National Director of Public Prosecutions and Others v Fields of Green for All NPC and Others

• Jurisdiction: South Africa
• Judge: Molopa-Sethosa J, Louw J and Adams J
• Judgment Date: 11 July 2019
• Citation: 2019 (2) SACR 564 (GP)
• Docket Number: A 641/2017; A 133/2018
• Hearing Date: 22 February 2019
• Counsel: R Willis (with JA Harwood) for Doctors for Life International Inc, instructed by University of Pretoria Law Clinic. WR Mokhare SC (with K van Heerden) for the state appellants in the second appeal. D Mahon (with C Carelse) for Fields of Green for All NPC.
• Court: Gauteng Division, Pretoria

Adams J (Molopa-Sethosa J and Louw J concurring):

[1] We have before us two almost identical appeals, one by Doctors for Life F (DFL) and the other by the National Director of Public Prosecutions (the NDPP) and six other national-government departments (the state appellants), against a ruling by the Gauteng Division of the High Court in Pretoria (Ranchod J, sitting in chambers) on 28 July 2017. The ruling by Ranchod J dated 28 July 2017 was communicated by his registrar to G the parties by way of an email as follows:

'That Judge Ranchod took notice of all correspondence exchanged between the parties with regard to the live stream broadcasting of the proceedings. Judge Ranchod will allow the live stream broadcasting which will be subject to certain conditions. Those conditions will be discussed on Monday morning at the commencement of the trial.'

[2] H The ruling was made on Friday 28 July 2017, and the trial was scheduled to commence the very next Monday, 31 July 2017. The ruling was made pursuant to a written request by the first respondent in both appeals, namely Fields of Green for All (FOGFA), which is closely I associated with and related to the second and third respondents in the appeals. The second and third respondents are the first and second plaintiffs in the main action. The decision by Ranchod J, as he indicated in his 'order', only followed after a long line of communications between the parties in this appeal, most of which was perused and considered by him before making his decision. It appears that the ruling was made by J Ranchod J in terms of the provisions of ch 12 of the practice manual of

Adams J (Molopa-Sethosa J and Louw J concurring)

this division, read with the Practice Notice 2009 (3) SA 1 (SCA), dated A 9 February 2009, which relates to the procedure to be followed when a party wishes to film or electronically record judicial proceedings.

[3] The appellants were aggrieved by the ruling itself, as well as by the manner in which the High Court arrived at its decision and the B procedure followed prior to the ruling being issued. These appeals are before us with the leave of the Supreme Court of Appeal (the SCA), leave to appeal having been refused by the court a quo. The appeals by the appellants are against the whole of the ruling made by Ranchod J on 28 July 2017, as well as against the written reasons subsequently furnished by him on 31 July 2017. C

[4] A question central to these appeals relates to whether, notwithstanding clear opposition from interested parties, a litigant who is not a member of the broader public media or is not a recognised media house D should be granted the rights to broadcast its own proceedings. A corollary of and closely related to this issue is whether or not a party to the proceedings should be allowed to broadcast by live-streaming those proceedings in which he is a litigant. The High Court had found that FOGFA was entitled to live-stream and broadcast the proceedings, despite it not being a part of the press or conventional media. E

[5] In the trial action the second, third and fourth respondents in both appeals (the respondents) challenged the constitutionality of the criminal prohibition on cannabis as provided for in ss 4(b), 5(b) and part III of sch 2 to the Drugs and Drug Trafficking Act 140 of 1992. F

[6] As I indicated above, the appellants' appeal against the ruling is on the basis that the court a quo erred in the exercise of its discretion, in that the decision on a fundamental issue was made without hearing the parties beyond the correspondence. DFL, for example, submits that the G trial court erred in not allowing for full ventilation of the contentious issues raised in the correspondence, and in not calling for a formal substantive application, whether with or without argument in open court.

