Primedia (Pty) Ltd and Others v Speaker of the National Assembly and Others

• Jurisdiction: South Africa
• Judge: Lewis JA, Cachalia JA, Tshiqi JA, Swain JA and Zondi JA
• Judgment Date: 29 September 2016
• Citation: 2017 (1) SA 572 (SCA)
• Docket Number: 784/2015 [2016] ZASCA 142
• Hearing Date: 07 September 2016
• Counsel: S Budlender (with M Bishop and M Maentje) for the first and second appellants.JJ Gauntlett SC (with MR Townsend) for the first to third respondent. JF van Zyl SC (with DJ Jacobs SC) for the fourth respondent.
• Court: Supreme Court of Appeal

Lewis JA (Cachalia JA, Tshiqi JA, Swain JA and Zondi JA concurring):

[1] Democracy in South Africa is predicated on open government in which all citizens participate. The Constitution thus affords all South Africans the right to see and hear what happens in Parliament. Section 59 of the Constitution deals with 'Public access to and involvement F in National Assembly' and s 72, in identical terms (but with reference to the Council), deals with public access to and involvement in the National Council of Provinces. Section 59 reads:

'(1) The National Assembly must —

(a)

facilitate public involvement in the legislative and other processes G of the Assembly and its committees; and

(b)

conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken —

(i)

to regulate public access, including access of the media, to the Assembly and its committees; and

(ii)

H to provide for the searching of any person and where appropriate, the refusal of entry to, or the removal of, any person.

(2) The National Assembly may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.' [My emphasis.]

I [2] Of course not all members of the public are able to attend sittings of Parliament. But the media is able to bring to their attention what happens in sittings by virtue of radio and television broadcasts, through newspapers and now also through social media such as Twitter. Insofar as television and radio broadcasts are concerned, s 21 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 (the J Powers Act), provides for regulation of the broadcast feed. It reads:

Lewis JA

'(1) No person may broadcast or televise or otherwise transmit by A electronic means the proceedings of Parliament or of a House or committee, or any part of those proceedings, except by order or under the authority of the Houses or the House concerned, and in accordance with the conditions, if any, determined by the Speaker or Chairperson in terms of the standing rules.

(2) No person is liable to civil or criminal proceedings in respect of B the broadcasting, televising or electronic transmission of proceedings of Parliament or a House or committee if it has been authorised, under subsection (1) and complies with the conditions, if any, determined under that subsection.'

[3] Parliament has adopted both a broadcasting policy and rules pursuant C to s 21 of the Powers Act: the constitutional validity of certain provisions of the rules and policy is challenged in this matter. I shall deal with their precise terms in due course. The trigger for the constitutional challenges is the events that took place in Parliament on 12 February 2015 when the President of the Republic, Mr Jacob Zuma, was scheduled to address a joint sitting of Parliament, delivering the State of D the Nation Address (Sona).

[4] The appellants are a broadcasting company, Primedia Broadcasting, a division of Primedia (Pty) Ltd (Primedia); the South African National Editors' Forum (Sanef), a non-profit organisation whose members are editors and journalists; the Right2know Campaign, and the E Open Democracy Advice Centre, both of which are civil-society organisations that promote openness and public awareness of the right of access to information in the public domain. The appellants maintain that the respondents, the Speaker of the National Assembly, the Chairperson of the National Council of Provinces, the Secretary to Parliament and the F Minister of State Security violated the public's rights to see and hear what was said and done in Parliament on 12 February 2015 in two ways.

[5] First, the State Security Agency (the Agency), without seeking the authority of Parliament, employed a device that disrupted — jammed — telecommunication signals when the sitting began. Second, when there G was a disruption of the proceedings at the start of the sitting, the parliamentary television broadcast feed was limited to showing the face of the Speaker, Ms Baleka Mbete, and showed nothing of a scuffle that broke out between members of the Economic Freedom Fighters (EFF) and security officials as they tried to force EFF members of Parliament out of the Parliamentary Chamber. H

[6] The use of the jamming device precluded Members of Parliament (MPs) and journalists from using their cellphones to inform the public, outside Parliament, what was happening at a significant national event, the Sona. When there was loud and angry protest by those in the House I about the jamming, the Speaker asked the Secretary to investigate what was happening and the signal was restored. The explanation for the jamming, which was that it was inadvertent, shall be discussed later. The appellants sought an urgent order in the Western Cape Division of the High Court that the jamming of the signal was unlawful and unconstitutional. A majority of the full court that heard the application J

Lewis JA

A (Dlodlo J and Henney J, Savage J dissenting) refused that relief, but gave leave to appeal to this court.

