Case Summary and Outcome
The South African High Court held that the Parliament’s policy stating that the usual broadcasting of parliamentary events may be interrupted during “occasions of grave disorder” or in “cases of unparliamentary behavior” was constitutional and reasonable to protect the dignity of Parliament by avoiding the impact of disorderly conduct.
On February 12, 2015, at the President’s annual State of the Nation Address, the State Security Agency used a device that jammed mobile telecommunication signals and the public was not able to see certain events that occurred on the floor of the Parliamentary Chamber, in particular, when members of the political group Economic Freedom Fighters (“EFF”) were engaged in an altercation with security agents and eventually escorted out.
The South African National Editors’ Forum, the broadcast company Primedia, and two non-governmental organizations, Right2Know and Open Democracy Advice Centre, challenged the use of signal jamming and the Parliament’s broadcast policy.
The applicants argued that the use of signal jamming was unconstitutional and invalid and that Parliament’s broadcast policy, which states that if there is any incident that constitutes grave disorder or unparliamentary behavior, then the cameras must stay focused on the Speaker and not on the incident concerned. It was argued that the Constitution’s underlying values of openness and accountability are the pillars on which the right to an open Parliament rests and all South Africans have a right to know what happens in Parliament, including disruptions by members of Parliament, even if embarrassing to the Parliament. Furthermore, applicants argued that a democratic society risked losing faith in the legitimacy of the Legislature if obviously important and controversial events are playing out on the Assembly floor but the camera remains focused on the Speaker. The public has a right to know what happens in Parliament.
The respondents argued that the public was only entitled to have the legitimate business of Parliament broadcast or televised and that when a member obstructs or disrupts Parliament’s proceedings he or she is not engaged in legitimate parliamentary business and it would therefore be unreasonable to require Parliament to feed broadcast such behavior. The respondents argue that the broadcast of disorderly instances would only encourage further such behavior and the limitations imposed by the Parliament’s measures are minor, reasonable, and in accordance with international best practices. Accordingly, the applicants argued that the policy strikes a proper balance between the right of the public to be informed about Parliament and the duty to maintain the dignity of Parliament and its Houses.
Judges Daniel Dlodlo and Robert Henney wrote the judgment for the High Court of South Africa. The judges accepted that all citizens did have a right to know what happened in Parliament and that there is a constitutional duty to ensure that citizens can and do enjoy that right. Thus, measures taken by Parliament that would interfere with the exercise and enjoyment of that right must be justified and reasonable in the circumstances. However, the court also held that, while the public has the right to know what happens in Parliament, that right is not absolute. Rather, the question is whether any limitations placed by parliament are reasonable with regard to what those limitations aim to achieve.
The majority held that the restrictions in Parliament’s broadcasting policy were indeed reasonable on the grounds that they protected the dignity of Parliament by tempering the especially strong impact that the visuals of disorderly conduct, if broadcast to the world and played repeatedly, would have. It was held that Parliament has its own constitutionally enshrined right to regulate and/or control its internal arrangements, proceedings, and procedures, and that the applicants needed to show that Parliament’s determination regarding the televising of gross disorder and unparliamentary conduct was unreasonable. With regard to the signal jamming, the majority found the issue to be purely academic because it had been conceded that it was a mistake not to unjam the signals once there was no longer a threat of remote controlled explosives which is the reason the device had been engaged in the first place. It was a one-time occurrence and there was no reason to believe broadcasts would be hindered in the future.
In her dissenting judgment, Judge Kate Savage held that the broadcast policy restrictions unreasonably limited public access to a visual broadcast of important events involving elected representatives. She also held that the signal jamming was unlawful. Her reasoning was that, given South Africa’s history of censorship and media restriction, the measures to protect Parliament’s dignity unreasonably impacted openness, accountability, free expression, and media freedom.