Van Breda v Media 24 Ltd and Others

• Jurisdiction: South Africa
• Judge: Ponnan JA, Leach JA, Mbha JA, Zondi JA and Van Der Merwe JA
• Judgment Date: 21 June 2017
• Citation: 2017 (5) SA 533 (SCA)
• Docket Number: 425/2017 [2017] ZASCA 97
• Hearing Date: 21 June 2017
• Counsel: F van Zyl SC for the appellant (in case No 425/2017).H Epstein SC (with LG Nkosi Thomas SC) for the first appellant (in case No 426/2017). JC Butler SC (with M Maddison) for the first respondent (in case No 425/2017). S Budlender SC (with T Mosikili) for the amicus curiae (in case No 425/2017).
• Court: Supreme Court of Appeal

Ponnan JA (Leach JA, Mbha JA, Zondi JA and Van der Merwe JA concurring):

[1] 'TV, or not TV, that is the question . . . .' [1] According to the Chief Justice of Canada, the Rt Hon Beverley McLachlin PC, 'Justice Brennan F was right: the media and the courts are locked in a mutual, if sometimes uncomfortable embrace.' [2] McLachlin CJ was referring to Justice Brennan's observation in 1980 that —

'there exists a fundamental and necessary interdependence of the court and the press. The press needs the court, if only for the simple reason G that the court is the ultimate guardian of the constitutional rights that support the press. And the court has a concomitant need for the press, because through the press the court receives the tacit and accumulated experience of the nation, and — because the judgments of the court ought also to instruct and to inspire — the court needs the medium of the press to fulfil this task.' [3] H

Ponnan JA

[2] A Undeniably communications technology has evolved —

'from a reporter's prose description, to an artist's sketch pad rendition, to the still and movie cameras with their bright lights, and finally to the advanced portable video cameras — the media progressively has given B the public a more intimate view of criminal proceedings'. [4]

However, attempts by the media to introduce modern technology into the criminal trial court, have not been universally embraced. Consequently, this appeal, against a successful application to the High Court to broadcast a criminal trial, requires us to examine what McLachlin CJ C described as that 'mutual, if sometimes uncomfortable embrace'.

[3] The issue arises for determination against the following factual backdrop: the first appellant, Mr Henri Christo van Breda (the appellant), is charged with murdering three of his family members with an axe. The only survivor of the attack, which occurred at the family home in an D exclusive security estate near Stellenbosch, is his younger sister, M. The incident and appellant's trial, which is currently under way, before Desai J in the Western Cape Division, Cape Town, on charges of murder, attempted murder and defeating or obstructing the administration of justice — to which the appellant has pleaded not guilty — have E attracted widespread media attention.

[4] Shortly before the trial was due to commence, the first respondent, Media24, a publisher and purveyor of news to the general public both in South Africa and internationally, brought an urgent application that it be allowed to install two video cameras in the trial courtroom in order F to record and broadcast the proceedings, alternatively to be permitted to broadcast the proceedings by microphone and sound. It also applied to be allowed to take still photographs and video footage in court for 30 minutes before the commencement of court and after the adjournment of proceedings each day.

[5] G Both parties to the criminal proceedings, the appellant and the second appellant, the National Director of Public Prosecutions (the NDPP), opposed Media 24's application. [5] Desai J heard the application on Friday 24 March 2017 and issued the following order on Monday 27 March 2017:

Ponnan JA

'1.

Subject to what is ordered in paragraph 5 below: A

1.2

For 15 minutes before the commencement of court each day, and after the adjournment of proceedings, the applicant may take still photographs in court, and video footage in court;

1.3

During the sitting of the court, the applicant is permitted to install two video cameras to record and or broadcast the proceedings, with the following guidelines: B

1.3.1

The cameras shall be set up by not later than 15 minutes before the commencement of proceedings every day, and shall be removed by not later than half an hour after the adjournment of proceedings at the end of the day; C

1.3.2

The video cameras shall be stationary, erected on tripods, and shall not be attended by a person;

1.3.3

The video cameras shall be left to record and broadcast the proceedings, and shall be located in such positions as the court may direct from time to time;

1.3.4

The cameras shall be located discreetly to cause as little D intrusion in the proceedings of the court as possible.

