Primedia Broadcasting, A Division of Primedia (Pty) Ltd and Others v Speaker of the National Assembly and Others (2749/2015) [2015] ZAWCHC 72; 2015 (4) SA 525 (WCC); [2015] 3 All SA 340 (WCC); 2015 (7) BCLR 835 (WCC) (28 May 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO. 2749/2015

DATE: 28 MAY 2015

REPORTABLE

In the matter between:

PRIMEDIA BROADCASTING,

A DIVISION OF PRIMEDIA [PTY] LTD.................................................................1ST APPLICANT

SOUTH AFRICAN NATIONAL EDITORS’ FORUM............................................2ND APPLICANT

RIGHT2KNOW CAMPAIGN...................................................................................3RD APPLICANT

OPEN DEMOCRACY ADVICE CENTRE..............................................................4TH APPLICANT

AND

SPEAKER OF THE NATIONAL ASSEMBLY.....................................................1ST RESPONDENT

CHAIRPERSON OF THE NATIONAL COUNCIL

OF PROVINCES.....................................................................................................2ND RESPONDENT

SECRETARY TO PARLIAMENT........................................................................3RD RESPONDENT

MINISTER OF STATE SECURITY.....................................................................4TH RESPONDENT

CORAM: DLODLO, J et HENNEY, J et SAVAGE, J

JUDGMENT

DELIVERED ON THURSDAY, 28 MAY 2015

DLODLO, J

[1] On 12 February 2015 the President’s annual State of the Nation Address (SONA) was characterised and almost marred by two incidents forming the subject matter of the present application. These incidents are that in the first place the State Security Agency employed a device that jams mobile telecommunication signals. Consequently journalists and MPs attending SONA were rendered unable to use their cellphones in order to inform members of the public not in attendance about the happenings in Parliament. This, however, lasted for a short period as it was swiftly addressed by the relevant authorities. Secondly, the Applicants aver that members of the public were denied the right to see for themselves events of national importance occurring on the floor of the Parliamentary Chamber when the following took place:

(a) Members of the Economic Freedom Fighters (EFF) sought to ask the President questions relating to payments of some money spent on his Nkandla residence. The First Respondent the (Speaker) refused to allow the questions. However, the EFF MPs refused to obey the directive by the Speaker. Following the order of the Speaker a number of security personnel entered the Chamber and an altercation took place between the security personnel and the EFF MPs. Eventually the security personnel removed the EFF MPs from the Chamber.

(b) The Applicants contend that apart from the initial EFF questions these events of significance were not captured in the official Parliamentary feed. Instead the feed showed only the face of the Speaker and the Second Respondent (the Chairperson) while the MPs were forcefully removed from Parliament.

(c) It is maintained by the Applicants that members of the public who wished to know what occurred relied on subsequently distributed cellphone footage or second-hand accounts from those who had been present.

[2] The application launched had two parts known as Part A and Part B. It is common cause that in Part A the Applicants sought an interdict in respect of all open sittings of the National Assembly or National Council of Provinces, joint sitting of Parliament or open meetings of their Committees pending the outcome of Part B of the application. The second relief sought in Part A was couched as follows:

“The First to Third Respondents are directed to ensure that the audio and visual feeds of such sittings and meetings are not interrupted and that during occurrences of “grave disturbances” or “unparliamentary behaviour”, a wide angle shot of the chamber, including audio, will be broadcast.” The urgent application for interim relief (Part A), was, however, unsuccessful and was dismissed by the Court.

[3] There are two issues that arise from the amended Part B relief sought by the Applicants. These are (a) the Constitutional validity of paragraph 8.3.3.2 (a) of Parliament’s Policy on Filming and Broadcasting (“the Policy”) and (b) whether any order is to be made regarding the jamming incident that occurred shortly before the SONA on 12 February 2015. The Applicants seek an order declaring paragraph 8.3.3.2 (a) of the Policy unconstitutional and invalid. Additionally, the Applicants (in their fourth notice of motion accompanied by Supplementary Replying Affidavit) seek a similar order in respect of the relevant rule contained in Parliament’s Rules of Coverage (‘the Rules’).

[4] In the alternative to the attack on paragraph 8.3.3.2 (a) of the Policy [and the relevant rule], the Applicants seek an order

declaring the whole of the Policy to be unconstitutional and invalid. The Applicants also seek an order declaring the use of the jamming device shortly before the SONA unconstitutional and invalid. It may be mentioned that initially the Applicants sought relief of a structural interdict to direct the Respondents’ investigations into the jamming incident. This, however, has been abandoned in the fourth notice of motion. The application is of course opposed by the Respondents.

BACKGROUND AND A BRIEF OVERVIEW OF

RELEVANT LEGISLATIVE FRAMEWORK

[5] The Speaker of the National Assembly (‘NA’) is elected in terms of section 52 of the Constitution of the Republic of South Africa, 1996 (‘Constitution’). She is cited as the First Respondent in these proceedings. In terms of section 3 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 (“the Powers and Privileges Act”), the Speaker of the NA, together with the Chairperson of the National Council of Provinces (“NCOP”), jointly exercise control over the precincts (as defined in the Powers and Privileges Act) on behalf of Parliament. The Chairperson of the NCOP is cited as the Second Respondent in these proceedings. In terms of section 5 (1) of the Financial Management of Parliament Act 10 of 2009 (“FMPA”) the Speaker of the NA and the Chairperson of the NCOP act jointly as the executive authority of Parliament. In terms of section 6 (1) and (2) of the FMPA the Secretary to Parliament is the accounting officer who is accountable to the executive authority for the financial management of Parliament. The Secretary is cited as the Third Respondent in these proceedings.

[6] As highlighted in the introductory portion of this judgment the application arises mainly from the SONA which took place on 12 February 2015. The SONA is called by the President of the Republic of South Africa in terms of section 84 (2) (d) of the Constitution read with Joint Rule 7 (1) of the 6th edition of the Joint Rules of Parliament (“Joint Rules”). The two Houses of Parliament (the NA and the NCOP) convene a joint sitting to afford the President of the Republic of South Africa the opportunity to address the Nation on the State of the Republic of South Africa. Thus for purposes of the joint sitting the Speaker of the NA and the Chairperson of the NCOP are the Presiding Officers.

[7] Parliament applies its Policy on Filming and Broadcasting which was approved and became effective in August 2009. The Policy on Filming and Broadcasting is described by the Respondents as an administrative document aligned with international best practice of filming and broadcasting in Commonwealth Parliaments. In terms of section 3 of the Policy “Parliament will allow filming and taking of pictures of its precinct and the recording of proceedings for public broadcasting that is in the public interest and related to the main business of Parliament in conformity with acceptable standards of dignity, appropriate behaviour and conduct.” The main purposes of the Policy are:

(a) “to regulate all filming within the precinct of Parliament and provide guidelines on public broadcasting of proceedings of Parliament and related matters, including the use of flash photography and bright camera lights” (section 1 of the Policy);

(b) “[t]o manage filming, taking pictures of precinct of Parliament and broadcasting of the business of Parliament” (section 4 of the Policy);

(c) “[t]o regulate the recording of proceedings of Parliament for public broadcasting” (section 6 (a) of the Policy);

(d) “[t]o regulate filming and taking of pictures within the precinct of Parliament” (section 6 (b) of the Policy).

Control of broadcasting falls under the Presiding Officers and Chairpersons, with the manager of the Sound and Vision Unit as the line function manager (section 8.2.1.3 (b) of the Policy). The Policy is followed by the Sound and Vision Unit in Parliament to operate the cameras in the Chambers and certain Committee Rooms.

[8] The provision contained in paragraph 8.3.3.2 (a) of the Policy which provides for the broadcasting of proceedings on occasions of ‘grave disorder’ (rather than ‘grave disturbance’) and ‘unparliamentary behaviour’, (we are told) mirrors the practices of other commonwealth countries referred to in a paper written by an internationally regarded

authority (Mary Raine of the BBC) on Parliamentary broadcasting, titled ‘Broadcasting Parliamentary Spreads Throughout the Commonwealth’ attached to the Respondents’ Answering papers marked as “BM3”. The Policy is itself informed by the Internal Rules of Coverage. These Rules (as we gather from the papers) of Coverage are designed to regulate the televising of proceedings in Parliament in a manner promoting public access, openness and accountability. The objective of the Rules is reportedly to assist the director in close collaboration with the manager of the Sound and Vision Unit, to give full, fair and accurate account of proceedings with the aim of informing viewers about the work of the Houses of Parliament. These Rules are attached to the Respondents’ Answering papers and are marked “MB4”. The Rules of Coverage contain guidelines for picture direction that are reasonable and further the aim of informing viewers about the work of the Houses.

[9] In sketching this background I must hasten to mention that Parliament has the necessary (own) infrastructure to provide a broadcast feed of the proceedings of the Houses and certain committee venues to accredited media. We are told that at the request of the media, Parliament upgraded its audio-visual equipment during the 2014 financial year to provide for high definition broadcasting. There are, reportedly, eight static cameras in the National Assembly Chamber which houses the joint sittings of Parliament. The cameras (we are told) are aligned to the programme of the proceedings of the day. Members of the media are only allowed to take their own audio-visual equipment into the venues that are not already equipped with audio and visual recording equipment. The constitutional

standards for the NA, the NCOP and Committees are set out in sections 59 and 72 of the Constitution. These provisions allow Parliament,

when it is reasonable and justifiable to do so, in an open and democratic society, to exclude the public including the media. The

Rules of Parliament have a number of provisions that regulate public access.

[10] Sections 57 (1) and 70 (1) of the Constitution of the Republic of South Africa provide that the NA and the NCOP may determine and control their internal arrangements, proceedings and procedures, and make rules and orders concerning their business. Sections 59 (1) and 72 (1) of the Constitution provide that the NA and the NCOP must conduct their business in an open manner, and hold their sittings in public, but reasonable measures may be taken to regulate public access, including access of the media. Section 21 (1) of the Powers and Privileges Act provides that-

‘No person may broadcast or televise or otherwise transmit by 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.’

[11] The standing rules relating to the broadcasting of Parliamentary proceedings are titled ‘Rules of Coverage’ (‘the

Rules’). The Rules are for the televising of proceedings of Parliament. Following a participative process the Rules were adopted by the Joint Rules Committee on 19 September 2003, and they are applied in both the NA and the NCOP. It is important to emphasise that the Rules are thus devised for Parliament’s functioning by Parliament itself, on a fully cross-party deliberative basis. These are attached as Annexure “BM4” to the Respondents’ papers herein. Lastly, in August 2009 the Speaker of the NA and the Chairperson of the NCOP approved a more general policy, the Policy on Filming and Broadcasting, to regulate all filming within the precinct of Parliament and to provide guidelines on the public broadcasting of Parliamentary proceedings and related matters. The Policy became effective on the date of signature. It is attached to the Applicants’ Founding Affidavit as “PG8”.

[12] The Rules of Coverage were reportedly tabled before the Joint Rules Committee as a means to regulate the filming and broadcasting of the proceedings of the NA, the NCOP and joint sittings of the Houses. They are based on the Rules of Coverage applied in the UK Parliament. They were initiated by the Joint Subcommittee on Internal Arrangements in 2001, which circulated them to the parties and referred them to the Chief Whips’ Forum. This tends to point to what the Respondents call, the cross-party deliberative manner in which the Rules were produced. The Rules, undoubtedly, drew on the cumulative experience of members of Parliament in adjudging what best advance not only the dignity but also the functioning of Parliament.

[13] The specific rule that provides that the camera will focus on the occupant of the chair during the incidents of disorder or

unparliamentary behaviour, as I gather from the Answering papers, was extensively discussed by the Joint Rules Committee. A view was expressed that this ‘could amount to censoring’ and that it is ‘impractical’ but the latter view (as I am advised) was subjected to a debate. Parliament itself was therefore alive to any notion of censorship or secrecy on the one hand, and on the other, the need to ensure that Parliament’s dignity and ability to continue functioning were preserved.

DISCUSSION OF IMPUGNED MEASURES

AND THE JAMMING DEVICE

(A) BROADCASTING AND TELEVISING

[14] The Policy and the Rules together govern all filming and broadcasting within the precinct of Parliament including live broadcasting of proceedings. Paragraph 8.3.1.1 of the Policy confirms the exclusive right of Parliament’s in-house Sound and Vision Unit to film live proceedings of Parliament. Importantly, I set out paragraph 8.3.3.2 (a) of the Policy which the Applicants are attacking in these proceedings. This reads as follows:

“Disorder on the floor of the House:

(a) Televising may continue during continued incidents of grave disorder or unparliamentary behaviour for as long as the sitting continues, but only subject to the following guideline:

i. On occasion of grave disorder, the director must focus on the occupant of the Chair for as long as proceedings continue, or until order has been restored; and

ii. In cases of unparliamentary behaviour, the director must focus on the occupant of the Chair. Occasional wide-angle shots of the chamber are acceptable.”

