[t]o regulate the recording of
proceedings of Parliament for public broadcasting” (section 6
(a) of the Policy);
(d)
“
[t]o regulate filming and taking of
pictures within the precinct of Parliament” (section 6 (b) of
the Policy).
Control
of broadcasting falls under the Presiding Officers and Chairpersons,
with the manager of the Sound and Vision Unit as the
line function
manager (section 8.2.1.3 (b) of the Policy). The Policy is followed
by the Sound and Vision Unit in Parliament to
operate the cameras in
the Chambers and certain Committee Rooms.
[8]
The provision contained in paragraph 8.3.3.2 (a) of the Policy which
provides for the broadcasting of proceedings on occasions
of ‘
grave
disorder’
(rather than ‘
grave
disturbance’
) and
‘
unparliamentary behaviour’
,
(we are told) mirrors the practices of other commonwealth countries
referred to in a paper written by an internationally regarded

authority (Mary Raine of the BBC) on Parliamentary broadcasting,
titled ‘
Broadcasting Parliamentary
Spreads Throughout the Commonwealth’
attached
to the Respondents’ Answering papers marked as “BM3”.
The Policy is itself informed by the Internal Rules
of Coverage.
These Rules (as we gather from the papers) of Coverage are designed
to regulate the televising of proceedings in Parliament
in a manner
promoting public access, openness and accountability. The objective
of the Rules is reportedly to assist the director
in close
collaboration with the manager of the Sound and Vision Unit, to give
full, fair and accurate account of proceedings with
the aim of
informing viewers about the work of the Houses of Parliament. These
Rules are attached to the Respondents’ Answering
papers and are
marked “MB4”. The Rules of Coverage contain guidelines
for picture direction that are reasonable and
further the aim of
informing viewers about the work of the Houses.
[9]
In sketching this background I must hasten to mention that Parliament
has the necessary (own) infrastructure to provide a broadcast
feed of
the proceedings of the Houses and certain committee venues to
accredited media. We are told that at the request of the
media,
Parliament upgraded its audio-visual equipment during the 2014
financial year to provide for high definition broadcasting.
There
are, reportedly, eight static cameras in the National Assembly
Chamber which houses the joint sittings of Parliament. The
cameras
(we are told) are aligned to the programme of the proceedings of the
day. Members of the media are only allowed to take
their own
audio-visual equipment into the venues that are not already equipped
with audio and visual recording equipment. The constitutional

standards for the NA, the NCOP and Committees are set out in sections
59 and 72 of the Constitution. These provisions allow Parliament,

when it is reasonable and justifiable to do so, in an open and
democratic society, to exclude the public including the media. The

Rules of Parliament have a number of provisions that regulate public
access.
[10]
Sections 57 (1) and 70 (1) of the Constitution of the Republic of
South Africa provide that the NA and the NCOP may determine
and
control their internal arrangements, proceedings and procedures, and
make rules and orders concerning their business. Sections
59 (1) and
72 (1) of the Constitution provide that the NA and the NCOP must
conduct their business in an open manner, and hold
their sittings in
public, but reasonable measures may be taken to regulate public
access, including access of the media. Section
21 (1) of the Powers
and Privileges Act provides that-
‘
No
person may broadcast or televise or otherwise transmit by electronic
means the proceedings of Parliament or of a House or committee,
or
any part of those proceedings, except by order or under the authority
of the Houses or the House concerned, and in accordance
with the
conditions, if any, determined by the Speaker or Chairperson in terms
of the standing rules.’
[11]
The standing rules relating to the broadcasting of Parliamentary
proceedings are titled ‘Rules of Coverage’ (‘the

Rules’). The Rules are for the televising of proceedings of
Parliament. Following a participative process the Rules were
adopted
by the Joint Rules Committee on 19 September 2003, and they are
applied in both the NA and the NCOP. It is important to
emphasise
that the Rules are thus devised for Parliament’s functioning by
Parliament itself, on a fully cross-party deliberative
basis. These
are attached as Annexure “BM4” to the Respondents’
papers herein. Lastly, in August 2009 the Speaker
of the NA and the
Chairperson of the NCOP approved a more general policy, the Policy on
Filming and Broadcasting, to regulate all
filming within the precinct
of Parliament and
to
provide guidelines on the public broadcasting of
Parliamentary
proceedings and related matters. The Policy became effective on the
date of signature. It is attached to the Applicants’
Founding
Affidavit as “PG8”.
[12]
The Rules of Coverage were reportedly tabled before the Joint Rules
Committee as a means to regulate the filming and broadcasting
of the
proceedings of the NA, the NCOP and joint sittings of the Houses.
They are based on the Rules of Coverage applied in the
UK Parliament.
They were initiated by the Joint Subcommittee on Internal
Arrangements in 2001, which circulated them to the parties
and
referred them to the Chief Whips’ Forum. This tends to point to
what the Respondents call, the cross-party deliberative
manner in
which the Rules were produced. The Rules, undoubtedly, drew on the
cumulative experience of members of Parliament in
adjudging what best
advance not only the dignity but also the functioning of Parliament.
[13]
The specific rule that provides that the camera will focus on the
occupant of the chair during the incidents of disorder or

unparliamentary behaviour, as I gather from the Answering papers, was
extensively discussed by the Joint Rules Committee. A view
was
expressed that this ‘
could amount
to censoring’
and that it is
‘
impractical’
but the latter view (as I am advised) was subjected to a debate.
Parliament itself was therefore alive to any notion of censorship
or
secrecy on the one hand, and on the other, the need to ensure that
Parliament’s dignity and ability to continue functioning
were
preserved.
DISCUSSION
OF IMPUGNED MEASURES
AND THE JAMMING
DEVICE
(A)
BROADCASTING AND TELEVISING
[14]
The Policy and the Rules together govern all filming and broadcasting
within the precinct of Parliament including live broadcasting
of
proceedings. Paragraph 8.3.1.1 of the Policy confirms the exclusive
right of Parliament’s in-house Sound and Vision Unit
to film
live proceedings of Parliament. Importantly, I set out paragraph
8.3.3.2 (a) of the Policy which the Applicants are attacking
in these
proceedings. This reads as follows:
“
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 guideline:
i.
On occasion 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.”
The
Policy also prohibits filming of “
disorder in the galleries
on the basis that it does not constitute proceedings”.
The
Applicants, however, do not challenge the latter aspect of the
Policy. Clause 2 of the Rules defines “
grave disorder”
as follows:
“
Incidents
of individual, but more likely collective, misconduct of such
seriously disruptive nature as to place in jeopardy the
continuation
of the sitting.”
Notably
both Rules and the Policy define “
unparliamentary behaviour”
as follows:
“
[a]ny
conduct which amounts to defiance of the person presiding over the
proceedings, but which falls short of grave disorder”
(See paragraph 2 of the Policy).
[15]
The premise of the Applicants’ case is that all South Africans
have a right to know what happens in Parliament and that
includes a
right to see and hear for themselves disruptions by members of
Parliament. Mr Budlender expanding on the right to know
what happens
in Parliament contended as follows:
“
The
Constitution affords all South Africans a right to know what happens
in Parliament. They have a right to see and hear for themselves
what
is said. They have a right to see and hear for themselves what is
done, and what is not done. They have a right to know how
their
elected representatives conduct themselves, whether honourably or
dishonourably. They have a right to assure themselves that
the
proceedings of Parliament are conducted fairly – that all
Members of Parliament are treated equally and with respect.

Parliament has a concomitant obligation to respect, protect, promote
and fulfil that right. Parliament must take all steps necessary
to
ensure that the proceedings of Parliament are easily and freely
available to all those who are interested in them.  They
must
ensure that there is an accurate and complete record of what occurs
in Parliament. Particularly given that most South Africans
obtain
their information from radio and television, Parliament cannot
prevent or unreasonably limit media access.  Parliament
cannot
insist on positive coverage, or insist that the media leave out
embarrassing details about members who misbehave themselves.
It is
not entitled to compel positive depiction of its activities; it can
only insist on accurate representation. It is then for
South Africans
to decide whether their elected representatives conducted themselves
appropriately or not. There is no reasonable
basis for Parliament to
restrict the information which South Africans have available to take
that decision.”
[16]
Mr Budlender also dealt with the right to an open Parliament and the
fact that the Constitution’s underlying values of
openness and
accountability is one of the pillars on which the right to an open
Parliament rests. I have no quarrel with these
submissions. Sections
59 (1) (b) and 72 (1) (b) of the Constitution require the NA and NCOP
to “
conduct [their] business in an open manner and hold
[their] sittings, and those of its committees in public.”
However, they may in terms of sections 59 (1) (b) (i) and 72 (1) (b)
(i) take measures to “
regulate public access, including
access of the media”
but of course the measures taken must
be reasonable. I also agree with the submission that the right to an
open Parliament underpins
the right to public participation in the
law-making and other processes of the NA and NCOP assured in sections
59 (1) (a) and 72
(1) (a) of the Constitution. We have been referred
to
Doctors for Life International v Speaker of the National
Assembly
[2006] ZACC 11
;
2006 (12) BCLR 1399
(CC);
2006 (6)
SA 416
(CC) particularly at paragraph 137 where
inter alia
the
following is documented:
“
Public
access to Parliament is a fundamental part of public involvement in
the law-making process. It allows the public to be present
when laws
are debated and made. It enables members of the public to familiarise
themselves with the law-making process and thus
be able to
participate in the future.”
Mr
Budlender referred us to
Democratic Alliance v African National
Congress and Another
[2015] ZACC1 at para 122 where the Court
expresses itself as follows:
“
The
Constitution recognises that people in our society must be able to
hear, form and express opinions freely. For freedom
of
expression is the cornerstone of democracy. It is valuable both
for its intrinsic importance and because it is instrumentally

