South African National Editors Forum v Abbu and Others (Leave to Appeal) (AR131/2021) [2023] ZAKZPHC 163 (6 October 2023)

IN THE HIGH COURT OF SOUTH AFRICA,

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

CASE NO: AR131/2021

In the matter between:

SOUTH AFRICAN NATIONAL

EDITORS FORUM

APPELLANT

and

ROBERT ABBU

1st

RESPONDENT

SANDILE NGCOBO

2nd RESPONDENT

ILANGA LAMAHLASE PROJECTS (PTY) LTD

3rd

RESPONDENT

MZWANDILE DLUDLA

4th RESPONDENT

HLENGA

SIBISI

5th RESPONDENT

UZUZINEKELA TRADING 31 CC

6th RESPONDENT

ZITHULELE A MKHIZE

7th RESPONDENT

OMPHILETHABABG CC

8th RESPONDENT

BONGANI P

DLOMO

9th RESPONDENT

KHOBOSO J

DLOMO

10th RESPONDENT

ELSHADDAI HOLDINGS

GROUP CC

11th RESPONDENT

PRABAGARAN

PARIAH

12th RESPONDENT

SINTHAMONE

PONNAN

13th RESPONDENT

GRAIG

PONNAN

14th RESPONDENT

MONDLI MICHAEL

MTHEMBU

15th RESPONDENT

ZANDILE RUTH THELMA

GUMEDE

16th RESPONDENT

SIPHO CYRIL

NZUZA

17th RESPONDENT

BAGCINELE CYNTHIA

NZUZA

18th RESPONDENT

UMVUYO HOLDINGS CC

19th RESPONDENT

MEDIA MONITORING

AFRICA

Amicus curiae

JUDGMENT ELECTRONICALLY DELIVERED:- This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date and time for the handing-down of this judgment is deemed to be 10h00 on 06 October 2023.

ORDER

On appeal from: Durban Regional Court (sitting as court a quo):

1. The appeal against the decision of the regional magistrate is upheld.

2. The decision and order of the court a quo of 8 December 2020 is set aside.

3. The correct procedure in relation to the Guidelines and media access in the Magistrates’ Court is as set out in paragraph 50 of this judgment.

JUDGMENT

Sibiya J (Khan AJ concurring)

[1] This is an appeal against a decision of the Durban Regional Court, handed down on 8 December 2020, in terms of which an application for media access to criminal proceedings was granted to a such a limited extent that it was effectively refused . The respondents in the present appeal were the accused who had participated in the application for media access which had been brought by the appellant seeking to televise the pre-trial and trial proceedings.

[2] The application before the magistrate was brought by the South African National Editors Forum (‘SANEF’) during pre-trial proceedings, and sought the granting of live broadcast of the entire trial and not only pre-trial proceedings. The trial in the matter has subsequently been transferred to the high court where it was scheduled to resume in March 2023. The appeal before us was not opposed and when asked about mootness, the response was that it was necessary to determine the appeal for future certainty.

[3] SANEF, in its Notice of Application dated 16 November 2020, sought an order permitting:

(a) the proceedings in court to be televised;

(b) the proceedings in court to be broadcast;

(c) the proceedings in court to be taped;

(d) photographs to be taken *in court during sessions / during recess / immediately prior to court session / after court session;

(e) television cameras to be used *in court during session / during recess / immediately prior to court sessions / after the court session.

[4] The application was made in pro-forma headed “NOTICE OF AN

APPLICATION TO PERMIT THE PROCEEDINGS IN COURT TO BE *TELEVISED, *BROADCAST OR *TAPED OR *PHOTOGRAPHS TO BE TAKEN OR *TELEVISION CAMERAS OR *SIMILAR APPARATUS TO BE USED IN COURT *DURING SESSIONS, *DURING RECESS OR * IMMEDIATELY PRIOR

TO OR AFTER THE COURT SESSION.”

[5] At the hearing of the application it was characterized as being an application to permit the live television broadcasting of the trial,[1] as well as the taking of still photographs for 15 minutes each day when court resumes after the lunch break while court is in session.

SANEF relied on the Guidelines regarding media access during court proceedings, adopted by the Magistrate’s Commission in 2020.

