Government of the Republic of South Africa v 'sunday Times' Newspaper and Another

JurisdictionSouth Africa
JudgeJoffe J
Judgment Date02 December 1994
Docket Number22976/94
Hearing Date10 November 1994
CourtTransvaal Provincial Division
Citation1995 (2) SA 221 (T)

Government of the Republic of South Africa v 'sunday Times' Newspaper and Another
1995 (2) SA 221 (T)

1995 (2) SA p221


Citation

1995 (2) SA 221 (T)

Case No

22976/94

Court

Transvaal Provincial Division

Judge

Joffe J

Heard

November 10, 1994

Judgment

December 2, 1994

Flynote : Sleutelwoorde B

Attorney — Rights and duties — Appearance of attorney in Supreme Court to C discharge functions of advocate — Urgent interdict sought at such short notice that respondent's attorney unable to engage counsel versed in relevant branch of law — Attorney averring that by nature of his practice he had necessary knowledge and expertise to represent respondents — If leave not granted to attorney to appear, respondents would be without representation — Leave granted to attorney in terms of s 10 of Admission D of Advocates Act 74 of 1964 to discharge functions of advocate.

Constitutional law — Constitution — Interpretation of — Constitution of the Republic of South Africa Act 200 of 1993 — Generous or liberal interpretation to be adopted — To be borne in mind that judiciary the E guardian of Constitution and has to be astute in determining full ambit of rights enshrined therein and vigorous in its protection thereof.

Constitutional law — Human rights — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Right to F freedom of expression in terms of s 15 of Constitution — Role of press in democratic society not to be understated — Its function is to ferret out corruption, dishonesty and graft and expose perpetrators — Also to reveal dishonest maladministration — Press must also contribute to exchange of ideas and advance communication between the governed and those who govern G — Press the watchdog of the governed.

Constitutional law — Human rights — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Right to freedom of expression in terms of s 15 of Constitution — Regulation 13 of regulations promulgated in Proc R50 of 1993 in terms of s 1 of Commissions H Act 8 of 1947 in respect of commission of enquiry into certain State tender contract limiting publication of report of commission until released by State President or tabled in Parliament — Regulation 13 falling foul of Constitution as contemplated in s 4 thereof — Restraint in reg 13 a prior restraint — State President at time of promulgation of I regulations could not have known what report would contain — Regulation cast in such manner that report might never see light of day and matter of public interest kept from public forever — Regulation prohibiting publication without substantial reason for doing so — No compelling J grounds for invocation of s 33(1)(a) of Constitution.

1995 (2) SA p222

Headnote : Kopnota

A Where the applicant had applied in a Provincial Division for an urgent interdict prohibiting the publication of a certain report on the following day in the first respondent newspaper and such short notice of the application had been given to the respondents that their attorney had been unable to engage the services of counsel versed in the relevant branch of the law, the Court, in view of the fact that the respondent's attorney, by the nature of his practice, had both the necessary knowledge and expertise B to represent the respondents and that if leave were not granted to him to do so the respondents would have been without representation, granted leave to the respondent's attorney in terms of s 10 of the Admission of Advocates Act 74 of 1964 to discharge the functions of an advocate in the hearing on that day. (At 223B/C-E.)

In interpreting the Constitution of the Republic of South Africa Act 200 of 1993, whilst paying respect 'to the language which has been used and to C the traditions and usages which have given meaning to that language', a generous or liberal construction must be adopted. In so doing it must be borne in mind that the judiciary is the guardian of the Constitution. The judiciary as guardian of the Constitution must be astute in determining the full ambit of the rights enshrined in the Constitution and be vigorous in its protection thereof. (At 225F-H.)

The Court in analysing the right to freedom of expression as guaranteed by s 15 of the Constitution, as applied to the press, commented as follows: D The role of the press in a democratic society cannot be understated. The press is in the front line of the battle to maintain democracy. It is the function of the press to ferret out corruption, dishonesty and graft where it may occur and to expose the perpetrators. The press must reveal dishonest mal- and inept administration. It must also contribute to the exchange of ideas. It must advance communication between the governed and those who govern. The press must act as the watchdog of the governed. (At 227H/I-227A.)

E Regulation 13 of the Regulations made by the State President in terms of s 1 of the Commissions Act 8 of 1947 with reference to a commission of enquiry into 'State Tender Contract No 95/92: Textured Vegetable Protein Products', which regulations were promulgated in Proc R50 of 1993 in the Government Gazette of 8 June 1993, provided as follows: 'No person shall, except insofar as shall be necessary in execution of the terms of F reference of the Commission, publish or furnish to any other person the report of the Commission or a copy or part thereof or information regarding the consideration of evidence by the Commission unless and until the State President has released the report for publication or until the report has been laid upon the Table in Parliament.' In an application for an interdict restraining the respondents from publishing any portion of the report of the above-mentioned commission in its newspaper, the report not having been released for publication by the State President or tabled G in Parliament, the Court, after considering the ambit of s 15 of the Constitution, held that reg 13 fell foul of the Constitution as was contemplated in s 4 thereof; that it constituted a prior restraint: at the time that it was promulgated, the then State President could not conceivably have known what it would contain and the prohibition in reg 13 was made irrespective of what the report might contain. The Court held further that the prohibition was cast in such a manner that the report might never see the light of day: if the President did not release it for publication or lay it upon the Table of Parliament, a matter of public H interest could well be kept from the public forever. (At 229A-B/C.) The Court held further that reg 13 prohibited publication without any substantial reason for doing so and as such it could not stand. (At 229D/E.) The Court went on to hold that the grounds advanced by the I applicant in support of its invocation of the limitation contained in s 33(1)(a) of the Constitution were of a speculative nature and no factual basis for any of them had been provided; they did not form a compelling basis for the invocation of s 33(1)(a) of the Constitution. (At 229I/J-J.) Application dismissed.

