Webber Wentzel media law podcasts

On Wednesday, Webber Wentzel launched the first episode in our media law podcast series, which deals with the important principle of open justice, exceptions to the principle, and broadcasting/ streaming the courts.

I hosted two fascinating guests. The first is Advocate Andrea Johnson of the National Prosecuting Authority, who with Gerrie Nel successfully prosecuted Oscar Pistorius for murder (amongst other important prosecutions). This was the first criminal trial that was broadcast/ streamed to the public, and forms a large part of the discussion. The second guest is Franny Rabkin, leading legal journalist, Mail & Guardian associate editor, brilliant writer and expert analyst of legal issues.

You can listen to the podcast here or on Spotify or Apple Podcasts. It’s just over 30 mins – so something different to do during the national lock down.

In the next few weeks, we will drop a podcast every Wednesday. The next topics (not necessarily in order of release) include surveillance of journalists with Jane Duncan and Sam Sole; media ethics with Prof Glenda Daniels and the Press Ombudsman, Pippa Green; disinformation and defamation with William Bird; and a case study on disinformation with Thandeka Gqubule-Mbeki and Prof Anton Harber – a deep dive into their successful defamation case against the EFF (read the case here).

Hope you enjoy listening as much as I enjoyed the recording!

Henri van Breda, Visvanathan Ponnan and cameras in the court

Visvanathan Ponnan, judge of the Supreme Court of Appeal (SCA), likes his open justice judgments to have good openings. In handing down the leading decision on the right to access court papers in 2015 – where the City of Cape Town sued the South African National Roads Authority Ltd over its toll road project – Judge Ponnan began, “with apologies to John Donne of course, perchance he for whom the toll tolls may be so ill as not to know that it tolls for open justice.”

So too his latest judgment for a unanimous SCA on Wednesday in the Henri van Breda media appeal – “TV, or not TV, that is the question”, Ponnan JA quoted.

And what a judgment it was. In a scholarly analysis worthy of a master’s thesis – all the more remarkable for the fact that the argument in the appeal was only a month before – Judge Ponnan has boldly gone where no appeal court has gone before, marrying the age-old principle of open justice with developments in modern communications technology.

The punch line of the case is that broadcasting court cases is now the general rule and not the exception. The media is entitled as a matter of constitutional right to broadcast court proceedings in their entirety (whether civil or criminal trials, applications or appeals). It is for anyone contending otherwise – the accused in a criminal trial or witnesses, for example – to persuade the court that broadcasting should not take place. This is a fundamental and profound change in approach – the “starting point”, as Ponnan JA puts it, is the right to broadcast courts on whatever platform – whether it be internet streaming, radio or television.

Continue reading →

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.