The Policy also prohibits filming of “disorder in the galleries on the basis that it does not constitute proceedings”. The Applicants, however, do not challenge the latter aspect of the Policy. Clause 2 of the Rules defines “grave disorder” as follows:

“Incidents of individual, but more likely collective, misconduct of such seriously disruptive nature as to place in jeopardy the continuation of the sitting.”

Notably both Rules and the Policy define “unparliamentary behaviour” as follows:

“[a]ny conduct which amounts to defiance of the person presiding over the proceedings, but which falls short of grave disorder” (See paragraph 2 of the Policy).

[15] The premise of the Applicants’ case is that all South Africans have a right to know what happens in Parliament and that includes a right to see and hear for themselves disruptions by members of Parliament. Mr Budlender expanding on the right to know what happens in Parliament contended as follows:

“The Constitution affords all South Africans a right to know what happens in Parliament. They have a right to see and hear for themselves what is said. They have a right to see and hear for themselves what is done, and what is not done. They have a right to know how their elected representatives conduct themselves, whether honourably or dishonourably. They have a right to assure themselves that the proceedings of Parliament are conducted fairly – that all Members of Parliament are treated equally and with respect.

Parliament has a concomitant obligation to respect, protect, promote and fulfil that right. Parliament must take all steps necessary to ensure that the proceedings of Parliament are easily and freely available to all those who are interested in them. They must ensure that there is an accurate and complete record of what occurs in Parliament. Particularly given that most South Africans obtain their information from radio and television, Parliament cannot prevent or unreasonably limit media access. Parliament cannot insist on positive coverage, or insist that the media leave out embarrassing details about members who misbehave themselves. It is not entitled to compel positive depiction of its activities; it can only insist on accurate representation. It is then for South Africans to decide whether their elected representatives conducted themselves appropriately or not. There is no reasonable basis for Parliament to restrict the information which South Africans have available to take that decision.”

[16] Mr Budlender also dealt with the right to an open Parliament and the fact that the Constitution’s underlying values of openness and accountability is one of the pillars on which the right to an open Parliament rests. I have no quarrel with these submissions. Sections 59 (1) (b) and 72 (1) (b) of the Constitution require the NA and NCOP to “conduct [their] business in an open manner and hold [their] sittings, and those of its committees in public.” However, they may in terms of sections 59 (1) (b) (i) and 72 (1) (b) (i) take measures to “regulate public access, including access of the media” but of course the measures taken must be reasonable. I also agree with the submission that the right to an open Parliament underpins the right to public participation in the law-making and other processes of the NA and NCOP assured in sections 59 (1) (a) and 72 (1) (a) of the Constitution. We have been referred to Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) particularly at paragraph 137 where inter alia the following is documented:

“Public access to Parliament is a fundamental part of public involvement in the law-making process. It allows the public to be present when laws are debated and made. It enables members of the public to familiarise themselves with the law-making process and thus be able to participate in the future.”

Mr Budlender referred us to Democratic Alliance v African National Congress and Another [2015] ZACC1 at para 122 where the Court expresses itself as follows:

“The Constitution recognises that people in our society must be able to hear, form and express opinions freely. For freedom of expression is the cornerstone of democracy. It is valuable both for its intrinsic importance and because it is instrumentally

useful. It is useful in protecting democracy, by informing citizens, encouraging debate and enabling folly and misgovernance to be exposed. It also helps the search for truth by both individuals and society generally. If society represses views it considers unacceptable, they may never be exposed as wrong. Open debate enhances truth-finding and enables us to scrutinise political argument and deliberate social values.”

Mr Budlender relied quite heavily on the provisions of section 16 of the Constitution with regard to the right to freedom of speech and its protection. In this regard he referred to the decision of the Supreme Court of Appeal in Mthembi-Mahanyele v Mail & Guardian Ltd and Another [2004 ZASCA 67; [2004] 3 ALL SA 511 (SCA) where the Court held at paragraph 66:

“The state, and its representatives, by virtue of the duties imposed upon them by the Constitution, are accountable to the public. The public has the right to know what the officials of the state do in discharge of their duties. And the public is entitled to call on such officials, or members of government, to explain their conduct. When they fail to do so, without justification, they must bear the criticism and comment that their conduct attracts, provided of course that it is warranted in the circumstances and not actuated by malice.”

[17] The above statement was of course made in the context of (untrue) criticism of the executive. I would be slow in accepting that it pertinently applies in the instant matter. I have no difficulty in accepting that the Constitution in section 19 (3) does consider speech as so important that it provides an absolute immunity from civil or criminal penalties for what members of Parliament say in the Chamber or in Committee Rooms of Parliament. Indeed section 41 of the Constitution sets out the principles of co-operative governance including the command that: “All spheres of government and all organs of State within each sphere must provide effective, transparent, accountable and coherent government for the Republic as a whole.” Mr Budlender correctly pointed out that the provisions of the Constitution, some of which I have touched on supra, all point to a society that embraces openness over secrecy and transparency over concealment and that where there is doubt about whether a dispute should be resolved in favour of secrecy or openness, the scale will tip in favour of transparency. In this regard the Supreme Court of Appeal remarked as follows in City of Cape Town v South African National Roads Authority Limited and Others [2015] ZASCA 58 at para 45:

“Secrecy is the very antithesis of accountability. It prevents the public from knowing what decision was made, why it was made, and whether it was justifiable.”

[18] This Court was referred to a decision made in the foreign jurisdiction recognising the importance of open legislative proceedings. The decision is by the Canadian Supreme Court (per Cory J) in New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly) [1993] 1 SCR 319. The question for determination was whether the Nova Scotia Legislature’s decision not to permit broadcasters to set up their own cameras in the legislative Chamber was consistent with the right to freedom of expression. Although the majority decided differently (or did not even reach the question), Cory J found that the decision was inconsistent with the right and stressed the importance of knowledge about the Parliamentary affairs as follows:

“If Canadians are to have confidence in the actions of their elected representatives, they must have accurate information as to what has transpired in the legislative assemblies and House of Commons. Informed public opinion is the essential bedrock of a successful democratic government. Accurate information can only be obtained by the public through the work of a responsible press which must today include television coverage.”

Indeed there is and can never be any denial that the openness of Parliamentary proceedings is not only good for journalists and the media but that it is vital for the Parliament itself. Parliament is an establishment of the Constitution. The Constitutional Court spoke to this openness in the context of the courts in Shinga v The State and Another (Society of Advocates, Pietermaritzburg Bar as Amicus Curiae); O’Connell and Others v The State [2007] ZACC 3; 2007 (4) SA 611 (CC) at para 26:

“Open courtrooms foster judicial excellence, thus rendering courts accountable and legitimate. Were criminal appeals to be dealt with behind closed doors, faith in the criminal justice system may be lost. No democratic society can risk losing that faith. It is for this reason that the principle of open justice is an important principle in a democracy.”

On the comparative practice it was contended on behalf of the Applicants that while some Commonwealth nations such as the UK, Australia and Canada continue to restrict the broadcasting of Parliamentary disruptions, their approach is not “best practice” nor does the exact copying of their approach make Parliament’s conduct reasonable. It is indeed true that the Constitutional Court has repeatedly emphasised that comparisons with foreign law and practice, while often illuminating, cannot be determinative of the meaning of the South African Constitution or the reasonableness of State actions. See in this regard Ferreira v Levin NO 1996 (1) SA 984 (CC) at para 72; Brink v Kitshoff [1996] ZACC 9; 1996 (4) SA 197 (CC) at paras 39-40; Minister of Finance v Van Heerden [2004] ZACC 3; 2004 (6) SA 121 (CC) at para 29.

I do not intend to spend much time on this aspect save to say that it may be correct that countries like India and Scotland do have revised broadcasting guidelines that allow televising of scenes of disorder, walk-outs etc. In my view, while it is of importance to compare what obtains in foreign jurisdictions, each country would have its own unique circumstances that ordinarily would talk to the measures to be taken in order to contain scenes of disorder and unparliamentary behaviours.

[19] In Mr Budlender’s contention democratic society risk losing faith in the legitimacy of the Legislature when obviously important and controversial events are playing out on the floor of the Assembly but the camera remains trained on the Speaker. I hasten to mention that I shall deal fully with the submissions of Mr Budlender such as the afore-going later on in this judgment. It must be mentioned that the right to an open Parliament is not of course absolute. There are limitations thereto. Section 59 (2) of the Constitution provides thus:

“59(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.” A similar provision is to be found in section 72 (2) except only that this expressly mentions the National Council of Provinces instead of the National Assembly. Of course, Parliament needs to justify any restrictions on the basic rule of access. Exceptions must at all times be reasonable. Indeed while courts will give some deference to the manner in which Parliament has elected to regulate access, ultimately it can and must assess Parliament’s actions against what is reasonable. I accept that reasonableness does include a degree of proportionality. I also accept that all citizens of this country do have a right to know what happens in Parliament and that there is a constitutional duty to ensure that citizens can and do enjoy that right. Accordingly measures taken by Parliament that tends to interfere with the exercise and enjoyment of that right must be justified and reasonable in the circumstances prevailing then.

[20] It is hardly necessary to overburden this judgment about the role of the media. The role the media plays is immeasurable and is fully documented not only in the Constitution but also in numerous decisions of our courts. For instance the Constitutional Court in Khumalo and Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC) at paras 22-24 speaking to this aspect said the following:

“The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the rights to freedom of information are respected. …

. . .

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 platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility. The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society….”

Similarly in SABC Ltd v NDPP [2006] ZACC 15; 2007 (1) SA 523 (CC) at para 28 the Constitutional Court expressed itself as follows on this aspect:

“The need for public information and awareness flows from the nature of our democracy. Public participation on a continuous basis provides vitality to democracy. This was also recognised by the House of Lords in McCartan Turkington Breen (A Firm) v Times Newspapers Ltd that ‘(t)he proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring’. A vibrant and independent media encourages citizens to be actively involved in public affairs, to identify themselves with public institutions and to derive the benefits that flow from living in a constitutional democracy. Access to information and the facilitation of learning and understanding are essential for meaningful involvement of ordinary citizens in public life. This corresponds to the vision in the Preamble to the Constitution of laying the foundations for a democratic and open society in which government is based on the will of the people. It also reflects the foundational principle of democratic government which ensures accountability, responsiveness and openness.”

[21] It is so that in the alternative to the substantive attack on the Disorder clauses, the Applicants challenge the Policy as a whole on the basis that it was adopted through an irrational process. In order to make a determination whether a decision is procedurally irrational, a Court “must look at the process as a whole and determine whether the steps in the process were rationally related to the end sought to be achieved and, if not, whether the absence of a connection between a particular step (part of the means) is so unrelated to the end as to taint the whole process with irrationality”. See: Democratic Alliance v President of South Africa and Others [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) at para 33. I discuss the alternative attack later on infra.

[22] The Applicants contend that both the Policy and the Rules are unconstitutional and that the onus rests on Parliament to justify why any restriction on the basic rule of openness and access is justified. In this regard reliance is placed on Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening (Women’s Legal Centre as Amicus Curiae) [2001] ZACC 21; 2001 (4) SA 491 (CC) at para 19 where the Constitutional Court gave the following guiding formulation:

“[19] It is also no longer doubted that, once a limitation has been found to exist, the burden of justification under s 36 (1) rests on the party asserting that the limitation is saved by the application of the provisions of the section. The weighing up exercise is ultimately concerned with the proportional assessment of competing interests but, to the extent that justification rests on factual and/or policy considerations, the party contending for justification must put such material before the Court. It is for this reason that the government functionary responsible for legislation that is being challenged on constitutional grounds must be cited as a party. If the government wishes to defend the particular enactment, it then has the opportunity – indeed an obligation – to do so. The obligation includes not only the submission of legal argument but the placing before the Court of the requisite factual material and policy considerations. Therefore, although the burden of justification under s 36 is no ordinary onus, failure by government to submit such data and argument may in appropriate cases tip the scales against it and result in the invalidation of the challenged enactment. Indeed this is such a case.”

[23] I do differ from Mr Budlender’s contention that the Policy (particularly paragraph 8.3.3.2 (a)) and the Rules of Coverage are unconstitutional. I expand on this infra later on this judgment. Looking squarely on the Disorder Clauses it is noticeable that there is no prohibition on reporting incidents of grave disorder, nor any provision providing for the removal of journalists or guests during such incidents. Paragraph 8.3.1.1 (c) of the Policy and Rules separately regulate how images and sounds provided as part of the broadcast may be used. They may not be used for instance for “party-political propaganda”, “satire, ridicule or light entertainment” or “commercial sponsorship or advertising.”

In terms of the Powers and Privileges Act it is a criminal offence to broadcast material contrary to these limitations. On behalf of the Applicants it is contended that the disorder clauses are unreasonable because preventing the broadcasting of grave disorder is futile as the public has a real interest in such incidents. Mr Budlender made the following submission (I set it out in order to deal with it later on):

“…incidents of grave disorder will be particularly revealing of those who cause it, and of those who are required to regulate it. Moments of high tension provide a window into the true nature and intentions of public representatives and parliamentary officials. The public has a right and an interest to know exactly what occurs at those times so that it can judge the behaviour of those involved.