useful. It is useful in protecting democracy, by informing
citizens, encouraging debate and enabling folly and misgovernance
to
be exposed. It also helps the search for truth by both
individuals and society generally. If society represses views
it
considers unacceptable, they may never be exposed as wrong. Open
debate enhances truth-finding and enables us to scrutinise
political
argument and deliberate social values.
”
Mr
Budlender relied quite heavily on the provisions of section 16 of the
Constitution with regard to the right to freedom of speech
and its
protection. In this regard he referred to the decision of the Supreme
Court of Appeal in
Mthembi-Mahanyele
v Mail &
Guardian Ltd and Another
[2004 ZASCA 67
;
[2004] 3 ALL SA 511
(SCA) where the Court held at paragraph 66:
“
The
state, and its representatives, by virtue of the duties imposed upon
them by the Constitution, are accountable to the public.
The public
has the right to know what the officials of the state do in discharge
of their duties. And the public is entitled to
call on such
officials, or members of government, to explain their conduct. When
they fail to do so, without justification, they
must bear the
criticism and comment that their conduct attracts, provided of course
that it is warranted in the circumstances and
not actuated by
malice.”
[17]
The above statement was of course made in the context of (untrue)
criticism of the executive. I would be slow in accepting
that it
pertinently applies in the instant matter. I have no difficulty in
accepting that the Constitution in section 19 (3) does
consider
speech as so important that it provides an absolute immunity from
civil or criminal penalties for what members of Parliament
say in the
Chamber or in Committee Rooms of Parliament. Indeed section 41 of the
Constitution sets out the principles of co-operative
governance
including the command that: “
All spheres of government and
all organs of State within each sphere must provide effective,
transparent, accountable and coherent
government for the Republic as
a whole.”
Mr Budlender correctly pointed out that the
provisions of the Constitution, some of which I have touched on
supra
, all point to a society that embraces openness over
secrecy and transparency over concealment and that where there is
doubt about
whether a dispute should be resolved in favour of secrecy
or openness, the scale will tip in favour of transparency. In this
regard
the Supreme Court of Appeal remarked as follows in
City
of Cape Town v South African National Roads Authority Limited and
Others
[2015] ZASCA 58
at para 45:
“
Secrecy
is the very antithesis of accountability.
It prevents the public from knowing what
decision was made, why it was made, and whether it was justifiable.
”
[18]
This Court was referred to a decision made in the foreign
jurisdiction recognising the importance of open legislative
proceedings.
The decision is by the Canadian Supreme Court (per Cory
J)
in
New
Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of
Assembly)
[1993]
1 SCR 319.
The question for determination was whether the Nova Scotia
Legislature’s decision not to permit broadcasters to set up
their
own cameras in the legislative Chamber was consistent with the
right to freedom of expression. Although the majority decided
differently
(or did not even reach the question), Cory J found that
the decision was inconsistent with the right and stressed the
importance
of knowledge about the Parliamentary affairs as follows:
“
If
Canadians are to have confidence in the actions of their elected
representatives, they must have accurate information as to what
has
transpired in the legislative assemblies and House of Commons.
Informed public opinion is the essential bedrock of a
successful
democratic government.  Accurate information can only be
obtained by the public through the work of a responsible
press which
must today include television coverage.”
Indeed
there is and can never be any denial that the openness of
Parliamentary proceedings is not only good for journalists and
the
media but that it is vital for the Parliament itself. Parliament is
an establishment of the Constitution. The Constitutional
Court spoke
to this openness in the context of the courts in
Shinga
v The State and Another (Society of Advocates, Pietermaritzburg Bar
as Amicus Curiae)
;
O’Connell and Others v The State
[2007] ZACC 3
;
2007 (4) SA 611
(CC)
at para 26:
“
Open
courtrooms foster judicial excellence, thus rendering courts
accountable and legitimate.  Were criminal appeals to be
dealt
with behind closed doors, faith in the criminal justice system may be
lost. No democratic society can risk losing that faith.
It is
for this reason that the principle of open justice is an important
principle in a democracy.
”
On
the comparative practice it was contended on behalf of the Applicants
that while some Commonwealth nations such as the UK, Australia
and
Canada continue to restrict the broadcasting of Parliamentary
disruptions, their approach is not “
best practice”
nor
does the exact copying of their approach make Parliament’s
conduct reasonable. It is indeed true that the Constitutional
Court
has repeatedly emphasised that comparisons with foreign law and
practice, while often illuminating, cannot be determinative
of the
meaning of the South African Constitution or the reasonableness of
State actions. See in this regard
Ferreira v Levin NO
1996
(1) SA 984
(CC) at para 72;
Brink v Kitshoff
[1996] ZACC 9
;
1996 (4)
SA 197
(CC) at paras 39-40;
Minister of Finance v Van Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC) at para 29.
I
do not intend to spend much time on this aspect save to say that it
may be correct that countries like India and Scotland do have
revised
broadcasting guidelines that allow televising of scenes of disorder,
walk-outs etc. In my view, while it is of importance
to compare what
obtains in foreign jurisdictions, each country would have its own
unique circumstances that ordinarily would talk
to the measures to be
taken in order to contain scenes of disorder and unparliamentary
behaviours.
[19]
In Mr Budlender’s contention democratic society risk losing
faith in the legitimacy of the Legislature when obviously
important
and controversial events are playing out on the floor of the Assembly
but the camera remains trained on the Speaker.
I hasten to mention
that I shall deal fully with the submissions of Mr Budlender such as
the afore-going later on in this judgment.
It must be mentioned that
the right to an open Parliament is not of course absolute. There are
limitations thereto. Section 59
(2) of the Constitution provides
thus:
“
59(2)
The National Assembly may not exclude the public, including the
media, from a sitting of a committee unless it is reasonable
and
justifiable to do so in an open and democratic society.”
A similar provision is to be found in section 72
(2) except only that this expressly mentions the National Council of
Provinces
instead of the National Assembly. Of course, Parliament
needs to justify any restrictions on the basic rule of access.
Exceptions
must at all times be reasonable. Indeed while courts will
give some deference to the manner in which Parliament has elected to
regulate access, ultimately it can and must assess Parliament’s
actions against what is reasonable. I accept that reasonableness
does
include a degree of proportionality. I also accept that all citizens
of this country do have a right to know what happens
in Parliament
and that there is a constitutional duty to ensure that citizens can
and do enjoy that right. Accordingly measures
taken by Parliament
that tends to interfere with the exercise and enjoyment of that right
must be justified and reasonable in the
circumstances prevailing
then.
[20]
It is hardly necessary to overburden this judgment about the role of
the media. The role the media plays is immeasurable and
is fully
documented not only in the Constitution but also in numerous
decisions of our courts. For instance the Constitutional
Court in
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at
paras 22-24 speaking to this aspect said the following:
“
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 rights 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. The manner in which the media carry
out their
constitutional mandate will have a significant impact on the
development of our democratic society….”
Similarly
in
SABC Ltd v NDPP
[2006] ZACC 15
;
2007 (1) SA 523
(CC) at para 28 the Constitutional
Court expressed itself as follows on this aspect:
“
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 recognised 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’.
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.”
[21]
It is so that in the alternative to the
substantive attack on the Disorder clauses, the Applicants challenge
the Policy as a whole
on the basis that it was adopted through an
irrational process. In order to make a determination whether a
decision is procedurally
irrational, a Court “
must
look at the process as a whole and determine whether the steps in the
process were rationally related to the end sought to
be achieved and,
if not, whether the absence of a connection between a particular step
(part of the means) is so unrelated to the
end as to taint the whole
process with irrationality”.
See:
Democratic Alliance v President
of South Africa and Others
[2012]
ZACC 24
;
2012 (12) BCLR 1297
(CC);
2013 (1) SA 248
(CC) at para 33. I
discuss the alternative attack later on
infra
.
[22]
The Applicants contend that both the Policy and the Rules are
unconstitutional and that the onus rests on Parliament to justify
why
any restriction on the basic rule of openness and access is
justified. In this regard reliance is placed on
Moise
v Greater Germiston Transitional Local Council: Minister of Justice
and Constitutional Development Intervening (Women’s
Legal
Centre as Amicus Curiae)
[2001] ZACC 21
;
2001 (4)
SA 491
(CC) at para 19 where the Constitutional Court gave the
following guiding formulation:
“
[19]
It is also no longer doubted that, once a limitation has been found
to exist, the burden of justification under s 36 (1) rests
on the
party asserting that the limitation is saved by the application of
the provisions of the section. The weighing up exercise
is ultimately
concerned with the proportional assessment of competing interests
but, to the extent that justification rests on
factual and/or policy
considerations, the party contending for justification must put such
material before the Court. It is for
this reason that the government
functionary responsible for legislation that is being challenged on
constitutional grounds must
be cited as a party. If the government
wishes to defend the particular enactment, it then has the
opportunity – indeed an
obligation – to do so. The
obligation includes not only the submission of legal argument but the
placing before the Court
of the requisite factual material and policy
considerations. Therefore, although the burden of justification under
s 36 is no ordinary
onus, failure by government to submit such data
and argument may in appropriate cases tip the scales against it and
result in the
invalidation of the challenged enactment. Indeed this
is such a case.”
[23]
I do differ from Mr Budlender’s contention that the Policy
(particularly paragraph 8.3.3.2 (a)) and the Rules of Coverage
are
unconstitutional. I expand on this
infra
later on this
judgment. Looking squarely on the Disorder Clauses it is noticeable
that there is no prohibition on reporting incidents
of grave
disorder, nor any provision providing for the removal of journalists
or guests during such incidents. Paragraph 8.3.1.1
(c) of the Policy
and Rules separately regulate how images and sounds provided as part
of the broadcast may be used. They may not
be used for instance for
“
party-political propaganda”
, “
satire,
ridicule or light entertainment”
or “
commercial
sponsorship or advertising.”
In
terms of the Powers and Privileges Act it is a criminal offence to
broadcast material contrary to these limitations. On behalf
of the
Applicants it is contended that the disorder clauses are unreasonable
because preventing the broadcasting of grave disorder
is futile as
the public has a real interest in such incidents. Mr Budlender made
the following submission (I set it out in order
to deal with it later
on):
“…
incidents
of grave disorder will be particularly revealing of those who cause
it, and of those who are required to regulate it.
Moments of high
tension provide a window into the true nature and intentions of
public representatives and parliamentary officials.
The public has a
right and an interest to know exactly what occurs at those times so
that it can judge the behaviour of those involved.
Public
scrutiny and criticism of Parliament is vital to ensure that it
operates optimally. If public representatives know that whatever
they
do in the house will be beamed to television sets across the nation,
perhaps they will behave themselves with more decorum
and respect for
the institution they serve. If they can live safe in the knowledge
that grave disorder will only be fully observed
by those present,
they may feel more comfortable to act in ways unbecoming of their
office.”
[23]
Mr Budlender contended in his submissions that it may be that some
incidents of disorder will affect the dignity of Parliament
and may
cause members of the public to think less of Parliament, its members
or its Presiding Officers but if the dignity of Parliament
is
demeaned, that is a result of the conduct of its members or officers.
He insisted that the public have a right to know what
happens in
Parliament whether that is embarrassing for Parliament or not. I do
not fully agree with Mr Budlender on the above submission.
I agree
that the public has the right to know what happens in Parliament but
that right cannot be absolute. If Parliament has seen
it fit in its
wisdom to place these limitations for reasons advanced in the
Answering papers maybe the only question that should
occupy our minds
is rather whether these limitations are reasonable regard being had
to what they seek to achieve. I deal further
with this aspect later
on in this judgment.
[24]
Notably the Applicants have launched an attack on the Policy and the
Rules but they have not attacked section 21 (1) of the
Powers and
Privileges Act. This section has been fully quoted earlier on in this
judgment. The provisions of this section
proscribe
the broadcasting of Parliamentary proceedings except in accordance
with the standing rules. It must be emphasised that
Parliament’s
power to adopt rules and approve policies concerning its business is
provided for in the Constitution of the
Republic of South Africa.
Section 57 (1) (b) and 70 (1) (b) of the Constitution provide that
the National Assembly and the National
Council of Provinces may make
rules and orders concerning their business. Section 45 (1) of the
Constitution provides for the making
of rules concerning the joint
business of the NA and the NCOP. Failure and/or an omission
(apparently made purposefully) by the
Applicants to attack section 21
(1) of the Powers and Privileges Act quoted above is of significance.
It is important in that it
accepts that the Constitution authorises a
legislative provision (a) specifically applying to televising
broadcasting and electronic
media; (b) with the departure point that
they are not permitted, save to the extent provided for by Parliament
through its own
rules; (c) which will be framed by Parliament to
ensure its proper functioning and the upholding of its dignity.
Paragraph 8.3.3.2
(a) of the Policy (as stated before) is
substantially the same as the corresponding rule in the Rules. It is
based on that rule.
In this regard I set out
infra
the contents of
paragraphs 29-30 of the Answering papers which are not disputed by
the Applicants in the Replying Affidavit and/or
supplementary
Replying Affidavit:
“
29.
The Policy is also informed by the internal Rules of Coverage
attached as ‘BM4’. The Rules of Coverage are designed
to
regulate the televising of proceedings in Parliament in a manner that
promotes public access, openness and accountability. The
objective of
the Rules is to assist the director in close collaboration with the
manager of the Sound and Vision Unit, to give
a full, fair and
accurate account of proceedings, with the aim of informing viewers
about the work of the Houses.
30.
The Rules of Coverage contain guidelines for picture direction that
are reasonable and further the aim of informing viewers
about the
work of the Houses.”
[25]
In
Akani
Garden
Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
2001
(4) SA 501
(SCA) at para 7 (quoted with approval in
MEC
for Education, Gauteng Province v Governing Body, Rivonia Primary
School
2013
(6) SA 582
(CC) at para 55, and
Head
of Department, Department of Education, Free State Province v Welkom
High School
2014
(2) SA 228
(CC) at para 217), the Supreme Court of Appeal noted that
the concept “policy” may cover a wide spectrum: thus from

a stated goal (a policy on limiting poverty, or promoting literacy,
for instance), to a code which regulates conduct. In the instant
case
the concept a
‘
hard’
not
‘
soft’
,
policy, of the latter kind. It is adopted to regulate conduct, by the
entity with the power and duty to regulate it. In
Permanent
Secretary, Department of Education and Welfare, Eastern Cape v
Ed-U-College (PE) (section 21) Inc
2001
(2) SA 1
(CC) at para 19 (p14B-D) the Constitutional Court stated:
“
It
should be noted that the distinction drawn in this passage is between
the implementation of legislation, on the one hand, and
the
formulation of policy on the other. Policy may be formulated by the
Executive outside of a legislative framework. For example,
the
Executive may determine a policy on road and rail transportation or
on tertiary education. The formulation of such policy involves
a
political decision and will generally not constitute administrative
action. However,
policy may also be
formulated in a narrower sense where a member of the Executive is
implementing legislation
. The
formulation of policy in the exercise of such powers may often
constitute administrative action”
(underlining
added). See also
Grey’s
Marine Hout Bay (Pty) Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005
(6) SA 313
(SCA) at para 27 (p325A-C)).
[26] It must be
mentioned that the Applicants have only attacked the relevant Rule
for the first time in their fourth notice of
motion accompanied by
the Supplementary Replying Affidavit. I agree with Gauntlett (SC)
that this is an impermissible procedure.
It is common cause that
Parliament had already pleaded a reliance on the Rules in its
Answering Affidavit which was served on 26
February 2015. Already at
that stage, the Applicants contemplated the lawfulness of the Rules
being determined in Part B of the
proceedings. But the Applicants
chose not to attack the Rule in their Supplementary Founding
Affidavit. Strictly speaking the Applicants
are precluded in
launching this attack in the Supplementary Replying Affidavit (which
is now the fourth set of Affidavits delivered
by the Applicants) and
from attacking the relevant rule for the first time. Van Loggerenberg
D.E. et al,
Erasmus Superior Court Practice
page B1-45 states
the following in this regard:
‘
[a]ll
the necessary allegations upon which the applicant relies must appear
in his or her founding affidavit, as he or she will
not generally be
allowed to supplement the affidavit by adducing supporting facts in a
replying affidavit.’
In
Shepard v Tuckers Land and
Development Corporation (Pty) Ltd
(1)
1978 (1) SA 173
(W) at p177G the court referred to:
‘
the
trite principle of our law of civil procedure that all the essential
averments must appear in the founding affidavits for the
Courts will
not allow an applicant to make or supplement his case in his replying
affidavits’
.
What
is troubling is that no explanation is forthcoming from the
Applicants except a contention by Mr Budlender that no prejudice
is
caused to the Respondent. The fact that the Applicants assert
constitutional right does not grant them an exemption from procedural