[6] SANEF’s legal representative elaborated, at the hearing of the application on 3 December 2020, on the reasons for bringing the application. The main reason was the public interest that would be served by the broadcast, as the relevant criminal trial related to the award of a public tender for waste removal by the Ethekwini Metropolitan Municipality (‘Ethekwini’), the possible misuse of public funds, and that the accused included the Mayor and the City Manager of Ethekwini and other public officials.

[7] SANEF further relied on the media’s constitutional right to attend and report on the court hearing, as part of the right to freedom of expression found in s 16 of the Constitution, as well as the right to open justice which is part of the public trial right in s 35 of the Constitution, and which was specifically recognised by the Constitutional Court in 2008.[2]

[8] Further elaboration was given that in the main the application was to have the court open for cameras to be placed in the court for purposes of televising the proceedings,[3] audio recording for radio journalists and the admittance of photo journalists for 15 minutes after the lunch adjournment.[4]

[9] The application was opposed as far as the broadcast of in-court proceedings by most of the accused, with only the 1st, 17th and 18th not opposing, as well as the State. It was understood that the application related to the preliminary proceedings. Those accused who did not oppose the application reserved their rights to do so when an application relating to the trial was made. SANEF’s argument was that there should be no distinction between the procedure applicable to pre-trial and trial proceedings.

[10] At the time the application was brought there was already an order in terms of which the journalists were limited to six, and it was argued on behalf of the second accused that the onus was on SANEF to show that public interest demanded more than what was permitted by the order in place at the time. It was further argued on behalf of the third to the fifth accused that the application was prematurely brought during pre-trial proceedings and ought to have been brought before the trial court.

[11] It is a relevant factor that the application was brought during the Covid-19 pandemic at a time when there were restrictions on and concerns about the number of persons in a confined space, and the implications on the health of the accused. Given that at the time of hearing the appeal all those restrictions had been lifted I will not deal with the objections and argument related to Covid-19.

[12] In granting the application the magistrate indicated that the starting point is that photographing and recording of proceedings should be in the least restrictive manner, and that photographs and video footage during court proceedings would be allowed within certain parameters, namely court activities for 15 minutes before commencement of proceedings, during any adjournment and at the end of proceedings. The restrictions included a refusal of all live video feed and photographs or recordings outside the courtroom, a list of all the members of the media who would be attending to be submitted at least five days before the court hearing and a maximum of six members of the media in the courtroom with another room provided if needed.

[13] The magistrate further found that as far as broadcast of the trial, that it was premature to bring the application before the Regional Court as the matter was still far from the trial stage and the trial would proceed before the high court and not the Regional Court. The magistrate found that paragraph 70 of Van Breda v Media 24 Ltd and Others[5] applied to the court hearing the trial.[6]

[14] The grounds of appeal relied on by SANEF are that the Regional Court:

(a) made an error of fact in determining that the application for access was aimed at securing media access only to the trial proceedings;

(b) applied the wrong test for assessing whether the media, in the form of televised proceedings, is entitled to be present during court proceedings. It failed to apply the test in Van Breda and thus committed an error of law;

(c) alternatively, the court incorrectly interpreted paragraph 70 of Van Breda restrictively, instead of holding that it applied to all court proceedings, civil or criminal, pre-trial, trial or application proceedings;

(d) erred in its finding that the rights to media access are different in pre-trial to those in trial proceedings, finding that Van Breda does not apply to pre-trial proceedings;

(e) erred in establishing a test for media access to televising proceedings which was different and contrary to the Magistrates’ Commission Guidelines of October 2020 (‘the MC Guidelines’), instead placing the burden on the applicant to demonstrate why it should be permitted to film and make audio recordings;

(f) erred in its application of the MC Guidelines and in particular paragraphs 1.1 to 1.3 thereof; and

(g) inverted the legal inquiry to be followed in granting the media access to the court proceedings.

[15] The leading case that SANEF relied on is Van Breda. The Supreme Court of Appeal dealt with an appeal by the accused against an order of the Western Cape High Court, which had granted an application for broadcasting his criminal trial.