Public scrutiny and criticism of Parliament is vital to ensure that it operates optimally. If public representatives know that whatever they do in the house will be beamed to television sets across the nation, perhaps they will behave themselves with more decorum and respect for the institution they serve. If they can live safe in the knowledge that grave disorder will only be fully observed by those present, they may feel more comfortable to act in ways unbecoming of their office.”

[23] Mr Budlender contended in his submissions that it may be that some incidents of disorder will affect the dignity of Parliament and may cause members of the public to think less of Parliament, its members or its Presiding Officers but if the dignity of Parliament is demeaned, that is a result of the conduct of its members or officers. He insisted that the public have a right to know what happens in Parliament whether that is embarrassing for Parliament or not. I do not fully agree with Mr Budlender on the above submission. I agree that the public has the right to know what happens in Parliament but that right cannot be absolute. If Parliament has seen it fit in its wisdom to place these limitations for reasons advanced in the Answering papers maybe the only question that should occupy our minds is rather whether these limitations are reasonable regard being had to what they seek to achieve. I deal further with this aspect later on in this judgment.

[24] Notably the Applicants have launched an attack on the Policy and the Rules but they have not attacked section 21 (1) of the Powers and Privileges Act. This section has been fully quoted earlier on in this judgment. The provisions of this section proscribe the broadcasting of Parliamentary proceedings except in accordance with the standing rules. It must be emphasised that Parliament’s power to adopt rules and approve policies concerning its business is provided for in the Constitution of the Republic of South Africa. Section 57 (1) (b) and 70 (1) (b) of the Constitution provide that the National Assembly and the National Council of Provinces may make rules and orders concerning their business. Section 45 (1) of the Constitution provides for the making of rules concerning the joint business of the NA and the NCOP. Failure and/or an omission (apparently made purposefully) by the Applicants to attack section 21 (1) of the Powers and Privileges Act quoted above is of significance. It is important in that it accepts that the Constitution authorises a legislative provision (a) specifically applying to televising broadcasting and electronic media; (b) with the departure point that they are not permitted, save to the extent provided for by Parliament through its own rules; (c) which will be framed by Parliament to ensure its proper functioning and the upholding of its dignity. Paragraph 8.3.3.2 (a) of the Policy (as stated before) is substantially the same as the corresponding rule in the Rules. It is based on that rule. In this regard I set out infra the contents of paragraphs 29-30 of the Answering papers which are not disputed by the Applicants in the Replying Affidavit and/or supplementary Replying Affidavit:

“29. The Policy is also informed by the internal Rules of Coverage attached as ‘BM4’. The Rules of Coverage are designed to regulate the televising of proceedings in Parliament in a manner that promotes public access, openness and accountability. The objective of the Rules is to assist the director in close collaboration with the manager of the Sound and Vision Unit, to give a full, fair and accurate account of proceedings, with the aim of informing viewers about the work of the Houses.

30. The Rules of Coverage contain guidelines for picture direction that are reasonable and further the aim of informing viewers about the work of the Houses.”

[25] In Akani Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd 2001 (4) SA 501 (SCA) at para 7 (quoted with approval in MEC for Education, Gauteng Province v Governing Body, Rivonia Primary School 2013 (6) SA 582 (CC) at para 55, and Head of Department, Department of Education, Free State Province v Welkom High School 2014 (2) SA 228 (CC) at para 217), the Supreme Court of Appeal noted that the concept “policy” may cover a wide spectrum: thus from

a stated goal (a policy on limiting poverty, or promoting literacy, for instance), to a code which regulates conduct. In the instant case the concept a ‘hard’ not ‘soft’, policy, of the latter kind. It is adopted to regulate conduct, by the entity with the power and duty to regulate it. In Permanent Secretary, Department of Education and Welfare, Eastern Cape v Ed-U-College (PE) (section 21) Inc 2001 (2) SA 1 (CC) at para 19 (p14B-D) the Constitutional Court stated:

“It should be noted that the distinction drawn in this passage is between the implementation of legislation, on the one hand, and the formulation of policy on the other. Policy may be formulated by the Executive outside of a legislative framework. For example, the Executive may determine a policy on road and rail transportation or on tertiary education. The formulation of such policy involves a political decision and will generally not constitute administrative action. However, policy may also be formulated in a narrower sense where a member of the Executive is implementing legislation. The formulation of policy in the exercise of such powers may often constitute administrative action” (underlining added). See also Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works [2005] ZASCA 43; 2005 (6) SA 313 (SCA) at para 27 (p325A-C)).

[26] It must be mentioned that the Applicants have only attacked the relevant Rule for the first time in their fourth notice of motion accompanied by the Supplementary Replying Affidavit. I agree with Gauntlett (SC) that this is an impermissible procedure. It is common cause that Parliament had already pleaded a reliance on the Rules in its Answering Affidavit which was served on 26 February 2015. Already at that stage, the Applicants contemplated the lawfulness of the Rules being determined in Part B of the proceedings. But the Applicants chose not to attack the Rule in their Supplementary Founding Affidavit. Strictly speaking the Applicants are precluded in launching this attack in the Supplementary Replying Affidavit (which is now the fourth set of Affidavits delivered by the Applicants) and from attacking the relevant rule for the first time. Van Loggerenberg D.E. et al, Erasmus Superior Court Practice page B1-45 states the following in this regard:

‘[a]ll the necessary allegations upon which the applicant relies must appear in his or her founding affidavit, as he or she will not generally be allowed to supplement the affidavit by adducing supporting facts in a replying affidavit.’

In Shepard v Tuckers Land and Development Corporation (Pty) Ltd (1) 1978 (1) SA 173 (W) at p177G the court referred to:

‘the trite principle of our law of civil procedure that all the essential averments must appear in the founding affidavits for the Courts will not allow an applicant to make or supplement his case in his replying affidavits’.

What is troubling is that no explanation is forthcoming from the Applicants except a contention by Mr Budlender that no prejudice is caused to the Respondent. The fact that the Applicants assert constitutional right does not grant them an exemption from procedural

compliance. See Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) at para 52; Fischer v Ramalhele 2014 (4) SA 614 (SCA) at para 13; South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC) at para 202.

Applicants must not make out their case as they go along and merely aver lack of prejudice. The Respondents have a legal entitlement to know what case they are called upon to answer. Such case is ordinarily made out in the Founding Affidavit. The prejudice the Respondents suffer in a matter like the present is predicated by the serial changes the Applicants make as the matter proceeds. It is contended on behalf of the Applicants that the latter are not bound by any elections made in Part A in that they reserved the right to supplement their case in Part B and were afforded that right by the 10 March 2015 court order. In Mr Budlender’s submission on this aspect there can be no objection to the Applicants taking advantage of that opportunity.

[27] In any event paragraph 8.3.3.2 (a) of the Policy, in my view, does survive the application of the proper test for reasonableness. The fact of the matter is that sections 59 (1) (b) and 72 (1) (b) of the Constitution do authorise Parliament to take reasonable measures to regulate public access, including access of the media. In other words, the very Constitution the provisions of which are heavily relied on by the Applicants as tending to grant them rights highlighted by Mr Budlender in his submissions, does not contemplate unrestricted access (free for all). It rather expressly reserves for Parliament the power to limit the access of the public, including the media, to its proceedings, provided of course that the limiting measures are reasonable. We derive guidance from the decision of the Constitutional Court in Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC) at para 127 where the Highest Court in this country confirmed that when dealing with the question of reasonableness ‘context is all-important’. Differently put, the particular circumstances relating to the measures in question do play a critical role in determining the

reasonableness of the measures taken.

[28] Mr Gauntlett referred this Court to another decision of the Constitutional Court, namely Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs [2004] ZACC 15; 2004 (4) SA 490 (CC) particularly at paras 44-45 regarding the meaning of reasonableness. In Bato Star Fishing (Pty) Ltd case supra the meaning of reasonableness (in the context of an administrative decision) was explained fully. In essence, the test is whether the ‘decision’ in question was one which a reasonable authority could reach in the circumstances, taking into account (a) the nature of the decision; (b) the identity and expertise of the decision-maker; (c) the range of factors relevant to the decision; (d) the reasons given for the decision; (e) the nature of the competing interests involved; and (f) the impact of the decision on the lives and wellbeing of those affected. The above test should and is applied having regard to the principle of the separation of powers. Importantly, in Doctors for Life case supra, the Constitutional Court guided us further in that it explained that the principle of separation of powers ‘requires that other branches of government refrain from interfering in Parliamentary proceedings’ and that Courts must be cautious not to ‘interfere in the process of other branches of government unless to do so is mandated by the Constitution.’

[29] I would agree with Mr Guantlett that even though the above postulated test for reasonableness is formulated with reference to an administrative ‘decision’ the general principles can appropriately be applied to the measures under discussion in this judgment, namely those set out in para 8.3.3.2 (a) of the Policy and the relevant rule). I need to mention that in any event it was not suggested in Doctors for Life case supra, that reasonableness has a different meaning and test if it is a legislative or executive act which is in issue. On the contrary, the Constitutional Court has repeatedly emphasised that differentiating between legislative, administrative and judicial acts is often difficult, and may in particular cases not be material. See for instance Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of the Republic of South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC) at para 79 and Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998] ZACC 17; 1999 (1) SA 374 (CC) at paras 23-24.

[30] Paragraph 8.3.3.2 (a) of the Policy has been set out supra and the relevant rule under attack must necessarily be set out hereunder and dissected thereafter.The relevant rule reads as follows:

‘Disorder on the floor of the House:

Televising may continue during incidents of grave disorder or unparliamentary behaviour for as long as the sitting continues, but only subject to the following guidelines:

(a) On occasions of grave disorder, the director should normally focus on the occupant of the Chair for as long as proceedings continue, or until order has been restored. (By “grave disorder” is meant incidents of individual, but more likely collective, misconduct of such a seriously disruptive nature as to place in jeopardy the continuation of the sitting).

(b) In cases of unparliamentary behaviour, the director should normally focus of the occupant of the Chair. Occasional wide-angle shots of the Chamber are acceptable. (The phrase “unparliamentary behaviour” is intended to signify any conduct which amounts to defiance of the Chair but which falls short of grave disorder).’

[31] Of course these measures provide for the televising of incidents of grave disorder and unparliamentary behaviour during Parliamentary

sittings. Clearly their effect is to restrict the visual feed that is broadcast in the limited circumstances in which disorder prevails. The identity and expertise of the adopter of the measures is Parliament. The measures were adopted and approved by Parliament in order to control its internal arrangements, proceedings and procedures in terms of section 57 (1) (a) and 70 (1) (a) of the

Constitution. Indeed, (clearly) in this regard the draftsmen of the Constitution found it necessary to include these provisions in the Constitution. Thus the Constitution recognises that Parliament itself is best placed to determine how it will function. Strangely even the Applicants in paragraph 39 of their Supplementary Replying Affidavit at page 714 of the papers do concede that ultimately it is Parliament that must decide what it will broadcast.

[32] The range of factors relevant to these measures can be briefly highlighted. These include but are not limited to the promotion and protection of the dignity of Parliament. The object of limiting bad behaviour during sittings; the object of broadcasting only the legitimate business of Parliament being open to the public and the media. On behalf of Parliament it has been fully explained in the Answering papers the reasons for the measures. Parliament explained that it adopted and approved these measures in order to promote and protect its dignity; to limit bad behaviour during sittings; and to ensure that the legitimate business of Parliament is broadcast, and that Parliament is not closed to the public and the media. I do not understand the Applicants as saying promotion and the protection of Parliament and its dignity do not arise. I do understand them to say “remove the limitations and measures – we shall ourselves decide what to broadcast under the guardianship and regulations promulgated by ICASA.” That would mean in effect that Parliament hands over to ICASA its own constitutionally enshrined right to regulate and/or control its internal arrangements, proceedings and procedures.

[33] Indeed the competing interests at play in the instant matter are all constitutional imperatives. In Mr Gauntlett’s submission the reasons given by Parliament for the adoption and approval of the measures in question outweigh the minor limitations they impose on the openness of Parliament. I agree with the aforementioned submission. This is fully documented in the Answering papers. No

attempts have been made to refute these contentions in the Replying papers filed. I am of the view that the actual impact of the measures on the public and the media is minor compared to the damage that may arise in the absence of these measures. It is important to note that during any incidents of grave disorder or unparliamentary behaviour the public, including the media, are not excluded from the House. They remain present to observe the happenings and they do report on this comprehensively. Both the visual and audio feeds do continue but then special guidelines apply to the filming for the purpose of visual feed. “Occasional wide-angle shots of the chamber” are still authorised in cases of unparliamentary behaviour.

