Van Breda v Media 24 Ltd and Others

• Jurisdiction: South Africa
• Citation: 2017 (5) SA 533 (SCA)

Van Breda v Media 24 Ltd and Others
2017 (5) SA 533 (SCA)

2017 (5) SA p533

Citation	2017 (5) SA 533 (SCA)
Case No	425/2017; [2017] ZASCA 97
Court	Supreme Court of Appeal
Judge	Ponnan JA, Leach JA, Mbha JA, Zondi JA and Van Der Merwe JA
Heard	June 21, 2017
Judgment	June 21, 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).

Flynote : Sleutelwoorde

Constitutional law B — Human rights — Right to freedom of expression — Freedom of press and other media — Right of media to broadcast court proceedings — Right to freedom of expression extending to public's right to receiving information and to open justice — Preventing media from broadcasting proceedings amounting to limitation of both media and public's C right to freedom of expression — Default position being that no objection in principle to broadcasting — Media to request permission to broadcast on case-by-case basis — Court to use constitutionally mandated discretion to protect and regulate its own processes, in deciding such applications — Constitution, ss 16(1) and 173.

Media — Freedom of expression — Limitations — Right of media to broadcast D court proceedings — Default position being that no objection in principle to broadcasting — Media to request permission to broadcast on case-by-case basis — Court to use constitutionally mandated discretion to protect and regulate its own processes, in deciding such applications — Court to harmonise competing rights of freedom of expression and open justice E principle, on one hand, and right to fair trial, on other — Courts ought not restrict nature and scope of broadcast unless prejudice demonstrable and real risk of it occurring — Mere conjecture or speculation that prejudice might occur not enough — Constitution, s 173.

Headnote : Kopnota

The right of the media to gather and broadcast information, footage and audio F recordings of court proceedings flows from the right to freedom of expression in s 16 of the Constitution. This right, which includes the right to receive information and ideas, is for the benefit of both the media and the public. Not only is the media protected by the right to freedom of expression but it is also the 'key facilitator and guarantor' of the right. Free speech and open justice — a fundamental principle of the common law, that G trial proceedings be conducted publicly in open court — are closely interrelated. Open justice, recognised by the Constitutional Court as a right of its own, has evolved so that the right does not belong only to the litigants but to the public at large. It means more than merely keeping the courtroom doors open; it means that court proceedings must where possible be meaningfully accessible to any member of the public who wishes to be H timeously and accurately apprised of such proceedings. In an open democracy based on the values of equality, freedom and human dignity, the right of the public to be informed is one of the rights underpinned by the value of human dignity. The media, reporting accurately and fairly on legal proceedings and judgments, make an invaluable contribution to public confidence in the judiciary and, thus, to the rule of law itself. (Paragraphs I [10] – [11] and [15] – [16].)

Given the high levels of illiteracy, the print media is the preserve of a few. The majority of South Africans rely principally on radio and television for their news and information. The print media simply does not operate with the same kind of interactive speed or attract so wide and responsive an audience as television broadcasting does. There simply can be no logic in a J

2017 (5) SA p534

court A permitting journalists to utilise the reporting techniques of the print media but not permitting a television journalist to utilise his or her technology and method of communication, being the broadcasting and recording of proceedings, despite the fact that 'live camera footage will be more accurate than a reporter's after-the-fact summary'. In the light of the fact that members of the public acquire most of their news through the B electronic media, precluding that sector of the media from taking cameras and microphones (their tools of trade) into the courtroom, self-evidently limited the s 16(1) rights of both the media and the public. (Paragraphs [17] and [46] – [47].)

