Case Summary and Outcome

The Supreme Court of Appeal of South Africa rejected a ban on the audio-visual recording of a criminal proceeding against a high-profile defendant and ruled that a court could determine the nature and scope of audio-visual broadcasting on a case-by-case basis.  The Court reasoned that audio-visual broadcasting was implicit and therefore entrenched in Article 16 of the Constitution as part of the right to freedom of the press which right not only protects the right of the press to disseminate information but more importantly the right of the public to receive information. This is an important decision because, although South African courts had considered the right to broadcast judicial proceedings previously, it is the first time the Supreme Court affirmed the importance of the right and the ruling constitutes a step forward in the right of the press to broadcast judicial proceedings in South Africa.

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Facts

Media 24, a broadcasting and news company in South Africa, asked a criminal court if it could broadcast a high profile case involving proceedings against Mr. Henri Christo van Breda who had attracted widespread media attention because he allegedly killed three family members with an ax.

Media 24 made an urgent application to “install two video cameras in the trial courtroom in order to record and broadcast the proceedings, alternatively to be permitted to broadcast the proceedings by microphone and sound”. It also applied to be allowed to take still photographs and video footage in court for 30 minutes before the commencement of court and after the adjournment of proceedings each day.

The Western Cape Division judge decided in favor of Media 24 and allowed the broadcasting and recording of the proceedings. The court established a list of guidelines that the broadcasting company had to follow in order to be allowed to carry out its operations. For example, the court prohibited photographs or recordings of exhibits and communications between legal representatives and their clients.

On April 13, 2017, both the National Director of Public Prosecutions (NDPP) and the accused, Mr. van Breda, filed for appeal before the Constitutional Court, which rejected the application. Then, Mr. van Breda and the NDPP filed separate appeals before the Supreme Court which granted leave to appeal on April 26.

The NDPP did not want any recording or broadcasting at all to take place during the criminal proceedings. Mr. van Breda’s defense had no difficulty with the recording and broadcasting of counsels’ argument and the rulings and judgment of the court.

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Decision Overview

Judge Visvanath Ponnan delivered the opinion of the Supreme Court of Appeal.

The main issue before the Court was the extent to which audio-visual broadcasting of a criminal proceeding should be allowed, if at all. The NDPP did not want any recording or broadcasting at all to take place during the criminal proceedings. Mr. van Breda’s defense was happy for the recording and broadcasting of counsels’ argument and the rulings and judgment of the court to take place. The Court decided that technology and the role of broadcasting media to inform the public is part of the right to freedom of the press and the principle of open justice.

The Supreme Court, firstly established the relationship between freedom of the press and the principle of open justice, and how media reporting contributes to public confidence in the judiciary branch and to the law itself. It asserted that Section 16 of the Constitution not only establishes the right of the press to disseminate information, but also the right of the public to receive information.

With regard to the right of the public to receive information, the Court said that “in an open democracy based on the values of equality, freedom and human dignity, the right of the public to be informed is one of the rights underpinned by the value of human dignity.” Judge Ponnan also reasoned that the act of broadcasting is an expressive act in itself since it communicates public events. More importantly, television, as the principal source of news in the country, is essential given the high levels of illiteracy.

The Court acknowledged that the question of allowing cameras in the courtroom had provoked tensions in the past, especially when there is a clash between the right of the press and the right of the accused to a fair trial. However, in the eyes of the Court, when two constitutional rights clash “it is not a matter of determining which right is more deserving so that courts may declare a victor and jettison the loser.” Instead, the Court said, quoting Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape), “Where constitutional rights themselves have the potential to be mutually limiting – in that the full enjoyment of one necessarily curtails the full enjoyment of another and vice versa – a court must necessarily reconcile them”.  Accordingly, the Court said, “freedom of expression and the fair administration of justice, which are both essential to the proper functioning of any true democracy, should as far as possible be harmonised with one another”.

The Court stated that a bar on the broadcasting of a judicial proceeding would constitute a limit to Section 16 of the Constitution that encompasses the right of freedom of the press. Furthermore, the Court paid much attention to existence of new technology in the media and communications. “The right to freedom of expression confers on the media the discretion to determine what means of communication would be most effective in relation to engaging the public and communicating and relaying information and events to it.”

Judge Ponnan, pointed out that audio-visual broadcasting was more accessible and timely to the public than print media. The Court also reasoned that because the media is a vital watchdog in respect to judicial processes “televised proceedings thus aid in the public oversight of the judiciary.” Further, barring microphones and cameras would mean that “one sector of the media is precluded from taking their particular tools” into the courtroom. [para. 47].

Concerning the importance of broadcasting, Judge Ponnan stressed that people would have more confidence in the courts, would comprehend the formality and integrity of the court and broadcasting would increase public access to judicial proceedings.

An argument against the cameras, according to the Court, was that it would affect witness testimony, especially in criminal trials. The Court, however, minimized that objection reasoning that the courtroom is already a public space and physical presence is allowed. The broadcast would give a virtual presence to those watching. “Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice.” [para. 52].

The Court also rejected the notion that broadcasting may taint a testimony because the witness may  tailor his/her testimony to the evidence presented. Judge Ponnan pointed out the fact that judges maintain authority to prevent a process from being obstructed or abused in any way. Also, the Court underlined that there is already live court reporting because journalists are allowed to use social media platforms such as Twitter and Facebook to inform the public.

The Court accepted that broadcasting judicial proceedings raised privacy and security concerns and that, even though a courtroom constitutes a public space and a judicial proceeding is a public event, there may be circumstances where the judge must protect certain interests. In these circumstances judges may impose appropriate restrictions in order to protect witnesses. [para. 57].

The Supreme Court determined that lower courts could define the nature and scope of audio-visual broadcasting in a judicial proceeding on a case-by-case basis. As established in Section 173 of the Constitution, the Court can do so in order to ensure fairness if needed. However, the court rejected NDPP’s notion of a blanket prohibition to audio-visual broadcasting because it disregarded technology’s role in media.

More importantly, Judge Ponnan established that the default position has to be that there is no objection to the principle of having media recording and broadcasting in a judicial proceeding. However, if a witness or an accused person objects to having cameras in the courtroom, there must be a real risk of prejudice which prejudice has to be demonstrable – mere conjecture or speculation is not enough.

Even though the court favored audio-visual broadcasting in judicial proceedings as part of the right entrenched in Article 16 of the Constitution, it set aside the lower court’s judgment and remitted the case back to Judge Desai in the Western Cape Division for him to reconsider his decision in light of the Supreme Court’s judgment. The judgment also ordered Media 24 to pay Mr. van Breda’s costs.

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