[34] Parliament undeniably plays an important role in this country’s constitutional democracy. Parliament provides a forum of national importance for public consideration of issues pertaining not only to this country but other countries too. It is Parliament that passes legislation and oversees executive action. It provides a national forum for the public’s consideration of issues affecting the Provinces. See: Section 42 of the Constitution; Doctors for Life International v Speaker of the National Assembly supra at para 36. This is in fact admitted by the Applicants. There can be no dispute that Parliament is and shall always remain the principal legislative organ of the State. It therefore must carry out its functions without interference. It should thus not be strange that Parliament is empowered by the Constitution to determine and control its internal arrangements, proceedings and procedures. See:

sections 57 (1) (a) and 70 (1) (a) of the Constitution; Doctors for Life International v Speaker of the National Assembly supra at para 36. The Applicants have openly admitted this in their papers. The preamble to the Powers and Privileges Act includes the following:

‘AND WHEREAS it is considered essential to provide for such further privileges and immunities in order to protect the authority, independence and dignity of the legislatures and their members and to enable them to carry out their constitutional functions’ (underlining added).

[35] The above Act expressly recognises the authority, independence and dignity of the legislatures and their members. This too is not denied by the Applicants. They expressly admit this. Parliament strives in the execution of its constitutional mandate to promote and protect its dignity. Responsible broadcasting is and remains the key to maintaining the authority and dignity of Parliament. This too is admitted by the Applicants in their papers. Undoubtedly the measures in question do ensure that incidents of grave disorder or unparliamentary behaviour are acknowledged. Yet in truth the measures under discussion do protect the dignity of Parliament by tempering the especially strong impact that the visuals of disorderly conduct, if broadcast to the world and played repeatedly (as television often does), would have. In South African Broadcasting Corporation Ltd v Downer NO [2006] SCA 89 (RSA) (an unreported judgment of the Supreme Court of Appeal) at para 21, the special impact of visual images was recognized in that the court highlighted –

‘the inescapable fact ... that television has an impact on the viewer unrivalled by any other news medium. It conveys actuality with

greater accuracy and force and visual images tend to impress more readily than a radio transmission or a newspaper article.’

Additionally it to be noted that in South African Broadcasting Corporation Ltd v National Director of Public Prosecutions [2006] ZACC 15; 2007 (1) SA 523 (CC) at para 68, the Constitutional Court highlighted what it described as “the intense impact that television, in particular, has on the viewer, in comparison to the print media”. The Court emphasised that this, together with the ability to edit the material, “has the potential to distort the character of the proceedings” especially in the context of “edited highlights – packages”.

[36] The above observations were made in the context of court proceedings though. But they apply with equal force to proceedings depicting disorderliness and unparliamentary behaviour playing itself in Parliamentay Chamber and/or in the Committee Rooms of Parliament. These measures are designed and/or they seek to discourage the occurrences of such incidents in the Chamber or Committee Room. Paragraph 15 of the Respondents’ Answering papers (page 577 of the record) talks to this aspect. I deem it necessary to set out paragraph 15 infra as follows:

“15. In Addition, the unqualified default position sought by the Applicants can only encourage the worst behaviour in Parliament. This is because Parliament would be obliged, irrespective of the degree of misconduct or grave disorder, to feed it for broadcasting. The Applicants’ response is that they too, have duties. Pursuant to these Parliament must decide what is to be provided by live feed in relation to what constitute grave disorder, or conduct which is unparliamentary, in terms of its Rules. Parliament cannot facilitate the undermining of its own dignity as a constitutional institution, or the disruption of its own work. Ensuring (as the Applicants seek) that even the grossest misconduct and gravest disorder will be viewed without restriction in real time by the nation and beyond can only undermine what section 21 of the Powers Act seek to avoid. This when the Applicants accept that section 21 itself cannot be challenged.”

I fully agree with the above exposition. In my view, it is the reflection of the truth such that it cannot be faulted. I also agree

with the assertion made in paragraph 52 of the Answering papers (page 590 of the record of proceedings). For completeness sake I also set out infra paragraph 52 of the Answering papers:

“52. In this way, the incidents are not ignored, but the consequences that visuals of disorder and defiant conduct would have if broadcast to the world, and played repeatedly, is mitigated. An audience for conduct striking at the heart of Parliament’s functioning would be guaranteed, and such ill-discipline would thereby, be encouraged.”

Mr Gauntlett contended quite correctly that this is not, as the Applicants would have it, a matter of censorship – as little as it is censorship for courts to restrict (as they do) the live feed of film of a distraught witness or misbehaving counsel. Mr Gauntlett concluding on this aspect submitted thus:

“The function of neither Parliament nor the courts is to sustain a (remunerative) appetite for reality television.”

[37] The provisions of sections 57 (1) and 70 (1) of the Constitution empower Parliament to make rules and orders concerning its business. Indeed the various rules and policies adopted and approved by Parliament are essential for its ordered operation. The Applicants admits the afore-going in their Replying papers. I take comfort in accepting that when a member obstructs or disputes

Parliament’s proceedings or unreasonably impairs Parliament’s ability to conduct its business in an orderly and regular manner acceptable in a democratic society, that member’s conduct is not legitimate Parliamentary business. What it does is that it undermines rather than promotes the proper functioning of Parliament and the fulfilment of its constitutional obligations. The Supreme Court of Appeal in Speaker of the National Assembly v De Lille 1999 (4) SA 863 (SCA) at para 16 held that Parliament’s power to control its proceedings includes the power to exclude from the NA any member who is disrupting or obstructing its proceedings or ‘impairing unreasonably its ability to conduct its business in an orderly or regular manner acceptable in a democratic society.’

[38] Accordingly, there is no obligation on Parliament to broadcast conduct that clearly obstructs or disrupts its proceedings and

conduct that unreasonably impairs its ability to conduct its business in an orderly and regular manner acceptable in a democratic society simply because such conduct is not legitimate Parliamentary business. Thus regard being had to all relevant factors, the measures under discussion in the instant matter are ‘reasonable measures’ employed to regulate public access, including access of the media, to Parliament. When one contrast this with the suggestion by the Applicants in the founding papers that Parliament must feed for broadcasting visuals of the grossest behaviour and gravest disorder without limitation the latter is and remains unreasonable.

[39] Mr Gauntlett was concerned that the extensive relief for a declaration that the whole of the Policy is unconstitutional and

invalid is only sought by way of a belated amendment and in the alternative to the Applicants’ attack on paragraph 8.3.3.2 (a) of the Policy and the relevant rule. He pointed out that, however, in addition to the fact that the Applicants previously expressly

disavowed any attack on the Policy beyond paragraph 8.3.3.2 (a) there are flaws in the alternative relief. In his submission, the

Applicants made a procedural election to which they should be held. Indeed the binding nature of a procedural election is analysed by Hoexter JA in Chamber of Mines of South Africa v National Union of Mineworkers 1987 (1) SA 668 (A) at 690 D-H. It is not necessary for purposes of this judgment to consider Hoexter JA’s analysis. Mr Gauntlett highlighted what he called “fundamental flaws” in the alternative relief sought.

[40] Notably, the Applicants’ challenge on the whole of the Policy is premised on an alleged failure on the part of Parliament to involve the public, including the media, in the Policy’s approval. It is clear though that in terms of section 167 (4) (e) of the Constitution, the Constitutional Court (not this Court) has exclusive jurisdiction and/or competence to make a determination

whether Parliament has failed to fulfil a constitutional obligation. The obligations to ‘facilitate public involvement in the legislative and other processes’ (as set out in sections 59 (1) (a) and 72 (1) (a) of the Constitution) to the extent that they arise in a particular context are such obligations. In Doctors for Life case supra the Constitutional Court held that:

“[the question whether Parliament has fulfilled its obligation under s 72 (1) (a) therefore requires this Court to decide a crucial

separation-of-powers question and is manifestly within the exclusive jurisdiction of this Court under s 167 (4) (e) of the Constitution.”

Clearly this Court lacks jurisdiction to determine the Applicants’ attack on the Policy as a whole. It is concerning that the Applicants failed and/or omitted to challenge the Policy “as soon as practicable” after it was approved. The requirement of “as soon as practicable” is articulated in Doctors for Life case supra as a basis on which an Applicant’s standing must be found. More than eleven (11) years have passed since the Rules were adopted. The Policy itself has been in operation for almost six (6) years. The Applicants contend that they were not aware of the existence of the Policy. They work in Parliament and they are watchdogs for media freedom. It is difficult to accept that it was only on 27 January 2015 that the Applicants became aware that there is a Policy in place. I point out that the delay is inexcusably long.

The papers show, however, that the Applicants have all along been complying with the impugned provisions for so many years. I would not blame Mr Gauntlett in using the maxim “Dormentibus non succurrit jus: the law does not aid those who sleep”.

[41] Despite the above I proceed to consider the merits of the Application on this alternative challenge. In Doctors for Life supra at paragraphs 128 and 146 the Constitutional Court held that Parliament must act reasonably in giving effect to its obligations – to facilitate public involvement, and that the reasonableness of Parliament’s actions must be determined having regard to all relevant factors, including (a) the nature and importance of the legislation in question; (b) the intensity of its impact on the public; (c) any rules (already) adopted by Parliament relating to public participation; (d) the urgency with which the legislation must be enacted; and (e) of particular importance, Parliament’s own assessment as to the appropriate level of public involvement that is required in the circumstances. It was in the same Doctors for Life case supra that the Court also confirmed that the Constitution allows Parliament “significant leeway” to fulfil its obligation to facilitate public involvement in its processes. See paragraphs 139 of the judgment in Doctors for Life case supra; See also King v Attorneys Fidelity Fund Board of Control 2006 (1) SA 474 (SCA) at para 22.

[42] It shall be recalled that in Doctors for Life case supra Parliament had decided that public hearings (in the Provinces) would be held for two of the impugned bills. In the case of one of those bills (six of the nine Provinces failed to hold hearings) and in the case of the other bill (seven of the nine Provinces failed to hold hearings). It was held that Parliament’s failure to hold the hearings was unreasonable in the circumstances.

But in the case of another bill the Court held that Parliament’s failure to hold hearings (or invite written submissions) was not unreasonable given the nature of the bill and Parliament’s own assessment that public participation was not required.

[43] In the instant matter the Answering papers reveal that the Rules and Policy were adopted and approved by Parliament following an open, full, cross-party deliberative process. These were adopted and approved after careful consideration – drawing (as it were) on the cumulative experience of members from across the political spectrum – as to which measures would best promote the dignity and functioning of Parliament. In my view, Parliament acted reasonably especially considering that the Rules and Policy relate to its ‘internal arrangements’ as described in sections 57 (1) (a) and 70 (10 (a) of the Constitution. See: Woolman, S et al, Constitutional Law of South Africa, 2e, Vol 1 at p. 17-97 comments that ‘(as [Parliament’s] rule making power concerns the inner working of the legislature, the judiciary will rightly be hesitant to intervene.’

I conclude that the challenge levelled against paragraph 8.3.3.2 (a) and the relevant rule as well as the alternative in terms of which the Policy as a whole is sought to be declared unconstitutional and invalid must fail.

(B) THE JAMMING DEVICE

[44] The Applicants seek a declaration that the use of the jamming device at SONA was unlawful. Ordinarily a device that jams or disrupts a mobile telephone’s signal operates by broadcasting a signal at the same frequencies as those used by mobile telephone network service providers, and this prevents the mobile telephone from access to those signals. The use of such broadcasting equipment requires a licence under the Electronic Communications Act 36 of 2005. Such licences are ordinarily issued by ICASA. However, there is an exception which ICASA recognises. It is common cause that the device under discussion was brought and used in Parliament not by the First to Third Respondents and not by the Fourth Respondent but by the State Security Agency. It is so that section 4 of the Powers and Privileges Act provides that members of the security services may enter or remain in the precincts of Parliament for purposes of performing any policing function there only with the permission and under the authority of the Speaker or the Chairperson. Section 4 (2) of the Powers and Privileges Act, however, provides that when there is immediate danger to the life or safety of any person or damage to any property members of the security services may without such permission enter upon and take action in the precincts in so far as it is necessary to avert the danger – in the latter event a report must be made soon to the Speaker and Chairperson. The Applicants rely on the provisions of section 4 of the Powers and Privileges Act to contend that the device employed was without the permission of the Speaker or Chairperson and that therefore it was installed unlawfully.

[45] The Answering papers make it plain that the security for the attendees of the SONA was discussed by the Respondents and the

Security Agency. The Speaker and the Minister make it plain that the use of the device was a matter of detail and that “[D]etails of the security measures are not discussed with a principal such as the Speaker or the Chairperson; such matters are left to our discretion”. In fact the Speaker puts it in a rather understandable way in paragraph 58 of the First to Third Respondents’ Supplementary Answering Affidavit where she explained thus:

“58. In the days running up to the SONA the Minister informed us at a briefing at Parliament that the national Joint Operational and Intelligence Structure proposed to attend to the security arrangements for the officials who would be attending the event. We were not informed of the specific interventions that would be applied to avert any security threats. Operational details are not disclosed to us. In particular, we were not advised that the jamming of radio signals would take place shortly before SONA.”

