Inxeba – Court papers

March 2018 was a big month for the right to freedom of expression, and it was all about the right to screen the film Inxeba: The Wound.

On 28 March 2018, the Pretoria High Court (Raulinga J) reserved judgment in the application by the distributors and producers of the movie Inxeba: The Wound for a judicial review of the decision of the Film and Publication Appeal Tribunal to classify the movie X18. The effect of the classification was that the movie cannot be screened except in adult premises. One media report of the day’s proceedings can be found here.

As an interim position, however, the parties had agreed earlier in March – reflected in an order of court on Tuesday 6 March by Tuchten J – that the movie could again be screened from Friday 9 March in cinemas on the basis that it is classified 18 – but not X18: see some media publicity here).

More dramatic developments followed in the evening of Thursday 8 March when the House of Traditional Leaders brought an eleventh-hour urgent interdict to stop the movie from being screened the following morning. Judge Tuchten – still on urgent court duty in Pretoria – dismissed the application in the early hours of Friday 9 March and the movie was screened again from later that morning. Here’s one article reporting on what happened that evening.

The substantive issues were argued in the full-day hearing of 28 March (after the judge viewed the movie with the parties in the judge’s tea room on 26 March). Here are the court records in the case for your viewing pleasure: the pleadings (ie the application, the founding affidavit, supplementary affidavit, answering affidavit and the replying affidavit); and the heads of argument:

Inxeba pleadings 20180319

Inxeba 1st and 2nd respondents’ heads

Inxeba Third respondents’ heads of argument 20180328

Inxeba Fifth and sixth respondents heads of argument 20180323

Inxeba amici heads

Inxeba applicants’ heads

Judge Raulinga said at the end of the proceedings of 28 March that he would deliver judgment as soon as he could.

I will keep you posted.

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.

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The Hate Speech Bill and satire

At the end of January 2017, comments on the Prevention and Combating of Hate Crimes and Hate Speech Bill were due. I acted for some of our leading stand-up comedians and satirists (including the cartoonist Zapiro) in making submissions on the harm posed by the Bill for legitimate satire.

I penned a piece for the Business Day, which was published on 21 February, and which summarized the issues that we dealt with in our submission (prepared by myself and two junior counsel at Group 621, Advocates Stuart Scott (until he left for the Bar, an associate in my team), and Itumeleng Phalane). You can find the submission itself here, published on Columbia University’s Global Freedom of Expression and Information website (I am fortunate to be the South African free speech expert in this project).

Here’s my Business Day piece if you missed it:

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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.

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

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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