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

• Jurisdiction: South Africa
• Judgment Date: 11 July 2019
• Citation: 2019 (2) SACR 564 (GP)

National Director of Public Prosecutions and Others v Fields of Green for All NPC and Others
2019 (2) SACR 564 (GP)

2019 (2) SACR p564

Citation	2019 (2) SACR 564 (GP)
Case No	A 641/2017; A 133/2018
Court	Gauteng Division, Pretoria
Judge	Molopa-Sethosa J, Louw J and Adams J
Heard	February 22, 2019
Judgment	July 11, 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.

Flynote : Sleutelwoorde

Fundamental rights E — Right to freedom of expression — Freedom of press and other media — Right of media to broadcast court proceedings — Objection to live-streaming of proceedings based on fact that first respondent closely connected to parties to action and not conventional broadcaster — Distinction drawn by appellants one without difference, and lost sight of underlying aim of live broadcasting, namely open F justice — Permission to live-stream upheld on appeal.

Fundamental rights — Right to freedom of expression — Freedom of press and other media — Right of media to broadcast court proceedings — Objection to live-streaming of proceedings based on manner in which decision taken, without formal substantive application — Court on G appeal ruling that presiding judge had all necessary material before him before taking relevant decision — Decision to live-stream upheld.

Headnote : Kopnota

In two appeals that came before the full court the issue was whether the presiding judge in the court a quo had erred in the manner in which he came to a decision that live-stream broadcasting would be allowed in an action in which the H second, third and fourth respondents in the appeals 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. The first respondent in both appeals was closely associated with and related to the second and third respondents in the appeals (the second and third respondents were founding members of the first respondent — a non-profit I organisation which had as its primary objective, advocating for the implementation of rational cannabis law and policy in South Africa).

The appellants contended that the court had erred in the exercise of its discretion, in that the decision on a fundamental issue had been made without hearing the parties beyond the correspondence. It had, for example, erred in not allowing for full ventilation of the contentious issues raised in the correspondence, and not calling for a formal substantive application, whether with or J without argument in open court. The presiding judge held in his ruling that

2019 (2) SACR p565

s 173 of the Constitution empowered the court to protect and regulate its A own processes and to develop the common law, taking into account the interest of justice. In reaching his decision he took into account principles enunciated by the Supreme Court of Appeal (the SCA), as well as guidelines of an SCA practice note [*] and the practice directives of the division, with reference to media coverage of proceedings in court. He was also of the view that the appellants had not demonstrated that they would suffer any prejudice B or that there was a real risk that such prejudice would occur in the event that the proceedings were broadcast. The appellants' rights to a fair trial would not have been affected by the live-stream broadcasting. The right of the public to access, view and hear the proceedings in court through the medium of live-stream broadcasting was in harmony with the right to freedom of expression and the open-justice principle.

The appellants contended that the first respondent should be treated on a different C footing to a request by traditional broadcasters and media houses to broadcast proceedings. This was so because traditional and recognised media houses were regulated by codes of conduct and were overseen by regulatory bodies such as the Broadcasting Complaints Commission of South Africa and the Press Council. They were accountable to their regulatory bodies, which was not the case with the first respondent. On appeal, D

Held, that, but for the fact that the first respondent, according to the appellants, was not a conventional media house or broadcaster, they would have had no objection to it live-streaming the court proceedings. The distinction drawn by the appellants was one without a difference, and lost sight of the underlying aim of broadcasting court proceedings, being open justice. There could be no logic in a court permitting a television journalist to utilise E their technology and method of communication, but not permitting any other entity, including a party to the proceedings, to broadcast the proceedings. A party, like any other person in court, was in any event entitled and able to report on the proceedings by, for example, posting on Twitter, so why prohibit them from broadcasting by live-streaming when the live camera footage would be more accurate than ex post facto reports? F (See [37] – [38].)

Held, further, that the presiding judge, when deciding the request for media access, had before him all of the relevant facts which would have enabled him to rule on the matter. Importantly, the sum total of the submissions by the appellants, in relation to the very important aspect of the prejudice which they would suffer if the first respondent was allowed to broadcast G court proceedings, was to the effect that the public might be misled because it was not a registered broadcaster. However one looked at the matter, the appellants fell way short of demonstrating prejudice or the risk of their rights to a fair trial being prejudiced. There was just no prejudice. (See [43].) The appeal was dismissed. H

Cases cited

Practice Note 2009 (3) SA 1 (SCA): applied

Van Breda v Media 24 Ltd and Others 2017 (2) SACR 491 (SCA) (2017 (5) SA 533; [2017] 3 All SA 622; [2017] ZASCA 97): compared. I

Legislation cited

Statutes

The Drugs and Drug Trafficking Act 140 of 1992, ss 4(b) and 5(b) read with part III of sch 2: see Juta's Statutes of South Africa 2018/19 vol 1 at 2-398 – 2-399 and 2-407 – 2-409. J

2019 (2) SACR p566

Case Information

R Willis A (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.

An B appeal from a decision by a presiding judge that live-stream broadcasting would be permitted in an action challenging the constitutionality of the criminal prohibition on cannabis.

Order

(1)

Under case No A 641/2017, the appeal of the state appellants is C dismissed with costs.

(2)

The state appellants in appeal-court case No A 641/2017 shall pay the first respondent's costs of the appeal, including the costs of the applications in the High Court and the Supreme Court of Appeal (the SCA) for leave to appeal, and the costs consequent upon the D employment of two counsel, where applicable.

(3)

Under case No A 133/2018, the appeal of the appellant (DFL) is dismissed with costs.

(4)

The appellant (DfL) in case No A 133/2018 shall pay the first respondent's costs of the appeal, including the costs of the applications in the High Court and the SCA for leave to appeal, and the cost E consequent upon the employment of two counsel, where applicable.

Judgment

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

2019 (2) SACR p567

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...