[46] In any event it is contended on behalf of the Respondents that the jamming relief sought by the applicants is purely academic in that it has been shown that the incident was a once-off occurrence and no reason exists for believing that telecommunications will be hindered during open sittings in the future. In passing it may be mentioned that a High Court’s jurisdiction to grant declaratory relief is provided for in section 21 (1) (c) of the Superior Courts Act 10 of 2013 which is substantially the same as section 19 (1) (a) (iii) of the (old) Supreme Court Act 59 of 1959. Mr Budlender contending that the determining of the legality of government conduct remains a live issue relied on Buthelezi and Another v Minister of Home Affairs and Others [2012] ZASCA 174; 2013 (3) SA 325 (SCA).

However, the above case can be distinguished from the instant matter, in my view. There was no explanation in Buthelezi’s case that tends to show a bona fide mistake on the part of an employee like it happened herein.

[47] I have briefly referred to section 4 of the Powers and Privileges Act. In the instant matter clearly prior to the SONA, the Speaker authorised members of the security services to ‘enter upon’, and ‘perform’ their policing functions in the precincts of Parliament for purposes of SONA. I cannot see what blame can be apportioned to the First to Third Respondents on the question of the jamming device. Once this was brought to their notice even before the SONA proceedings had begun, they swiftly ensured this was attended to and deactivated and/or removed. In my view, the Applicants have made no case at all against the First to Third Respondents regarding or pertaining to the jamming device. Indeed given the Minister’s acknowledgment of the mistake as well as an acknowledgment of a general duty to ensure the openness of Parliament, obtaining declaratory relief to the effect that the continued use of the device was unconstitutional and therefore unlawful, in my view, will serve no purpose whatsoever. Perhaps for purposes of completeness one should briefly explain how this mistake is alleged to have happened.

[48] SONA was classified as major in relation to the risks and security threats. One of the threats to be guarded against was the potential risk of hidden explosive devices which can be activated by the use of a radio signal of a cell-phone (including such devices that may be carried on remote controlled drones). The Fourth Respondent’s Supplementary Answering Affidavit makes it plain that the risks posed by such explosive devices were at its highest whilst the President, the Deputy-President and the dignitaries were outside the Parliamentary Chamber. It goes on to explain that once they have entered the Chamber, the potential threat posed by hidden explosive devices which could be remotely detonated by radio or cell-phone signals were no longer relevant because then the Chamber had been swept prior to SONA session to ensure that no explosive devices were present in the Chamber.

[49] It is important to note that the Agency used signal disrupting devices to ensure that the potential threat posed by such explosive

devices (whilst the President, Deputy-President and dignitaries were outside the chamber) was effectively countered. Once they had entered the secured environment of the Chamber, there would have been no further need for the device to remain operational and it should have been switched off. If the device had been switched off as planned, there would have been no interference with cell-phone signals at the start of SONA. The unfortunate error, however, crept in as the individual tasked with the switching off of the signal disruptor inside the Chamber did not switch it off timeously as planned. This was swiftly attended to and the signal disruptor deactivated and/or switched off upon the complaint by members of the House. I accept that (as Mr Blose who deposed to a Supplementary Answering Affidavit on behalf of the Fourth Respondent stated) was indeed an isolated incident. The employment of any means (including the use of signal disruptors) to protect the President, Deputy-President and dignitaries against the potential threat (real or perceived) of a remote controlled explosive device (whilst still outside the Chamber and prior to the start of SONA) under the circumstances explained by Mr Blose, was in my view, entirely justified and was not unlawful.

[50] Mr Jacobs (SC), contending that the issue of jamming device is now moot submitted that there is no live controversy requiring

adjudication. In his submission, the effect of a declaration of unconstitutionality and unlawfulness relating to the signal disruptor

device would amount to the Court having to provide an advisory opinion on abstract propositions of law. He relied on two cases by the Constitutional Court, namely JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others [1996] ZACC 23; 1997 (3) SA 514 (CC) at 526 F where at paragraph [17] Didcott J inter alia, held that:

“There can hardly be a clearer instance of issues that are wholly academic, of issues exciting no interest but an historic one, than those on which our ruling is wanted have now become.” In Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3) SA 925 (CC) at 933 B, para [12] the Constitutional Court held that:

“[12] There is no live controversy between the parties. The elections are over and there is no suggestion that any order we make could have any impact on them.”

[51] It is common cause that the Applicants in Part A sought interdictory relief relating to the “signal jamming” at the SONA which had taken place on 12 February 2015. This relief was abandoned clearly because the Applicants must have come to a realisation that the interim interdictory relief would have no practical effect – SONA had come and gone – no signal jamming having occurred during the actual SONA debate. Mr Jacobs is, in my view, correct in contending that the declaration of unconstitutionality and unlawfulness in this regard, is confined to the SONA on 12 February 2015 and that the effect of the order sought in Part B is limited to an historic event. At the risk of being repetitive, I highlight that in effect the Applicants contend that although the Security Agency obtained the permission of the Speaker or the Chairperson to perform “a policing function”, it failed to specifically obtain permission to employ the device and without such specific permission, its use was unlawful.

[52] The Founding papers do not dispute that members of the Agency had permission to enter and remain in the precincts of Parliament for the purposes of performing any policing function. Policing or policing function was defined by the Supreme Court of Appeal in National Lotteries Board v Bruss NO 2009 (4) SA 362 (SCA) at 367 E-F para [25]. Section 4 (1) (b) of the Powers and Privileges Act does not require permission in respect of the manner in which and the equipment with which the “Policing function” would be performed. Clearly how and what equipment the policing function for which permission was given is to be performed is a matter falling squarely within the discretion of the Security Agency. It must be accepted that the Agency has the necessary knowledge and expertise to decide what equipment is reasonably required to properly fulfil their policing function in the Parliamentary precincts for the purposes of the SONA. The Speaker would have no such knowledge and expertise.

[53] Section 12 of the Intelligence Services Act 65 of 2002 (“the Intelligence Services Act”) provides the authority for the acquisition and use of signal disruptor devices by the Agency. It is not necessary that I set out infra the provisions of section 12 of the Intelligence Service Act. I am of the view, in any event, that it would be wrong that this Court denies the Agency the use of the devices when circumstances demand same to be used in order to counter any threat or potential threat to national security. It may be mentioned in passing that the Independent Communications Authority of South Africa (ICASA) considered the use of signal disruptors for “mobile telephone blocking devices” and published its findings in Government Gazette 24123 general notice 3266 of 28 November 2002. ICASA determined that:

“The National Security Cluster Department (i.e. Defence, Justice, Intelligence, SAPS, Scorpions and Correctional Services) will have

alternative legislation to support them in their tireless efforts against organized crime, rehabilitation and State security functions.”

ICASA even exempted the Agency from having to obtain a radio frequency spectrum licence as contemplated in section 31 (6) and section 32 (1) of the Electronic Communications Act 36 of 2005. The alternative legislation used by the Agency is the Intelligence Services Act and this Act authorises the acquisition and the use of equipment for the efficient functioning of the Agency, such as signal disruptors.

[54] The Applicants contend differently from what Mr Blose avers. The Applicants are of the view that the security threat was at its highest when all dignitaries including the President and his Deputy were present in the Chamber. They therefore contend that it would have been irrational to have switched off the signal disruptor at the stage. Obviously this contention totally loses sight of and fails to appreciate the reasons given by Mr Blose in his Answering Affidavit and the Supplementary Answering Affidavit as to why the signal disruptor should have been switched off once the President and Deputy-President had entered the Parliamentary Chamber. The explanation Mr Blose gave is fairly straightforward and easy to comprehend. He explained that the operational plan in respect of the SONA was to employ the signal disruptors up and until the stage when the President and the Deputy-President had entered the Parliamentary Chamber. Once that had happened the signal disruptor would be switched off. In simple terms once they had entered the Parliamentary Chamber, the security threat posed by hidden explosive devices (which could be remotely detonated by cellular phones or radio transmitters) decreased as the Chamber had previously been inspected (“swept”) to ensure that no explosive devices were present in the Parliamentary Chamber. It was never intended as part of the operational plan that

the signal disruptors would remain in operation once the President and the Deputy-President had entered the Chamber and the SONA had commenced.

[55] Mr Jacobs submitted in conclusion that there is nothing irrational or unlawful in the Agency’s decision to have signal disruptors in operation whilst the President and the Deputy-President were not yet in the secured Chamber. There is no denial in the Founding papers as amended and supplemented of the fact that the signal disruptor remained operative beyond the intended time for its use as a result of a regrettable mistake. In fact, all parties (Respondents included) are in agreement that this should not have happened.

CONCLUDING REMARKS

[56] Undoubtedly televising and broadcasting (and now electronic transmitting) are potent in that they have immediacy, and they reach an audience unparalleled in human history. Indeed projecting graphic images and sound and as they happen into homes, offices and public places is undeniably a phenomenon of the age. But the Applicants as shown above conceded the constitutionality of section 21 of the Powers and Privileges Act. This tacit concession of section 21 of the Powers and Privileges Act means and must mean that the Applicants accept this, and that as a consequence there can be no constitutional objection to these forms of media being dealt with differently to print media under our Constitution.

[57] It must also be mentioned that the Applicants indeed further tacitly conceded (as Mr Guantlett pointed out) that there is no

constitutional objection to section 21’s departure point: that, in contrast with the position pertaining to the print media, all such communication from Parliament is proscribed except to the extent that Parliament’s rules permit it. I hasten to point out that of course Parliament’s rules do not do so at whim. The departure point is therefore that Parliament must decide – because it clearly affects its functioning and dignity. It is very important to add that it is for Parliament to decide (not this Court) because its determination is vital to its high and separate place in the structure of the Constitution of the Republic of South Africa. Court control of what Parliament decides as regards the way it functions must always have the most careful regard for this. Subjecting Parliament to the continued control of the Courts is in principle problematical and not justified by the extraordinary single instance sought by the Applicants herein.

[58] To succeed the Applicants needed to show that Parliament’s determination regarding televising of gross disorder and unparliamentary conduct is unreasonable. This, in my view, they failed to do. It needs mentioning that unreasonableness has a high

standard. That is and must particularly be so when an independent constitutional institution has, through its own internal, cross-party

processes, drawing on the experience of its own members and with regard to the practice under other constitutional democracies

elsewhere, done exactly what sections 59 (1) (b) and 72 (1) (b) of the Constitution contemplated for all legislatures. It is my finding (as demonstrated earlier on in this judgment) that it was not at all unreasonable for Parliament to decide that visuals of unparliamentary conduct and gross disorders should not be broadcast (as the Applicants demand) in real time, frame by frame, of what may be the most egregious conduct. In my view, it is Parliament’s sense that this can only foster such conduct by ensuring an audience for it far beyond Parliament. It can only weaken discipline in Parliament, undermine and jeopardise its functioning.

[59] The Applicants’ argument that they or at least ICASA, by way of backstop – will ensure that some control is maintained on what they disseminate, in my view, misses the point. The fact of the matter is that the Applicants are not concerned with Parliament’s

dignity or functionality. The Applicants are rightfully concerned with their own audiences. Whilst it must be acknowledged that the Applicants are the very cornerstone on which the community is built in the sense that without the role they play in informing the public about what is happening in every corner of this country, the public would be poorer in knowledge but the Applicants are also involved in their own business. As Mr Gauntlett pointed out that the size of the Applicants’ audiences determine their revenue. It is reasonable to accept that the Applicants have every interest in expanding their audiences and not in any way limiting them. ICASA is the Applicants’ regulator. ICASA is not Parliament’s regulator. Powers, norms and concerns of ICASA are not those of Parliament.

[60] The argument by analogy – the argumentum e simili always has limitations. See in this regard Die Spoorbond v South African Railways 1946 AD 999 at 1012 per Schreiner JA. How, in principle, (asked rhetorically) does the Applicants’ claim to an untrammelled entitlement (despite sections 59 (1) (b) and 72 (1) (b) of the Constitution and section 21 of the Powers and Privileges Act) to broadcast the most aberrant behaviour in Parliament differ from what they have not yet felt able to claim for court televising and broadcasting? In televising court proceedings there are always restrictions put in place. The Applicants have accepted the restrictions which are certainly comparable to those at issue in the instant matter. By accepting the restrictions imposed by various courts on televising and broadcasting of proceedings there (in courts), the Applicants clearly concede that the dignity and functionality of the courts should properly prevail over their insistence on ‘showing all’, however aberrant or even grotesque. Strangely the Applicants clearly are refusing to recognize Parliament’s parallel claim to even an approximate consideration in doing its own work.

[61] Lastly, I am of the view that courts should guide against the conduct which amounts to what can be described as an intrusion into the constitutional domain of Parliament which is not only unprecedented but which has obvious major constitutional implications. If I were to grant the order sought by the Applicants herein standing rules and procedures established by the Houses of Parliament in terms of their constitutional obligation to control their internal arrangements, proceedings and procedures would have to be amended. This would certainly amount to the court usurping the constitutional powers of not only Parliament but Houses of Parliament including Provincial Legislatures.

