Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape)

• Jurisdiction: South Africa
• Judge: Howie P, Nugent JA, Cloete JA, Lewis JA and Snyders AJA
• Judgment Date: 18 May 2007
• Docket Number: 100/06
• Hearing Date: 19 March 2007
• Counsel: G J Marcus SC (with S Budlender) for the appellant I Jamie SC (with H J de Waal) for the respondent
• Court: Supreme Court of Appeal

Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) [*]
2007 (5) SA 540 (SCA)

2007 (5) SA p540

Citation	2007 (5) SA 540 (SCA)
Case No	100/06
Court	Supreme Court of Appeal
Judge	Howie P, Nugent JA, Cloete JA, Lewis JA and Snyders AJA
Heard	March 19, 2007
Judgment	May 18, 2007
Counsel	G J Marcus SC (with S Budlender) for the appellant; I Jamie SC (with H J de Waal) for the respondent

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right to freedom of expression — Freedom of press and other media — Limitation of — Censorship — Prior restraint of publication — When publication susceptible to — Test — Requirements for grant of final interdict being applicable — Clear right — What constitutes. C

Constitutional law — Human rights — Right to freedom of expression — Freedom of press and other media — Limitation of — Censorship — Prior restraint of publication — Extent to which protected freedom may be abridged in favour of preserving integrity of administration of justice. D

Interdict — Prohibitory interdict — Requirements for — Principles governing grant — Right to freedom of expression — Freedom of press and other media — Anticipatory ban on publication — Approach of court to.

Headnote : Kopnota

Whenever a court is asked to restrict the exercise of press freedom for the protection of the administration of justice, whether by a ban E on publication or otherwise, in the context of the Constitution of the Republic of South Africa, 1996, the applicable principles are the following.

A publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that prejudice will occur if publication takes place. F Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information. Applying the ordinary G principles that come into play when a final interdict is sought, if a risk of that kind is clearly established, and it cannot be prevented from occurring by other means, a ban on publication that is confined in scope and in content and in duration to what is necessary to avoid the risk might be considered. (Paragraphs [13], [16], [19] and [20] at 545F - H, 546G - 547A, 548B - D and 548G.) H

The respondent (the DPP) successfully applied in the High Court for an order prohibiting the appellant from broadcasting a television documentary relating to a prominent criminal case until it provided a copy to him and allowed him sufficient time to institute any further proceedings that he might consider necessary. The basis of the respondent's application was that the broadcast would prejudice the upcoming trial. On appeal, I

Held, that, in the absence of a law obliging the appellant to furnish the documentary to the respondent before it was broadcast, the first requirement for the grant of a final interdict - a clear right - had not been met and

2007 (5) SA p541

the interdict sought by the respondent ought to have been refused by the Court a quo. (Paragraph [26] at 1.) Appeal A upheld. (Paragraph [28] at 551E.)

The decision of Zondi AJ in the Cape Provincial Division in Director of Public Prosecutions (Western Cape) v Midi Television (Pty) Ltd t/a E TV 2006 (3) SA 92 (C) ([2006] 2 All SA 286), set aside. B

Cases Considered

Annotations

Reported cases

Southern African cases

Coin Security Group (Pty) Ltd v SA National Union for Security Officers and Others 2001 (2) SA 872 (SCA): compared C

Director of Public Prosecutions (Western Cape) v Midi Television (Pty) Ltd t/a E TV 2006 (3) SA 92 (C) ([2006] 2 All SA 286): set aside

Government of the Republic of South Africa v 'Sunday Times' Newspaper and Another 1995 (2) SA 221 (T) (1995 (2) BCLR 182): compared

Hix Networking Technologies v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A) ([1996] 4 All SA 675): referred to D

Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) (1996 (6) BCLR 836): referred to

Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) (2002 (5) BCLR 433): referred to

Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4) SA 506 (SCA) ([2005] 4 All SA 509): compared E

Mandela v Falati 1995 (1) SA 251 (W) (1994 (4) BCLR 1): compared

S v Harber 1988 (3) SA 396 (A): disapproved

S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) (2001 (1) SACR 686; 2001 (5) BCLR 449): referred to

S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1 (CC) (2000 (5) BCLR 491): dictum in paras [33] - [34] applied F

S v Van Niekerk 1972 (3) SA 711 (A): disapproved

Setlogelo v Setlogelo 1914 AD 221: dictum at 227 applied

South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 512 (CC) (2007 (2) BCLR 167): referred to.

