South African Broadcasting Corporation Ltd. v Downer NO and Shaik (435/06) [2006] ZASCA 90; [2006] SCA 89 (RSA) ; [2007] 1 All SA 384 (SCA) (24 August 2006)

South African Broadcasting Corporation Ltd. v Downer NO and Shaik (435/06) [2006] ZASCA 90; [2006] SCA 89 (RSA) ; [2007] 1 All SA 384 (SCA) (24 August 2006)

The court held that the application involved a clash of constitutional rights: the applicant's right to freedom of expression and the respondents' rights to a fair trial and privacy. The court emphasised that its discretion under section 173 of the Constitution must be exercised by balancing these rights in the interests of justice. The court found that the circumstances of the case, including the high public interest, the complexity and sensitivity of the appeals, and the pending prosecution of Zuma, created a material risk that live or recorded sound broadcasting would inhibit justice and infringe the respondents' rights to a fair hearing. The court concluded that broadcasting should...

Citation
[2006] SCA 89 (RSA)
Parties
Applicant: South African Broadcasting Corporation Limited; Respondent: WJ Downer SC N.O.; Respondent: Schabir Shaik; Respondent: Nkobi Holdings (Pty) Limited; Respondent: Nkobi Investments (Pty) Limited; Respondent: Kobifin (Pty) Limited; Respondent: Kobitech (Pty) Limited; Respondent: Proconsult (Pty) Limited; Respondent: Pro Con Africa (Pty) Limited; Respondent: Kobitech Transport Systems (Pty) Limited; Respondent: Clegton (Pty) Limited; Respondent: Floryn Investments (Pty) Limited; Respondent: Chartley Investments (Pty) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 August 2006
Case Number
435/06
Procedural Posture
Urgent Application / Application for Leave to Televise and Sound Record Appeal Proceedings
Outcome
Application dismissed. Costs awarded against the applicant in favour of the second to twelfth respondents, including costs of two counsel.
Judges
Howie, Harms, Streicher, Navsa, Heher
Legal Topics
Freedom of Expression, Fair Trial Right, Court Process Regulation, Privacy Rights
Constitutional Law Civil Procedure Freedom of Expression Fair Trial Right Court Process Regulation Privacy Rights

Case Brief

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Parties

South African Broadcasting Corporation Limited

Applicant

WJ Downer SC N.O.

Respondent

Schabir Shaik

Respondent

Nkobi Holdings (Pty) Limited

Respondent

Nkobi Investments (Pty) Limited

Respondent

Kobifin (Pty) Limited

Respondent

Kobitech (Pty) Limited

Respondent

Proconsult (Pty) Limited

Respondent

Pro Con Africa (Pty) Limited

Respondent

Kobitech Transport Systems (Pty) Limited

Respondent

Clegton (Pty) Limited

Respondent

Floryn Investments (Pty) Limited

Respondent

Chartley Investments (Pty) Limited

Respondent

Procedural Posture

Urgent Application / Application for Leave to Televise and Sound Record Appeal Proceedings

Legal Issues

  1. 1 Whether the applicant is entitled to televise and sound record the appeal proceedings for live and delayed broadcast.
  2. 2 Whether the applicant's constitutional rights to freedom of expression and to impart information outweigh the respondents' rights to a fair trial and privacy.
  3. 3 Whether the court should exercise its discretion under section 173 of the Constitution to permit such broadcasts.

Ratio Decidendi

The court held that the application involved a clash of constitutional rights: the applicant's right to freedom of expression and the respondents' rights to a fair trial and privacy. The court emphasised that its discretion under section 173 of the Constitution must be exercised by balancing these rights in the interests of justice. The court found that the circumstances of the case, including the high public interest, the complexity and sensitivity of the appeals, and the pending prosecution of Zuma, created a material risk that live or recorded sound broadcasting would inhibit justice and infringe the respondents' rights to a fair hearing. The court concluded that broadcasting should...

Court Disposition

Application dismissed. Costs awarded against the applicant in favour of the second to twelfth respondents, including costs of two counsel.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the costs of the second to twelfth respondents, including the costs of two counsel.