compliance. See
Everfresh Market
Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
2012
(1) SA 256
(CC) at para 52;
Fischer
v Ramalhele
2014
(4) SA 614
(SCA) at para 13;
South
African Police Service v Solidarity obo Barnard
2014
(6) SA 123
(CC) at para 202.
Applicants
must not make out their case as they go along and merely aver lack of
prejudice. The Respondents have a legal entitlement
to know what case
they are called upon to answer. Such case is ordinarily made out in
the Founding Affidavit. The prejudice the
Respondents suffer in a
matter like the present is predicated by the serial changes the
Applicants make as the matter proceeds.
It is contended on behalf of
the Applicants that the latter are not bound by any elections made in
Part A in that they reserved
the right to supplement their case in
Part B and were afforded that right by the 10 March 2015 court order.
In Mr Budlender’s
submission on this aspect there can be no
objection to the Applicants taking advantage of that opportunity.
[27]
In any event paragraph 8.3.3.2 (a) of the Policy, in my view, does
survive the application of the proper test for reasonableness.
The
fact of the matter is that sections 59 (1) (b) and 72 (1) (b) of the
Constitution do authorise Parliament to take reasonable
measures to
regulate public access, including access of the media. In other
words, the very Constitution the provisions of which
are heavily
relied on by the Applicants as tending to grant them rights
highlighted by Mr Budlender in his submissions, does not
contemplate
unrestricted access (free for all). It rather expressly reserves for
Parliament the power to limit the access of the
public, including the
media, to its proceedings, provided of course that the limiting
measures are reasonable. We derive guidance
from the decision of the
Constitutional Court in
Doctors
for Life
International v Speaker
of the National Assembly
[2006] ZACC 11
;
2006 (6)
SA 416
(CC) at para 127 where the Highest Court in this country
confirmed that when dealing with the question of reasonableness
‘
context is all-important’
.
Differently put, the particular circumstances relating to the
measures in question do play a critical role in determining the

reasonableness of the measures taken.
[28]
Mr Gauntlett referred this Court to another decision of the
Constitutional Court, namely
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC)
particularly at paras 44-45 regarding the meaning of reasonableness.
In
Bato Star Fishing (Pty) Ltd
case
supra
the
meaning of reasonableness (in the context of an administrative
decision) was explained fully. In essence, the test is whether
the
‘decision’ in question was one which a reasonable
authority could reach in the circumstances, taking into account
(a)
the nature of the decision; (b) the identity and expertise of the
decision-maker; (c) the range of factors relevant to the
decision;
(d) the reasons given for the decision; (e) the nature of the
competing interests involved; and (f) the impact of the
decision on
the lives and wellbeing of those affected. The above test should and
is applied having regard to the principle of the
separation of
powers. Importantly, in
Doctors for Life
case
supra
,
the Constitutional Court guided us further in that it explained that
the principle of separation of powers ‘
requires that other
branches of government refrain from interfering in Parliamentary
proceedings’
and that Courts must be cautious not to
‘
interfere in the process of other branches of government
unless to do so is mandated by the Constitution.’
[29]
I would agree with Mr Guantlett that even though the above postulated
test for reasonableness is formulated with reference
to an
administrative ‘decision’ the general principles can
appropriately be applied to the measures under discussion
in this
judgment, namely those set out in para 8.3.3.2 (a) of the Policy and
the relevant rule). I need to mention that in any
event it was not
suggested in
Doctors for Life
case
supra
,
that reasonableness has a different meaning and test if it is a
legislative or executive act which is in issue. On the contrary,
the
Constitutional Court has repeatedly emphasised that differentiating
between legislative, administrative and judicial acts is
often
difficult, and may in particular cases not be material. See for
instance
Pharmaceutical Manufacturers
Association of South Africa: In re
Ex parte President of the Republic of
South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
at para 79 and
Fedsure Life Assurance
Ltd v Greater Johannesburg Transitional Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at paras 23-24.
[30]
Paragraph 8.3.3.2 (a) of the Policy has been set out
supra
and
the relevant rule under attack must necessarily be set out hereunder
and dissected thereafter.The relevant rule reads as follows:
‘
Disorder
on the floor of the House:
Televising
may continue during incidents of grave disorder or unparliamentary
behaviour for as long as the sitting continues, but
only subject to
the following guidelines:
(a)
On occasions of grave disorder, the
director should normally focus on the occupant of the Chair for as
long as proceedings continue,
or until order has been restored. (By
“grave disorder” is meant incidents of individual, but
more likely collective,
misconduct of such a seriously disruptive
nature as to place in jeopardy the continuation of the sitting).
(b)
In cases of unparliamentary behaviour,
the director should normally focus of the occupant of the Chair.
Occasional wide-angle shots
of the Chamber are acceptable. (The
phrase “unparliamentary behaviour” is intended to signify
any conduct which amounts
to defiance of the Chair but which falls
short of grave disorder).’
[31]
Of course these measures provide for the televising of incidents of
grave disorder and unparliamentary behaviour during Parliamentary

sittings. Clearly their effect is to restrict the visual feed that is
broadcast in the limited circumstances in which disorder
prevails.
The identity and expertise of the adopter of the measures is
Parliament. The measures were adopted and approved by Parliament
in
order to control its internal arrangements, proceedings and
procedures in terms of section 57 (1) (a) and 70 (1) (a) of the

Constitution. Indeed, (clearly) in this regard the draftsmen of the
Constitution found it necessary to include these provisions
in the
Constitution. Thus the Constitution recognises that Parliament itself
is best placed to determine how it will function.
Strangely even the
Applicants in paragraph 39 of their Supplementary Replying Affidavit
at page 714 of the papers do concede that
ultimately it is Parliament
that must decide what it will broadcast.
[32]
The range of factors relevant to these measures can be briefly
highlighted. These include but are not limited to the promotion
and
protection of the dignity of Parliament. The object of limiting bad
behaviour during sittings; the object of broadcasting only
the
legitimate business of Parliament being open to the public and the
media. On behalf of Parliament it has been fully explained
in the
Answering papers the reasons for the measures. Parliament explained
that it adopted and approved these measures in order
to promote and
protect its dignity; to limit bad behaviour during sittings; and to
ensure that the legitimate business of Parliament
is broadcast, and
that Parliament is not closed to the public and the media. I do not
understand the Applicants as saying promotion
and the protection of
Parliament and its dignity do not arise. I do understand them to say
“
remove the limitations and
measures – we shall ourselves decide what to broadcast under
the guardianship and regulations promulgated
by ICASA.”
That
would mean in effect that Parliament hands over to ICASA its own
constitutionally enshrined right to regulate and/or control
its
internal arrangements, proceedings and procedures.
[33]
Indeed the competing interests at play in the instant matter are all
constitutional imperatives. In Mr Gauntlett’s submission
the
reasons given by Parliament for the adoption and approval of the
measures in question outweigh the minor limitations they impose
on
the openness of Parliament. I agree with the aforementioned
submission. This is fully documented in the Answering papers. No

attempts have been made to refute these contentions in the Replying
papers filed. I am of the view that the actual impact of the
measures
on the public and the media is minor compared to the damage that may
arise in the absence of these measures. It is important
to note that
during any incidents of grave disorder or unparliamentary behaviour
the public, including the media, are not excluded
from the House.
They remain present to observe the happenings and they do report on
this comprehensively. Both the visual and audio
feeds do continue but
then special guidelines apply to the filming for the purpose of
visual feed. “
Occasional
wide-angle shots of the chamber”
are
still authorised in cases of unparliamentary behaviour.
[34]
Parliament undeniably plays an important role in this country’s
constitutional democracy. Parliament provides a forum
of national
importance for public consideration of issues pertaining not only to
this country but other countries too. It is Parliament
that passes
legislation and oversees executive action. It provides a national
forum for the public’s consideration of issues
affecting the
Provinces. See:
Section 42
of the Constitution;
Doctors
for Life International v Speaker of the National Assembly
supra
at para 36. This is in fact admitted by the Applicants. There can
be no dispute that Parliament is and shall always remain the
principal
legislative organ of the State. It therefore must carry out
its functions without interference. It should thus not be strange
that
Parliament is empowered by the Constitution to determine and
control its internal arrangements, proceedings and procedures. See:
sections
57 (1) (a) and 70 (1) (a) of the Constitution;
Doctors for Life International v Speaker of the National
Assembly
supra
at para 36. The Applicants have openly
admitted this in their papers. The preamble to the Powers and
Privileges Act includes the
following:
‘
AND
WHEREAS it is considered essential to provide for such further
privileges and immunities in order to protect the
authority,
independence and dignity of the legislatures and their members and to
enable them to carry out their constitutional functions
’
(underlining added).
[35]
The above Act expressly recognises the authority, independence and
dignity of the legislatures and their members. This too
is not denied
by the Applicants. They expressly admit this. Parliament strives in
the execution of its constitutional mandate to
promote and protect
its dignity. Responsible broadcasting is and remains the key to
maintaining the authority and dignity of Parliament.
This too is
admitted by the Applicants in their papers. Undoubtedly the measures
in question do ensure that incidents of grave
disorder or
unparliamentary behaviour are acknowledged. Yet in truth the measures
under discussion do protect the dignity of Parliament
by tempering
the especially strong impact that the visuals of disorderly conduct,
if broadcast to the world and played repeatedly
(as television often
does), would have. In
South African Broadcasting Corporation
Ltd v Downer NO
[2006] SCA 89 (RSA) (an unreported judgment
of the Supreme Court of Appeal) at para 21, the special impact of
visual images was
recognized in that the court highlighted –
‘
the
inescapable fact ... that television has an impact on the viewer
unrivalled by any other news medium. It conveys actuality with

greater accuracy and force and visual images tend to impress more
readily than a radio transmission or a newspaper article.’
Additionally
it to be noted that in
South African Broadcasting Corporation
Ltd v National Director of Public Prosecutions
[2006] ZACC 15
;
2007 (1) SA
523
(CC) at para 68, the Constitutional Court highlighted what it
described as “
the intense impact that television, in
particular, has on the viewer, in comparison to the print media”.
The Court emphasised that this, together with the ability to edit
the material, “
has the potential to distort the character of
the proceedings”
especially in the context of “
edited
highlights – packages”
.
[36]
The above observations were made in the context of court proceedings
though. But they apply with equal force to proceedings
depicting
disorderliness and unparliamentary behaviour playing itself in
Parliamentay Chamber and/or in the Committee Rooms of
Parliament.
These measures are designed and/or they seek to discourage the
occurrences of such incidents in the Chamber or Committee
Room.
Paragraph 15 of the Respondents’ Answering papers (page 577 of
the record) talks to this aspect. I deem it necessary
to set out
paragraph 15
infra
as follows:
“
15.
In Addition, the unqualified default position sought by the
Applicants can only encourage the worst behaviour in Parliament.
This
is because Parliament would be obliged, irrespective of the degree of
misconduct or grave disorder, to feed it for broadcasting.
The
Applicants’ response is that they too, have duties. Pursuant to
these Parliament must decide what is to be provided by
live feed in
relation to what constitute grave disorder, or conduct which is
unparliamentary, in terms of its Rules. Parliament
cannot facilitate
the undermining of its own dignity as a constitutional institution,
or the disruption of its own work. Ensuring
(as the Applicants seek)
that even the grossest misconduct and gravest disorder will be viewed
without restriction in real time
by the nation and beyond can only
undermine what section 21 of the Powers Act seek to avoid. This when
the Applicants accept that
section 21 itself cannot be challenged.”
I
fully agree with the above exposition. In my view, it is the
reflection of the truth such that it cannot be faulted. I also agree

with the assertion made in paragraph 52 of the Answering papers (page
590 of the record of proceedings). For completeness sake
I also set
out
infra
paragraph 52 of the Answering papers:
“
52.
In this way, the incidents are not ignored, but the consequences that
visuals of disorder and defiant conduct would have if
broadcast to
the world, and played repeatedly, is mitigated. An audience for
conduct striking at the heart of Parliament’s
functioning would
be guaranteed, and such ill-discipline would thereby, be encouraged.”
Mr
Gauntlett contended quite correctly that this is not, as the
Applicants would have it, a matter of censorship – as little
as
it is censorship for courts to restrict (as they do) the live feed of
film of a distraught witness or misbehaving counsel. Mr
Gauntlett
concluding on this aspect submitted thus:
“
The
function of neither Parliament nor the courts is to sustain a
(remunerative) appetite for reality television.”
[37]
The provisions of sections 57 (1) and 70 (1) of the Constitution
empower Parliament to make rules and orders concerning its
business.
Indeed the various rules and policies adopted and approved by
Parliament are essential for its ordered operation.
The
Applicants admits the afore-going in their Replying papers. I take
comfort in accepting that when a member obstructs or disputes

