Dotcom Trading 121 (Pty) Ltd t/a Live Africa Network News v King NO and Others

• Jurisdiction: South Africa
• Judge: Hlophe JP, Brand J and Traverso J
• Judgment Date: 02 August 2000
• Citation: 2000 (4) SA 973 (C)
• Docket Number: 4301/2000
• Counsel: M A Albertus SC (with him A Katz) for the applicant. M Seligson SC (with him J C Butler) for the first and second respondents. No appearance for the remaining respondents. A M Breytenbach and N Bawa as amici curiae.
• Court: Cape Provincial Division

Brand J:

[1] Mr Hansie Cronjé (Cronjé) is the erstwhile captain of the South African national cricket team. Recently the Indian police C alleged that Cronjé and other members of the South African cricket team took money for fixing the outcome of international cricket matches. Cronjé then dropped the proverbial bombshell by admitting that he accepted money from a bookmaker for information regarding an international cricket test. D

[2] As a result, the President of the Republic, together with the Minister of Justice, on 8 May 2000 appointed a commission of enquiry by virtue of the provisions of the Commissions Act 8 of 1947. According to its creating proclamation, the commission was officially named as the Commission of Enquiry into Cricket Match-Fixing and Related Matters. Colloquially it soon became known, however, as the E King Commission. This name is derived from that of the chairperson of the commission, the honourable Mr Justice Edwin King, who was, until his recent retirement from the Bench, the Judge President of this Court.

[3] Applicant is a provider of news, including sports news, to the independent radio sector in South Africa. The independent radio F sector comprises a large number of community and commercial radio stations, independent of the State-controlled media.

[4] On 7 June 2000 the King Commission commenced its proceedings. In the course of his opening address, the chairperson G directed that he would not allow television and radio broadcasts of the proceedings of the commission.

[5] Immediately after these opening remarks two applications were presented to the chairperson to relax his directions regarding the H electronic media. The first was on behalf of Midi Television (Pty) Ltd (Midi), the proprietor of e-TV, and the other by applicant's chief executive officer, Mr Paul Cainer (Cainer), on behalf of applicant. Midi's application was to broadcast the proceedings of the commission by television, either live or by way of a delayed broadcast. Applicant's request was along similar lines but related to another form of electronic media, namely radio. I

[6] The chairperson enquired from the parties represented before him as to their stance regarding these two applications. The United Cricket Board indicated that they would abide the decision of the chairperson. The representatives of all the other parties, including Cronjé and other J

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members of the South African cricket team who were potential witnesses at the hearing, conveyed that their clients would A be unsettled by live broadcasts or recordings of the proceedings and that they thus objected to the presence of the electronic media.

[7] In the event the chairperson afforded the representatives of all parties concerned, including Cainer, the opportunity to address B him. Thereafter he reserved his ruling until the next morning, Thursday, 8 June 2000.

[8] On 8 June 2000 Mr Justice King then gave his ruling in terms whereof the applications of both Midi and applicant were refused. It is this ruling, and more particularly the chairperson's refusal to allow radio broadcasting of the proceedings of the commission, that C gave rise to the present application being brought before this Court, as a matter of urgency, on 14 June 2000.

[9] The relief sought is, in essence, that the chairperson's rulings on 7 and 8 June 2000 refusing applicant permission to operate at and during the sittings of the commission be reviewed and D set aside.

The parties

[10] Applicant has already been described. First respondent is the chairperson of the commission, whereas the commission itself is cited as second respondent. Third respondent is the President of E the Republic of South Africa, while the Minister of Justice and the Minister of Sport are, respectively, cited as fourth and fifth respondents. The application is opposed by first and second respondents. Third, fourth and fifth respondents indicated that they abide the decision of this Court. For the sake of convenience I propose to refer to first and second respondents collectively as F 'the respondents', to the chairperson of the commission as 'first respondent' and to second respondent as 'the commission'.

