Signal jamming, parliamentary broadcasts, evicting MPs, and access to share registers – the appeal courts speak

I acted for Primedia Broadcasting and the South African Editors’ Forum in the appeal to the Supreme Court of Appeal (along with Right2Know and Open Democracy Advice Centre) concerning the now infamous signal jamming and broadcast ban that occurred during last year’s State of the Nation (SONA) address in Parliament. The SCA ruled in our clients’ favour last week. I penned a piece for Business Day, which was published yesterday, and which you can read here.

The case is a wonderful continuation of the openness jurisprudence of the SCA (and the Constitutional Court).  It’s a powerful judgment.  We will know in a few weeks whether the speaker of parliament and the minister of state security will seek to appeal to the Constitutional Court.

Of course, this was not the first appeal judgment dealing with free speech and SONA 2015 – the Democratic Alliance succeeded in March this year in a challenge to the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004.  Section 11 of that Act provided as follows: “A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.”  This provision had been used to justify the forcible ejection of Economic Freedom Front MPs who demanded at SONA 2015 that president Zuma tell us when he would be paying back the money spent on his Nkandla residence.

The Constitutional Court ruled that section 11 was unconstitutional because it covered the arrest and removal of MPs.  It would be cured by reading-in the words “other than a member [of parliament]” after the word “person” at the beginning of the provision.

The other interesting development from late September this year was that the Constitutional Court refused Nova Property Group Holdings Ltd and related companies leave to appeal from the SCA’s ruling that it provide access to its shareholder registers in terms of section 26(2) of the Companies Act (I acted for the amicus, amaBhungane, whose managing partners had made submissions on what became section 26(2) of the Companies Act in parliament in 2008: see a contemporaneous article here) .  This means that the SCA’s word on the issue is in fact the last word – so section 26(2) creates an absolute, unqualified right of access for the media and the public to companies’ shareholder registers. I wrote about the SCA decision when it came out in the Financial Mail, read it here.  You can also read some background about the facts of the case here.

All in all, some fantastic media freedom decisions in the recent weeks.  While we contend with such scandals as #NkandlaGate, #GuptaGate #ShaikGate #NeneGate #HlaudiGate #WaterkloofGate #SpyTapesGate #DuduMyeniZumaGate #AlBashirGate #SecrecyBillGate #SABCGate #SOCsGate #SARSGate #PravinGate etc, at least we can look to our courts to affirm our democracy.

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