South African Broadcasting Corporation Limited v Thatcher and Others
| Jurisdiction | South Africa |
| Judge | Van Zyl J |
| Judgment Date | 31 August 2005 |
| Docket Number | 8924/2004 |
| Court | Cape Provincial Division |
| Hearing Date | 25 October 2004 |
| Citation | 2005 JDR 1363 (C) |
Van Zyl J:
Introduction
[1] On 25 October 2004 the applicant sought leave, by way of an urgent application, to televise the proceedings instituted by the first respondent against the second to fifth respondents ("the proceedings"). [1] The proceedings were set down for hearing the next day. After considering the documents filed and the submissions made by counsel, this court granted an order in the following terms, with reasons to be furnished in due course:
2005 JDR 1363 p2
Van Zyl J
The applicant is granted leave to be present at, and to record, the hearing of the civil proceedings instituted by the first respondent against the second to fifth respondents under case number 7672/2004, which application is due to commence on Tuesday, 26 October 2004. This leave is subject to the following:
The recording may be used only in the form of an edited daily highlights package for purposes of delayed broadcasting in television news bulletins and in programs relating to current affairs or matters of public interest.
The daily highlights package must constitute a balanced and fair reflection of the day's proceedings.
The Court may at any stage suspend the recording process should it regard such process as disruptive of the proceedings.
The Court may give such further directions as it deems appropriate, including that portions of the proceedings may not be recorded, or that already recorded portions of the proceedings may not be televised.
The applicant is directed to focus its recordings primarily on counsel arguing the matter and/or on the judges presiding.
The applicant is directed not to broadcast or televise matters of a private, confidential or privileged nature which may ensue between counsel, the attorneys and the parties.
Should the applicant record matters of the kind referred to in paragraph 1.4 and 1.6 above, it is directed to destroy same, to hold it as strictly confidential and not to disclose its contents to any third party.
Should the Court, either mero motu or on the application of any of the parties, request, prior to the finalisation of the highlights package, that a portion of the recorded proceedings not be televised, the applicant is directed to delete such material and not to televise same.
The applicant is directed, throughout the proceedings, strictly to uphold the right of privacy of the judges, the various parties, the legal representatives and members of the public present at such proceedings.
The applicant is given leave to set up its electronic equipment in the designated court after making the necessary arrangements with the Registrar of the Court and the head of security. This leave is subject to the following:
The applicant may install two small man-operated television cameras and one small unmanned television camera, all on tripods and together with the necessary microphones, in the court prior to 10h00 on Tuesday 26 October 2004.
The cameras must be placed in a fixed and unobtrusive position in the court.
No external lighting may be used for the televising of the proceedings.
The microphones may be placed alongside the existing court microphones.
Only two camera operators may be present in court during the proceedings.
Any problems which may arise during the recording of the proceedings are to be attended to during adjournments only.
The applicant is directed not to make any live feed of the recordings available to broadcasters outside South Africa. This is subject to the following:
2005 JDR 1363 p3
Van Zyl J
The applicant may make such live feed available to any South African broadcaster subject to the terms and conditions contained in this order and, further, subject to the constraints imposed on the applicants by the Broadcasting Act 4 of 1999, broadcaster's conditions and the code of the Broadcasting Complaints Commission of South Africa.
The applicant may make such live feed available to any offshore broadcaster provided it consists only of material which has already been screened by the applicant.
No order is made as to costs.
[2] The reasons for this order appear from what follows.
[3] Because of the urgency of the matter none of the respondents filed any affidavits, opposing or otherwise, in response to the notice of motion and founding affidavit of Mr K S T Matthews, the Chief Legal Advisor of the applicant. The first respondent, Sir Mark Thatcher, indicated through his counsel, Mr P B Hodes SC assisted by Mr A Katz, that he did not oppose the application and abided the decision of this court. The same applied to the fourth and fifth respondents, being the Chief Magistrate and Additional Magistrate of the Wynberg Magistrate's Court. Only the second and third respondents, namely the Minister of Justice and Constitutional Development and her Director General, opposed the application.
