Media 24 Ltd and Others v National Prosecuting Authority and Others (Media Monitoring Africa as Amicus Curiae): In re S v Mahlangu and Another

• Jurisdiction: South Africa
• Court: North Gauteng High Court, Pretoria
• Judge: Raulinga J
• Judgment Date: 29 April 2011
• Citation: 2011 (2) SACR 321 (GNP)
• Docket Number: 55656/2010
• Counsel: S Budlender (with N Lewis) for the first and second applicants. A Friedman for the third and fourth applicants. AM Skelton for the amicus curiae. L Kellerman for the intervening party. G Baloyi (NPA) for the first respondent. P Maroko (attorney) for the second respondent/first accused. Z Majavu (attorney) for the third respondent/second accused.

Raulinga J:

Introduction C

[1] This application is premised on the provisions of s 63(5) of the Child Justice Act 75 of 2008 (the Act) and concerns the trial of an adult accused and a minor accused, on charges of murder. The alleged victim is the late Mr Eugene Terre'blanche (Terre'blanche), the leader of the D political organisation, the Afrikaner Weerstandsbeweging (AWB). The applicants seek the opportunity to have journalists employed by them attend the proceedings, in order to report on the evidence and issues as they emerge. The amicus curiae (amicus), however, wishes to deal with the special status accorded under South African and international law to the protection of childrens' rights, the interpretation of s 63(5) of the E Act, and the order that was proposed by the applicants. Section 63(5) of the Act provides, as the default position, that proceedings in a trial of a minor accused are to be held in the absence of any member of the public, barring the necessary parties. On 2 December 2010, when the court reconvened for a judgment, I handed down an order only and indicated F that my reasons would follow. I now deal with those reasons in this judgment.

[2] All the respondents did not oppose the application, and have elected, instead, to abide by the order of the court. Initially, the first and second applicants were the only parties who moved the original application. G Prior to the hearing of the application eTV (Pty) Ltd and eSAT (Pty) Ltd launched an application to intervene. Since the application to intervene was not opposed, they were accordingly joined as third and fourth applicants. When the matter was called on 22 November 2010, Media Monitoring Africa moved an application in terms of rule 16A of this court for leave to be admitted as amicus in the matter. The said H application was not opposed and, as a consequence, Media Monitoring Africa was granted leave and admitted as amicus. When the matter was argued, the applicants submitted one set of heads of argument, although two counsel appeared on their behalf. The amicus submitted separate heads of argument. I am indebted to the three counsel for their well-prepared I and precise heads.

Factual background

[3] Mr Eugene Terre'blanche, who was the leader of the AWB, was found dead on 3 April 2010 on the outskirts of Ventersdorp — on his farm. The National Prosecuting Authority alleges that Terre'blanche was murdered J by the second and third respondents (the accused), both of whom were

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workers on Terre'blanche's farm. The death of Terre'blanche was widely A reported in the print and electronic media. Some people allege that Terre'blanche was killed following a dispute over unpaid wages. Other reports also alluded to the close proximity in time between the death of Terre'blanche and the singing of a struggle song entitled 'Dubula ibhunu' or 'Kill the Boer' by the president of the African National B Congress Youth League, Julius Malema (Malema), and reported the views of a number of AWB supporters to the effect that the killing of Terre'blanche was linked to Malema's singing of the song.

[4] It was also reported that Terre'blanche's killing might have been part of a broader campaign to kill farmers. There are also published reports C by various newspapers suggesting that Terre'blanche's death was a sex-related killing. These reports have received extensive publicity in the print and electronic media, both in South Africa and abroad. I will only refer to a few of those reports in order to avoid burdening this judgment.

[5] The Star of 16 April 2010 reflects the following: D

'Terre'blanche's murder came at a time when racial tensions were already heightened by the comments of ANC Youth League leader Julius Malema. Already, there are some in Afrikaner right wing circles who have sought to link Malema's singing of the shoot the Boer song to the murder of the Afrikaner Weerstandsbeweging leader.'

On the other hand, The New York Times reported as follows: E

'Mr Terre'blanche, who was sentenced to six years in prison in 1997 for beating one of his black workers and setting his dogs on a gas station attendant, was beaten to death by workers on his farm on Saturday, who said they had argued with him over unpaid wages, the police told the South African Press Association.' F

The headline appearing in the Business Week of 6 April 2010 reads as follows:

'South African Court Delays Case of National Leader's Murder.'