Parliament’s proceedings or unreasonably impairs Parliament’s
ability to conduct its business in an orderly and regular
manner
acceptable in a democratic society, that member’s conduct is
not legitimate Parliamentary business. What it does is
that it
undermines rather than promotes the proper functioning of Parliament
and the fulfilment of its constitutional obligations.
The Supreme
Court of Appeal in
Speaker of the National Assembly v De Lille
1999 (4) SA 863
(SCA) at para 16 held that Parliament’s power
to control its proceedings includes the power to exclude from the NA
any member
who is disrupting or obstructing its proceedings or
‘
impairing unreasonably its ability to conduct its business
in an orderly or regular manner acceptable in a democratic society.’
[38]
Accordingly, there is no obligation on Parliament to broadcast
conduct that clearly obstructs or disrupts its proceedings and

conduct that unreasonably impairs its ability to conduct its business
in an orderly and regular manner acceptable in a democratic
society
simply because such conduct is not legitimate Parliamentary business.
Thus regard being had to all relevant factors, the
measures under
discussion in the instant matter are ‘reasonable measures’
employed to regulate public access, including
access of the media, to
Parliament. When one contrast this with the suggestion by the
Applicants in the founding papers that Parliament
must feed for
broadcasting visuals of the grossest behaviour and gravest disorder
without limitation the latter is and remains
unreasonable.
[39]
Mr Gauntlett was concerned that the extensive relief for a
declaration that the whole of the Policy is unconstitutional and

invalid is only sought by way of a belated amendment and in the
alternative to the Applicants’ attack on paragraph 8.3.3.2
(a)
of the Policy and the relevant rule. He pointed out that, however, in
addition to the fact that the Applicants previously expressly

disavowed any attack on the Policy beyond paragraph 8.3.3.2 (a) there
are flaws in the alternative relief. In his submission, the

Applicants made a procedural election to which they should be held.
Indeed the binding nature of a procedural election is analysed
by
Hoexter JA in
Chamber of Mines of South Africa v National Union
of Mineworkers
1987 (1) SA 668
(A) at 690 D-H. It is not
necessary for purposes of this judgment to consider Hoexter JA’s
analysis. Mr Gauntlett highlighted
what he called “
fundamental
flaws”
in the alternative relief sought.
[40]
Notably, the Applicants’ challenge on the whole of the Policy
is premised on an alleged failure on the part of Parliament
to
involve the public, including the media, in the Policy’s
approval. It is clear though that in terms of section 167 (4)
(e) of
the Constitution, the Constitutional Court (not this Court) has
exclusive jurisdiction and/or competence to make a determination

whether Parliament has failed to fulfil a constitutional obligation.
The obligations to ‘
facilitate public involvement in the
legislative and other processes’
(as set out in sections 59
(1) (a) and 72 (1) (a) of the Constitution) to the extent that they
arise in a particular context are
such obligations. In
Doctors
for Life
case
supra
the Constitutional Court held
that:
“
[the
question whether Parliament has fulfilled its obligation under s 72
(1) (a) therefore requires this Court to decide a crucial

separation-of-powers question and is manifestly within the exclusive
jurisdiction of this Court under s 167 (4) (e) of the Constitution.”
Clearly
this Court lacks jurisdiction to determine the Applicants’
attack on the Policy as a whole. It is concerning that
the Applicants
failed and/or omitted to challenge the Policy “
as soon as
practicable”
after it was approved. The requirement of “
as
soon as practicable”
is articulated in
Doctors for
Life
case
supra
as a basis on which an Applicant’s
standing must be found. More than eleven (11) years have passed since
the Rules were adopted.
The Policy itself has been in operation for
almost six (6) years. The Applicants contend that they were not aware
of the existence
of the Policy. They work in Parliament and they are
watchdogs for media freedom. It is difficult to accept that it was
only on
27 January 2015 that the Applicants became aware that there
is a Policy in place. I point out that the delay is inexcusably long.

The papers show, however, that the Applicants have all along been
complying with the impugned provisions for so many years. I would
not
blame Mr Gauntlett in using the maxim “
Dormentibus non
succurrit jus: the law does not aid those who sleep”
.
[41]
Despite the above I proceed to consider the merits of the Application
on this alternative challenge. In
Doctors for Life
supra
at paragraphs 128 and 146 the Constitutional Court held
that Parliament must act reasonably in giving effect to its
obligations
– to facilitate public involvement, and that the
reasonableness of Parliament’s actions must be determined
having regard
to all relevant factors, including (a) the nature and
importance of the legislation in question; (b) the intensity of its
impact
on the public; (c) any rules (already) adopted by Parliament
relating to public participation; (d) the urgency with which the
legislation
must be enacted; and (e) of particular importance,
Parliament’s own assessment as to the appropriate level of
public involvement
that is required in the circumstances. It was in
the same
Doctors for Life
case
supra
that the
Court also confirmed that the Constitution allows Parliament
“
significant leeway”
to fulfil its obligation to
facilitate public involvement in its processes. See paragraphs 139 of
the judgment in
Doctors for Life
case
supra
; See
also K
ing v Attorneys Fidelity Fund Board of Control
2006 (1) SA 474
(SCA) at para 22.
[42]
It shall be recalled that in
Doctors for Life
case
supra
Parliament had decided that public hearings (in the
Provinces) would be held for two of the impugned bills. In the case
of one
of those bills (six of the nine Provinces failed to hold
hearings) and in the case of the other bill (seven of the nine
Provinces
failed to hold hearings). It was held that Parliament’s
failure to hold the hearings was unreasonable in the circumstances.

But in the case of another bill the Court held that Parliament’s
failure to hold hearings (or invite written submissions)
was not
unreasonable given the nature of the bill and Parliament’s own
assessment that public participation was not required.
[43]
In the instant matter the Answering papers reveal that the Rules and
Policy were adopted and approved by Parliament following
an open,
full, cross-party deliberative process. These were adopted and
approved after careful consideration – drawing (as
it were) on
the cumulative experience of members from across the political
spectrum – as to which measures would best promote
the dignity
and functioning of Parliament. In my view, Parliament acted
reasonably especially considering that the Rules and Policy
relate to
its ‘
internal arrangements’
as described in
sections 57 (1) (a) and 70 (10 (a) of the Constitution. See:
Woolman,
S et al, Constitutional Law of South Africa
, 2e, Vol 1 at p.
17-97 comments that ‘
(as [Parliament’s] rule making
power concerns the inner working of the legislature, the judiciary
will rightly be hesitant
to intervene.’
I
conclude that the challenge levelled against paragraph 8.3.3.2 (a)
and the relevant rule as well as the alternative in terms of
which
the Policy as a whole is sought to be declared unconstitutional and
invalid must fail.
(B)
THE JAMMING DEVICE
[44]
The Applicants seek a declaration that the use of the jamming device
at SONA was unlawful. Ordinarily a device that jams or
disrupts a
mobile telephone’s signal operates by broadcasting a signal at
the same frequencies as those used by mobile telephone
network
service providers, and this prevents the mobile telephone from access
to those signals. The use of such broadcasting equipment
requires a
licence under the
Electronic Communications Act 36 of 2005
. Such
licences are ordinarily issued by ICASA. However, there is an
exception which ICASA recognises. It is common cause that the
device
under discussion was brought and used in Parliament not by the First
to Third Respondents and not by the Fourth Respondent
but by the
State Security Agency. It is so that section 4 of the Powers and
Privileges Act provides that members of the security
services may
enter or remain in the precincts of Parliament for purposes of
performing any policing function there only with the
permission and
under the authority of the Speaker or the Chairperson. Section 4 (2)
of the Powers and Privileges Act, however,
provides that when there
is immediate danger to the life or safety of any person or damage to
any property members of the security
services may without such
permission enter upon and take action in the precincts in so far as
it is necessary to avert the danger
– in the latter event a
report must be made soon to the Speaker and Chairperson. The
Applicants rely on the provisions of
section 4 of the Powers and
Privileges Act to contend that the device employed was without the
permission of the Speaker or Chairperson
and that therefore it was
installed unlawfully.
[45]
The Answering papers make it plain that the security for the
attendees of the SONA was discussed by the Respondents and the

Security Agency. The Speaker and the Minister make it plain that the
use of the device was a matter of detail and that “
[D]etails
of the security measures are not discussed with a principal such as
the Speaker or the Chairperson; such matters are left
to our
discretion”.
In fact the Speaker puts it in a rather
understandable way in paragraph 58 of the First to Third Respondents’
Supplementary
Answering Affidavit where she explained thus:
“
58.
In the days running up to the SONA the Minister informed us at a
briefing at Parliament that the national Joint Operational
and
Intelligence Structure proposed to attend to the security
arrangements for the officials who would be attending the event.
We
were not informed of the specific interventions that would be applied
to avert any security threats. Operational details are
not disclosed
to us. In particular, we were not advised that the jamming of radio
signals would take place shortly before SONA.”
[46]
In any event it is contended on behalf of the Respondents that the
jamming relief sought by the applicants is purely academic
in that it
has been shown that the incident was a once-off occurrence and no
reason exists for believing that telecommunications
will be hindered
during open sittings in the future. In passing it may be mentioned
that a High Court’s jurisdiction to grant
declaratory relief is
provided for in
section 21
(1) (c) of the
Superior Courts Act 10 of
2013
which is substantially the same as
section 19
(1) (a) (iii) of
the (old) Supreme Court Act 59 of 1959. Mr Budlender contending that
the determining of the legality of government
conduct remains a live
issue relied on
Buthelezi and Another v Minister of Home
Affairs and Others
[2012] ZASCA 174
;
2013 (3) SA 325
(SCA).
However,
the above case can be distinguished from the instant matter, in my
view. There was no explanation in
Buthelezi’s
case that tends to show a
bona fide
mistake on the part of an
employee like it happened herein.
[47]
I have briefly referred to section 4 of the Powers and Privileges
Act. In the instant matter clearly prior to the SONA, the
Speaker
authorised members of the security services to ‘
enter upon’
,
and ‘
perform’
their policing functions in the
precincts of Parliament for purposes of SONA. I cannot see what blame
can be apportioned to the
First to Third Respondents on the question
of the jamming device. Once this was brought to their notice even
before the SONA proceedings
had begun, they swiftly ensured this was
attended to and deactivated and/or removed. In my view, the
Applicants have made no case
at all against the First to Third
Respondents regarding or pertaining to the jamming device. Indeed
given the Minister’s
acknowledgment of the mistake as well as
an acknowledgment of a general duty to ensure the openness of
Parliament, obtaining declaratory
relief to the effect that the
continued use of the device was unconstitutional and therefore
unlawful, in my view, will serve no
purpose whatsoever. Perhaps for
purposes of completeness one should briefly explain how this mistake
is alleged to have happened.
[48]
SONA was classified as major in relation to the risks and security
threats. One of the threats to be guarded against was the
potential
risk of hidden explosive devices which can be activated by the use of
a radio signal of a cell-phone (including such
devices that may be
carried on remote controlled drones). The Fourth Respondent’s
Supplementary Answering Affidavit makes
it plain that the risks posed
by such explosive devices were at its highest whilst the President,
the Deputy-President and the
dignitaries were outside the
Parliamentary Chamber. It goes on to explain that once they have
entered the Chamber, the potential
threat posed by hidden explosive
devices which could be remotely detonated by radio or cell-phone
signals were no longer relevant
because then the Chamber had been
swept prior to SONA session to ensure that no explosive devices were
present in the Chamber.
[49]
It is important to note that the Agency used signal disrupting
devices to ensure that the potential threat posed by such explosive

devices (whilst the President, Deputy-President and dignitaries were
outside the chamber) was effectively countered. Once they
had entered
the secured environment of the Chamber, there would have been no
further need for the device to remain operational
and it should have
been switched off. If the device had been switched off as planned,
there would have been no interference with
cell-phone signals at the
start of SONA. The unfortunate error, however, crept in as the
individual tasked with the switching off
of the signal disruptor
inside the Chamber did not switch it off timeously as planned. This
was swiftly attended to and the signal
disruptor deactivated and/or
switched off upon the complaint by members of the House. I accept
that (as Mr Blose who deposed to
a Supplementary Answering Affidavit
on behalf of the Fourth Respondent stated) was indeed an isolated
incident. The employment
of any means (including the use of signal
disruptors) to protect the President, Deputy-President and
dignitaries against the potential
threat (real or perceived) of a
remote controlled explosive device (whilst still outside the Chamber
and prior to the start of
SONA) under the circumstances explained by
Mr Blose, was in my view, entirely justified and was not unlawful.
[50]
Mr Jacobs (SC), contending that the issue of jamming device is now
moot submitted that there is no live controversy requiring

adjudication. In his submission, the effect of a declaration of
unconstitutionality and unlawfulness relating to the signal disruptor

