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

Nugent JA:

[1] On 15 June 2005 an awful crime was committed in Cape Town. Four E men gained access to the home of Ms Norton, who was away at 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 F 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 G after the crime was committed E-TV decided to make a 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 H decision was taken not to broadcast the documentary before the police had made arrests. By 9 July 2005 four men and a woman 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 I Prosecutions for the Western Cape (DPP) became aware that the 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 J

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Court at Cape Town as a matter of urgency for an order prohibiting the A 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 filed. The matter came before B Zondi AJ who granted the relief that was claimed. [1] This appeal against that order is before us with his leave.

[4] There is a preliminary matter that can be disposed of briefly. The DPP's objection to the broadcast of the documentary has since been overtaken by events and he has withdrawn it. (As a result of the objection C 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 of 1959] affords us a discretion to dismiss an appeal for that reason [2] but I do not think this D 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 only to resolve what was contentious between the parties but also for future guidance. E

[5] Freedom of expression, which includes freedom of the press and other media, is protected by s 16 of the Bill of Rights. That a free press (by which I mean the media in all its forms) is indispensable to democracy is axiomatic and has been articulated so often that nothing is served by adding to what has been said in that regard. Yet the F constitutional promise of a free press, like other constitutional promises, is not absolute. In issue in this appeal is the extent to which that protected freedom may be abridged in favour of preserving the integrity of the administration of justice.

[6] It is important to bear in mind that the constitutional promise of a G free press is not one that is made for the protection of the special interests of the press. As pointed out by Anthony Lewis, in a passage that was cited by Cameron J in Holomisa v Argus Newspapers Ltd: [3] 'Press exceptionalism - the idea that journalism has a different and superior status in the Constitution - is not only an unconvincing but a dangerous H doctrine.' The constitutional promise is made rather to serve the interest that all citizens have in the free flow of information, which is possible only if there is a free press. To abridge the freedom of the press is to abridge the rights of all citizens and not merely the rights of the press itself. I

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[7] The extent to which the full enjoyment of a constitutionally protected A right might be limited is circumscribed by the Constitution itself. Any such limitation is constitutionally permitted only if the limitation has its source in law of general application and only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account, B amongst others, the factors enumerated in s 36. [4]

[8] Law of general application that purports to curtail the full exercise of a constitutionally protected right might take the form of legislation, or a rule of the common law, or even a provision of the Constitution itself. In each case the extent to which the intrusion that it purports to make upon C a protected right is constitutionally valid is to be evaluated against the standard that is set by the provisions of s 36 because there are no other grounds upon which it is permissible to limit protected rights.

[9] Where constitutional rights themselves have the potential to be mutually limiting - in that the full enjoyment of one necessarily curtails D the full enjoyment of another and vice versa - a court must necessarily reconcile them. They cannot be reconciled by purporting to weigh the value of one right against the value of the other and then preferring the right that is considered to be more valued, and jettisoning the other, because all protected rights have equal value. They are rather to be E reconciled by recognising a limitation upon the exercise of one right to the extent that it is necessary to do so in order to accommodate the exercise of the other (or in some cases, by recognising an appropriate limitation upon the exercise of both rights) according to what is required by the particular circumstances and within the constraints that are imposed by s 36. That they are to be reconciled within the constraints of F s 36 is apparent from the following observation of Langa DCJ in Islamic Unity Convention v Independent Broadcasting Authority and Others: [5]

'There is thus recognition of the potential that [freedom of] expression has to impair the exercise and enjoyment of other important rights, such as the right to dignity, as well as other State interests, such as the pursuit of national G unity and reconciliation. The right is accordingly not absolute; it is, like other rights, subject to limitation under s 36(1) of the Constitution.'

[10] The proper enquiry when evaluating the extent to which protected rights might be limited by a statute (which must apply equally when H

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protected rights are to be reconciled) was summarised by O'Regan J and A Cameron AJ, in a passage from their dissenting judgment in S v Manamela [6] that received the approval of the majority, [7] as follows:

'The approach to limitation is, therefore, to determine the proportionality between the extent of the limitation of the right considering the nature and importance of the infringed right, on the one hand, and the purpose, B importance and effect of the infringing provision, taking into account the availability of less restrictive means available to achieve that purpose.'

[11] In determining the extent to which the full exercise of one right or the other or both of them might need to be curtailed in order to reconcile them what needs to be compared with one another are the 'extent of the limitation' that is placed upon the particular right, on the one hand, and C the 'purpose, importance and effect of the intrusion', on the other hand. To the extent that anything needs to be weighed in making that evaluation it is not the relative values of the rights themselves...