[62] In my understanding, underpinning Parliament’s opposition to relief sought by the Applicants is the fact that Parliament is and remains an institution of State of the highest constitutional importance. Parliament is constitutionally entitled to ensure its functioning and to protect its own dignity. I have stated earlier on in this judgment that the impugned measures (in my finding) are reasonable, justifiable and proportionate. Indeed the unqualified default position sought by the Applicants can only encourage the worst behaviour in Parliament. The policy under attack is itself a reasonable regulatory instrument for ensuring that, within its capacity, Parliament provides information to the public about its business that is fair, accurate (and I would add), comprehensive. The Policy does strike a balance between the rights of the public to be informed about Parliament and the duty to maintain the dignity of Parliament and its Houses. As to the question of costs it is so that the general rule dictates that a successful party becomes entitled to an order of costs against the unsuccessful party. In effect this means that if the Applicants are successful then the Respondents must be ordered to pay costs of this litigation. But this, being constitutional litigation, in keeping with Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 231 (CC) at para 21, if this application is dismissed (as it must) each of the parties should pay its own costs. See also Tebeila Institute of Leadership Education, Government and Training v Limpopo College of Nursing [2015] ZACC 4 (as yet unreported Constitutional Court judgment) at paras 4, 5.

ORDER

In the circumstances I make the following order:

(a) The application for the relief sought in terms of Part B in these proceedings is hereby dismissed.

(b) Each of the parties in these proceedings shall pay its own costs.

I agree.

HENNEY, J

SAVAGE J:

Introduction

1 I have had the advantage of reading the judgment of my colleague Dlodlo J with which I respectfully am unable to agree.

2 This application arises from two events at the President’s State of the National Address (‘SONA’) on 12 February 2015 in Parliament, which was televised nationally and in respect of which there was considerable public interest. The first of these events was the use by the State Security Agency immediately prior to and at the commencement of the SONA of a device in Parliament that blocked all mobile telecommunication signals. For those people present at Parliament the use of this device had the effect that they enjoyed no telecommunication signal and were unable to communicate using such signal for the period that the device was

in use and until the signal was restored. The respondents acknowledge that this was a mistake and the fourth respondent has apologised for it. Nevertheless, the applicants seek a declaration that the use of this device to interfere with telecommunications was unconstitutional

and unlawful (‘the jamming relief’).

3 The second event arose following restoration of the telecommunication signal. The President commenced with the delivery of the SONA until a ‘question of privilege’ was raised by a member of the Economic Freedom Fighters (‘EFF’). What followed were exchanges between the Speaker and various members of the EFF. The Speaker wished the proceedings to continue while the members of the EFF sought to address certain questions to the President. The Speaker took the view that the members of the EFF were not acting in accordance with the rules of Parliament and asked that they either allow the proceedings to continue or leave the Chamber.

The EFF refused to do so and the Speaker called the Sergeant at Arms and then security personnel to remove the members of the EFF from the Chamber. At this point, with a glimpse of security personnel entering the Chamber, the camera in the Chamber recording proceedings was focused solely on the Speaker and the Chairperson until the members of the EFF had been removed from the Chamber. For members of the public watching the television broadcast the only visuals televised from this point were of the Speaker and Chairperson until the EFF members had been removed after which the ordinary television broadcast resumed. Video recordings of the removal of the EFF members from Parliament, filmed by individuals who had witnessed events in Parliament, were thereafter posted on the internet and made available for public viewing.

4 Arising from this event the applicants seek relief including:

1. an order declaring that paragraph 8.3.3.2(a) of Parliament’s Policy on Filming and Broadcasting of Parliament (‘the Policy’) and paragraph 2 under the heading ‘Treatment of Disorder’ of Parliament’s Television Broadcasting ‘Rules of Coverage’ (‘the Rule’) are unconstitutional, unlawful and invalid;

2. a declaration that the manner in which the audio and visual feeds of the SONA were produced and broadcast by Parliament was unconstitutional and unlawful; and

3. an order directing Parliament to broadcast its proceedings in circumstances of ‘grave disorder’ and ‘unparliamentary conduct’ subject to certain provisos.

5 In the alternative, the applicants seek an order of constitutional invalidity against the Policy as a whole.

Amendment sought

6 The applicants in three previous notices of motion attacked only clause 8.3.3.2(a) of the Policy and did not raise an attack against the Rule. This caused the respondents in their answering papers to take issue with the relief sought on the basis of mootness in that without an attack against the Rule, it would remain in force even if the challenge to the Policy were to succeed.

7 Consequently, with less than three weeks before the hearing of the matter, the applicants sought to introduce for the first time a challenge to the Rule. I see no reason why this amendment should not be allowed. The content of the Rule is materially the same as that of paragraph 8.3.3.2(a) of the Policy already attacked. The respondents are therefore aware of the substance of the case that they are called upon to answer and have been provided with an opportunity to do so. No prejudice arises in allowing the amendment and, given the nature of this matter and the public interest in it, there are to me compelling reasons why this Court should exercise its discretion to allow a proper ventilation of the dispute between the parties and consider the matter before it in all of its parts.[1]

8 I proceed to consider the attack against the Policy and the Rule (‘the broadcasting relief’) first and thereafter the relief sought relating to the use of the telecommunication signal jamming device (‘the jamming relief’).

Broadcasting relief

Issues in dispute

9 It is necessary at the outset to state what this matter does not concern. It does not concern whether the Constitution obliges Parliament to ‘conduct its business in an open manner, and hold its sittings, and those of its committees, in public’. Sections 59(1) and 72(1) of the Constitution provide as much.

10 It does not concern whether the Constitution confers on Parliament the power to take ‘reasonable measures’ to regulate public access, including that by the media, to the National Assembly (‘NA’) and National Council of Provinces (‘NCOP’) in sections 59(1)(b) and 70(1)(b). This matter also does not concern what measures may possibly be reasonable to regulate access to Parliament or the circumstances under which this may be so.

11 What the matter concerns is whether the measures taken by Parliament in clause 8.3.2.2 (a) of the Policy and paragraph 2 of the Rules of Coverage (‘the measures’) are reasonable measures within the meaning of sections 59(1)(b) and 72(1)(b) to limit the open and public nature of Parliamentary sittings and whether they comply with the Constitution and the law.

Basis of the applicant’s attack

12 The applicants attack the measures on the basis that they are unreasonable and inconsistent with a right to an open Parliament which they argue arises from the obligation on Parliament to conduct its business in open and in public contained in s 59(1) and s 72(1) of the Constitution. In addition, they rely on Parliament’s obligation to facilitate public involvement in its legislative and other processes as creating a right to public participation in Parliament with ‘public access to Parliament…a fundamental part of public involvement in the law-making process’,[2] which right is unduly restricted, they argue, by the measures.

13 The applicants contend that the right in 16(1) of the Constitution to freedom of expression, which includes freedom of the press and other media, has been emphasised to be a ‘cornerstone of democracy’ by the Constitutional Court most recently in Democratic Alliance v African National Congress and another.[3] As a result they argue that the Constitution recognises that people in our society must be able to hear, form and express opinions freely, and that political speech is at the heart of this right. It follows, they say, that in order to exercise these rights, knowledge of what occurs in Parliament is required.

14 The applicants ask this Court to interpret the reasonableness of the measures in light of the right to an open Parliament, to public participation in Parliament, given the right to freedom of expression and political rights and against the backdrop of other provisions of the Constitution including the preamble; the founding values of accountability, responsiveness and openness contained in s 1(d); s 36(1) and 39(1) which refer to ‘an open and democratic society’; the requirement that all spheres of government provide transparent and accountable government; and the requirement in s 57(1)(b) and s 70(1)(b) that in making rules Parliament must have ‘due regard to representative and participatory democracy, accountability, transparency and public involvement’. South Africans, the applicants say, have the right to see and hear for themselves what occurs in Parliament and to know how their elected representatives conduct themselves, in order to assure themselves that the proceedings of Parliament are conducted fairly. This right, the applicants say, is unreasonably constrained by the measures adopted.

Respondent’s submissions

15 The respondents rely on Parliament’s entitlement in s 59(1)(b) and s 72(1)(b) to take reasonable measures to regulate access to Parliament by the public and the media. They defend the measures as reasonable on the basis that they protect and promote the authority and dignity of Parliament and that Parliament is entitled to such protection.

16 The respondents’ contend that the public is only entitled to have the legitimate business of Parliament broadcast or televised, that the conduct of a member who obstructs or disrupts Parliament’s proceedings is not engaged in legitimate parliamentary business and it would be unreasonable to require Parliament to feed broadcasting visuals of such behaviour to the media.

17 The respondents take the view that the broadcast of instances of grave disorder or unparliamentary behaviour will only encourage further such behaviour, that any limitation imposed by measures is minor in nature and not unreasonable and the measures accord with international best practice.

Applicable legislative provisions

Constitutional provisions

18 The starting point of the enquiry is section 59 of the Constitution which provides that:

‘(1) The National Assembly must-

(a) facilitate public involvement in the legislative and other processes 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) 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.’

19 Section 72 provides the same for the National Council of Provinces.

20 Sections 57(1) and 70(1) empower Parliament to ‘determine and control its internal arrangements, proceedings and procedures’ and ‘make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.’

21 These provisions exist in the context of section 42(3) of the Constitution which provides:

‘…(3) The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.’

Policy on Filming and Broadcasting

22 Section 21(1) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 prohibits the broadcasting or televising of proceedings of Parliament unless authorised by Parliament.[4]

23 Parliament’s 2009 Policy on Filming and Broadcasting of Parliament provides that ‘(f)ilming in the chambers can only be done with the permission of the relevant Presiding Officer’ and does not permit filming for private purposes in Parliament.[5] Only broadcasters accredited by the Presiding Officers may obtain the official composite sound and vision feed provided by the Sound and Vision Unit of Parliament[6] and the broadcast and rebroadcast of proceedings of Parliament may be made only from this official composite feed.[7]

24 Clause 8.3.1.1 of the Policy provides that:

‘Live broadcast and rebroadcast on television of the proceedings and excerpts of proceedings of Parliament may be authorised under the following conditions:

(a) Only broadcasters accredited by the Presiding Officers may obtain the official composite sound and video feed provided by the Sound and Vision unit of Parliament.

(b) Broadcast and rebroadcast of the proceedings of Parliament may be made only from the official composite sound and vision feed provided by the sound and vision unit of Parliament.

(c) Broadcasting on television must respect the dignity and decorum of Parliament, and must only be used for purposes of fair and accurate reports of proceedings, and must not be used for:

(i) party political propaganda of any kind;

(ii) satire, ridicule or light entertainment; and/or

(iii) commercial sponsorship for advertising;

(d) Fairness and accuracy should be observed, and reports of proceedings must provide a balanced presentation of different views.

(e) Excerpts of proceedings must be placed in context…’

25 A complete archive of ‘the clean feed of the proceedings’ is to be maintained, with authority of the Secretary of Parliament for the supply of copies of proceedings to any other person or organisation [8]

26 Under the Policy the control of ‘broadcasting falls under the Presiding Officers and Chairperson, with the manager of the Sound and Vision Unit as the line function manager’.[9] It provides that instructions of the Presiding Officers ‘in relation to the operation of the Sound and Vision equipment in the chambers’ must be observed, with the instructions of Presiding Officers observed ‘in respect to broadcasting of House proceedings’.[10]

27 Paragraph 8.3.3 of the Policy concerns the ‘Management of Disorder’. Paragraph 8.3.3.2 headed ‘Disorder on the floor of the House’ states:

‘a) Televising may continue during continued incidents of grave disorder or unparliamentary behaviour for as long as the sitting continues, but only subject to the following guidelines:

I. On occasions of grave disorder, the director must focus on the occupant of the Chair for as long as proceedings continue, or until order has been restored; and

II. In cases of unparliamentary behaviour, the director must focus on the occupant of the Chair. Occasional wide-angle shots of the chamber are acceptable.’

28 The policy defines ‘unparliamentary behaviour’ as ‘any conduct which amounts to defiance of the person presiding over the proceedings, but which falls short of grave disorder’. It does not provide a definition of ‘grave disorder’.

Rules of Coverage

29 Parliament’s 2003 Television Broadcasting Rules of Coverage state at the outset that:

‘The camera director should seek, in close collaboration with the Manager of Sound and Vision to give a full, balance (sic), fair and accurate account of proceedings, with the aim of informing viewers about the work of the Houses.

(Note: In carrying out this task, the director should have regard to the dignity of the House and to their functions as working bodies rather than place (sic) of entertainment.)’

30 Under ‘Treatment of Disorder’ the Rules state:

‘…2. Disorder on the Floor of the House:

Television may continue during incidents of grave disorder or unparliamentary behaviour for as long as the sitting continues, but only subject to the following guidelines:

(a) On occasions of grave disorder, the director should normally focus on the occupant of the Chair for as long as proceedings continue, or until order has been restored. (By “grave disorder” is meant incidents of individual, but more likely collective, misconduct of such a seriously disruptive nature as to place in jeopardy the continuation of the sitting.)

(b) In cases of unparliamentary behaviour, the director should normally focus on the occupant of the Chair. Occasional wide-angle shots of the Chamber are acceptable. (The phrase “unparliamentary behaviour” is intended to signify any conduct which amounts to defiance of the Chair but which falls short of grave disorder.)’