Permitting televising of court proceedings is the appropriate starting point; the C default position had to be that there could be no objection in principle to the media recording and broadcasting counsel's address and all rulings and judgments (in respect of both conviction and sentence) delivered in open court. However, the right to a public hearing does not automatically mean that trials must necessarily be broadcast live in all circumstances. It is for the media to request access from the presiding judge on a case-by-case D basis. The question whether, and under what circumstances, the media should be allowed to broadcast court proceedings provokes tension between the constitutional rights of the press to freedom of expression, on the one hand, and the fair trial rights of an accused person, on the other. These competing constitutional rights, both essential to the proper functioning of E any true democracy, should as far as possible be harmonised. It remained for the court — in exercising its discretion under s 173 of the Constitution to protect and regulate its own process, in the interest of justice — to balance the competing interests and the degree of risk involved in allowing cameras into the courtroom against the degree of risk that a fair trial might not ensue, and limit the nature and scope of the broadcast where necessary to F ensure the fairness of the proceedings before it. Thus, concerns of privacy and security may justify imposing appropriate restrictions on how the media go about gathering and transmitting information about judicial proceedings. A one-size-fits-all approach, banning all audio or visual broadcasting of criminal proceedings, could not amount to a proper exercise of a court's s 173 discretion. (Paragraphs [8], [42], [57], [59] – [60] and [69] – [72].)

When G a witness objects to coverage of their testimony, such witness should be required to assert such objection before the trial judge, specifying the grounds therefor and the effects such coverage would have upon their testimony. Courts must not restrict the nature and scope of the broadcast unless the prejudice is demonstrable and there is a real risk that such H prejudice will occur; mere conjecture or speculation that prejudice might occur ought not to be enough. This approach entails a witness-by-witness approach. Such an individualised enquiry is more finely attuned to reconciling the competing rights at play than is a blanket ban on the presence of cameras from the whole proceeding when only one participant objects. If the judge determines that the witness has a valid objection to cameras, alternatives to regular photographic or television coverage could be I explored that might assuage the witness's fears. (Paragraphs [72] – [75].)

Cases cited

Southern Africa

Afriforum and Another v Malema and Another 2011 (6) SA 240 (EqC): J dictum in para [47] applied

2017 (5) SA p535

Brümmer v Minister for Social Development and Others 2009 (6) SA 323 (CC) A (2009 (11) BCLR 1075; [2009] ZACC 21): referred to

Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC) (1996 (1) SACR 587; 1996 (5) BCLR 609; [1996] ZACC 7): dictum in para [27] applied

City of Cape Town v South African National Roads Authority and Others B 2015 (3) SA 386 (SCA) ([2015] ZASCA 58): applied

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2004 (1) SA 406 (CC) (2003 (2) SACR 445; 2003 (12) BCLR 1333; [2003] ZACC 19): referred to

Director of Public Prosecutions, Gauteng v Pistorius 2016 (2) SA 317 (SCA) ([2015] ZASCA 204): applied C

Dotcom Trading 121 (Pty) Ltd t/a Live Africa Network News v King NO and Others 2000 (4) SA 973 (C) ([2000] 4 All SA 128): dictum in para [30] applied

Financial Mail (Pty) Ltd v Registrar of Insurance and Others 1966 (2) SA 219 (W): dictum at 220F – G applied

Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re D Masetlha v President of the Republic of South Africa and Another 2008 (5) SA 31 (CC) (2008 (8) BCLR 771; [2008] ZACC 6): dicta in paras [39] and [41] applied

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

Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark E International (Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) (2005 (8) BCLR 743; [2005] ZACC 7): dictum in para [47] applied

Midi Television (Pty) Ltd t/a E-TV v Downer and Others [2004] ZAKZHC 15 (D&CLD 15927/04): referred to

Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western F Cape) 2007 (5) SA 540 (SCA) (2007 (2) SACR 493; 2007 (9) BCLR 958; [2007] 3 All SA 318; [2007] ZASCA 56): applied

Multichoice (Pty) Ltd and Others v National Prosecuting Authority and Another: In re S v Pistorius; Media 24 Ltd and Others v Director of Public Prosecutions, North Gauteng and Others 2014 (1) SACR 589 (GP): applied

Practice Notice 2009 (3) SA 1 (SCA): referred to G

Primedia (Pty) Ltd and Others v Speaker of the National Assembly and Others 2017 (1) SA 572 (SCA) ([2016] 4 All SA 793; [2016] ZASCA 142): applied

Print Media South Africa and Another v Minister of...