Case Information

Application for an interdict restraining the publication of a report in the first respondent newspaper. The facts appear from the reasons for judgment.

M M W van Zyl for the applicant.

G J Marcus for the respondents. J

1995 (2) SA p223

Cur adv vult. A

Postea (December 2).

Judgment

Joffe J:

This application first came before me on Saturday afternoon 5 November 1994 shortly before the first respondent was to go to press. The B applicant sought in the main a final, alternatively an interim, interdict, prohibiting the first respondent from publishing any portion of the report of the so-called Van der Watt Commission of Inquiry.

The respondents were not able to file answering affidavits to oppose the application. Such short notice of the application had been afforded them C that they were not able to engage the services of counsel. This I was informed by Mr Hoffe, an attorney of this Court and a partner in the firm Bell, Dewar and Hall. He sought leave to represent the respondents pursuant to s 10 of the Admission of Advocates Act 74 of 1964.

Mr Hoffe informed me that in the short time available to him he had endeavoured to engage the services of counsel versed in the relevant D branch of the law. Of those he approached none were available. He added that by nature of his practice he had both the necessary knowledge and...

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38 practice notes
  • Khumalo and Others v Holomisa
    • South Africa
    • Invalid date
    ...1995 (2) SA 672 (E) (1994 (5) BCLR 19): considered C Government of the Republic of South Africa v 'Sunday Times' Newspaper and Another 1995 (2) SA 221 (T) (1995 (2) BCLR 182): dictum at 227I - 228A Graham v Ker (1892) 9 SC 185: referred to Guardian National Insurance Co Ltd v Searle NO 1999......
  • Print Media South Africa and Another v Minister of Home Affairs and Another
    • South Africa
    • Invalid date
    ...(2007 (1) BCLR 1; [2006] ZACC 10): referred to C Government of the Republic of South Africa v 'Sunday Times' Newspaper and Another 1995 (2) SA 221 (T) (1995 (2) BCLR 182): referred to Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489; [1997] ZACC 12): referred to Holomi......
  • Du Plessis and Others v De Klerk and Another
    • South Africa
    • Invalid date
    ...810 (PC) Gertz v Robert Welch Inc 418 US 323 (1974) Government of the Republic of South Africa v 'Sunday Times' Newspaper and Another 1995 (2) SA 221 (T) (1995 (2) BCLR 182) Great Northern Railway Co v Sunburst Oil and Refining Co 287 US 363 (1932) Hassen v Post Newspapers (Pty) Ltd and Oth......
  • Holomisa v Argus Newspapers Ltd
    • South Africa
    • Invalid date
    ...SA 451 (A) I Gardener v Whitaker 1995 (2) SA 672 (E) Government of the Republic of South Africa v 'Sunday Times' Newspaper and Another 1995 (2) SA 221 (T) Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) Jordaan v Van Biljon 1962 (1) SA 286 (A) Jurgens v Editor, Sunday Times Newspaper......
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38 cases
  • Khumalo and Others v Holomisa
    • South Africa
    • Invalid date
    ...1995 (2) SA 672 (E) (1994 (5) BCLR 19): considered C Government of the Republic of South Africa v 'Sunday Times' Newspaper and Another 1995 (2) SA 221 (T) (1995 (2) BCLR 182): dictum at 227I - 228A Graham v Ker (1892) 9 SC 185: referred to Guardian National Insurance Co Ltd v Searle NO 1999......
  • Print Media South Africa and Another v Minister of Home Affairs and Another
    • South Africa
    • Invalid date
    ...(2007 (1) BCLR 1; [2006] ZACC 10): referred to C Government of the Republic of South Africa v 'Sunday Times' Newspaper and Another 1995 (2) SA 221 (T) (1995 (2) BCLR 182): referred to Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489; [1997] ZACC 12): referred to Holomi......
  • Du Plessis and Others v De Klerk and Another
    • South Africa
    • Invalid date
    ...810 (PC) Gertz v Robert Welch Inc 418 US 323 (1974) Government of the Republic of South Africa v 'Sunday Times' Newspaper and Another 1995 (2) SA 221 (T) (1995 (2) BCLR 182) Great Northern Railway Co v Sunburst Oil and Refining Co 287 US 363 (1932) Hassen v Post Newspapers (Pty) Ltd and Oth......
  • Holomisa v Argus Newspapers Ltd
    • South Africa
    • Invalid date
    ...SA 451 (A) I Gardener v Whitaker 1995 (2) SA 672 (E) Government of the Republic of South Africa v 'Sunday Times' Newspaper and Another 1995 (2) SA 221 (T) Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) Jordaan v Van Biljon 1962 (1) SA 286 (A) Jurgens v Editor, Sunday Times Newspaper......
  • Request a trial to view additional results

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