[7] It requires emphasising that the objection by DFL and the state H appellants was not an objection to a recognised conventional media house requesting broadcasting permission on appropriate unobjectionable terms. The objection was that FOGFA, as the alter ego of the second and third respondents (the first and second plaintiffs in the main action), I represented their personal interests and common objectives, which formed the subject-matter of the trial. This, in effect, meant, according to the appellants, that the plaintiffs themselves were in fact the ones who applied to broadcast, via live-streaming, the proceedings in which they were parties. J

Adams J (Molopa-Sethosa J and Louw J concurring)

The factual background A

[8] During August 2010 the second and third respondents were arrested during a raid at their residence by the South African Police Service and charged with being in possession of and dealing in cannabis. The police found them in possession of approximately 1,87 kilograms of cannabis, B and they were subsequently charged in the Krugersdorp Magistrates' Court with possession of and dealing in cannabis, and the criminal trial in which they are accused is still pending.

[9] The aforesaid criminal trial was stayed by an order of this court C (Bertelsmann J), which order reads as follows:

'1.

That the matter in the Krugersdorp Magistrate Court, in which the applicants are the accused on charges of possession of and dealing in cannabis (dagga), be stayed, pending the outcome of the proceedings to be instituted by the applicants in the High Court of D South Africa, in which proceedings the applicants will challenge the constitutionality of section 4(b), 5(b) and Part III of schedule 2 of the Drugs and Drug Trafficking Act, 140 of 1992, in as far as it relates to the possession of, and dealing with cannabis.

2.

Should the applicants fail to institute the proceedings aforesaid within 60 days of the granting of this order, the suspension referred to in the preceding paragraph will ipso facto lapse.'

[10] E The second, third and fourth respondents complied with this order by proceeding with the issue of a summons out of this court, citing, inter alia, the NDPP, the National Minister of Justice and Constitutional Development, and the National Minister of Health, as defendants. F In this action, the second to fourth respondents challenge the constitutionality of the legislation that regulates cannabis possession, use and sale in South Africa. They are out on bail and their criminal prosecution has been stayed until the constitutional challenge has been finalised. The action is defended by the state appellants and DFL, and the trial was scheduled to proceed for 19 days before Ranchod J, commencing on G Monday 31 July 2017.

[11] It is this trial which FOGFA wished to broadcast by live-streaming, hence the application for leave to the High Court to be allowed media access.

[12] H This request was in the form of an informal application addressed to Ranchod J by email from the attorneys for FOGFA. The request was initiated by a letter from FOGFA's attorneys addressed to the attorneys for the appellants, dated 6 June 2017, requesting their consent to FOGFA I broadcasting the trial. This letter was preceded by a missive dated 5 June 2017 addressed by FOGFA's attorneys to the office of the Deputy Judge President, indicating that FOGFA intended requesting permission to broadcast the trial via live-stream. These initial communications were followed by an exchange of communiqués between the attorneys representing the interested parties, notably FOGFA and the appellants in the J appeals before us. The communiqués exchanged between the parties

Adams J (Molopa-Sethosa J and Louw J concurring)

spanned the period 6 June 2017 until 28 July 2017, when Ranchod J A ruled on the request by FOGFA and communicated, by email, his decision to the parties.

[13] The second and third respondents are founding members of FOGFA, a non-profit organisation, which has, as its primary objectives, advocating B for the implementation of rational cannabis law and policy in South Africa. In the end, FOGFA's endeavours to persuade the appellants to consent to them broadcasting the proceedings were fruitless. On 14 July 2017 the state appellants informed FOGFA that they (the state appellants) objected to the broadcasting of the proceedings by it. DFL followed suit and on 24 July 2017 its attorneys informed FOGFA's attorneys that DFL C did not consent to FOGFA broadcasting by lives-treaming the court proceedings during the trial.

[14] The reasons for the objection, so the state appellants advised the respondents, were that the relationship between the second and third respondents and FOGFA was such that it meant that FOGFA was in fact the D alter ego of these respondents, who were litigants in the trial action. This in turn meant that the litigants, being the second and third respondents, were in fact applying to broadcast, by live-streaming, legal proceedings in a court of law to which they were parties.

[15] FOGFA takes issue with the appellants in that regard. It contends that E FOGFA...