device would amount to the Court having to provide an advisory
opinion on abstract propositions of law. He relied on two cases
by
the Constitutional Court, namely
JT Publishing (Pty) Ltd and
Another v Minister of Safety and Security and Others
[1996] ZACC 23
;
1997 (3)
SA 514
(CC) at 526 F where at paragraph [17]
Didcott J inter alia
,
held that:
“
There
can hardly be a clearer instance of issues that are wholly academic,
of issues exciting no interest but an historic one, than
those on
which our ruling is wanted have now become.”
In
Independent Electoral Commission v
Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA
925
(CC) at 933 B, para [12] the Constitutional Court held that:
“
[12]
There is no live controversy between the parties. The elections are
over and there is no suggestion that any order we make
could have any
impact on them.”
[51]
It is common cause that the Applicants in Part A sought interdictory
relief relating to the “
signal jamming”
at the
SONA which had taken place on 12 February 2015. This relief was
abandoned clearly because the Applicants must have come
to a
realisation that the interim interdictory relief would have no
practical effect – SONA had come and gone – no
signal
jamming having occurred during the actual SONA debate. Mr Jacobs is,
in my view, correct in contending that the declaration
of
unconstitutionality and unlawfulness in this regard, is confined to
the SONA on 12 February 2015 and that the effect of the
order sought
in Part B is limited to an historic event. At the risk of being
repetitive, I highlight that in effect the Applicants
contend that
although the Security Agency obtained the permission of the Speaker
or the Chairperson to perform “
a policing function”
,
it failed to specifically obtain permission to employ the device and
without such specific permission, its use was unlawful.
[52]
The Founding papers do not dispute that members of the Agency had
permission to enter and remain in the precincts of Parliament
for the
purposes of performing any policing function. Policing or policing
function was defined by the Supreme Court of Appeal
in
National
Lotteries Board v Bruss NO
2009 (4) SA 362
(SCA) at 367 E-F
para [25]. Section 4 (1) (b) of the Powers and Privileges Act does
not require permission in respect of the manner
in which and the
equipment with which the “
Policing function”
would
be performed. Clearly how and what equipment the policing function
for which permission was given is to be performed is a
matter falling
squarely within the discretion of the Security Agency. It must be
accepted that the Agency has the necessary knowledge
and expertise to
decide what equipment is reasonably required to properly fulfil their
policing function in the Parliamentary precincts
for the purposes of
the SONA. The Speaker would have no such knowledge and expertise.
[53]
Section 12 of the Intelligence Services Act 65 of 2002 (“the
Intelligence Services Act&rdquo
;) provides the authority for the
acquisition and use of signal disruptor devices by the Agency. It is
not necessary that I set
out
infra
the provisions of section
12 of the Intelligence Service Act. I am of the view, in any event,
that it would be wrong that this
Court denies the Agency the use of
the devices when circumstances demand same to be used in order to
counter any threat or potential
threat to national security. It may
be mentioned in passing that the Independent Communications Authority
of South Africa (ICASA)
considered the use of signal disruptors for
“
mobile telephone blocking devices”
and published
its findings in Government Gazette 24123 general notice 3266 of 28
November 2002. ICASA determined that:
“
The
National Security Cluster Department (i.e. Defence, Justice,
Intelligence, SAPS, Scorpions and Correctional Services) will have

alternative legislation to support them in their tireless efforts
against organized crime, rehabilitation and State security
functions.”
ICASA
even exempted the Agency from having to obtain a radio frequency
spectrum licence as contemplated in section 31 (6) and
section 32
(1)
of the
Electronic Communications Act 36 of 2005
. The alternative
legislation used by the Agency is the
Intelligence Services Act and
this Act authorises the acquisition and the use of equipment for the
efficient functioning of the Agency, such as signal disruptors.
[54]
The Applicants contend differently from what Mr Blose avers. The
Applicants are of the view that the security threat was at
its
highest when all dignitaries including the President and his Deputy
were present in the Chamber. They therefore contend that
it would
have been irrational to have switched off the signal disruptor at the
stage. Obviously this contention totally loses sight
of and fails to
appreciate the reasons given by Mr Blose in his Answering Affidavit
and the Supplementary Answering Affidavit as
to why the signal
disruptor should have been switched off once the President and
Deputy-President had entered the Parliamentary
Chamber. The
explanation Mr Blose gave is fairly straightforward and easy to
comprehend. He explained that the operational plan
in respect of the
SONA was to employ the signal disruptors up and until the stage when
the President and the Deputy-President had
entered the Parliamentary
Chamber. Once that had happened the signal disruptor would be
switched off. In simple terms once they
had entered the Parliamentary
Chamber, the security threat posed by hidden explosive devices (which
could be remotely detonated
by cellular phones or radio transmitters)
decreased as the Chamber had previously been inspected (“swept”)
to ensure
that no explosive devices were present in the Parliamentary
Chamber. It was never intended as part of the operational plan that

the signal disruptors would remain in operation once the President
and the Deputy-President had entered the Chamber and the SONA
had
commenced.
[55]
Mr Jacobs submitted in conclusion that there is nothing irrational or
unlawful in the Agency’s decision to have signal
disruptors in
operation whilst the President and the Deputy-President were not yet
in the secured Chamber. There is no denial in
the Founding papers as
amended and supplemented of the fact that the signal disruptor
remained operative beyond the intended time
for its use as a result
of a regrettable mistake. In fact, all parties (Respondents included)
are in agreement that this should
not have happened.
CONCLUDING
REMARKS
[56]
Undoubtedly televising and broadcasting (and now electronic
transmitting) are potent in that they have immediacy, and they
reach
an audience unparalleled in human history. Indeed projecting graphic
images and sound and as they happen into homes, offices
and public
places is undeniably a phenomenon of the age. But the Applicants as
shown above conceded the constitutionality of section
21 of the
Powers and Privileges Act. This tacit concession of section 21 of the
Powers and Privileges Act means and must mean that
the Applicants
accept this, and that as a consequence there can be no constitutional
objection to these forms of media being dealt
with differently to
print media under our Constitution.
[57]
It must also be mentioned that the Applicants indeed further tacitly
conceded (as Mr Guantlett pointed out) that there is no

constitutional objection to section 21’s departure point: that,
in contrast with the position pertaining to the print media,
all such
communication from Parliament is proscribed except to the extent that
Parliament’s rules permit it. I hasten to
point out that of
course Parliament’s rules do not do so at whim. The departure
point is therefore that Parliament must decide
– because it
clearly affects its functioning and dignity. It is very important to
add that it is for Parliament to decide
(not this Court) because its
determination is vital to its high and separate place in the
structure of the Constitution of the
Republic of South Africa. Court
control of what Parliament decides as regards the way it functions
must always have the most careful
regard for this. Subjecting
Parliament to the continued control of the Courts is in principle
problematical and not justified by
the extraordinary single instance
sought by the Applicants herein.
[58]
To succeed the Applicants needed to show that Parliament’s
determination regarding televising of gross disorder and
unparliamentary conduct is unreasonable. This, in my view, they
failed to do. It needs mentioning that unreasonableness has a high

standard. That is and must particularly be so when an independent
constitutional institution has, through its own internal, cross-party

processes, drawing on the experience of its own members and with
regard to the practice under other constitutional democracies

elsewhere, done exactly what sections 59 (1) (b) and 72 (1) (b) of
the Constitution contemplated for all legislatures. It is my
finding
(as demonstrated earlier on in this judgment) that it was not at all
unreasonable for Parliament to decide that visuals
of unparliamentary
conduct and gross disorders should not be broadcast (as the
Applicants demand) in real time, frame by frame,
of what may be the
most egregious conduct. In my view, it is Parliament’s sense
that this can only foster such conduct by
ensuring an audience for it
far beyond Parliament. It can only weaken discipline in Parliament,
undermine and jeopardise its functioning.
[59]
The Applicants’ argument that they or at least ICASA, by way of
backstop – will ensure that some control is maintained
on what
they disseminate, in my view, misses the point. The fact of the
matter is that the Applicants are not concerned with Parliament’s

dignity or functionality. The Applicants are rightfully concerned
with their own audiences. Whilst it must be acknowledged that
the
Applicants are the very cornerstone on which the community is built
in the sense that without the role they play in informing
the public
about what is happening in every corner of this country, the public
would be poorer in knowledge but the Applicants
are also involved in
their own business. As Mr Gauntlett pointed out that the size of the
Applicants’ audiences determine
their revenue. It is reasonable
to accept that the Applicants have every interest in expanding their
audiences and not in any way
limiting them. ICASA is the Applicants’
regulator. ICASA is not Parliament’s regulator. Powers, norms
and concerns
of ICASA are not those of Parliament.
[60]
The argument by analogy – the
argumentum e simili
always
has limitations. See in this regard
Die Spoorbond v South
African Railways
1946 AD 999
at 1012 per Schreiner JA. How,
in principle, (asked rhetorically) does the Applicants’ claim
to an untrammelled entitlement
(despite sections 59 (1) (b) and 72
(1) (b) of the Constitution and section 21 of the Powers and
Privileges Act) to broadcast the
most aberrant behaviour in
Parliament differ from what they have not yet felt able to claim for
court televising and broadcasting?
In televising court proceedings
there are always restrictions put in place. The Applicants have
accepted the restrictions which
are certainly comparable to those at
issue in the instant matter. By accepting the restrictions imposed by
various courts on televising
and broadcasting of proceedings there
(in courts), the Applicants clearly concede that the dignity and
functionality of the courts
should properly prevail over their
insistence on ‘
showing all’
, however aberrant or
even grotesque. Strangely the Applicants clearly are refusing to
recognize Parliament’s parallel claim
to even an approximate
consideration in doing its own work.
[61]
Lastly, I am of the view that courts should guide against the conduct
which amounts to what can be described as an intrusion
into the
constitutional domain of Parliament which is not only unprecedented
but which has obvious major constitutional implications.
If I were to
grant the order sought by the Applicants herein standing rules and
procedures established by the Houses of Parliament
in terms of their
constitutional obligation to control their internal arrangements,
proceedings and procedures would have to be
amended. This would
certainly amount to the court usurping the constitutional powers of
not only Parliament but Houses of Parliament
including Provincial
Legislatures.
[62]
In my understanding, underpinning Parliament’s opposition to
relief sought by the Applicants is the fact that Parliament
is and
remains an institution of State of the highest constitutional
importance. Parliament is constitutionally entitled to ensure
its
functioning and to protect its own dignity. I have stated earlier on
in this judgment that the impugned measures (in my finding)
are
reasonable, justifiable and proportionate. Indeed the unqualified
default position sought by the Applicants can only encourage
the
worst behaviour in Parliament. The policy under attack is itself a
reasonable regulatory instrument for ensuring that, within
its
capacity, Parliament provides information to the public about its
business that is fair, accurate (and I would add), comprehensive.
The
Policy does strike a balance between the rights of the public to be
informed about Parliament and the duty to maintain the
dignity of
Parliament and its Houses. As to the question of costs it is so that
the general rule dictates that a successful party
becomes entitled to
an order of costs against the unsuccessful party. In effect this
means that if the Applicants are successful
then the Respondents must
be ordered to pay costs of this litigation. But this, being
constitutional litigation, in keeping with
Biowatch Trust v
Registrar, Genetic Resources
2009 (6) SA 231
(CC) at para 21,
if this application is dismissed (as it must) each of the parties
should pay its own costs. See also
Tebeila Institute of
Leadership Education, Government and Training v Limpopo College of
Nursing
[2015] ZACC 4
(as yet unreported Constitutional Court
judgment) at paras 4, 5.
ORDER
In
the circumstances I make the following order:
(a)
The application for the relief sought in
terms of Part B in these proceedings is hereby dismissed.
(b)
Each of the parties in these proceedings
shall pay its own costs.
DLODLO,
J
I
agree.
HENNEY,
J
SAVAGE
J
:
Introduction
1
I have had the advantage of reading the
judgment of my colleague Dlodlo J with which I respectfully am unable
to agree.
2
This application arises from two events at
the President’s State of the National Address (‘SONA’)
on 12 February
2015 in Parliament, which was televised nationally and
in respect of which there was considerable public interest. The first
of
these events was the use by the State Security Agency immediately
prior to and at the commencement of the SONA of a device in
Parliament
that blocked all mobile telecommunication signals. For
those people present at Parliament the use of this device had the
effect
that they enjoyed no telecommunication signal and were unable
to communicate using such signal for the period that the device was

in use and until the signal was restored. The respondents acknowledge
that this was a mistake and the fourth respondent has apologised
for
it. Nevertheless, the applicants seek a declaration that the use of
this device to interfere with telecommunications was unconstitutional

and unlawful (‘the jamming relief’).
3
The second event arose following
restoration of the telecommunication signal. The President commenced
with the delivery of the SONA
until a ‘question of privilege’
was raised by a member of the Economic Freedom Fighters (‘EFF’).
What followed
were exchanges between the Speaker and various members
of the EFF. The Speaker wished the proceedings to continue while the
members
of the EFF sought to address certain questions to the
President. The Speaker took the view that the members of the EFF were
not
acting in accordance with the rules of Parliament and asked that
they either allow the proceedings to continue or leave the Chamber.

