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

posted in Access to information, Broadcasting, Freedom of expression, Media law, Musings on Media, Open justice, Openness, Parliament, Political speech, Signal Jamming on by

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.

ANC Legal Research Group workshop on the Protection of State Information Bill

posted in Media law, National security, Openness, Protection of State Information Bill, Secrecy Bill, Uncategorized on by

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:

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Media law and free speech in 2015 and 2016 so far

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

The timely demise of criminal defamation law

posted in Criminal defamation, Defamation, Freedom of expression, Media law, Musings on Media, Political speech on by

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

2014: A Bumper Year for Media Law

posted in Media law, Musings on Media on by

2014 was an important year for the media. Our courts handed down significant rulings – some good, some bad, and some ugly. I’ll discuss some of the most important cases here.

The Oscar casea quantum leap forward and then a few steps back

The media law highlight of the year was undoubtedly the decision of the Judge President of the North Gauteng High Court, Dunstan Mlambo, in the application by broadcasters to televise the murder trial of celebrity Olympian and Paralympian Oscar Pistorius. I blogged about the case here, and you can find the decision here.

This was the first time in South Africa’s history that a criminal trial was broadcast live. Judge Mlambo recognised the importance of balancing the principle of open justice against the rights of the accused and the state to a fair trial. He ruled that the entire trial could be broadcast by audio, and that the media could televise the opening and closing arguments, any interlocutory applications, the judgment, and the evidence of the experts and police witnesses for the state, as well as any lay witness who consented to being televised.

I am of the view that the broadcast of the trial was a great success in educating the public and generating debate about aspects of our criminal justice system. Certainly, despite protestations to the contrary by Oscar’s legal team in their closing arguments, the broadcast of the trial can certainly not be said to have rendered any aspect of the trial unfair to either side. You can read my blog (with Stuart Scott) on the impact of the broadcast on the fairness of the trial here. And even the President of the UK’s Supreme Court has reportedly indicated that he thought that the filming of the trial was impressive.

While the decision of Judge Mlambo was a quantum leap for open justice, a number of decisions by the trial judge, Judge Thokozile Masipa, undermined open justice. First, she changed the rules regarding photographs of witnesses. The general rule is that a witness who gives evidence in a court case cannot have his or her identity protected, or prevent photographs of themselves been published. Yet Judge Masipa ruled that the media could not publish a photograph of any witness who did not consent to being televised, either until the end of their evidence, if the witness was a public figure, or, if a private figure, until the end of the trial.   (For a diagrammatic representation of this ruling, see here).

Two other open justice restrictions were also baseless: Judge Masipa also banned the live broadcast and tweeting of the evidence of the forensic pathologist called by the state; and the publication of the written heads of argument in the case until oral argument was presented. At least Judge Masipa had the sense to overturn her live tweeting ban the following day.  For further discussion of Judge Masipa’s curious orders, see my blog with Stuart Scott here.

Judge Binns-Ward’s Sanral decision – the bell tolls for open justice

But in my view, Judge Masipa was not the only judge whose rulings undermined open justice during 2014. Later in the year, Judge Ashley Binns-Ward of the Western Cape High Court, in a judicial review case between the City of Cape Town and SANRAL, handed down a decision which dramatically restricts the ability the media to access court documents from the court file, and the ability of parties to pending litigation to distribute documents to the media. You can read the case here.

The main case concerns the City of Cape Town’s judicial review of a decision in terms of the SANRAL Act to declare part of the N1 and N2 national roads as toll roads. In an interlocutory application, SANRAL argued that part of the City’s supplementary affidavit should not be made public, as it contained sensitive and confidential information provided to the City by SANRAL in the litigation. Judge Binns-Ward took the opportunity to discuss rule 62(7) of the High Court Rules relating to access to court documents.   This rule states: “Any party to a cause, and any person having a personal interest therein, with leave of the registrar on good cause shown, may at his office, examine and make copies of all documents in such cause’.

Judge Binns-Ward interpreted this rule as only permitting access by the High Court registrar to persons with a direct legal interest in the case – which would typically exclude the media. He went on to hold that a party to litigation who receives documentation from his opponent under compulsion in terms of the rules, cannot make that documentation public without the consent of his opponent.

The bottom line for the media is that the judgment makes it much harder for the media and the public to get access to court documents before a case is heard in court. Judge Binns-Ward’s consolation prize is that the media could bring a court application for access – an expensive and slow process. And many cases are settled before ever reaching a hearing – the documents in such cases are now effectively sealed indefinitely.

The City of Cape Town has been granted leave to appeal by the Supreme Court of Appeal (SCA). Hopefully the SCA will pay greater regard to the principle of open justice when it decides the appeal this year.

PAIA successes : The Khampepe report, National Key Points and ArcelorMittal

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