[16] The charges faced by the accused in that case included three counts of murder related to the killing of his parents and one sibling.

[17] The high court order had allowed the following:

(a) Taking of still photographs and video footage in court for 15 minutes before the commencement of each court day and after the adjournment of proceedings.

(b) Installation of two video cameras to record and or broadcast proceedings, which will be set up 15 minutes before the commencement of proceedings and removed not later than 30 minutes after the adjournment of proceedings at the end of the day. The video cameras would not be attended by any person during proceedings and be located as directed by the court, causing as little intrusion in the proceedings of the court as possible.

[18] The High Court had prohibited any photographing and or video recording and or broadcasting in relation to a minor surviving sibling of the accused, in whatever capacity. The Court further prohibited audio recordings and close up photography of bench discussions and discussions between legal representatives among themselves, and those between clients and their legal representatives. Also excluded was the photography, videotaping or publishing of exhibits unless specifically permitted by the court.

[19] The SCA found that:

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

constitutional order. The right is not limited to the right to speak, but also to receive information and ideas. The media hold a key position in society. They are not only protected by the right to freedom of expression, but also the “key facilitator and guarantor” of the right. The media’s right to freedom of expression is thus not just (or even primarily) for the benefit of the media: it is for the benefit of the public.’ (Footnotes omitted.)

[20] After a discussion of the perspectives from other jurisdictions the SCA considered the decision of this court in Midi Television (Pty) Ltd t/a E-TV v Downer and Others[7] where the court refused the right to televise criminal proceedings on the reasoning that the right to privacy of witnesses and the accused trumped the right of the broadcaster and that infringing such rights could lead to an unfair trial and conflict with the public interest in a democratic criminal justice system. The SCA upheld that judgment, finding that television and radio broadcasts would violate fair trial rights. [8]

[21] The SCA in Van Breda considered the decisions in which access was granted but limited[9] and where access was extensive including live transmission limited only to consent of witnesses to their own evidence being televised.[10] It accepted and found that:

‘[47] The media plays a vital watchdog role in respect of court process…Televised proceedings thus aid in the public oversight

of the judiciary…’

[22] The court interrogated the arguments in favour of media access, limited or unrestricted ‘gavel to gavel’ coverage as well as those advanced against media access. It concluded that:

‘[57] …Thus judges who have to balance the presence of cameras with privacy interests can do so by imposing appropriate restrictions…’

[59] Where there is a debate about whether given court proceedings should be broadcast, a court is vested with the power to limit the nature and scope of the broadcast where necessary to ensure the fairness of the proceedings before it. The power of the court to do so is an inherent one flowing from s 173 of the Constitution and must be exercised in the interests of justice…’ (Footnote omitted.)[11]

[23] The SCA concluded in paragraph 70 that permitting the televising of court proceedings is the appropriate starting point, and that it would be open to a court to limit the nature of the broadcast as well as its extent, in the exercise of its discretion. The court stated:

‘[70] …It shall be for the media to request access from the presiding judge on a case-by-case basis. In that regard it is undesirable for this court to lay down any rigid rules as to how such requests should be considered. It shall be for the trial court to exercise a proper discretion having regard to the circumstances of each case.’

[24] The court went on to state:

‘[71] … That court should exercise a proper discretion in such cases by balancing the degree of risk involved in allowing the cameras into the courtroom against the degree of risk that a fair trial might not ensue.. In acceding to the request, the judge may issue such directions as may be necessary…the Judge may consider whether there is a reasonable likelihood that such coverage would: (i) interfere with the rights of the parties to a fair trial; or (ii) unduly detract from the solemnity, decorum and dignity of the court. There shall be no coverage of (a) communications between counsel and client or co-counsel; (b) bench discussions; and (c) in camera hearings. A judge may terminate coverage at any time upon a finding that the rules imposed by the judge have been violated or the substantial rights of individual participants or the rights to a fair trial will be prejudiced by such coverage if it is allowed to continue.