[7] The second violation complained of by the appellants is that members of the public were deprived of the right to see and hear what happened in Parliament when members of the EFF asked the President B when he would pay back the money that had been spent on his private homestead in KwaZulu-Natal, Nkandla. The Speaker refused to allow the questions. The EFF MPs refused to back down. The Speaker ordered them to leave the Chamber. They refused. She requested the Sergeant – at – Arms to remove the MPs. She then called in a large number of men whom she referred to as 'the parliamentary protection services', and a C violent altercation ensued. The EFF MPs were forcibly removed from the Chamber.

[8] When the members of the protection services entered the Chamber, the broadcasting feed was focused on the Speaker and the Chairperson D of the Council. People outside the Chamber could thus not see the interaction between the EFF MPs and the security staff through official means. Journalists who took videos or photographs of the scuffle in fact did broadcast the activity in Parliament, but against the provisions of s 21 of the Powers Act, and in violation of the rules and the policy of Parliament on broadcasting. The public accordingly had to rely on E poor and unauthorised cellphone broadcasts or second-hand information on what had happened. The appellants had thus also applied for an order (at the same time as they applied for the order that use of the jamming device was unlawful) that the respondents should ensure the openness of Parliament and that the manner in which the live broadcast F had been made was unlawful. In part A of the application they had sought an urgent order that the post-Sona debate in Parliament be open, but that was refused, and the appellants persisted only with part B of the relief asked for.

[9] As the proceedings developed in the Western Cape Division, the applicants discovered the existence first of the broadcast policy and later G of the rules. They amended the relief sought to include an order that the rules and policy that precluded coverage of the scuffle between the security staff and the EFF MPs were unconstitutional. (Initially the appellants had also asked for an order that the respondents investigate the use of the jamming device, but had abandoned that by the time of the H hearing a quo.) The majority of that court refused all the relief sought in this regard as well, but granted leave to appeal to this court.

The procedural issue

[10] Parliament has made much of the late attack, in the course of the I proceedings in the court a quo, by the appellants on the policy and the rules. The appellants, argues Parliament, should not be permitted to make up their case as they go along. While that is, of course, the usual rule, it must be borne in mind that the application was brought as one of urgency. At the time of instituting the application, the policy was not well known, although it was adopted in August 2009. The policy was J brought to the attention of Sanef only in late-January 2015, when a

Lewis JA

meeting between representatives of Parliament and members of Sanef A was held to discuss events of the previous year, and the coverage that Sanef considered inadequate.

[11] The broadcasting rules were adopted in September 2003. Primedia and the other appellants were made aware of the existence and content of the rules only when Parliament filed its answering affidavit in part A B of the application. The appellants contend that since the rules inform the policy, and they are in substantively the same terms, Parliament is not prejudiced by the late amendment to the notice of motion that seeks to challenge both the policy and then the rules.

[12] While Parliament is sceptical about the professed ignorance of the C appellants, given that they have covered parliamentary proceedings since the dawn of democracy in 1994, the fact is that the rules in question deal with grave disorder and unparliamentary behaviour. It was only on 21 August 2014 that the rules and policy were first invoked by Parliament to prevent the broadcasting of EFF MPs being forcibly removed from Parliament. The sitting was suspended. On 6 November 2014 D a heated exchange between an EFF MP and the Speaker occurred. The broadcast heard and shown was focused on the Speaker and the incident was not broadcast.

[13] Sanef wrote to Parliament on 12 November 2014 referring to these E events and expressing its concern about the impact on media freedom of cutting the live feed when there were disruptions of the proceedings. They asked for a meeting to be held as a matter...