Access to Public Information
De Lange v. Eskom Holdings
Closed Expands Expression
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The Cape of Good Hope Provincial Division (now a High Court of South Africa) declared the King Commission’s blanket ban on media coverage during proceedings as unconstitutional. During an inquiry into allegations against the South African Cricket Team for fixing matches, the commission, under the direction of the Honorable Mr. Justice Edwin King, instituted a blanket ban to prevent the media from making audio recordings and broadcasting the proceedings. The Court reasoned that the ban was in contravention of the South African Constitution since the right to broadcast proceedings is included in the constitutionally enshrined rights of freedom of expression and of the public to receive information. Moreover, the right of the press to broadcast in this instance was of critical public interest, nationally and internationally.
Hansie Cronje, captain of the South African National Cricket team, admitted to Indian police’s allegations that the South African team had taken money in exchange for fixing international cricket matches. After Cronje made this admission, the South African President and the Minister for Justice appointed a commission, the Commission of Enquiry into Cricket Match Fixing and Related Matters, colloquially called the King Commission, to investigate the matter (paras 1, 2).
At the start of the proceedings, the Commission’s chair, the Honorable Mr. Justice Edwin King, announced that television and radio broadcasts would not be allowed during the proceedings (para 4). Midi Television (Pty) Ltd (proprietor of e-TV) and Paul Cainer (Chief Executive Officer of Dotcom Trading 121 (Pty) Ltd) each filed applications with King, requesting that electronic media be allowed. King refused their applications after hearing from representatives of Cronje et al, who argued that a live broadcasting of the proceedings and the presence of electronic media would be upsetting for the potential witnesses (paras 5, 8).
Dotcom Trading 121 (Pty) Ltd then filed this application against King, the King Commission, the President of the Republic of South Africa, and the Minister of Justice with the Cape of Good Hope Provincial Division (now a High Court of South Africa). The application requested that King’s decision not to allow electronic media into the proceedings of the commission to be set aside (para 10). According to the Court, the crux of the issue lay in the question of whether or not section 16 of the South African Constitution enshrined in its provisions on freedom of expression the right of the media to broadcast proceedings before a commission (para 25).
Judge Brand presided over this case and opened the court’s analysis with the argument made by Dotcom Trading 121 (Pty) Ltd (Dotcom), which stated that an absolute ban on electronic media broadcasting during the King Commission’s proceedings violated both the Dotcom’s right to freedom of the media and the public’s right to receive information as enshrined in section 16 of the South African Constitution (para 21). King’s response was “the right to freedom of the media enshrined in section 16(1)(a)…does not include the right to broadcast the proceedings before the commission directly, nor does the right to record these proceedings for broadcasting purposes” (para 23). King further rejected the claim that the excluding the media during the proceedings violated the right of the public to receive information (para 23). From here, the court deliberated on what it considered “the nub of the issues between the two parties…whether the right to freedom of expression, guaranteed in section 16(1)(a) of the Constitution, includes the right to broadcast and/or to listen to a broadcast of the actual proceedings before the commission” (para 25).
At this point in South African jurisprudence, in 2000, the issue was reviewed res nova. Therefore, the parties had to look to foreign jurisdictions for supporting case law (para 28). Counsel for King (et al) introduced two cases: Regina v. Squires (No. 2)  33 CCR 31, a Canadian case, and In Re: The Scottish Broadcasting Corporation (No. 2), an unreported case that came before the Scottish High Court of Justiciary (para 28). King’s argument was that even though the applicants were not allowed to bring recording equipment into the proceedings, they still had the same rights of the rest of the public and of print media in that they were still afforded full access before the commission (para 27). Squires debated this same point, and the judiciary in that case came to the conclusion that there was no justification “to confer upon the electronic media a constitutionally guaranteed right to televise judicial proceedings” and that the Canadian Charter of Rights and Freedoms conferred no greater rights on electronic media than on the rights of the public (paras 29-33). However, because this judgment was overruled in a subsequent case, the court in this case found the ruling to be insufficient to support King’s claims (para 41). The court also dismissed In Re: The Scottish Broadcasting Corporation, because the question at issue in that case was not relevant to the point being made (para 40).
The court, however, looked to another Canadian case in its assessment: R v. Butler  50 CCC (3d) 129, where in dicta, the judge stated “[t]he freedom of expression enjoyed by television journalists, such as the appellant, is the freedom to film events as they occur and to broadcast the film to the public. If television journalists are unable to photograph persons entering or leaving a courtroom, their freedom of expression is curtailed” (para 42). The court in this case analogized this idea, finding it “almost self-evident…that the prohibition of the direct radio transmission of proceedings by a radio broadcaster constitutes a limitation on what is essential to the activities of that medium of communication” (para 43). The court argued that Section 16 of the Constitution necessarily extends the right of freedom of press and expression to modern forms of communication (paras 43, 44). Therefore, the court rejected the assertion that because the electronic media had the same access as print media that there was no constitutional violation (para 45).
Because any limitation of a constitutional right must be justifiable under Section 36 of the South African Constitution, the court next turned to this assessment (paras 47, 48). Here, the issue was whether or not a blanket ban on electronic recording of the King Commission’s proceedings was justifiable under the provisions of Section 36, which require a consideration of “the nature of the right,” the importance, purpose, nature and extent of the limitation, “the relation between the limitation and its purpose”, and whether there are “less restrictive means to…the purpose” (para 50). The argument in favor of the ban was that, because of the immense interest surrounding the case, the media presence “would likely be inhibiting and intimidating to the majority of witnesses” (para 56). However, even so, the court rejected the assumption that this would justify a “blanket exclusion on radio broadcasting” (para 56).
The court ultimately decided that two factors, “the nature and importance of the constitutional rights which are infringed and the availability of less restrictive means to achieve the same purpose” held the greatest weight (para 58). The court found that the right of the press to record and broadcast in this instance was critical because of the widespread interest, both nationally and internationally, and especially because “radio constitutes the only access to information for many South Africans (para 60). The court further found that there was no evidence to conclude that a blanket ban on the media was the least restrictive way to protect and shield witnesses (para 62). Therefore, the Court set aside the King Commission’s ruling as unconstitutional (para 63).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The issue of whether the South African Constitution enshrined the right to record and broadcast the proceedings of a commission was, at the time of this case, res nova in South African jurisprudence, and therefore, the Court’s decision that Section 16 necessarily expands the right to freedom of the press and the media to other means of communication (i.e., non-print) than were in existence at the time of the section’s inception, expands the concept of freedom of expression in an important way.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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