[25] The court went on in paragraph 72 to hold that the default position is that there can be no objection in principle to recording and broadcasting of counsel’s address and all rulings and judgments delivered in open court. When a witness objects to their testimony being broadcast, the grounds of objection and effects of such coverage should be articulated. It found that “courts will not restrict the nature and scope of the broadcast unless the prejudice is demonstrable and there is a real risk that such prejudice will occur. Mere conjecture or speculation that prejudice might occur ought not to be enough.”[12]

[26] The Magistrates’ Commission published the ‘Guidelines Regarding Access of Representatives of the Media During Court Proceedings and Applications for Permission to Photograph, Film or Record Such Proceedings’ (the Guidelines) dated 2020. Paragraphs 1.1 to 1.5 of the Guidelines read as follows:

‘1.1 When considering an application by the media to cover, broadcast and publish court proceedings the court should be mindful of the tension between the right to freedom of expression and the open justice principle, on the one hand and the right to a fair trial, as well (as) other competing constitutional rights such as the privacy of the witnesses and other interested or affected parties, on the other hand.

1.2 These competing constitutional rights should as far as possible be harmonized with one another. The court must exercise a proper discretion in each case by balancing the degree of risk involved in allowing the coverage, broadcasting and publication of the court proceedings into the court room against the degree of risk that a fair trial might not ensue.

1.3 Courts ought not to restrict the nature and scope of the coverage, broadcasting and publication unless prejudice is demonstrable and there is a real risk that such prejudice will occur – mere conjecture or speculation that prejudice might occur ought not to be enough.

1.4 Save as provided for in any law, all representatives of the media shall have the right to attend any court proceedings for the purposes of reporting on such proceedings. Reporting should not in any way interfere with proceedings and it should be balanced and fair.

1.5 Representatives of the media shall be entitled to take still photographs and/or video footage during court proceedings, in the following circumstances, unless the court otherwise directs:

1.5.1 Court activities for fifteen minutes before the commencement of proceedings each day;

1.5.2 During any adjournment of proceedings or at end of proceedings;

1.5.3 Any argument presented to the court where no evidence is led including but not limited to opening and closing argument and sentencing; and

1.5.4 Judgment and/or any other judicial rulings.’

[27] It is apparent from this excerpt that the starting point is that there should not be an unnecessary restriction to recordings, and that there is recording that is automatically allowed, as contained in paragraph 1.5 including the sub-paragraphs

thereof.

[28] I have referred to those parts of the Van Breda judgment to show the basis on which the SCA came to grant the order contained in paragraphs 70 to 75 of the judgment. If it is already accepted that the media has the said right, then the onus cannot be on the media, or SANEF, to prove why it ought to be allowed to make recordings.

[29] The rights of the media may be restricted, like other rights that are not absolute, but the basis of the restriction is that there must be demonstrable prejudice that would most likely result if coverage and broadcasting is allowed.

[30] It appears to me that there are two processes involved. The right encapsulated in paragraph 1.5 of the Guidelines is automatically allowed, and does not need an application, unless a party objects and/or opposes such broadcast. In opposition, that party must show that there is a real risk of prejudice that would result. The onus is on the party claiming the prejudice to justify why the broadcast should not be allowed.

[31] Where the media seeks to broadcast more than what is included in paragraph 1.5, however, it does not proceed from a position of advantage. For extended broadcasting, the media must make application, and in my view, in terms of the Van Breda decision the application ought to be allowed unless there is objection and/or opposition to the application. The deciding factor, however, would remain the existence of demonstrable prejudice if the broadcasting is allowed. In the case of opposition, the media may make representations on how the foreseeable prejudice may be mitigated. This would enable the court to balance the relevant constitutional rights and interests of the parties when exercising the discretion, in order to protect the interests of justice.

[32] If one has regard to the ratio of the SCA it becomes clear that the magistrate in the court a quo was misdirected in her approach to the application, by placing the onus on SANEF for all broadcasting.

[33] The argument advanced by SANEF at the hearing in the court a quo was that it was in the public interest to have a full live broadcast given that the criminal case involved public officials and the misuse of public funds. SANEF relied on media freedom and open justice which is encompassed in the right to media access to court proceedings. This, it was argued, also served to protect the rights of the accused to a trial conducted in public, guaranteeing fairness. This, in turn, would improve the administration of justice as a whole by restoring public confidence in the justice system.