31 It is these measures that are the subject of the applicants attack.

Are the impugned provisions consistent with the Constitution?

Openness and accountability

32 A constitutional provision must be construed purposively and in the light of the constitutional context in which it occurs, including our history, the fundamental objectives of our constitutional democracy and in a manner that is compatible with the principles of our democracy. [11]

33 Parliament’s obligation in sections 59(1)(b) and 72(1)(b) to conduct its business in an open manner, in public, exists within the context of the founding values of the Constitution, which include a democratic state based on ‘(u)niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government to ensure accountability, responsiveness and openness’.[12] The democratic system of government the values state is to ensure accountability, responsiveness and openness.

34 In Minister of Home Affairs v NICRO the Constitutional Court stated that the founding values must ‘inform and give substance to all the provisions of the Constitution’.[13] With Parliament located centrally in this construction of democratic state, the founding values of openness and accountability must inform and give substance to the obligation that Parliamentary sittings be open and held in public.

35 The constitutional commitment to a democratic system of government ensuring openness and accountability follows the preamble which states that the Constitution lays ‘the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally

protected by law’. Other constitutional provisions provide for openness and accountability.

36 Section 41(1)(c) requires that all spheres of government must ‘provide effective, transparent, accountable and coherent government for the Republic as a whole’. Sections 57(1)(b) and 70(1)(b) enable Parliament to make rules and orders concerning its business emphasising that in doing so there must be ‘due regard to representative and participative democracy, accountability, transparency and public involvement’. Sections 59(2) and 72(2) state that Parliament may not exclude the public and the media from a committee sitting ‘unless it is reasonable and justifiable to do so in an open and democratic society’. Similarly, section 36(1) permits rights in the Bill of Rights to be limited only ‘to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom…’.

37 The value placed by the Constitution on accountability, responsiveness and openness arises from our history and the foundations and objectives of our constitutional democracy. The Constitution records our country’s

move to an open society in which institutional checks and balances limit state power, there is accountable and responsive government,

open participation, freedom of expression and a commitment to human dignity, equality and freedom. In S v Makwanyane[14] Sachs J states that:

‘Constitutionalism in our country also arrives simultaneously with the achievement of equality and freedom, and of openness, accommodation and tolerance.’

38 In Doctors for Life International v Speaker of the National Assembly and others it was noted that ‘…we live in an open and democratic society in which everyone is free to criticise acts and failure of government at all stages of the legislative process’.[15] On similar lines in Executive Council, Western Cape Legislature and others v President of the Republic of South Africa and others[16] it was stated that:

‘The reason why full legislative authority, within the constitutional framework…is entrusted to Parliament and Parliament alone, would seem to be that the procedures for open debate subject to on going press and public criticism…are regarded as essential features of the open and democratic society contemplated by the Constitution’.

39 The commitment to accountability, responsiveness and openness in government presupposes a democracy that is not only representative but participatory.[17] Participation occurs within a context of openness and accountability, with the democratic imperative requiring that the electorate is entitled to know what happens in Parliament, why this is so and to hold elected representatives to account. It is this openness and accountability that enables the public to exercise its democratic rights and hold its elected representatives to account.

Nature of Parliament

40 Parliament consists of those persons elected by the people to ensure government by the people under the Constitution, serving as the ‘national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action’.[18] As was stated by Davis J in Mazibuko v The Speaker of the National Assembly and Others:[19]

‘The public, in effect, own the national forum, parliament. It is the body of the citizens of South Africa in that it is comprised of the people’s representatives, and the people are entitled, as citizens of South Africa, to hear what our national representatives

have to say about a matter of… pressing importance’.

41 Given the importance of deliberation to the work of Parliament sections 58(1) and 71(1) provide that members of the executive and the legislature have freedom of speech in Parliament, subject to its rules and orders without the risk of civil or criminal liability.[20] The freedom of speech guaranteed in Parliament gives meaning to the section 16 right to freedom of expression and media freedom and the right in section 19 to make political choices, with the Constitution recognising that people in our society must be able to hear, form and express diverse opinions freely.

42 Controversial and unpopular views are often expressed in Parliament. Debate often mirrors public debate which ‘has if anything become more heated and intense since the advent of democracy’:[21]

‘Political life in democratic South Africa has seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible.’[22]

43 Although disagreement may be inevitable, more so in a society with the disparities of ours, as the national forum representative of the people Parliament is entitled to use its rules to take action against its members in cases of ill-discipline.

44 The constitutional provisions applicable to Parliament are those detailed in Chapter 4 of the Constitution. No institution may accord rights to itself and any reference such as that in the preamble to the Powers Act which refers to the dignity of Parliament, is not to be interpreted to mean that Parliament holds a right to dignity in the manner intended by section 10. Parliament as an institution, while it may be afforded respect as a sphere of government, holds no right under the Constitution to dignity such as the right to human dignity protected in section 10 of the Bill of Rights or expressed in the founding value of human dignity in section 1(a).

Are the measures taken to regulate access to Parliament reasonable?

45 Reasonableness is an objective standard used throughout the Constitution.[23] Insofar as it relates to sections 59(1)(b) and 72(1)(b) it is a non-Bill of Rights constitutional doctrine under which it is for

Parliament to explain how the measures it has taken to limit openness and public access including access by the media to Parliament are ‘reasonable’.[24]

46 What is ‘reasonable’ in limiting the obligation that Parliament conduct its business openly and in public is to be construed in light of values of openness and accountability in section 1 of Constitution and their democratic imperative.

47 The reasonableness of the measures is a matter of context, impact and degree and may involve, a question of balance and proportionality to be worked out on the facts of the case.[25] This requires a consideration of the nature and importance of the measures, the intensity of their impact on the public, relevant practical

considerations and Parliament’s own assessment as to the measures required.[26] In Doctors for Life International v Speaker of the National Assembly[27] it was stated in the context of public participation in the legislative process that:

‘The nature and importance of the legislation and the intensity of its impact on the public are especially relevant. Reasonableness also requires that appropriate account be paid to practicalities such as time and expense, which relate to the efficiency of the law-making process.…In addition, in evaluating the reasonableness of Parliament’s conduct, this Court will have regard to what Parliament itself considered to be appropriate public involvement in the light of the legislation’s content, importance and urgency.’

48 However, in determining whether the measures taken by Parliament to regulate access are reasonable, this Court should not readily substitute its opinions for those of Parliament or parliamentary officials in relation to matters entrusted to them.[28] Courts must recognise the proper role of the other branches of government under the Constitution and treat their decisions with the appropriate respect, with the proviso that:

‘Courts exist to police the constitutional boundaries…where the constitutional boundaries are breached or transgressed, courts have a clear and express role; and must then act without fear or favour’.[29]

49 Whether more desirable or favourable measures could have been adopted by Parliament in a wide range of possible measures and whether these may meet the standard of reasonableness required is not before this Court for

determination.[30]

50 To be constitutionally compliant, measures taken must fall within the band of reasonable options available, as those reasonably likely to advance the achievement of the required goal. In considering whether the measures meet the objective standard of reasonableness required, consideration must be given to the respondent’s justifications provided as to the reasonableness of the measures.

Dignity of Parliament

51 The respondents defend the measures as reasonable on the basis that they preserve and protect the authority and dignity of Parliament. As stated above the Constitution does not confer rights on institutions of government and Parliament holds no right to dignity in the manner of the right to human dignity in sections 1(a) or 10 of the Constitution. While Parliament may act where appropriate to defend its position and status as a sphere of government, whether in acting against its members or in other respects it is not reasonable to do so in the name of preserving its dignity when, given its nature and composition, it holds no constitutional entitlement to have its dignity preserved. Given the authority that Parliament enjoys as the constitutionally mandated legislative sphere of government, it is difficult to understand why measures taken to limit openness and public access would enhance its authority.

52 While the Constitution requires organs of state to assist and protect the independence, impartiality, dignity, accessibility and effectiveness of the courts,[31] there is notably no similar constitutional obligation in relation to Parliament. The authority and respect that Parliament enjoys is that which arises from its pivotal position in our constitutional order, as a sphere of government made up of those persons elected by the people to ensure government by the people under the Constitution.[32]

53 While scenes of disorder or ‘unparliamentary’ behaviour may impact upon public respect for Parliament, its members or their political parties, it remains the elected national forum of the people. Furthermore, other forms of speech and conduct permitted by Parliament and which are broadcast and televised may also have such impact.

54 Difficulties arise in the impact of the measures on members of the public who are present in the public gallery at Parliament and those who are not. If members of the public have the right to sit in the public gallery, then so does any member of the public in spite of the fact that they may be unable to exercise such right. Yet, the impact of the measures is materially different depending on whether a person is present in the public gallery or unable to attend parliamentary proceedings. If the dignity and authority of Parliament is impaired by the behaviour, it is difficult to understand why the impairment of dignity would not arise whether the public was present in the public gallery of Parliament or not. Without an acceptable justification for this, in this respect

alone I consider the measures to be unreasonable.

55 Similar considerations arise in the context of permitting continued print media coverage of the conduct while barring the broadcast of visual images of events. If journalists may continue to report in the print media as to events in Parliament yet are restricted to do so in visual images, it is unclear why the one medium necessarily impacts negatively on Parliament while the other does not.

56 Moreover, knowing what members of parliament do is important to inform the decisions of voters who choose their representatives. The manner of conduct of elected representatives is not a reasonable basis on which to restrict the openness of Parliament, even if the conduct may give rise to disapproval. Given that section 19(1) grants to every citizen the freedom to make political choices, considering the actions and conduct of elected representatives is inherent to making such political choices in a democratic state. This is the reason that our Constitution places value on accountability and openness.

57 In considering whether the measures taken are reasonable, a further difficulty arises regarding what conduct constitutes ‘grave disorder’ or ‘unparliamentary behaviour’ and what does not. The fact that the Policy fails to define grave disorder, with only the Rules doing so, leaves the Policy without a definition of conduct which it seeks to regulate.

58 If the grave disorder arose as a result of the removal of the members of the EFF from Parliament, which occurred at the instance of and pursuant to a ruling made by the Speaker, it is difficult to understand how the dignity or authority of Parliament would be impaired in the broadcast and televising of the enforcement of a decision of the Speaker if she had acted within her powers under

the Constitution and the rules. It is equally plausible that in the public having sight of the exercise by the Speaker of her powers to control the House, respect for the position of Parliament would be promoted and preserved. If however the Speaker had acted unlawfully in exercising her powers to control the House, the dignity and authority of Parliament cannot be preserved by concealing from the public the consequences of an unlawful act and in denying the public access to the broadcast of footage relating to it given the nature of Parliament.

ii. Legitimate business of Parliament

59 The respondents defend the measures adopted on the basis that it is reasonable to restrict access by the public and media only to the broadcast of the legitimate business of Parliament and that grave disorder and unparliamentary behaviour do not fall within the scope of Parliament’s legitimate business.

60 I am not satisfied that the measures comply with the reasonableness standard on this basis, illustrated by the following example. Repeated points of order may constitute part of the legitimate business of Parliament and yet may be disruptive to the point of ‘grave disorder’. If access to footage of grave disorder is barred when it forms part of the legitimate business of Parliament then the measures cannot be reasonable on this basis.

61 Difficulties also arise regarding who it is who determines what conduct has reached the point of grave disorder or unparliamentary conduct and what has not. The measures are silent in this regard and in a robust and contested environment be a question of degree and could occur repeatedly even in the same sitting. Fundamental to our constitutional order is the principle of legality: that the exercise of public power is legitimate only where it is lawful.[33] Without knowledge as to where the power to make a decision lies or the identity of the decision maker, it is not apparent whether or not the decision maker failed to take into account a factor that he or she was bound to take into consideration or whether the resulting decision was that of a reasonable decision maker.[34] The Constitutional Court in Masetlha v President of the Republic of South Africa and Another[35] emphasised the requirement of the rule of law that public power not be exercised arbitrarily. If it is not known who takes and how a decision is taken that conduct has reached the point of grave disorder or unparliamentary behaviour, it is indeterminable whether the power has been exercised lawfully or rationally in circumstances in which the consequences for the public are immediate and restrictive.

62 The fact that Parliament has the power to take the appropriate disciplinary steps against its members for misconduct can only strengthen respect for Parliament, where such action taken is appropriate and lawful, thereby building its legitimacy in the eyes of the public. Broadcast limitations are not required to bolster Parliament’s power to act against misconduct under its rules.

iii. Broadcast encourages further disorder

63 The respondents defend the measures as reasonable on the basis that the broadcast of grave disorder or unparliamentary behaviour will serve to encourage further such disorder and breed an appetite for reality television at the expense of Parliament. No evidential support for this proposition is provided and consequently little store can be placed on it. But even if this were true, it could not justify broadcasting the business of Parliament as the democratically accountable institution elected by the people in a censored or restricted manner. This is so in that members of Parliament are, as elected representatives of the people, accountable to the public and may not shield themselves from public scrutiny.