2.

None of the arrangements above shall be extended to [M], in respect of whom no photographs, audio recordings or video footage shall be taken before, during or after the hearings, whether she is present as a witness, spectator or in any other capacity, save with the prior written consent of the third respondent; E

3.

There is an absolute bar on:

3.1

audio recordings or close-up photography of bench discussions; and

3.2

audio recordings or close-up photography of communications between legal representatives or between clients and their legal representatives; F

4.

No exhibits shall be photographed, videotaped or published by the media, unless expressly permitted by the court.

5.

The parties are at liberty to approach the court for any variation or amendment of this order as the occasion warrants.'

[6] The learned judge delivered reasons for the order on Tuesday 4 April G 2017. Both the appellant and the NDPP filed applications for leave to appeal against the judgment and order of the court below, which was dismissed on 6 April 2017. Applications by both for leave to appeal directly to the Constitutional Court were refused on 13 April 2017 on the basis that it was 'not in the interests of justice to hear the matter at H this stage'. The appellant thereafter applied to this court for leave to appeal, as did the NDPP — the latter by way of a separate application. On 26 April 2017 both the NDPP and the appellant were granted leave by this court to appeal against the whole of the judgment and order of Desai J. The operation of the order was suspended pending the outcome of the I appeal. Practice directives were issued for the filing of the record, practice notes and heads of argument, and the matter came to be heard by this court on an expedited basis on 18 May 2017. Media Monitoring Africa (MMA), a non-profit organisation seeking to advance quality media and the free flow of information to the public on matters of public interest, was admitted as an amicus curiae. J

Ponnan JA

[7] A The appellant's appeal is directed at the court's decision to allow Media 24 to record and broadcast the criminal proceedings during sittings of the court as contemplated by para 1.3 of the order of the High Court. The appellant appears to have no difficulty with the recording and broadcast of counsel's argument and the rulings and judgment of the court. In contrast, the NDPP's position was one of blanket opposition to B any part of the criminal proceedings being broadcast.

[8] The issue raised by this appeal is not altogether new. Whether the media should be allowed to broadcast court proceedings, and if so, the extent thereof has been debated for as long as audiovisual technology has C existed. [6] Nonetheless, what confronts us is in some respects uncharted constitutional territory and thus calls all the more for a most careful consideration. Section 16 of the Constitution headed 'freedom of expression' is a useful starting point. It provides:

'(1) Everyone has the right to freedom of expression, which D includes —

(a)

freedom of the press and other media;

(b)

freedom to receive or impart information or ideas;

(c)

freedom of artistic creativity; and

(d)

academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to —

(a)

E propaganda for war;

(b)

incitement of imminent violence; or

(c)

advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.'

[9] In R v Secretary of State for the Home Department, Ex parte Simms, F Lord Steyn stated: [7]

'Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words G of Mr Justice Holmes (echoing John Stuart Mill), the best test of truth is the power of the thought to get itself accepted in the competition of the market: Abrams v United States (1919) 250 US 616 at 630 per Holmes J (dissent). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions H that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.'

[10] The right of the media to gather and broadcast information, footage I and audio recordings flows from s 16 of the Constitution. The right to freedom of expression is one of a 'web of mutually supporting rights' that

Ponnan JA

holds up the fabric of the constitutional order. [8] The right is not limited A to the right to speak, but also to receive information and ideas. The media hold a key position in society. They are not only protected by the right to freedom of expression, but are also the 'key facilitator and guarantor' of the right. [9] The media's right to freedom of expression is thus not just (or even primarily) for the benefit of the media: it is for the B benefit of the public. [10] In Khumalo v Holomisa [11] the Constitutional Court emphasised:

'In a democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a...