An article in News 24 reads: G

'The National Prosecuting Authority (NPA) will oppose the legal bid by media houses to win access to the trial of Eugene Terre'blanche's alleged killers, National Director of Public Prosecutions, Menzi Simelane said on Tuesday.'

A very emotive article, apparently sourced from The Sunday Argus, by the H SA Media — University of the Free State of 28 April 2010, carries the following headline:

'SA family seeks repatriation to Netherlands.'

[6] On the sex allegation, The Times of 11 April 2010 carries the headline: 'Hawks take over ET case as sex claims fly', whereas the SA I Media — University of the Free State, dated 18 April 2010 and sourced from City Press, has a headline in bold letters, reading: 'Cele confirms ET sex links.' The media was informed that the crimen injuria charge related to the fact that Terre'blanche had been found with his trousers pulled down and that the State alleged that this had been done by the accused in order to humiliate him. What exacerbated the anger is said to J

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A be the release of the second respondent on bail on 14 April 2010. The said bail has since been cancelled and the second respondent remains in custody and, as matters stand, his status has not changed. The applicants are of the view that, as a result of these rumours, they should be allowed access to court during the trial of the second and third respondents — despite the fact that s 63(5) restricts such access. They insist that the B myth created around this case should be demystified.

Arguments by the parties

[7] The applicants argued that the court ought to permit journalists employed by them to be present during the trial of the second and third C respondents, one of whom is a minor because:

1.

the trial is in respect of an alleged murder and concerns issues of profound public interest;

2.

the holding of a trial completely closed to the media will significantly limit the right of freedom to receive information of members of the D public, and undermine the principle of open justice; and

3.

there is a simple mechanism available to protect the best interests of a minor accused, while preserving the right of members of the public to have knowledge of the proceedings.

[8] Section 63(5) of the Act provides that:

E 'No person may be present at any sitting of a child justice court, unless his or her presence is necessary in connection with the proceedings of the child justice court or the presiding officer has granted him or her permission to be present.'

As the default position, the section provides that proceedings in a trial of F a minor accused person are to be held in the absence of any member of the public, barring the necessary parties. The section also makes it expressly clear that the presiding officer in any such proceedings may give permission to any person to attend the trial. It is under this second part of the section that the applicants seek the opportunity to have journalists employed by them attend the proceedings, in order to report G on the evidence and issues as they emerge.

[9] The first and second applicants request, in the alternative, that two journalists employed by the first applicant and 10 journalists from the print and broadcast media, nominated by the second applicant, be H present in the courtroom for the duration of the trial. The third and fourth applicants request, in the alternative, that at least two journalists employed by one, or either, of them be permitted into the courtroom to observe and report on the criminal trial of the first and second accused.

[10] The amicus curiae submits that, by raising manifest public interest I in the criminal trial, the applicants correctly emphasise the importance of the right to freedom of expression and the vital function that the media fulfils in protecting the public's right to receive or impart information, protecting the principle of open justice and enhancing the constitutional values of openness, responsiveness and accountability. However, the amicus argues that these are not the only relevant considerations in J a s 63(5) enquiry. Equally important is the protection of the child's best

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interest in all matters concerning him or her, as well as his or her rights A to privacy, dignity and a fair trial. Further, these important questions are therefore raised by the s 63(5) application procedure: Whether 'the public interest' should be the standard to which the s 63(5) applicants should be held; and the manner in which the presiding officer's discretion should be exercised in light of various constitutional imperatives. B

Evaluation and analysis

[11] The Child Justice Act 75 of 2008 came into operation on 1 April 2010. It amends several sections in the Criminal Procedure Act 51 of 1977. C Section 153(4) has been repealed by Schedule 4 to the Act. This therefore means that s 63(5) remains the only provision that governs the presence or not of persons at a sitting of a child justice court. The interpretation of the Act in general, and in particular s 63(5), should be done within the context of the dictum in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) D (2004 (7) BCLR 687) paras 72, 80 and 90. The interpretation that is placed upon a statute must advance the values underlying the Bill of Rights...