[34] In the present case none of the parties objected to the exercise of the automatic rights. As stated earlier, Mr Howse, on behalf of the second accused, (who is the second respondent in the present appeal) objected to the extended broadcasting on the basis that the public was sufficiently informed through the extant coverage. He placed reliance on paragraph 1.3 of the order of Desai J as quoted in paragraph 5 of the Van Breda judgment.

[35] Mr Madonsela, on behalf of the 17th and 18th accused (the present 17th and 18th respondents), did not object to the broadcasting of pre-trial proceedings, but submitted that the application for live broadcast of trial proceedings should be brought before the trial court as that was the correct stage to deal with issues of prejudice. He further argued that this matter was distinguishable from Van Breda, as in the latter case the broadcasting related to the trial and not pre-trial proceedings.

[36] The State did not oppose the application but merely raised issues related to the safety of all persons if the number of the media personnel was increased.

[37] The court a quo stated the issue for determination as being whether the media should be allowed to broadcast in the format requested. The magistrate correctly referred to the Van Breda judgment and the paragraphs to which I have referred in paragraphs [23] to [25] of this judgment.

[38] The court placed emphasis on the words in paragraph 70 in Van Breda that “it shall be for the trial court to exercise a proper discretion” and concluded that it was precluded from making the decision for the trial court.

[39] With regard to the first ground of appeal, the application was indeed pitched as being for the broadcast of trial proceedings, until Ms Anthi , representing SANEF in the court a quo, was reminded that the matter was at the pre-trial stage. She was advised that a different court would hear the trial and she stated that SANEF was under the impression that the matter would proceed in the same court.[13] Ms Anthi at that point conceded that it would be for the court hearing the trial to decide the broadcast of the trial,[14] and indicated that they sought the coverage then “in relation to the preliminary proceedings”.[15]

[40] In delivering the judgment the magistrate indicated that she could not entertain the application in the format requested as it was based on covering the trial,[16] and that the applicant had not sought to amend its application in any way.[17] Given the exchange quoted above, the magistrate was clearly misdirected in this regard.

[41] I do not agree that there is in principle no distinction between pre-trial and trial proceedings in as far as the considerations at play are different at each stage. The case becomes clearer and the interested parties are identified only at trial stage, where the indictment and list of witnesses have been prepared and the docket has been shared with the accused. The magistrate was correct in my view. But although the magistrate was correct that Van Breda related to trial proceedings, the application before her was not based on Van Breda but on the Guidelines. Paragraph 1.1 of the Guidelines is broader and does not distinguish between various possible proceedings and thus does not exclude an application being made at pre-trial stage or even in opposed applications. In other words, it is my understanding that the application in terms of the Guidelines can be made regardless of the nature of the proceedings.

[42] It is my view that the discretion vests on the court dealing with the proceedings sought to be broadcast. I agree with the magistrate that if the application relates to broadcasting of the trial it cannot be determined by the pre-trial court, especially in the circumstances where the indictment has not even been finalized and the pre-trial court is a lower court.

[43] I asked the appellant’s representative Ms Kazee, during argument whether it would be proper for the magistrate hearing the pre-trial proceedings to dictate for the judge dealing with the trial on what access to permit. The response was that there should be no distinction between

pre-trial and trial proceedings and that once a decision was made, at whatever stage, it would apply to the entire proceedings unless there was a change in circumstances.

[44] Mr Scott, on behalf of the amicus curiae, referred to the Pistorius[18] matter where it was the Judge President of the Gauteng Division who allowed the televising of the proceedings, even though he was not seized with the trial and the matter was to be heard by a judge in his division.

[45] The distinction between Pistorius and the present is obvious. In Pistorius the court that dealt with the application was the high court, similar to the court that would hear the trial. In addition, the decision was made by the Judge President, heard a week before the criminal trial was set to proceed, having heard full argument in relation to the relevant rights of the main parties, and specifically mentioned that:

‘[29] …the presiding judge over the criminal trial retains the ultimate discretion during the trial, regarding aspects of the relief granted in this matter, which may require her attention as the trial unfolds’.