Foreign cases G

Attorney-General v British Broadcasting Corporation (1981) AC 303 (CA): dictum at 362 applied

Attorney-General v Times Newspapers Ltd [1974] AC 273 (HL): dicta at 299a and 303b - c applied

Cream Holdings Ltd and Others v Banerjee and Another [2004] 4 All ER 617 (HL): compared H

Dagenais v Canadian Broadcasting Corporation (1995) 25 CRR (2d) 1: dicta at 27 - 8, 39 and 47 applied

Hinch and Macquire Broadcasting Holdings Ltd v Attorney General for the State of Victoria (1987) 164 CLR 15: applied

Near v Minnesota 283 US 697 (1931) (75 L Ed 1357): not followed

New York Times Co v United States 403 US 713 (1971) (29 L Ed 2d 822): not followed I

R v Sherwood, Ex parte Telegraph Group (2001) 1 WLR 1983: dictum at 1991G - 1992A applied.

Case Information

Appeal from a decision in the Cape Provincial Division (Zondi AJ) granting an order prohibiting the appellant from broadcasting a tele. J

2007 (5) SA p542

vision documentary relating to a prominent criminal case. The facts appear from the judgment of Nugent JA (the remainder of the Court A concurring).

G J Marcus SC (with S Budlender) for the appellant.

I Jamie SC (with H J de Waal) for the respondent.

Cur adv vult. B

Postea (May 18).

Judgment

Nugent JA:

[1] On 15 June 2005 an awful crime was committed in Cape Town. Four men gained access to the home of Ms Norton, who was away at C work at the time, snatched her six-month-old child from the arms of her domestic worker, and the child was deliberately stabbed to death. What had occurred immediately captured the attention of the public and received extensive media coverage, which continued as the police D investigation progressed and suspects were arrested. (The trial of the suspects commenced subsequent to the commencement of these proceedings and was not completed at the time this appeal was heard.)

[2] The appellant is a television broadcaster that broadcasts under the name 'E TV' and I will refer to it by that name for convenience. Soon after the crime was committed E TV decided to make a E documentary relating to the events and their impact upon the child's family for broadcast on a weekly current affairs programme. On 22 June 2005 it recorded interviews with various people, including Ms Norton's brother and her domestic worker, who had witnessed what had occurred. A decision was taken not to broadcast the documentary before the police had made arrests. By 9 July 2005 four men and a woman F had been arrested and charged and e-tv proceeded to schedule its broadcast.

[3] It intended broadcasting the documentary on the night of Tuesday 2 August 2005. On Friday 29 July 2005 the Director of Public Prosecutions for the Western Cape (DPP) became aware that the G documentary was to be broadcast. His representatives asked E TV to allow them to view the documentary so as to satisfy themselves that the broadcast would not prejudice the forthcoming trial but E TV refused. Discussions ensued, certain undertakings were offered to the DPP, but the impasse continued. On 2 August 2005 the DPP applied to the High Court at Cape Town as a matter of urgency for an order prohibiting H the broadcast until he had been furnished with a copy of the documentary and had been afforded 24 hours to institute any further proceedings that he might consider to be necessary. E TV agreed to suspend its broadcast pending the outcome of the application, thereby relieving the urgency, and answering and replying affidavits were I filed. The matter came before Zondi AJ who granted the relief that was claimed. [1] This appeal against that order is before us with his leave. J

2007 (5) SA p543

Nugent JA

[4] There is a preliminary matter that can be disposed of briefly. The DPP's objection to the broadcast of the documentary has A since been overtaken by events and he has withdrawn it. (As a result of the objection being withdrawn the documentary had been broadcast at the time this appeal was heard.) It was submitted on his behalf that this appeal will accordingly have no practical effect and should be dismissed on those grounds. Section 21A of the Supreme Court Act [59 B of 1959] affords us a discretion to dismiss an appeal for that reason [2] but I do not think this is a case in which we should do so. The case raises important questions of law on which there is little authority and they are bound to arise again. With the benefit we have had of full argument I think we should deal with those questions not C only to resolve what was contentious between...