[4] Mr B K Pincus SC, assisted by Mr D Goldberg, represented the applicant while Mr M Donen SC, assisted by Ms N Bawa, appeared on behalf of the second and third respondents. The court expresses its appreciation to them for their respective presentations. Thanks are also due to Ms Nikki de Havilland, Research Assistant in the Cape High Court, for her extremely helpful comparative research.
The Proposed Recording Equipment
[5] For purposes of recording the proceedings the applicant sought leave to set up its electronic equipment in the court where the hearing was to be held. It gave the assurance that the equipment would be installed and set up as unobtrusively as
2005 JDR 1363 p4
Van Zyl J
possible with a view to causing minimal disruption to the court proceedings. The installation would, in any event, be subject to any conditions the court may reasonably wish to impose.
[6] In this regard three cameras would be installed, two of which would be manned by cameramen. A single fixed camera at the rear of the court would be unmanned and focussed on the court as a whole. The manned cameras, which could swivel from one area of the court to another, would be positioned on either side of the court, focussing in general on the Bench and on counsel making their respective representations. The installation of the cameras would take place before commencement of the proceedings and any problems arising during the proceedings would be dealt with during adjournments. Microphones would be placed alongside the existing court microphones. The cables connecting the cameras to an outside broadcasting van would run across the floor alongside the existing cabling. The van would remain outside the High Court premises at all times and would be protected by the applicant's own security guards. No external lighting would be used and no extraneous noise would emanate from the cameras
[7] The applicant undertook to adhere to all applicable security arrangements required by the relevant court officials. This included removing the recording equipment at the end of the day's proceedings and setting it up again prior to the continuation of proceedings on the next day.
[8] The recordings or "feed" transmitted to the outside broadcasting van would be made available to any other broadcaster who might wish to broadcast the proceedings. In making such feed available, the applicant would charge a customary fee on the basis that the costs be shared without any cost burden being imposed on the public. The proceedings would then be broadcast on a delayed or edited basis.
2005 JDR 1363 p5
Van Zyl J
The Basis of the Application
[9] The applicant undertook unequivocally to set up its recording equipment as aforesaid, subject to any conditions this court may impose. It likewise undertook to adhere to the relevant codes of conduct and to comply with the obligations imposed upon it by the applicable statutory provisions. It expressed the wish, however, to give members of the public an insight into how the judicial process actually functions in order to generate confidence in and respect for the legal system and in order to create understanding of the progress and ultimate outcome of the proceedings. This insight and understanding would come from broadcasting news events of immense national and international importance. Such broadcasts would clearly fall within the mandate of the applicant as being overwhelmingly in the public interest.
[10] In this regard the applicant pointed out that its national television network comprises three full spectrum channels which, combined, broadcast in eleven languages and reach a daily adult audience of approximately eighteen million people via its terrestrial and satellite distribution network. In view of the high level of illiteracy in South Africa, a substantial number of people receive their news and information primarily, if not solely, through the broadcast media. This is far in excess of the number of persons who read newspapers. In this regard the average circulation of urban daily newspapers throughout South Africa for the first six months of 2004 was only some one million six hundred thousand.
[11] The facts and circumstances giving rise to the present proceedings have, the applicant averred, been the subject of intense public scrutiny and debate. It has evoked widespread national and international interest in view of the alleged involvement of the first respondent, Sir Mark Thatcher, the son of a former British Prime Minister, Dame Margaret Thatcher, in an attempted coup in Equatorial Guinea
2005 JDR 1363 p6
Van Zyl J
during March 2004. It was established that a number of South African mercenaries, including their leader, one Du Toit, were arrested and charged with various criminal offences. Since then Du Toit and certain of his co-accused have in fact been convicted and sentenced by an Equatorial Guinea court. Prior to that some seventy mercenaries, allegedly...
To continue reading
Request your trial