Primedia Broadcasting Ltd and Others v Speaker of the National Assembly and Others

• Jurisdiction: South Africa
• Judgment Date: 28 May 2015
• Citation: 2015 (4) SA 525 (WCC)

Primedia Broadcasting Ltd and Others v Speaker of the National Assembly and Others
2015 (4) SA 525 (WCC)

2015 (4) SA p525

Citation	2015 (4) SA 525 (WCC)
Case No	2749/2015
Court	Western Cape Division, Cape Town
Judge	Dlodlo J, Henney J and Savage J
Heard	April 20, 2015
Judgment	May 28, 2015
Counsel	S Budlender (with M Bishop) for the applicants.; JJ Guantlett SC (with M Townsend) for the first to third respondents.; D Jacobs SC for the fourth respondent.

Flynote : Sleutelwoorde B

Parliament — Proceedings — Broadcasting — Limitations on broadcasting of unparliamentary conduct and grave disorder — Jamming of electronic signals during turmoil in Parliament — Invocation of parliamentary rules C and policy — Constitutionality of such measures — Whether limitations reasonable and justifiable in open and democratic society — Constitution, ss 57(1), 59(1)(b), 70(1) and 72(1)(b).

Headnote : Kopnota

Sections 57(1) and 70(1) of the Constitution provide that the National Assembly (the NA) and the National Council of Provinces (the NCOP) may determine D and control their internal arrangements, proceedings and procedures, and make rules and orders concerning their business. Sections 59(1)(b)(i) and 72(1)(b)(i) of the Constitution provide that the NA and the NCOP must conduct their business in an open manner and hold their sittings in public, but that they may regulate public access (including the media) if it 'is reasonable and justifiable to do so in an open and democratic society'. E

Parliament's standing rules relating to the broadcasting of parliamentary proceedings (the Rules) provide that during incidents of disorder or unparliamentary conduct the camera must focus on the occupant of the chair, ie the Speaker of Parliament or the Chairman of the NCOP. This measure is repeated for incidents of 'grave disorder' in Parliament's later Policy on Filming and Broadcasting (the Policy), but '(o)ccasional wide-angle shots F of the chamber are acceptable' in the case of unparliamentarily behaviour.

The applicants challenged these measures on the basis that they were not reasonable and justifiable limitations of the open and public nature of parliamentary sittings as contemplated in ss 59(1)(b) and 72(1)(b) of the Constitution; alternatively, that the Policy and the Rules as a whole were irrational for lack of public consultation before they were adopted, and were therefore unconstitutional. G

An order was also sought declaring the continued use of a device jamming electronic signals in Parliament unconstitutional and therefore unlawful. This arose from a 'jamming incident' which had prevented cellphone use during the first part of the same joint sitting of the NA and the NCOP in which the impugned measures where invoked to limit coverage of the proceedings when it was deemed to have descended into 'grave disorder'. H

The full bench (by a majority) rejected the alternative ground on the basis that it was sufficient that the measures were devised for Parliament's functioning by Parliament itself, on a fully cross-party deliberative basis. (Paragraph [43] at 549A – C.)

It also rejected the declaratory relief sought in relation to the jamming incident as 'serving no purpose whatsoever'. (Paragraph 47 at 550E – G.) I

As to the main issue — the reasonableness of the impugned measures —

Held

The public's right to know what was happening in Parliament was not absolute. The question was whether these limitations were reasonable — regard being had to what they sought to achieve and their context. J

2015 (4) SA p526

A The measures protected the dignity of Parliament by tempering the especially strong impact that visuals of disorderly conduct, if broadcast to the world, would have. They were designed to discourage disorderliness and unparliamentary behaviour; indeed they were essential for its ordered operation. Thus, regard being had to all relevant factors, the measures under discussion in the instant matter are 'reasonable measures' employed to B regulate public access, including access of the media, to Parliament.

Conduct obstructing or disputing Parliament's proceedings, or unreasonably impairing Parliament's ability to conduct its business in an orderly and regular manner acceptable in a democratic society, was (in any event) not legitimate parliamentary business, and accordingly there was no obligation on Parliament to broadcast such conduct.

C Unreasonableness must be a high standard, particularly when an independent constitutional institution had, through its own internal cross-party processes, drawing on the experience of its own members and with regard to the practice under other constitutional democracies elsewhere, done exactly what ss 59(1)(b) and 72(1)(b) of the Constitution contemplated.