64 In addition, the view I take of the matter is that the proposition that disorder breeds disorder when it is broadcast and televised is an authoritarian approach to openness and media freedom, one similar to that adopted by the apartheid state, for example in legislation that existed for much of the 1980’s and which restricted the reporting of inter alia political unrest. It is an approach that is not condoned by our Constitution and is out of keeping with the fundamentals of our constitutional democracy.

65 While it may be that where disorder is created in Parliament as part of a political strategy to draw attention to a particular political party or its members, televising such disorder may indeed draw such public and media attention to the conduct of the members of that party. The fact of such publicity does not however provide a reasonable basis on which to restrict the access of the public to the conduct of all representatives, particularly given the foundational values of openness and accountability.

iv. The limitation on public access is minor

66 The respondents defend the measures on the basis that the limitation on public access and that of the media imposed by the measures is minor and therefore reasonable. Minor restrictions are capable of causing significant results and may impose unreasonable limitations on constitutional rights or freedoms.

67 Given that the impact of the measures taken by Parliament restricts the right to openness and accountability, such restriction is neither minor nor insignificant. It bars the public the right to have sight of the conduct of elected representatives of the people in Parliament and to exercise their rights under the Constitution in response to what they see. For those members of the public watching the televised broadcast of the SONA the impact of the measures were that they were censored from viewing the consequences of the Speaker’s order and left unenlightened as to the events that were developing in Parliament. The measures in their application sought to ensure positive coverage of Parliament’s proceedings by restricting the public’s right to see and know what was occurring. By its nature such a restriction is not minor and its impact and effect is not to be minimised.

v. International best practice

68 The respondents rely on examples from foreign jurisdictions in which similar measures to restrict access have been imposed. Reference was made to the measures adopted by the House of Commons and those adopted by the Canadian, Australian and New Zealand Parliaments as providing support for the reasonableness of the measures taken by our Parliament.

69 The applicants rely on jurisdictions such as India, Scotland and Kenya, as well as the parliament of the European Union, to indicate a trend towards greater transparency and openness in the broadcasting of parliamentary disruptions in these jurisdictions.

70 It is equally of interest that the United States House of Representatives provides that the Speaker administers, directs, and controls a system for complete and unedited audio and visual broadcasting and recording of the floor proceedings of the House[36].

71 Foreign law and practice, while often illuminating, cannot be determinative of the meaning of the South African Constitution or the reasonableness of its state actions.[37] The text of our Constitution is the starting point for the determination by this Court and cannot be materially affected by international best practice. The clear distinctions in the form and nature of political institutions in other countries, as well as their different histories makes the wholesale adoption of their approach to considerations of Parliamentary openness and accountability unattractive.

Conclusion

72 The constitutional value placed on openness and accountability arises within the context of and as a consequence of our authoritarian and undemocratic past:

‘The apartheid regime sought to dominate all facets of human life. It was determined to suppress dissenting views, with the aim of imposing hegemonic control over thoughts and conduct, for the preservation of institutionalised injustice. It is this unjust system that South Africans, through their Constitution, so decisively seek to reverse by ensuring that this country fully belongs to all those who live in it.’ [38]

73 While it is so that when it comes to matters falling within the heartland of Parliament, our Constitution contemplates a restrained approach to intervention in those matters by the Courts, intervention is permissible if it is undertaken to uphold the Constitution because our courts are the ultimate guardians of the Constitution.[39]

74 The measures arise in the regulation by Parliament of its constitutional obligation to conduct its business in an open manner and in public with the public holding a concomitant entitlement to an open Parliament and one in which its members, and those members of the executive who appear in it, may be held accountable for their actions. This is apparent from the founding values of the

Constitution, the right to free expression and media freedom, the nature of and purpose of Parliament, the obligation that it be open and its sittings held in public and the obligation upon Parliament to facilitate public involvement in its processes.[40] In restricting the public’s right to view what occurs in Parliament the measures are not constitutionally compliant. The

measures do not accord with the test for reasonableness and the respondents have not shown differently.

75 Openness repels the exercise of secret power and ensures accountability to the people. The measures unreasonably limit public access to a visual broadcast of important events involving elected representatives in a manner which requires such information to be obtained only from the print media or, as is increasingly the case, from social media. Given our country’s torrid history of censorship and media restriction, the measures are unreasonable in their impact on openness, accountability, free expression and media freedom.

76 For all of these reasons, I find the measures to be inconsistent with the Constitution and unlawful. In these circumstances it is not necessary to consider the alternative relief sought by the applicants. In terms of section 172(1)(a) an order of constitutional invalidity is not discretionary and must follow.

Jamming relief

77 Given that the exercise of public power is constrained by the principle of legality, whether public authorities have acted unlawfully or not remains a live issue.[41]

78 The Respondents accept that the permission and authority of the Speaker or Chairperson was not obtained under section 4 of the Powers Act by the security services to use the device jamming telecommunications at Parliament.[42] It is not suggested that the device was used under the provisions of section 4(2) of the Act, namely in circumstances of immediate danger to the life or safety of any person or damage to any property on the basis that its use would later be reported to the Speaker or Chairperson.

79 The conduct of the fourth respondent and the State Security Agency was unlawful and the applicants have an interest in the adjudication of the constitutional issue at stake on the basis that unlawful conduct is inimical to the rule of law.[43] The defence of mistake does not cure the unlawfulness of the conduct. In both Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others [44] and Kruger v President of the Republic of South Africa and Others[45] the Constitutional Court declared bona fide mistakes of the President in bringing legislation into force irrational and invalid:

‘The fact that the President mistakenly believed that it was appropriate to bring the Act into force, and acted in good faith in doing so, does not put the matter beyond the reach of the Court’s powers of review. What the Constitution requires is that public power vested in the executive and other functionaries be exercised in an objectively rational manner. This the President manifestly, though through no fault of his own, failed to do.’[46]

80 Without the permission of the Speaker or Chairperson to perform ‘a policing function’ in employing the device, its use on the Parliamentary precinct was unlawful. It restricted telecommunications and curtailed both the constitutional rights of the public and the media. Its use was unjustifiable and unlawful in the circumstances and there is a compelling purpose served in declaring this to be so to deter any future such unlawful conduct.

81 The applicants are accordingly in this respect entitled to the relief sought and a declaration that the use of a device to interfere with telecommunications during the SONA on 12 February 2015 was unconstitutional and unlawful must follow.

Remedy

82 The applicants seek an order that the manner in which the audio and visual feeds of the SONA on 12 February 2015 were produced and broadcast by the first to third respondent was unconstitutional and unlawful. I see no reason as to why such order should not be

granted.

83 The applicants seek further the direction of this Court that the audio and visual feeds of open parliamentary sittings and meetings are into the future not interrupted pending the enactment of any new measures that Parliament may deem to be necessary and reasonable. They propose that this Court venture into the terrain of an order encompassing the angle at which Parliament’s cameras would be positioned when unparliamentary behaviour arises. A restrained approach on the part of this Court is called for on this aspect, in that to make such an order would be to delve into the area of regulation that is not the Court’s domain. For these reasons no directions should be made in this regard in the manner sought by the applicants.

84 There is no reason as to why costs should not follow the result, including the costs of two counsel.[47]

Order

85 In the result, I would propose an order in the following terms:

1. It is declared that paragraph 8.3.3.2 (a) of Parliament’s Policy on Filming and Broadcasting of Parliament is unconstitutional,

unlawful and invalid.

2. It is declared that paragraph 2 under the heading ‘Treatment of Disorder’ of Parliament’s Television Broadcasting “Rules of Coverage” is unconstitutional, unlawful and invalid.

3. It is declared that the manner in which the audio and visual feeds of the State of the Nation address in Parliament on 12 February 2015 were produced and broadcast by the first to third respondents was unconstitutional and unlawful.

4. It is declared that the use of a device by the fourth respondent and the State Security Agency to interfere with the telecommunication signal at Parliament during the State of the Nation address on 12 February 2015 was unconstitutional and unlawful.

5. The respondents are to pay the applicants’ costs, including the costs of two counsel.

KM SAVAGE

JUDGE OF THE HIGH COURT

[1] Shephard v Tuckers Land and Development Corporation (Pty) Ltd (1) 1978 (1) SA 173 (W) at 177G; Moolman v Estate Moolman 1927 CPD 27 at 29; Holdenstedt Farming v Cederberg Organic Buchu Growers (Pty) Ltd 2008 (2) SA 177 (C) at 183C–D.

[2] Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC) at para 137

[3] Democratic Alliance v African National Congress and another [2015] ZACC 1 at para 122

[4] Section 21(1) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 provides: ‘No person may broadcast or televise or otherwise transmit by 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.’

[5] Paragraph 8.2.5(d) and 8.4.3

[6] Paragraph 8.3.1.1(a)

[7] Paragraph 8.3.1.1(b)

[8] Paragraph 8.3.1.4(b)

[9] Paragraph 8.3.1.3(b)

[10] Paragraph 8.3.1.3(c) and (d)

[11] Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and another; Executive Council,

KwaZulu-Natal v President of the Republic of South Africa and others [1999] ZACC 13; 2000 (1) SA 661 (CC) at para 44-45 and 48; Matatiele Municipality v President of the RSA [2006] ZACC 12; 2007 (6) SA 477 (CC) at paras 39 and 57

[12] Section 1(d)

[13] Minister of Home Affairs v NICRO [2004] ZACC 10; 2005 (3) SA 280 (CC) at para 21

[14] [1995] ZACC 3; 1995 (3) SA 391 (CC) at para 368

[15] Doctors for Life International v Speaker of the National Assembly and others [2006] ZACC 11; 2006 (6) SA 416 (CC) at para 229

[16] [1995] ZACC 8; 1995 (4) SA 877 (CC) at para 205

[17] Minister of Health and Another v New Clicks South Africa (Pty) Ltd and others 2006 (2) SA 311 (CC) at 625

[18] Section 42(3)

[19] 2013 (4) SA 243 (WCC) 255E-F

[20] Democratic Alliance v African National Congress and Another [2015] ZACC 1 at para 122; South African National Defence Union v Minister of Defence [1999] ZACC 7; 1999 (4) SA 469 (CC) at para 7

[21] The Citizen 1978 (Pty) Ltd and Others v McBride 2011 (4) SA 191 (CC) at para 100

[22] Democratic Alliance v African National Congress and Another [2015] ZACC 1 at para 133.

[23] Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC 11; 2006 (6) SA 416 (CC) at 37 &126; Speaker of the National Assembly v De Lille and Another 1999 (4) SA 863 (SCA) at para 14; Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC) at para 127

[24] Moise v Transitional Local Council of Greater Germiston [2001] ZACC 21; 2001 (4) SA 491 (CC) at para 19.

[25] Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC) at para 661

[26] Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC) at paras 128 and 146

[27] 2006 (6) SA 416 (CC)

[28] Malema and another v Chairman of the National Council of Provinces and Another [2015] ZAWCHC 39 (15 April 2015)

[29] Mazibuko v The Speaker of the National Assembly and Others (supra) at 256E-F

[30] Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development [2004] ZACC 11; 2004 (6) SA 505 (CC) at para 48

[31] Section 165(4)

[32] Section 42(3)

[33] Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC) at paras 56 and 58.

[34] Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC) at 511

[35] [2007] ZACC 20; 2008 (1) SA 566 (CC) at para 189

[36] Rules of the U.S. House of Representatives, January 6, 2015

[37] Ferreira v Levin NO 1996 (1) SA 984 (CC) at para 72; Brink v Kitshoff [1996] ZACC 9; 1996 (4) SA 197 (CC) at paras 39-40; Minister of Finance v Van Heerden [2004] ZACC 3; 2004 (6) SA 121 (CC) at para 29.

[38] Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly 2012 (6) SA 588 (CC) at para 49

[39] Mazibuko v Sisulu and Another 2013 (6) SA 249 (CC) at para 135 (per Japhta J)

[40] Sections 59(1) and 72(1)

[41] Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC) at paras 56 and 58; Buthelezi and Another v Minister of Home Affairs and Others 2013 (3) SA 325 (SCA) at para 4

[42] Section 4 of the Powers Privileges Powers Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 provides that: ‘(1) Members of the security services may- (a) enter upon, or remain in, the precincts for the purpose of performing any policing function; or (b) perform any policing function in the precincts, only with the permission and under the authority of the Speaker or the Chairperson.’

[42] Section 4 of the Powers Privileges Powers Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 provides that:

‘(1) Members of the security services may-

(a) enter upon, or remain in, the precincts for the purpose of performing any policing function; or

(b) perform any policing function in the precincts,

only with the permission and under the authority of the Speaker or the Chairperson.’

[43] Pheko and Others v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC) at para 32.

[44] Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC)

[45] Kruger v President of the Republic of South Africa and Others [2008] ZACC 17; 2009 (1) SA 417 (CC).

[46] Pharmaceutical Manufacturers (supra) at para 89

[47] Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) at paras 21-25. Tebeila Institute of Leadership, Education, Governance and Training v Limpopo College of Nursing and Another [2015] ZACC 4