South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Nkabinde J, O'Regan J, Sachs J, Yacoob J, Kondile AJ and Van Heerden AJ
• Judgment Date: 21 September 2006
• Docket Number: CCT58/06
• Hearing Date: 13 September 2006
• Counsel: G J Marcus SC (with him M Sikhakhane and S Budlender) for the applicant. P J Olsen SC (with him A A Gabriel) for the first respondent. J J Gauntlett SC (with him R Patrick) for the second to twelfth respondents.
• Court: Constitutional Court

Langa CJ, Madala J, Nkabinde J, O'Regan J, Yacoob J, Kondile AJ and Van Heerden AJ: * A

[1] Should this Court intervene to require the Supreme Court of Appeal to permit the national broadcasting corporation to broadcast on radio and television proceedings before the Supreme Court of Appeal? This is B the question raised in the present application, which has been brought before this Court on the basis of urgency. The judgment has therefore been prepared in haste to ensure that the proceedings in the Supreme Court of Appeal are not delayed.

[2] The applicant, the South African Broadcasting Corporation Ltd (the C SABC), applies for leave to appeal against a judgment of the Supreme Court of Appeal refusing it permission to broadcast on radio and television appeal proceedings brought by Mr Schabir Shaik, which are to be heard soon. Mr Shaik and the National Director of Public Prosecutions (NDPP) oppose the application for leave to appeal in this Court, as they did before the Supreme Court of Appeal. D

Background

[3] The case arises from the conviction of the second respondent, Mr Shaik, by the Durban High Court (the High Court) in 2005 on several counts relating to corruption. The High Court found that Mr E Shaik was guilty of a contravention of s 1(1)(a) of the Corruption Act 94 of 1992 [1] in relation to payments he had made to the former Deputy

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President of the Republic of South Africa, Mr Jacob Zuma, and that A Mr Shaik had bribed Mr Zuma to protect a French armaments company from exposure by official investigation. Mr Shaik was convicted and sentenced to 15 years' imprisonment. The third to twelfth respondents, all companies which Mr Shaik controls or in which he has a major interest, were also convicted and were required to pay fines. B

[4] Mr Shaik and the third to twelfth respondents sought leave to appeal against the judgment of the High Court to the Supreme Court of Appeal. Mr Shaik also sought leave to appeal against an order of civil forfeiture granted by the High Court in terms of the Prevention of Organised Crime Act 121 of 1998. The appeals are currently scheduled to be heard C by the Supreme Court of Appeal on 25 - 29 September 2006.

[5] On 3 August 2006, when the proceedings were still set to commence on 21 August, the applicant informally sought permission, through the Registrar of the Supreme Court of Appeal, to televise the proceedings, but was told that it would be allowed to make only visual recordings D without sound. [2] The SABC then made a formal application and sought an order from the Supreme Court of Appeal in the following terms:

'1.

Granting the applicant permission to be present at and record for the purposes of live broadcasting on television, with both visuals and sound:

1.1

The hearing of the criminal appeal under case No 410/2005 instituted by the second to twelfth respondents against the State as represented E by first respondent;

1.2

the hearing of the criminal appeal under case No 062/2006 instituted by second to twelfth respondents against the State as represented by first respondent; and

1.3

the hearing of the criminal appeal under case No 248/2006 instituted by second to sixth respondents against the State, as represented by the F first respondent, which appeals are due to commence on Monday 21 August 2006 [3] in the above Honourable Court ("the criminal appeals").

2.

In the alternative to 1 above, granting the applicant permission to be present at and record the criminal appeals for the purposes of delayed broadcasting on television with both visuals and sound, by means of an G edited highlights package, on a daily basis and for reporting on its daily news bulletins, on various current affairs programmes and in the news and public interest related programmes.

3.

Granting the applicant permission to be present at and record the criminal appeals for the purposes of live broadcasting on radio.

4.

In the alternative to 3 above, granting the applicant permission to be H present at and record the criminal appeals for the purposes of delayed

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broadcasting on radio, by means of an edited highlights package, on a daily A basis and for reporting on its daily news bulletins, on various current affairs programmes and in the news and public interest related programmes.

5.