The EFF refused to do so and the Speaker called the Sergeant at Arms
and then security personnel to remove the members of the EFF
from the
Chamber. At this point, with a glimpse of security personnel entering
the Chamber, the camera in the Chamber recording
proceedings was
focused solely on the Speaker and the Chairperson until the members
of the EFF had been removed from the Chamber.
For members of the
public watching the television broadcast the only visuals televised
from this point were of the Speaker and
Chairperson until the EFF
members had been removed after which the ordinary television
broadcast resumed. Video recordings of the
removal of the EFF members
from Parliament, filmed by individuals who had witnessed events in
Parliament, were thereafter posted
on the internet and made available
for public viewing.
4
Arising from this event the
applicants
seek relief including:
1.
an order declaring that
paragraph
8.3.3.2(a) of Parliament’s Policy on Filming and Broadcasting
of Parliament (‘the Policy’) and paragraph
2 under the
heading ‘Treatment of Disorder’ of Parliament’s
Television Broadcasting ‘Rules of Coverage’
(‘the
Rule’) are
unconstitutional, unlawful and invalid;
2.
a declaration that the manner in which the
audio and visual feeds of the SONA were produced and broadcast by
Parliament was unconstitutional
and unlawful; and
3.
an order directing Parliament to broadcast
its proceedings in circumstances of ‘grave disorder’ and
‘unparliamentary
conduct’ subject to certain provisos.
5
In the alternative, the applicants seek an
order of constitutional invalidity against the Policy as a whole.
Amendment
sought
6
The applicants in three previous notices of
motion attacked only clause 8.3.3.2(a) of the Policy and did not
raise an attack against
the Rule. This caused the respondents in
their answering papers to take issue with the relief sought on the
basis of mootness in
that without an attack against the Rule, it
would remain in force even if the challenge to the Policy were to
succeed.
7
Consequently,
with less than three weeks before the hearing of the matter, the
applicants sought to introduce for the first time
a challenge to the
Rule. I see no reason why this amendment should not be allowed. The
content of the Rule is materially the same
as that of paragraph
8.3.3.2(a) of the Policy already attacked. The respondents are
therefore aware of the substance of the case
that they are called
upon to answer and have been provided with an opportunity to do so.
No prejudice arises in allowing the amendment
and, given the nature
of this matter and the public interest in it, there are to me
compelling reasons why this Court should exercise
its discretion to
allow a proper ventilation of the dispute between the parties and
consider the matter before it in all of its
parts.
[1]
8
I proceed to consider the attack against
the Policy and the Rule (‘the broadcasting relief’) first
and thereafter the
relief sought relating to the use of the
telecommunication signal jamming device (‘the jamming relief’).
Broadcasting
relief
Issues
in dispute
9
It is necessary at the outset to state what
this matter does not concern. It does not concern whether the
Constitution obliges Parliament
to ‘
conduct
its business in an open manner, and hold its sittings, and those of
its committees, in public
’.
Sections 59(1) and 72(1) of the Constitution provide as much.
10
It does not concern whether the
Constitution confers on Parliament the power to take ‘
reasonable
measures
’ to regulate public
access, including that by the media, to the National Assembly (‘NA’)
and National Council
of Provinces (‘NCOP’) in sections
59(1)(b) and 70(1)(b). This matter also does not concern what
measures may possibly
be reasonable to regulate access to Parliament
or the circumstances under which this may be so.
11
What the matter concerns is whether the
measures taken by Parliament in clause 8.3.2.2 (a) of the Policy and
paragraph 2 of the
Rules of Coverage (‘the measures’) are
reasonable measures within the meaning of sections 59(1)(b) and
72(1)(b) to
limit the open and public nature of Parliamentary
sittings and whether they comply with the Constitution and the law.
Basis
of the applicant’s attack
12
The
applicants attack the measures on the basis that they are
unreasonable and inconsistent with a right to an open Parliament
which they argue arises from the obligation on Parliament to conduct
its business in open and in public contained in s 59(1) and
s 72(1)
of the Constitution. In addition, they rely on Parliament’s
obligation to facilitate p
ublic
involvement in its legislative and other processes as creating a
right to public participation in Parliament with ‘
public
access to Parliament…a fundamental part of public involvement
in the law-making process
’,
[2]
which right is unduly restricted, they argue, by the measures.
13
The
applicants contend that the right in 16(1) of the Constitution to
freedom of expression, which includes freedom of the press
and other
media, has been emphasised to be a ‘cornerstone of democracy’
by the Constitutional Court most recently in
Democratic
Alliance
v African National Congress and another
.
[3]
As
a result they argue that t
he
Constitution recognises that people in our society must be able to
hear, form and express opinions freely, and that political
speech is
at the heart of this right. It follows, they say, that in order to
exercise these rights, knowledge of what occurs in
Parliament is
required.
14
The applicants ask this Court to interpret the
reasonableness of the measures in light of the right to an open
Parliament, to public
participation in Parliament, given the right to
freedom of expression and political rights and against the backdrop
of other provisions
of the Constitution including the preamble; the
founding values of accountability, responsiveness and openness
contained in s 1(d);
s 36(1) and 39(1) which refer to ‘
an
open and democratic society
’; the
requirement that all spheres of government provide transparent and
accountable government; and the requirement in s
57(1)(b) and s
70(1)(b) that in making rules Parliament must have ‘
due
regard to representative and participatory democracy, accountability,
transparency and public involvement
’.
South Africans, the applicants say, have the right to see and hear
for themselves what occurs in Parliament and to know
how their
elected representatives conduct themselves, in order to assure
themselves that the proceedings of Parliament are conducted
fairly.
This right, the applicants say, is unreasonably constrained by the
measures adopted.
Respondent’s
submissions
15
The respondents rely on Parliament’s
entitlement in s 59(1)(b) and s 72(1)(b) to take reasonable measures
to regulate access
to Parliament by the public and the media. They
defend the measures as reasonable on the basis that they protect and
promote the
authority and dignity of Parliament and that Parliament
is entitled to such protection.
16
The respondents’ contend that the
public is only entitled to have the legitimate business of Parliament
broadcast or televised,
that the conduct of a member who obstructs or
disrupts Parliament’s proceedings is not engaged in legitimate
parliamentary
business and it would be unreasonable to require
Parliament to feed broadcasting visuals of such behaviour to the
media.
17
The respondents take the view that the
broadcast of instances of grave disorder or unparliamentary behaviour
will only encourage
further such behaviour, that any limitation
imposed by measures is minor in nature and not unreasonable and the
measures accord
with international best practice.
Applicable
legislative provisions
Constitutional
provisions
18
The starting point of the enquiry is
section 59 of the Constitution which provides that:
‘
(1)
The National Assembly must-
(a) facilitate
public involvement in the legislative and other processes of the
Assembly and its committees; and
(b)
conduct its business in an open manner, and hold its sittings, and
those of its committees, in public, but reasonable measures
may be
taken-
(i)
to regulate public access, including access of the media, to the
Assembly and its committees; and
(ii)
to provide for the searching of any person and, where appropriate,
the refusal of entry to, or the removal of, any person.
’
(2) The
National Assembly may not exclude the public, including the media,
from a sitting of a committee unless it is reasonable
and justifiable
to do so in an open and democratic society.’
19
Section 72 provides the same for the
National Council of Provinces.
20
Sections 57(1) and 70(1) empower Parliament
to ‘
determine and control its internal arrangements,
proceedings and procedures
’ and ‘
make rules and
orders concerning its business, with due regard to representative and
participatory democracy, accountability, transparency
and public
involvement
.’
21
These provisions exist in the context of
section 42(3) of the Constitution which provides:
‘…
(3)
The National Assembly is elected to represent the people and to
ensure government by the people under the Constitution. It does
this
by choosing the President, by providing a national forum for public
consideration of issues, by passing legislation and by
scrutinizing
and overseeing executive action.’
Policy
on Filming and Broadcasting
22
Section
21(1) of the Powers, Privileges and Immunities of Parliament and
Provincial Legislatures Act 4 of 2004 prohibits the broadcasting
or
televising of proceedings of Parliament unless authorised by
Parliament.
[4]
23
Parliament’s
2009 Policy on Filming and Broadcasting of Parliament provides that
‘(f)
ilming
in the chambers can only be done with the permission of the relevant
Presiding Officer
’
and does not permit filming for private purposes in Parliament.
[5]
Only broadcasters accredited by the Presiding Officers may obtain the
official composite sound and vision feed provided by the
Sound and
Vision Unit of Parliament
[6]
and
the broadcast and rebroadcast of proceedings of Parliament may be
made only from this official composite feed.
[7]
24
Clause 8.3.1.1 of the Policy provides that:
‘
Live
broadcast and rebroadcast on television of the proceedings and
excerpts of proceedings of Parliament may be authorised under
the
following conditions:
(a)
Only broadcasters accredited by the Presiding Officers may obtain the
official composite sound and video feed provided by the
Sound and
Vision unit of Parliament.
(b)
Broadcast and rebroadcast of the proceedings of Parliament may be
made only from the official composite sound and vision feed
provided
by the sound and vision unit of Parliament.
(c)
Broadcasting on television must respect the dignity and decorum of
Parliament, and must only be used for purposes of fair and
accurate
reports of proceedings, and must not be used for:
(i)
party political propaganda of any kind;
(ii)
satire, ridicule or light entertainment; and/or
(iii)
commercial sponsorship for advertising;
(d)
Fairness and accuracy should be observed, and reports of proceedings
must provide a balanced presentation of different views.
(e)
Excerpts of proceedings must be placed in context
…’
25
A
complete archive of ‘
the
clean
feed of the proceedings
’
is to be maintained, with authority of the Secretary of Parliament
for the supply of copies of proceedings to any other
person or
organisation
[8]
26
Under
the Policy the control of ‘
broadcasting
falls under the Presiding Officers and Chairperson, with the manager
of the Sound and Vision Unit as the line function
manager
’.
[9]
It provides that instructions of the Presiding Officers ‘
in
relation to the operation of the Sound and Vision equipment in the
chambers
’
must be observed, with the instructions of Presiding Officers
observed ‘
in
respect to broadcasting of House proceedings
’.
[10]
27
Paragraph 8.3.3 of the Policy concerns the
‘Management of Disorder’. Paragraph 8.3.3.2 headed
‘Disorder on the
floor of the House’ states:
‘
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 guidelines:
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.’
28
The policy defines ‘
unparliamentary
behaviour
’ as ‘
any
conduct which amounts to defiance of the person presiding over the
proceedings, but which falls short of grave disorder
’.
It does not provide a definition of ‘
grave
disorder
’.
Rules
of Coverage
29
Parliament’s 2003 Television
Broadcasting Rules of Coverage state at the outset that:
‘
The
camera director should seek, in close collaboration with the Manager
of Sound and Vision to give a full, balance (sic), fair
and accurate
account of proceedings, with the aim of informing viewers about the
work of the Houses.
(Note:
In carrying out this task, the director should have regard to the
dignity of the House and to their functions as working
bodies rather
than place (sic) of entertainment.)
’
30
Under ‘
Treatment
of Disorder
’ the Rules state:
‘…
2.
Disorder on the Floor of the House:
Television
may continue during incidents of grave disorder or unparliamentary
behaviour for as long as the sitting continues, but
only subject to
the following guidelines:
(a)
On occasions of grave disorder, the director
should normally focus on the occupant of the Chair for as long as
proceedings continue,
or until order has been restored. (By “grave
disorder” is meant incidents of individual, but more likely
collective,
misconduct of such a seriously disruptive nature as to
place in jeopardy the continuation of the sitting.)
(b)
In cases of unparliamentary
behaviour, the director should normally focus on the occupant of the
Chair. Occasional wide-angle shots
of the Chamber are acceptable.
(The phrase “unparliamentary behaviour” is intended to
signify any conduct which amounts
to defiance of the Chair but which
falls short of grave disorder.)’
31
It is these measures that are the subject
of the applicants attack.
Are
the impugned provisions consistent with the Constitution?
Openness
and accountability
32
A
constitutional provision must be
construed
purposively and in the light of the constitutional context in which
it occurs, including our history, the fundamental
objectives of our
constitutional democracy and in a manner that is compatible with the
principles of our democracy.
[11]
33
Parliament’s
obligation in sections 59(1)(b) and 72(1)(b) to conduct its business
in an open manner, in public, exists within
the context of
the
founding values of the Constitution, which include a democratic state
based on ‘(
u)niversal
adult suffrage, a national common voters roll, regular elections and
a multi-party system of democratic government to
ensure
accountability, responsiveness and openness
’.
[12]
The democratic system of government the values state is to ensure
accountability, responsiveness and openness.
34
In
Minister
of Home Affairs v NICRO
the Constitutional Court stated that the founding values must ‘
inform
and give substance to all the provisions of the Constitution’
.
[13]
With Parliament located centrally in this construction of democratic
state, the founding values of openness and accountability
must inform
and give substance to the obligation that Parliamentary sittings be
open and held in public.
35
The constitutional commitment to a democratic system of
government ensuring openness and accountability follows the
preamble
which states that the
Constitution lays ‘
the
foundations for a democratic and open society in which government is
based on the will of the people and every citizen is equally

protected by law’
. Other constitutional provisions provide
for openness and accountability.
36
Section 41(1)(c) requires that all spheres
of government must ‘
provide
effective, transparent, accountable and coherent government for the
Republic as a whole
’. Sections
57(1)(b) and 70(1)(b) enable Parliament to make rules and orders
concerning its business emphasising that in doing
so there must be
‘
due regard to representative and
participative democracy, accountability, transparency and public
involvement
’. Sections 59(2) and
72(2) state that Parliament may not exclude the public and the media
from a committee sitting ‘
unless
it is reasonable and justifiable to do so in an open and democratic
society
’
. Similarly, section
36(1) permits rights in the Bill of Rights to be limited only ‘
to
the extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality
and
freedom…
’.
37
The
value placed by the Constitution on accountability, responsiveness
and openness
arises
from our history and the foundations and objectives of our
constitutional democracy. The Constitution records our country’s

move to an open society in which institutional checks and balances
limit state power, there is accountable and responsive government,