The first hearing

[11] At the first hearing of the matter before us on Wednesday, 14 June 2000 there was representation on behalf of applicant and G respondents as well as on behalf of various other interested parties. Included amongst the other interested parties were Cronjé and 37 other members and former members of the South African national cricket team. Cronjé was represented by his attorney, Mr K G Druker, while the other cricketers were represented by Mr H Fitzgerald.

[12] Because the application was brought at very short notice, respondents' request on 14 June 2000 was in essence for an opportunity to file answering papers. Applicant, on the other hand, sought interim relief pending the filing of respondents' answering papers and the consequent postponement of the matter. The declared I reason for applicant's anxiety that the proceedings before first respondent should not be allowed to continue without applicant being afforded some form of interim relief was that Cronjé himself was destined to give evidence on the very next day, that is Thursday, 15 June 2000. During an adjournment of the hearing the parties entered into negotiations. The result thereof was that J

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an order was made by agreement which provided for a postponement of the application A until Monday, 19 June 2000 as well as a time table for the filing of further papers. A further consequence of the agreement between the parties was that Cronjé consented to his evidence being broadcast live by both radio and television. At the postponed hearing argument was eventually concluded on 20 June 2000. Due to the obvious urgency of the matter the Court issued its order which is annexed B hereto on 21 June 2000 ('the order'). These are the reasons for the order.

The resumed hearing

[13] At the resumed hearing on 19 June 2000 applicant was represented by Mr Albertus, who appeared with Mr C Katz, while Mr Seligson appeared for respondents together with Mr Butler. The United Cricket Board as well as Cronjé and all other parties represented before the commission indicated that they abide the decision of this Court.

[14] At the commencement of proceedings on 19 June 2000 the D Court was presented with three applications. Apart from this application, in which the parties were ready to proceed, there were two new applications. The first of these was an application on behalf of the South African Broadcasting Corporation (the SABC). Mr Albertus - who also appears for the applicant in this application - indicated that he and Mr Katz were E appearing for the SABC as well. The second new application was by Mr Breytenbach, who appeared with Ms Bawa on behalf of the Institute for Democracy of South Africa (Idasa). Unlike the present application which only pertains to radio, the applicants in both new applications sought an order that first respondent's ruling be set aside with reference not only to radio but to television as well. Applicants in both these applications also requested that their F applications be heard and adjudicated upon together with the present application. Mr Seligson's response was that respondents would want an opportunity to deal with the two new applications by way of answering affidavits. It therefore became apparent that the request that the two applications be heard simultaneously with the present application was practically untenable G and was thus refused. Mr Breytenbach, then made an alternative request, that he be allowed to appear, together with Ms Bawa, as amici curiae in order to present additional submissions in support of the relief sought by applicant in this matter. Mr Albertus accepted this offer of support while Mr Seligson indicated that he would have no objection to Mr Breytenbach's request on condition that the H amici curiae limit their submissions on the facts to those of the present application. In the event the Court acceded to Mr Breytenbach's request. As a consequence, the only application before the Court concerned radio. More specifically, we were not asked to consider any application that first respondent's decision to exclude television should be reviewed and set aside as well. I

First respondent's ruling

[15] In the course of his address to first respondent, applicant's representative, Cainer, motivated his request for permission to broadcast and/or record the evidence before the commission on the basis that J

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applicant has the constitutional right to broadcast and the public has the concomitant right to hear what is actually said in the voice of A the witness. He also explained to first respondent that the intrusion in the proceedings caused by the introduction of applicant's electronic equipment could be limited to the extent where it would be minimal. In this regard he, inter alia, gave the assurance that there would be no operator in the room where the hearing took B place; that the microphones could be physically installed in such a manner that they would hardly be distinguishable from the existing microphones already in use at the hearing and that applicant would be prepared to allow other radio stations who were interested in the direct broadcasting of the proceedings to utilise its electronic C equipment. Moreover, Cainer suggested, if first respondent was of the view that radio broadcasts of the proceedings should be limited in other respects so as to protect witnesses, applicant would be prepared to submit to such restrictions as first respondent may decide to impose. Thus, for example, Cainer indicated that if first respondent were to decide that radio broadcasts should not be done live, but only in delayed form, applicant...