[46] I cannot agree that a decision of the magistrate on media access during pre-trial proceedings should bind a judge ultimately dealing with the trial. This would be a perversion of our court systems, and I am not persuaded that any reasonable justification was given for such a drastic step. The facts in Pistorius are clearly distinguishable from the present case and that case cannot be followed blindly regardless of the different circumstances.

[47] It is also worth mentioning that the case before me involves the power of the Magistrate sitting in the Magistrates’ Court hearing the application for access in terms of the pro-forma application form endorsed by the Magistrates’ Commission.

[48] In summary, I am satisfied that the magistrate was correct in the following respects:

(a) that she is precluded from deciding on the broadcast rights for the trial which would be heard by the high court and thus be binding a high court; and

(b) the Van Breda matter related to trial proceedings and was decided in that particular context.

[49] However, the magistrate was misdirected in the following respects:

(a) determining that the application related only to trial proceedings;

(b) deciding the application on Van Breda when the application before her was based on the Guidelines which applied to all court proceedings; and

(c) applying the relevant test incorrectly by placing the onus on the appellant to justify extended broadcasting instead of the onus being on those opposing the application to show demonstrable prejudice if the broadcast is allowed, as required by paragraphs 1.1 to 1.3 of the Guidelines.

[50] In my view the correct position is the following:

(a) the right contained in paragraph 1.5 of the Guidelines, and the sub-paragraphs thereto, applies without a need for the media to make application;

(b) an application is required when seeking coverage in excess of that provided in paragraph 1.5 of the Guidelines;

(c) in considering the application, the correct approach is that the nature and scope of the coverage, broadcasting and publication shall be allowed unless there is demonstrable prejudice if such coverage, broadcasting and publication is allowed. This means that the onus is not on the media to show why it should be allowed, but on the opponent to show why the application should not be allowed;

(d) the application may be made to broadcast any court proceedings that serve before the court hearing the application; and

(e) the magistrate hearing the trial where an order was granted by another magistrate to broadcast pre-trial proceedings, shall retain the discretion in relation to the broadcast of the trial.

[51] It follows from what I have stated that the appeal must succeed. However, as indicated by the parties, it is not necessary to substitute the decision of the magistrate, as the pre-trial proceedings have concluded and the trial has proceeded before the high court. What the parties require is legal certainty in relation to the procedure in seeking media access in the Magistrates’ Court.

Order

[52] In the result:

3. The correct procedure in relation to the Guidelines and media access in the Magistrates’ Courts is as set out in paragraph 50 of this judgment.

Sibiya J

I agree

Khan AJ

Appearances

Counsel for the appellant : Adv S Kazee Instructed by

: Power Singh Incorporated : avani@powersingh.africa Ref

: PSIAR-202111 Counsel for the amicus curiae : Adv S Scott Instructed by

: Weber Wentzel : Dario.milo@webberwentzel.com Ref

: D Milo / D Naidoo / K Petersen 3048000 Heard

: 7 October 2022 Judgment

: 6 October 2023

[1] Transcribed record page 5 lines 22-24; Address by Ms Anthi; page 7 lines 9-11.

[2] Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In Re Masetlha v President of the Republic of South Africa and Another 2008 (5) SA 31 (CC) paras 39-41.

[3] Record page 27 lines 21-23.

[4] Record page 28 lines 1-6.

[5] Van Breda v Media 24 Ltd and Others 2017 (2) SACR 491 (SCA).

[6] Record pages 89 lines 20-90 line 20.

[7] Midi Television (Pty) Ltd t/a E-TV v Downer and Others (15927/04) [2004] ZAKZHC 15 (12 October 2004)

[8] South African Broadcasting Corporation Ltd v Downer NO and Shaik [2007] 1 All SA 384 (SCA)

[9] South African Broadcasting Corporation Ltd v Thatcher and Others [2005] 4 All SA 353 (C).

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

[11] See also Media 24 (Pty) Ltd and Others v Department of Public Works and Others [2016] 3 All SA 870 (KZP).

[12] Van Breda para 75 (footnote omitted.)

[13] Record page 19 lines 8-11.

[14] Record page 19 lines 13-23.

[15] Record page 19 lines 23-25

[16] Record page 90 line 7-9.

[17] Record page 90 line 17-23.

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