On 6 August 2016, the legal research group of the ruling party, the African National Congress, held a workshop on the Protection of State Information Bill (also known in many quarters as the “Secrecy Bill”). I was asked to speak at the workshop. I am optimistic that the criticisms of the Bill will be brought to the attention of the President (as promised by Minister Jeff Radebe). The outcome of the last workshop on free speech issues which I spoke at last year was the ANC’s support for the repeal of criminal defamation – see my blog here: http://blogs.webberwentzel.com/2015/10/the-timely-demise-of-criminal-defamation-law/. So there may be some cause to be optimistic. In any event, this was my speech:
Welcome to my first blog of 2016. It has been a very busy start to the year, which is why this blog comes later than I would have liked. The aim, this year, is to blog far more regularly than last year. That’s my media law new year’s resolution. Wish me luck. First, my traditional summary of media law last year, and then I discuss a few developments in the first two months of this year.
I penned a piece for Business Day in mid-January summarizing, in 1,100 words (how different blogging is!), what the key developments in media law were in 2015.
Here it is in case you missed it: SANRAL and SAA cases gave weight to media freedom.
In the Business Day piece, I discuss the most important case of the year for the media (even though it didn’t involve the media directly) – City of Cape Town v Sanral, as a result of which, once court documents are filed in court, we can now generally regard them as public documents. There was also the futile attempt by South African Airways to silence the media from publishing a legally privileged report into its financial affairs : South African Airways Soc v BDFM Publishers. I also discussed the disappointing Western Cape Full Bench decision in Primedia v Speaker of Parliament, where a majority of the court held that parliament’s broadcasting policy – which resulted in images of the Economic Freedom Fighters being ejected from parliament, not being shown on TV; and the signal jamming that took place at the State of the Nation address last year, not being declared unlawful (this case is on appeal to the Supreme Court of Appeal).
I mentioned the decision by the African National Congress – yet to be implemented – to abolish criminal defamation law, the Film and Publication’s Board’s disastrous draft online regulation policy, and the Press Council’s new Code of Conduct which has been updated to take into account digital speech, including members’ liability for user-generated content. Continue reading
Two weeks ago, I presented at a workshop organized by the African National Congress (ANC) on criminal defamation – how it differs from civil defamation, some recent developments across Africa, and why criminal defamation is unconstitutional, in my view. At the workshop, the ANC made a dramatic and welcome announcement that it would spearhead legislation to rid South Africa of criminal defamation – an announcement which I wrote about in the Mail & Guardian last week. The announcement was widely covered in the media – a good report by eNCA can be found here. Unfortunately for the Democratic Alliance (DA), its premature speculation in a media statement before the ANC’s workshop – that the ANC’s intention was to pass insult laws to protect the president – proved to be a spectacular own goal. (Of course the DA has other problems to deal with at the moment, following the sharing on Facebook by one of its prominent MPs and the shadow minister of police of a post praising PW Botha).
Here is an extract from my speech which I presented at the ANC workshop on criminal defamation. Continue reading
In recent weeks, following the Al-Bashir scandal, some of our most powerful politicians have made provocative statements highly critical of aspects of our judiciary.
It is now notorious that the government is alleged to have breached a clear court order: that Al-Bashir not be allowed to leave South Africa until such time as the court had rendered its final ruling in the case. (For a good summary of this low point in our constitutional history, see this Mail & Guardian article and the Johannesburg Bar Council’s media release on the issue).
Gwede Mantashe, the Secretary General of the ruling party, never one to mince his words, got the ball rolling on 21 June 2015, saying to the television programme Carte Blanche:
“There is a drive in sections of the judiciary to create chaos for governance. And we know, that if it doesn’t happen in the Western Cape High Court it will happen in the Northern Gauteng. Those are the two benches where you always see that the narrative is totally negative and create a contradiction.”
SA Communist Party secretary and Minister for Higher Education and Training, Blade Nzimande, quickly followed suite stating on 7 July 2015 that the judiciary was interfering with the state through its overreaching judgments (see News24 article).
In the same week it was also reported that Minister of Police Nkosinathi Nhleko had allegedly made a statement previously that “some elements of the judiciary meet with characters to produce certain judgments.” (see EWN article).
These statements led to an unprecedented show of force by the leaders of our judiciary, which released a statement on 8 July 2015 emphasizing the importance of respecting court orders and taking issue with what they called “general gratuitous criticism” and “repeated and unfounded criticism of the Judiciary.” Continue reading
This article was published in the Mail & Guardian newspaper on 19 June 2015.
Justice must not only be done, it must be seen to be done. This is the essence of the principle of open justice. Put differently, the public has a right to have access to the courts, to observe how matters will be decided and to obtain court documents relating to those cases.
The past few months have been particularly important for this principle. First, the Supreme Court of Appeal in the South African National Roads Agency (Sanral) case handed down a significant judgment, which clarified that court documents should be available to the public from the time that they are filed – and thus well before the actual court hearing. Continue reading