Permitting the applicant to set up its electronic equipment in the manner contemplated in the applicant's founding affidavit in order that it may relay the criminal appeals in the manner set out above.' B

[6] Before both the Supreme Court of Appeal and this Court it was accepted by all parties that, although prayers 1 and 2 and prayers 3 and 4 are framed in the alternative, the applicant did not intend them to be in the alternative. The relief sought therefore included both the right to broadcast the entire proceedings live on television and radio, as well as the right to produce edited highlights-packages for television and radio C audiences.

The Supreme Court of Appeal

[7] Before the Supreme Court of Appeal the applicant argued that these broadcasts were necessary to enable it to fulfil its constitutional and D statutory obligations to inform the public. The statutory obligation it referred to arises from the Broadcasting Act 4 of 1999 (Broadcasting Act). Noting that the case involved matters of intense national interest, the applicant argued that broadcasting by way of television and radio would have educational benefits and would not disrupt the conduct of the hearing. E

[8] The respondents argued that there was no constitutional right to broadcast judicial proceedings. Section 173 of the Constitution of the Republic of South Africa, 1996 gives the Courts the power to regulate their own processes and, accordingly, constitutes a constitutional F restriction on the ambit of the free-expression rights of the applicant. They argued that the free-expression rights of the media were protected by other methods of reporting and also that allowing the broadcast of the appeal would violate the respondents' right to a fair trial. Specifically, the presence of cameras in the courtroom would violate the second respondent's right to privacy, inhibit interactions between counsel and G the Bench, and prejudice Mr Zuma's right to a fair trial.

[9] The issue of privacy should be put aside immediately. In the Supreme Court of Appeal the applicant undertook that neither Mr Shaik nor members of his family would be recorded with either visuals or H sound during the appeal hearing. That undertaking stood in this Court. The question of privacy therefore does not require further consideration by us.

[10] In a unanimous judgment the Supreme Court of Appeal took the view that the 'applicant's right to freedom of expression and to impart I information, and the public's right to receive such information, collide four square with the respondents' respective rights'. [4] It noted that, because of the power given to it by s 173 to regulate its own processes,

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it had to do so by considering how best to accommodate the competing A rights of the parties. The Court held that a balancing exercise was required between the right of the applicant to freedom of expression and the right of the respondents to a fair trial.

[11] In balancing the rights of free expression and fair trial, the Court held that the proper test was one that favoured the right to a fair trial. It B stated that 'live or recorded sound broadcasting should not be allowed unless the Court is satisfied that justice will not be inhibited'. [5] What the test amounted to was that fair-trial rights had to take precedence over the right to free expression in the circumstances of this case. The Supreme Court of Appeal characterised the position as a 'clash of rights' and held C that, if anyone has to give way, it should not be the litigant that faced a loss of liberty if convicted. [6]

[12] The Supreme Court of Appeal held that television and radio broadcasts would violate fair-trial rights for two reasons. First, it would put 'stress' on both counsel and the Judges, inhibiting interaction that D would, 'whether by way of being the last straw or in combination with all the other circumstances, create the material risk that justice will be impaired'. [7] Second, there was a risk that television and radio broadcasts might prejudice the rights of both the State and Mr Zuma to a fair trial in his case because extensive radio and television broadcasting might deter witnesses from testifying in that trial due to the critical exposure to which they might E be subjected during the appeal. The Court also reasoned that the unfettered questioning of counsel might create the perception in the public mind that Mr Zuma's innocence or guilt was being prejudged. [8] F

[13] The Supreme Court of Appeal thus took the view that it had a discretion conferred by s 173 of the Constitution as to whether to permit radio and television broadcasts. In the light of the foregoing considerations it concluded that the application for the right to broadcast its proceedings live on radio and television should be dismissed. It also held G that, to the extent that the applicant sought the right to produce edited highlights-packages, such packages might create a risk of misrepresentation and misunderstanding. That relief too was accordingly refused. The applicant was ordered to pay the costs of the second to twelfth respondents. H

Does the case raise a constitutional issue?

[14] We turn now to the question whether the case raises a constitutional issue. In our view this must be answered in the affirmative. First, the SABC argues that the Supreme Court of Appeal's judgment has the I effect of limiting the right to freedom of expression of radio and

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