open participation, freedom of expression and a commitment to human
dignity, equality and freedom. In
S
v Makwanyane
[14]
Sachs J states that:
‘
Constitutionalism
in our country also arrives simultaneously with the achievement of
equality and freedom, and of openness, accommodation
and tolerance
.’
38
In
Doctors
for Life
International
v Speaker of the National Assembly and others
it
was noted that ‘…
we
live in an open and democratic society in which everyone is free to
criticise acts and failure of government at all stages of
the
legislative process
’.
[15]
On similar lines in
Executive
Council, Western Cape Legislature and others v President of the
Republic of South Africa and others
[16]
it was stated that:
‘
The
reason why full legislative authority, within the constitutional
framework…is entrusted to Parliament and Parliament
alone,
would seem to be that the procedures for open debate subject to on
going press and public criticism…are regarded
as essential
features of the open and democratic society contemplated by the
Constitution
’.
39
The
commitment
to accountability, responsiveness and openness in government
presupposes a democracy that is not only representative
but
participatory.
[17]
Participation occurs within a context of openness and accountability,
with the democratic imperative requiring that the electorate
is
entitled to know what happens in Parliament, why this is so and to
hold elected representatives to account. It is this openness
and
accountability that enables the public to exercise its democratic
rights and hold its elected representatives to account.
Nature
of Parliament
40
Parliament
consists of those persons elected by the people to ensure government
by the people under the Constitution, serving as
the ‘
national
forum for public consideration of issues, by passing legislation and
by scrutinizing and overseeing executive action
’.
[18]
As
was stated by Davis J in
Mazibuko
v The Speaker of the National Assembly and Others:
[19]
‘
The
public, in effect, own the national forum, parliament. It is the body
of the citizens of South Africa in that it is comprised
of the
people’s representatives, and the people are entitled, as
citizens of South Africa, to hear what our national representatives

have to say about a matter of… pressing importance’.
41
Given
the importance of deliberation to the work of Parliament sections
58(1) and 71(1) provide that
members
of the executive and the legislature
have
freedom of speech in Parliament, subject to its rules and orders
without
the risk of civil or criminal liability.
[20]
The freedom of speech guaranteed in Parliament gives meaning to
the
section
16
right
to freedom of expression and media freedom
and
the right in section 19 to make political choices, with t
he
Constitution
recognising that people in our society must be able to hear, form and
express diverse opinions freely.
42
Controversial
and unpopular views are often expressed in Parliament. Debate often
mirrors public debate which ‘
has
if anything become more heated and intense since the advent of
democracy
’:
[21]
‘
Political
life in democratic South Africa has seldom been polite, orderly and
restrained. It has always been loud, rowdy and fractious.
That is no
bad thing. Within the boundaries the Constitution sets, it is good
for democracy, good for social life and good for
individuals to
permit as much open and vigorous discussion of public affairs as
possible.’
[22]
43
Although disagreement may be inevitable,
more so in a society with the disparities of ours, as the national
forum representative
of the people Parliament is entitled to use its
rules to take action against its members in cases of ill-discipline.
44
The constitutional provisions applicable to
Parliament are those detailed in Chapter 4 of the Constitution. No
institution may accord
rights to itself and any reference such as
that in the preamble to the Powers Act which refers to the dignity of
Parliament, is
not to be interpreted to mean that Parliament holds a
right to dignity in the manner intended by section 10.
Parliament as
an institution, while it may be afforded respect as a
sphere of government, holds no right under the Constitution to
dignity such
as the right to human dignity protected in section 10 of
the Bill of Rights or expressed in the founding value of human
dignity
in section 1(a).
Are
the measures taken to regulate access to Parliament reasonable?
45
Reasonableness
is an objective standard used throughout the Constitution.
[23]
Insofar as it relates to sections 59(1)(b) and 72(1)(b) it is a
non-Bill of Rights constitutional doctrine under which it is for

Parliament to explain how the measures it has taken to limit openness
and public access including access by the media to Parliament
are
‘reasonable’.
[24]
46
What is ‘reasonable’ in
limiting the obligation that Parliament conduct its business openly
and in public is to be construed
in light of values of openness and
accountability in section 1 of Constitution and their democratic
imperative.
47
The
reasonableness of the measures is a matter of context, impact and
degree and may involve, a question of balance and proportionality
to
be worked out on the facts of the case.
[25]
This
requires
a consideration of the nature and importance of the measures, the
intensity of their impact on the public, relevant practical

considerations and Parliament’s own assessment as to the
measures required.
[26]
In
Doctors
for Life
International
v Speaker of the National Assembly
[27]
it
was stated in the context of public participation in the legislative
process that:
‘
The
nature and importance of the legislation and the intensity of its
impact on the public are especially relevant. Reasonableness
also
requires that appropriate account be paid to practicalities such as
time and expense, which relate to the efficiency of the
law-making
process.…In addition, in evaluating the reasonableness of
Parliament’s conduct, this Court will have regard
to what
Parliament itself considered to be appropriate public involvement in
the light of the legislation’s content, importance
and
urgency
.’
48
However,
in determining whether the measures taken by Parliament to regulate
access are reasonable, this C
ourt
should not readily substitute its opinions for those of Parliament or
parliamentary officials in relation to matters entrusted
to them.
[28]
Courts must recognise the proper role of the other branches of
government under the Constitution and treat their decisions with
the
appropriate respect, with the proviso that:
‘
Courts
exist to police the constitutional boundaries…where the
constitutional boundaries are breached or transgressed, courts
have a
clear and express role; and must then act without fear or
favour’
.
[29]
49
Whether
more desirable or favourable measures could have been adopted by
Parliament in a
wide range of possible measures and whether these may meet the
standard of reasonableness required is not before this Court for

determination.
[30]
50
To be constitutionally compliant, measures
taken must fall within the band of reasonable options available, as
those reasonably
likely to advance the achievement of the required
goal.
In considering whether the measures
meet the objective standard of reasonableness required, consideration
must be given to the respondent’s
justifications provided as to
the reasonableness of the measures.
Dignity of
Parliament
51
The respondents defend the measures as
reasonable on the basis that they preserve and protect the authority
and dignity of Parliament.
As stated above the
Constitution
does not confer rights on institutions of government and Parliament
holds no right to dignity
in the manner of the
right to human dignity in sections 1(a) or 10 of the Constitution.
While Parliament may act where appropriate
to defend its position and
status as a sphere of government, whether in acting against its
members or in other respects it is not
reasonable to do so in the
name of preserving its dignity when, given its nature and
composition, it holds no constitutional entitlement
to have its
dignity preserved. Given the authority that Parliament enjoys as the
constitutionally mandated legislative sphere of
government, it is
difficult to understand why measures taken to limit openness and
public access would enhance its authority.
52
While
the Constitution requires organs of state to assist and protect the
independence, impartiality, dignity, accessibility and
effectiveness
of the courts,
[31]
there is
notably no similar constitutional obligation in relation to
Parliament.
T
he
authority and respect that Parliament enjoys is that which arises
from its pivotal position in our constitutional order, as a
sphere of
government made up of those persons elected by the people to ensure
government by the people under the Constitution.
[32]
53
While scenes of disorder or
‘unparliamentary’ behaviour may impact upon public
respect for Parliament, its members or
their political parties, it
remains the elected national forum of the people. Furthermore, other
forms of speech and conduct permitted
by Parliament and which are
broadcast and televised may also have such impact.
54
Difficulties arise in the impact of the
measures on members of the public who are present in the public
gallery at Parliament and
those who are not. If members of the public
have the right to sit in the public gallery, then so does any member
of the public
in spite of the fact that they may be unable to
exercise such right. Yet, the impact of the measures is materially
different depending
on whether a person is present in the public
gallery or unable to attend parliamentary proceedings. If the dignity
and authority
of Parliament is impaired by the behaviour, it is
difficult to understand why the impairment of dignity would not arise
whether
the public was present in the public gallery of Parliament or
not. Without an acceptable justification for this, in this respect

alone I consider the measures to be unreasonable.
55
Similar considerations arise in the context
of permitting continued print media coverage of the conduct while
barring the broadcast
of visual images of events. If journalists may
continue to report in the print media as to events in Parliament yet
are restricted
to do so in visual images, it is unclear why the one
medium necessarily impacts negatively on Parliament while the other
does not.
56
Moreover, knowing what members of
parliament do is important to inform the decisions of voters who
choose their representatives.
The manner of conduct of elected
representatives is not a reasonable basis on which to restrict the
openness of Parliament, even
if the conduct may give rise to
disapproval. Given that section 19(1) grants to every citizen the
freedom to make political choices,
considering the actions and
conduct of elected representatives is inherent to making such
political choices in a democratic state.
This is the reason that our
Constitution places value on accountability and openness.
57
In considering whether the measures taken
are reasonable, a further difficulty arises regarding what conduct
constitutes ‘grave
disorder’ or ‘unparliamentary
behaviour’ and what does not. The fact that the Policy fails to
define grave disorder,
with only the Rules doing so, leaves the
Policy without a definition of conduct which it seeks to regulate.
58
If the grave disorder arose as a result of
the removal of the members of the EFF from Parliament, which occurred
at the instance
of and pursuant to a ruling made by the Speaker, it
is difficult to understand how the dignity or authority of Parliament
would
be impaired in the broadcast and televising of the enforcement
of a decision of the Speaker if she had acted within her powers under

the Constitution and the rules. It is equally plausible that in the
public having sight of the exercise by the Speaker of her powers
to
control the House, respect for the position of Parliament would be
promoted and preserved. If however the Speaker had acted
unlawfully
in exercising her powers to control the House, the dignity and
authority of Parliament cannot be preserved by concealing
from the
public the consequences of an unlawful act and in denying the public
access to the broadcast of footage relating to it
given the nature of
Parliament.
ii.
Legitimate business of
Parliament
59
The respondents defend the measures adopted
on the basis that it is reasonable to restrict access by the public
and media only to
the broadcast of the legitimate business of
Parliament and that grave disorder and unparliamentary behaviour do
not fall within
the scope of Parliament’s legitimate business.
60
I am not satisfied that the measures comply
with the reasonableness standard on this basis, illustrated by the
following example.
Repeated points of order may constitute part of
the legitimate business of Parliament and yet may be disruptive to
the point of
‘grave disorder’. If access to footage of
grave disorder is barred when it forms part of the legitimate
business of
Parliament then the measures cannot be reasonable on this
basis.
61
Difficulties
also arise regarding who it is who determines what conduct has
reached the point of grave disorder or unparliamentary
conduct and
what has not. The measures are silent in this regard and in a robust
and contested environment be a question of degree
and could occur
repeatedly even in the same sitting. Fundamental to our
constitutional order is the principle of legality: that
the exercise
of public power is legitimate only where it is lawful.
[33]
Without knowledge as to where the power to make a decision lies or
the identity of the decision maker, it is not apparent whether
or not
the decision maker failed to take into account a factor that he or
she was bound to take into consideration or whether the
resulting
decision was that of a reasonable decision maker.
[34]
The Constitutional Court in
Masetlha
v President of the Republic of South Africa and Another
[35]
emphasised
the
requirement of the rule of law that public power not be exercised
arbitrarily. If it is not known who takes and how a decision
is taken
that conduct has reached the point of grave disorder or
unparliamentary behaviour, it is indeterminable whether the power
has
been exercised lawfully or rationally in circumstances in which the
consequences for the public are immediate and restrictive.
62
The fact that Parliament has the power to
take the appropriate disciplinary steps against its members for
misconduct can only strengthen
respect for Parliament, where such
action taken is appropriate and lawful, thereby building its
legitimacy in the eyes of the public.
Broadcast limitations are not
required to bolster Parliament’s power to act against
misconduct under its rules.
iii.
Broadcast encourages further
disorder
63
The respondents defend the measures as
reasonable on the basis that the broadcast of grave disorder or
unparliamentary behaviour
will serve to encourage further such
disorder and breed an appetite for reality television at the expense
of Parliament. No evidential
support for this proposition is provided
and consequently little store can be placed on it. But even if this
were true, it could
not justify broadcasting the business of
Parliament as the democratically accountable institution elected by
the people in a censored
or restricted manner. This is so in that
members of Parliament are, as elected representatives of the people,
accountable to the
public and may not shield themselves from public
scrutiny.
64
In addition, the view I take of the matter
is that the proposition that disorder breeds disorder when it is
broadcast and televised
is an authoritarian approach to openness and
media freedom, one similar to that adopted by the apartheid state,
for example in
legislation that existed for much of the 1980’s
and which restricted the reporting of
inter
alia
political unrest. It is an
approach that is not condoned by our Constitution and is out of
keeping with the fundamentals of our
constitutional democracy.
65
While it may be that where disorder is
created in Parliament as part of a political strategy to draw
attention to a particular political
party or its members, televising
such disorder may indeed draw such public and media attention to the
conduct of the members of
that party. The fact of such publicity does
not however provide a reasonable basis on which to restrict the
access of the public
to the conduct of all representatives,
particularly given the foundational values of openness and
accountability.
iv.
The limitation on public
access is minor
66
The respondents defend the measures on the
basis that the limitation on public access and that of the media
imposed by the measures
is minor and therefore reasonable. Minor
restrictions are capable of causing significant results and may
impose unreasonable limitations
on constitutional rights or freedoms.
67
Given that the impact of the measures taken
by Parliament restricts the right to openness and accountability,
such restriction is
neither minor nor insignificant. It bars the
public the right to have sight of the conduct of elected
representatives of the people
in Parliament and to exercise their
rights under the Constitution in response to what they see. For those
members of the public
watching the televised broadcast of the SONA
the impact of the measures were that they were censored from viewing
the consequences
of the Speaker’s order and left unenlightened
as to the events that were developing in Parliament. The measures in
their
application sought to ensure positive coverage of Parliament’s
proceedings by restricting the public’s right to see
and know
what was occurring. By its nature such a restriction is not minor and
its impact and effect is not to be minimised.
v.
International best practice
68
The respondents rely on examples from
foreign jurisdictions in which similar measures to restrict access
have been imposed. Reference
was made to the measures adopted by the
House of Commons and those adopted by the Canadian, Australian and
New Zealand Parliaments
as providing support for the reasonableness
of the measures taken by our Parliament.
69
The applicants rely on jurisdictions such
as
India, Scotland and Kenya, as well as the parliament of the
European Union,
to indicate a trend towards
greater transparency and openness in the broadcasting of
parliamentary disruptions
in these jurisdictions.
70
It
is equally of interest that the United States House of
Representatives provides that the Speaker administers, directs, and
controls
a system for complete and unedited audio and visual
broadcasting and recording of the floor proceedings of the House
[36]
.
71
Foreign
law and practice, while often illuminating, cannot be determinative
of the meaning of the South African Constitution or
the
reasonableness of its state actions.
[37]
The
text of our Constitution is the starting point for the determination
by this Court and cannot be materially affected by international
best
practice. The clear distinctions in the form and nature of political
institutions in other countries, as well as their different
histories
makes the wholesale adoption of their approach to considerations of
Parliamentary openness and accountability unattractive.
Conclusion
72
The constitutional value placed on openness
and accountability arises within the context of and as a consequence
of our authoritarian
and undemocratic past:
‘
The
apartheid regime sought to dominate all facets of human life. It was
determined to suppress dissenting views, with the aim of
imposing
hegemonic control over thoughts and conduct, for the preservation of
institutionalised injustice. It is this unjust system
that South
Africans, through their Constitution, so decisively seek to reverse
by ensuring that this country fully belongs to all
those who live in
it.’
[38]
73
While
it is so that when it comes to matters falling within the heartland
of Parliament, our Constitution contemplates a restrained
approach to
intervention in those matters by the Courts, intervention is
permissible if it is undertaken to uphold the Constitution
because
our courts are the ultimate guardians of the Constitution.
[39]
74
The
measures arise in the regulation by Parliament of its constitutional
obligation to conduct its business in an open manner and
in public
with the public holding a concomitant entitlement to an open
Parliament and one in which its members, and those members
of the
executive who appear in it, may be held accountable for their
actions. This is apparent from the founding values of the