D Parliament was constitutionally entitled to ensure its functioning and to protect its own dignity. The challenged measures were reasonable, justifiable and proportionate, striking a balance between the right to be informed about Parliament and the duty to maintain the dignity of parliament. (Paragraphs [23], [35], [36], [37] – [38], [58] and [62] at 540C, 545H, 546B/C, 546I – 547E, 554B – D and 555D/E – I.)

Cases Considered

Annotations E

Case law

Southern Africa

Akani Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd 2001 (4) SA 501 (SCA) F ([2001] ZASCA 59): dictum in para [7] applied

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): dictum in paras [44] – [45] applied

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): dictum in para [21] applied

Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752; [1996] ZACC 9): dictum in paras [39] – [40] applied G

Buthelezi and Another v Minister of Home Affairs and Others 2013 (3) SA 325 (SCA) ([2012] ZASCA 174): distinguished

Cape Town City v South African National Roads Authority and Others 2015 (3) SA 386 (SCA) H ([2015] ZASCA 58): dictum in para [45] applied

Chamber of Mines of South Africa v National Union of Mineworkers and Another 1987 (1) SA 668 (A): referred to

Democratic Alliance v African National Congress and Another 2015 (2) SA 232 (CC) ([2015] ZACC 1): dicta in paras [122] and [133] applied

Democratic Alliance v President of South Africa and Others 2013 (1) SA 248 (CC) I (2012 (12) BCLR 1297; [2012] ZACC 24): dictum in para [33] applied

Die Spoorbond and Another v South African Railways; Van Heerden and Others v South African Railways 1946 AD 999: referred to

Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) (2006 (12) BCLR 1399; [2006] ZACC 11): J applied

2015 (4) SA p527

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) A (2012 (3) BCLR 219; [2011] ZACC 30): referred to

Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (CC) (1995 (10) BCLR 1289; [1995] ZACC 8): dictum in para [205] applied

Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another; B Executive Council, KwaZulu-Natal v President of the Republic of South Africa and Others 2000 (1) SA 661 (CC) (1999 (12) BCLR 1360; [1999] ZACC 13): dicta in paras [44] – [45] and [48] applied

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458; [1998] ZACC 17): dicta in paras [56] and [58] applied C

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): dictum in para [72] applied

Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA) ([2014] ZASCA 88): referred to D

Grey's Marine Hout Bay (Pty) Ltd v Minister of Public Works and Others 2005 (6) SA 313 (SCA) (2005 (10) BCLR 931; [2005] 3 All SA 33; [2005] ZASCA 43): referred to

Head of Department, Department of Education, Free State Province v Welkom High School and Others 2014 (2) SA 228 (CC) (2013 (9) BCLR 989; [2013] ZACC 25): referred to E

Holdenstedt Farming v Cederberg Organic Buchu Growers (Pty) Ltd 2008 (2) SA 177 (C): referred to

Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) (2001 (9) BCLR 883; [2001] ZACC 23): dictum in para [12] applied

JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others F 1997 (3) SA 514 (CC) (1996 (12) BCLR 1599; [1996] ZACC 23): dictum at 526F applied

Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others 2004 (6) SA 505 (CC) (2004 (6) BCLR 569; [2004] ZACC 11): referred to

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; G [2002] ZACC 12): dicta in paras [22] and [24] applied

King and Others v Attorneys' Fidelity Fund Board of Control and Another 2006 (1) SA 474 (SCA) (2006 (4) BCLR 462; [2006] 1 All SA 458): referred to

Kruger v President of the Republic of South Africa and Others 2009 (1) SA 417 (CC): referred to H

Malema and Another v Chairman, National Council of Provinces and Another 2015 (4) SA 145 (WCC) ([2015] ZAWCHC 39): referred to

Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) (2008 (1) BCLR 1; [2007] ZACC 20): dictum in para [189] applied

Matatiele Municipality v President of the RSA and Others (No 2) 2007 (6) SA 477 (CC) I (2007 (1) BCLR 47; [2006] ZACC 12): dicta in paras [39] and [57] applied

Mazibuko NO v Sisulu and Others NNO 2013 (4) SA 243 (WCC) ([2012] ZAWCHC 189): dicta at 255E – F and 256E – F applied

Mazibuko NO v Sisulu and Others NNO 2013 (6) SA 249 (CC): dictum...