Multichoice (Pty) Ltd and Others v National Prosecuting Authority and Another: In re S v Pistorius; Media 24 Ltd and Others v Director of Public Prosecutions, North Gauteng and Others

• Jurisdiction: South Africa
• Judge: Mlambo JP
• Judgment Date: 25 February 2014
• Citation: 2014 (1) SACR 589 (GP)
• Docket Number: 10193/14; 25513/13; 10378/14
• Hearing Date: 19 February 2014
• Counsel: F Snyckers SC for the first and third applicants. B Roux SC for the second respondent.
• Court: Gauteng Division, Pretoria

Mlambo JP:

[1] The electronic, broadcast and print media have approached this court to grant them permission to broadcast the entire criminal proceedings in the matter of S v Oscar Leonard Pistorius. They seek permission to C do this through audio, audiovisual and photographic means. The matter brings into sharp focus the interface between the functioning of the criminal justice system on the one hand, and the quest by other media and the press to participate in that system on the other hand. This interface finds expression in a number of critical constitutional rights that are seemingly on a collision course with one another. These are the D rights of an accused person and the prosecution to a fair trial on the one hand, and the freedom of expression rights of the media, as well as the open justice principle.

The facts

E [2] Oscar Pistorius (Pistorius) is due to stand trial on a charge of murder arising from an incident that took place during the early hours of 14 February 2013, a date recognised by many as Valentine's Day. During this incident Ms Reeva Steenkamp (Steenkamp) lost her life. Steenkamp and Pistorius were involved in a romantic relationship. This F trial is due to commence on 3 March 2014 in this court. e TV and eSat (the e TV applicants) approached this court in August last year by way of notice of motion seeking permission to broadcast the entire criminal trial proceedings through audiovisual and/or audio means. At that stage the Director of Public Prosecutions (DPP), as well as Pistorius, opposed the relief sought. Later, other applicants filed applications similar to the G e TV application, specifically representing the print and broadcast media.

[3] The print media applicants [1] sought the permission of this court to install cameras in the trial courtroom to take still photographs of the entire proceedings. This application was similarly opposed by Pistorius. H In the background there were discussions between all the applicants, the DPP and to some extent Pistorius, seeking to strike a compromise position regarding the relief sought by the applicants and the stance adopted by the DPP and Pistorius. At that stage the broadcast media applicants [2] had not filed papers, even though they were involved in the I discussions. These applicants filed their application on the eve of a

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meeting convened by the Deputy Judge President of this court, aimed at A bringing all the parties together with a view to case-managing and streamlining the matter. The broadcast media applicants pertinently sought the permission of the court to televise the entire criminal trial proceedings. As a result of the ongoing discussions, the opposition by the DPP fell away after a compromise position was arrived at which the B applicants were agreeable to. I will revert to this part of the matter later in this judgment. Pistorius is not amenable to the compromise position arrived at and remains steadfastly opposed to the relief sought by the applicants. He is opposed to any form of coverage sought by the applicants. What is necessary at this early stage, however, is to dispose of C an important housekeeping issue relating to the three applications before me regarding the consolidation of the print and broadcasting applications with the e TV application. That request is not opposed and in my view it is prudent that all the applications be consolidated, and I hereby order this.

[4] What all the applicants have set as their launching pad for the relief D they seek is, in the first place, the fact that Pistorius is a local and international icon and that Steenkamp was similarly placed. In their collective view the criminal trial proceedings, due to commence in a week's time, have captured the attention and imagination of both the E South African and international communities. Based on this, it is their view that it is in the public interest that the heightened attention focused on this matter be adequately accommodated through the means for which they seek permission, to record and inform these communities of the trial proceedings as exhaustively as possible. F

[5] Secondly, reference was made to the near chaotic situation that was experienced in the magistrates' court of this city, when Pistorius applied for bail last year. It is common cause that during those proceedings the courtroom allocated for the bail proceedings was wholly inadequate and G could not accommodate all the journalists and members of the public who showed up seeking to attend and cover the proceedings. It is also common cause that the media attention and coverage of the bail proceedings attracted journalists far beyond our borders. Those proceedings were in fact extensively covered by the print, broadcast and electronic media locally and internationally. The interest in the upcoming H trial has remained very strong, with international media houses sending scores of journalists to cover it. This background is relied on as a basis by the applicants to assert that it is in the public interest that they be granted permission to cover the trial, with a view to informing all and sundry about it.

Right of freedom of expression I

[6] The applicants have forthrightly asserted their right to freedom of expression, which in their view justifies the permission they seek. The applicants also rely on the open justice principle for the pending criminal J

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A trial proceedings, to receive as much publication as possible. Section 16 of the Constitution, [3] in particular s 16(1) (a), guarantees everyone the freedom of expression, which includes the freedom of the press and other media, as well as the freedom to receive and/or disseminate information and ideas. Our Constitutional Court articulated the content of this right in South African National Defence Union v Minister of Defence and Another B [4] in the following terms:

'Freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency C of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.'

[7] In a further articulation of the freedom of expression right the Constitutional Court in Khumalo and Others v Holomisa [5] stressed the D following with regard to the role played by the media:

'The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these E aspects of the right to freedom of information are respected.'

[8] Our courts have also grappled with the issue of permitting the exercise and enjoyment of the freedom of expression right in court proceedings. A decision that comes to mind is Dotcom Trading 121 (Pty) Ltd t/a Live Africa Network News v King NO and Others. [6] The issue in that F matter was whether to allow the audio broadcasting of the proceedings of the King Commission that was established to investigate match-fixing in the sport of cricket in this country. That court [7] expressed itself on this issue as follows:

'It is almost self-evident in my view that the prohibition of the direct G radio transmission of proceedings by a radio broadcaster constitutes a limitation on what is essential to the activities of that medium of communication. I have heard no argument and I can see no reason in logic why a limitation on what constitutes the very essence and distinguishing feature of the radio broadcaster's medium of communication does not constitute an infringement of the radio broadcaster's H freedom which is enshrined by s 16(1) (a). It is not without reason, so it appears to me, that s 16(1) (a) of the Constitution does not limit its guarantee to the freedom of the press, but specifically extends this freedom to other media of communication and expression as well. In modern times there are many forms of communication. Each of these

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media of communication and expression has its own distinguishing A features and each of them can be limited in a different way. The video camera most probably provides the ultimate means of communication. But radio also has its advantages over the print media. Not only the words spoken, but the emphasis, the tone of voice, the hesitations, etcetera can be recorded and communicated. To prevent the radio broadcaster from recording the evidence is to deprive him of that advantage over the print media.' B

[9] In SA Broadcasting Corporation Ltd v Thatcher and Others [8] the court was directly confronted with a request to broadcast criminal court proceedings. The court, after conducting an authoritative analysis of the legal landscape regarding this issue, locally and internationally, granted C limited coverage, stating that it had to 'exercise its discretion to issue a just and equitable order while taking cognisance of its inherent power to regulate its own proceedings'. This involved balancing the right to privacy against the right of freedom of expression, which, in the case of the media, translates into freedom of the press.

[10] In addition to the Dotcom and Thatcher decisions, other courts have D also grappled with the issue. [9] The two courts in this country whose decisions bind me have also spoken on this subject and I have derived valuable guidance from the decisions concerned. One such decision is from the Supreme Court of Appeal in South African Broadcasting Corporation Limited v Downer SC NO and Others. [10] In that matter the E Supreme Court...