Constitution, the right to free expression and media freedom, the
nature of and purpose of Parliament, the obligation that it be
open
and its sittings held in public and the obligation upon Parliament to
facilitate public involvement in its processes.
[40]
In restricting the public’s right to view what occurs in
Parliament the measures are not constitutionally compliant. The

measures do not accord with the test for reasonableness and the
respondents have not shown differently.
75
Openness repels the exercise of secret
power and ensures accountability to the people. The measures
unreasonably limit public access
to a visual broadcast of important
events involving elected representatives in a manner which requires
such information to be obtained
only from the print media or, as is
increasingly the case, from social media. Given our country’s
torrid history of censorship
and media restriction, the measures are
unreasonable in their impact on openness, accountability, free
expression and media freedom.
76
For all of these reasons, I find the
measures to be inconsistent with the Constitution and unlawful. In
these circumstances it is
not necessary to consider the alternative
relief sought by the applicants. In terms of
section 172(1)(a)
a
n order of constitutional invalidity is
not discretionary and must follow.
Jamming
relief
77
Given
that the exercise of public power is constrained by the principle of
legality, whether public authorities have acted unlawfully
or not
remains a live issue.
[41]
78
The
Respondents accept that the permission and authority of the Speaker
or Chairperson was not obtained under section 4 of the Powers
Act by
the security services to use the device jamming telecommunications at
Parliament.
[42]
It is not
suggested that the device was used under the provisions of section
4(2) of the Act, namely in circumstances of immediate
danger to the
life or safety of any person or damage to any property on the basis
that its use would later be reported to the Speaker
or Chairperson.
79
The
conduct of the fourth respondent and the State Security Agency was
unlawful and the applicants have an interest in the adjudication
of
the constitutional issue at stake on the basis that unlawful conduct
is inimical to the rule of law.
[43]
The defence of mistake does not cure the unlawfulness of the conduct.
In both
Pharmaceutical
Manufacturers
Association
of South Africa and Another: In re Ex Parte President of the Republic
of South Africa and Others
[44]
and
Kruger
v
President
of the Republic of South Africa and Others
[45]
the Constitutional Court declared
bona
fide
mistakes
of the President in bringing legislation into force irrational and
invalid:
‘
The
fact that the President mistakenly believed that it was appropriate
to bring the Act into force, and acted in good faith in
doing so,
does not put the matter beyond the reach of the Court’s powers
of review. What the Constitution requires is that
public power vested
in the executive and other functionaries be exercised in an
objectively rational manner. This the President
manifestly, though
through no fault of his own, failed to do.
’
[46]
80
Without the permission of the Speaker or
Chairperson to perform ‘
a policing
function’
in employing the
device, its use on the Parliamentary precinct was unlawful. It
restricted telecommunications and curtailed both
the constitutional
rights of the public and the media. Its use was unjustifiable and
unlawful in the circumstances and there is
a compelling purpose
served in declaring this to be so to deter any future such unlawful
conduct.
81
The applicants are accordingly in this
respect entitled to the relief sought and a declaration that the use
of a device to interfere
with telecommunications during the SONA on
12 February 2015 was unconstitutional and unlawful must follow.
Remedy
82
The applicants seek an order that the manner in which the
audio and visual feeds of the SONA on 12 February 2015 were produced
and
broadcast by the first to third respondent was unconstitutional
and unlawful. I see no reason as to why such order should not be

granted.
83
The applicants seek further the direction
of this Court that the audio and visual feeds of open parliamentary
sittings and meetings
are into the future not interrupted
pending
the enactment of any new measures that
Parliament may deem to be necessary and reasonable. They propose that
this Court venture
into the terrain of an order encompassing the
angle at which Parliament’s cameras would be positioned when
unparliamentary
behaviour arises. A restrained approach on the part
of this Court is called for on this aspect, in that to make such an
order would
be to delve into the area of regulation that is not the
Court’s domain. For these reasons no directions should be made
in
this regard in the manner sought by the applicants.
84
There
is no reason as to why costs should not follow the result, including
the costs of two counsel.
[47]
Order
85
In the result, I would propose an order in the following
terms:
1.
It is declared that paragraph 8.3.3.2 (a) of Parliament’s
Policy on Filming and Broadcasting of Parliament is unconstitutional,

unlawful and invalid.
2.
It is
declared that paragraph 2
under the heading ‘Treatment of Disorder’ of Parliament’s
Television Broadcasting “Rules
of Coverage” is
unconstitutional, unlawful and invalid.
3.
It is declared that the manner in which the
audio and visual feeds of the State of the Nation address in
Parliament on 12 February
2015 were produced and broadcast by the
first to third respondents was unconstitutional and unlawful.
4.
It is declared
that the use of a device by
the fourth respondent and the State Security Agency to interfere with
the telecommunication signal at
Parliament during the State of the
Nation address on 12 February 2015 was unconstitutional and unlawful.
5.
The respondents are to pay the applicants’
costs, including the costs of two counsel.
KM
SAVAGE
JUDGE
OF THE HIGH COURT
[1]
Shephard
v Tuckers Land and Development Corporation (Pty) Ltd (1)
1978 (1) SA 173
(W) at 177G;
Moolman
v Estate Moolman
1927 CPD 27
at 29;
Holdenstedt
Farming v Cederberg Organic Buchu Growers (Pty) Ltd
2008 (2) SA 177
(C) at 183C–D.
[2]
Doctors
for Life International v Speaker of the National Assembly
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at para 137
[3]
Democratic
Alliance v African National Congress and another
[2015] ZACC 1
at para 122
[4]
Section
21(1) of the Powers, Privileges and Immunities of Parliament and
Provincial Legislatures Act 4 of 2004 provides:
‘
No
person may broadcast or televise or otherwise transmit by electronic
means the proceedings of Parliament or of a House or committee,
or
any part of those proceedings, except by order or under the
authority of the Houses or the House concerned, and in accordance

with the conditions, if any, determined by the Speaker or
Chairperson in terms of the standing rules.’
[5]
Paragraph
8.2.5(d) and 8.4.3
[6]
Paragraph 8.3.1.1(a)
[7]
Paragraph 8.3.1.1(b)
[8]
Paragraph 8.3.1.4(b)
[9]
Paragraph 8.3.1.3(b)
[10]
Paragraph 8.3.1.3(c) and (d)
[11]
Executive
Council, Western Cape v Minister of Provincial Affairs and
Constitutional Development and another; Executive Council,

KwaZulu-Natal v President of the Republic of South Africa and others
[1999] ZACC 13
;
2000 (1) SA 661
(CC) at para 44-45 and 48;
Matatiele
Municipality v President of the RSA
[2006] ZACC 12
;
2007 (6) SA 477
(CC) at paras 39 and 57
[12]
Section 1(d)
[13]
Minister
of Home Affairs v NICRO
[2004] ZACC 10
;
2005 (3) SA 280
(CC) at para 21
[14]
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at para 368
[15]
Doctors
for Life
International
v Speaker of the National Assembly and others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at para 229
[16]
[1995] ZACC 8
;
1995 (4) SA 877
(CC) at para 205
[17]
Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and others
2006 (2) SA 311
(CC) at 625
[18]
Section 42(3)
[19]
2013
(4) SA 243
(WCC) 255E-F
[20]
Democratic
Alliance v African National Congress and Another
[2015] ZACC 1
at para 122;
South
African National Defence Union v Minister of Defence
[1999] ZACC 7
;
1999 (4) SA 469
(CC) at para 7
[21]
The
Citizen 1978 (Pty) Ltd and Others v McBride
2011 (4) SA 191
(CC) at para 100
[22]
Democratic
Alliance v African National Congress and Another
[2015] ZACC 1
at para
133.
[23]
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at 37 &126;
Speaker
of the National Assembly v De Lille and Another
1999
(4) SA 863
(SCA) at para 14;
Doctors
for Life International v Speaker of the National Assembly
[2006] ZACC 11
;
2006
(6) SA 416
(CC) at para 127
[24]
Moise
v Transitional Local Council of Greater Germiston
[2001] ZACC 21
;
2001 (4) SA 491
(CC) at para 19.
[25]
Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and Others
2006 (2) SA 311
(CC) at para 661
[26]
Doctors
for Life
International
v Speaker of the National Assembly
[2006] ZACC 11
;
2006
(6) SA 416
(CC) at paras 128 and 146
[27]
2006
(6) SA 416 (CC)
[28]
Malema
and
another v Chairman of the National Council of Provinces and Another
[2015] ZAWCHC 39
(15 April 2015)
[29]
Mazibuko
v
The Speaker of the National Assembly and Others (supra)
at 256E-F
[30]
Khosa
and Others v Minister of Social Development and Others, Mahlaule and
Another v Minister of Social Development
[2004] ZACC 11
;
2004 (6) SA 505
(CC) at para 48
[31]
Section
165(4)
[32]
Section 42(3)
[33]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at paras 56 and 58.
[34]
Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and Others
2006 (2) SA 311
(CC) at 511
[35]
[2007] ZACC 20
;
2008 (1) SA 566
(CC) at para 189
[36]
Rules
of the U.S. House of Representatives, January 6, 2015
[37]
Ferreira
v Levin NO
1996 (1) SA 984
(CC) at para 72;
Brink
v Kitshoff
[1996] ZACC 9
;
1996 (4) SA 197
(CC) at paras 39-40;
Minister
of Finance v Van Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC) at para 29.
[38]
Oriani-Ambrosini,
MP v Sisulu, MP Speaker of the National Assembly
2012 (6) SA 588
(CC) at para 49
[39]
Mazibuko
v Sisulu and Another
2013 (6) SA 249
(CC) at para 135 (per Japhta J)
[40]
Sections
59(1) and 72(1)
[41]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at paras 56 and 58;
Buthelezi
and Another v Minister of Home Affairs and Others
2013 (3) SA 325
(SCA) at para 4
[42]
Section
4 of the Powers Privileges
Powers
Privileges and Immunities of Parliament and Provincial Legislatures
Act 4 of 2004
provides
that:
‘
(1)
Members of the security services may-
(a)
enter upon, or remain in, the precincts for the purpose of
performing any policing function; or
(b)
perform any policing function in the precincts,
only
with the permission and under the authority of the Speaker or the
Chairperson.’
[43]
Pheko
and Others v Ekurhuleni Metropolitan Municipality
2012 (2) SA 598
(CC) at para 32.
[44]
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex
Parte President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
[45]
Kruger
v President of the Republic of South Africa and Others
[2008] ZACC 17
;
2009 (1) SA 417
(CC).
[46]
Pharmaceutical
Manufacturers (supra)
at para 89
[47]
Biowatch
Trust v Registrar, Genetic Resources, and Others
2009 (6) SA 232
(CC) at paras 21-25.
Tebeila
Institute of Leadership, Education, Governance and Training v
Limpopo College of Nursing and Another
[2015] ZACC 4