2014: A Bumper Year for Media Law

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

There were some notable successes for the media under the Promotion of Access to Information Act in late 2014.

The most important was the successful 6 year battle by the Mail & Guardian to access the Khampepe-Moseneke report by the two Constitutional Court justices into legal and constitutional issues concerning the 2002 Zimbabwe elections. The litigation outlasted two Mail & Guardian editors (Ferial Haffajee, who made the PAIA requests in 2008, and Nic Dawes) and two presidents – Thabo Mbeki, who commissioned the report, and Kgalema Motlanthe.

The case was heard first by Acting Judge Stanley Sapire in the North Gauteng High Court in 2010; then on appeal by the presidency by five judges of the Supreme Court of Appeal in the same year (see the SCA judgment here); then by the Constitutional Court in 2011, who remitted the case to the High Court to take a “judicial peek” at the report (here’s the judgment); then by Judge Joseph Raulinga who took the first judicial peek in 2012; then by five judges of the Supreme Court of Appeal in 2014 (see the judgment here); and finally, the presidency’s application for leave to appeal was dismissed by the Constitutional Court in November 2014.

Following the Constitutional Court’s ruling, the Mail & Guardian finally received the report, which you can read here. The conclusion was that in the circumstances outlined by Justices Khampepe and Moseneke in their report, they could not find that the 2002 Zimbabwe elections were free and fair.

The case illustrated the length to which the state will sometimes litigate to prevent embarrassing information being made public. Justice Fritz Malan in the Supreme Court of Appeal referred to one of the presidency’s litigation tactics as “an abuse of process that cannot be tolerated”, and that reasoning applies, in my view, to its defence of the entire case. The presidency’s defence was hopeless – it cited two grounds of refusal which were clearly not applicable, as the judges who took the judicial peek were quick to point out. There was never any justification for withholding the report from the public, nor to use taxpayers’ money to fight the case. The report should have been made public by former President Mbeki in 2002.

The fact that three successive presidents went on oath to resist its disclosure on baseless grounds is scandalous. Also puzzling is former President Mbeki’s continued attempt to justify the refusal after the report’s release (see here), in the face of contrary decisions by 22 judges: Judges Sapire, Raulinga, Nugent, Van Heerden, Maya, Cachalia, Bertelsmann, Cameron, Jafta, Nkabinde, Van der Westhuizen, Navsa, Brand, Ponnan, Mbha, Mathopo, Mogoeng, Froneman, Leeuw, Madlanga, Tshiqi and Zondo. My colleague Ben Winks has written a response to Mbeki here.

Another media PAIA case that bears mention is the Right2Know Campaign’s application for access to the list of national key points declared under the controversial National Key Points Act. Judge Roland Sutherland held (here’s the judgment) that nothing in the legislation suggests that the list of key points should be kept secret from the public. As in the Khampepe case, the public body had not put up evidence that justified the grounds of refusal it sought to invoke. The judge remarked that the attempt to keep the list secret was undermined by the fact that ministers had furnished details of key points to parliament “for the whole world to know, including, presumably, those dark forces that lurk in wait to disturb our tranquility”.   You can read the full list here as well as excellent context from the Mail & Guardian.

And then there was a non-media PAIA case that will benefit the media significantly in the years ahead. This was the SCA’s decision in favour of Vaal Environmental Justice Alliance.  Read it here. The Alliance was successful in its PAIA application against ArcelorMittal, a private body, for information relating to the company’s operational and strategic approach to the protection of the environment into the areas where it operates steel plants.

What is significant about this case is that it involved a private body. In such cases, a requester has to meet a strict threshold requirement that it requires the records sought for the exercise of protection of its rights. The SCA held that as advocates for environmental justice, the requester was entitled to rely on various environmental law statutes in complying with the threshold requirement. The statutes emphasised the importance of consultation and interaction with the public. “After all”, Justice Mahomed Navsa says for the Court, “environmental degradation affects us all,” and the NGO requester “is entitled as an advocate for environmental justice to monitor the operations of [ArcelorMittal] and its effect on the environment”.

The same, of course, can be said of the media in relation to its role in our democracy, and I expect the appeal court to take a similar approach when it one day considers a media request of a private body where public interest issues are raised.

Criminal defamation alive and well in South Africa, but not in Zimbabwe

In South African law, defamation is a crime as well as a civil wrong. But criminal defamation prosecutions against the media in the democratic South Africa were unheard of.

That is, until Cecil Motsepe, then a Sowetan journalist, was charged with criminal defamation for publishing an article in 2008 which alleged that a magistrate imposed a heavier sentence on a black male than he imposed on a white female for the same offence. The problem was that the journalist got his facts wrong – the case dockets were mainly in Afrikaans, and Motsepe’s sources, an attorney and a court official, had relayed the incorrect information to Motsepe. The magistrate laid a charge of criminal defamation, and Motsepe was ultimately convicted of the crime of defamation, and sentenced to a R10, 000 fine or 10 months’ imprisonment wholly suspended for five years, on certain conditions. Motsepe appealed the conviction.

Two judges of the Pretoria High Court overturned the conviction. You can read the judgement here. The main reason for their decision was that the prosecution had failed to show beyond a reasonable doubt that Motsepe acted with intention to defame the magistrate. In other words, even though the court held that Motsepe was reckless, this was not sufficient to constitute dolus eventualis – a criminal law concept that, following the controversy surrounding Judge Masipa’s judgement in the Oscar case, needs no further explanation.

Motsepe as well as a litany of amici curiae (friends of the court) – from the South African Editors’ Forum to the New York-based Committee to Protect Journalists – also argued before the court that the crime of defamation was unconstitutional insofar as it related to media publications. This was a bridge too far for the court, who held that it was bound by an earlier Supreme Court of Appeal case, S v Hoho (available here), where the court upheld the constitutionality of the crime.

It is hoped that when the Supreme Court of Appeal or the Constitutional Court get an opportunity to reconsider criminal defamation, they get rid of the crime. As the Zimbabwean Constitutional Court said in 2014, “the overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain”. And the African Court on Human and People’s Rights held at the end of last year that custodial sentences for criminal defamation were inconsistent with freedom of expression. We have civil laws which vindicate those whose reputations have been harmed. There is no pressing need for a criminal record and sentence to also be visited upon the defamer.

Protection from Harassment – Puppet Wallops Muppet [1]

Certainly the most entertaining free speech case of the year was the litigation between Chester Missing, the puppet creation of ventriloquist and political commentator Conrad Koch, and singer Steve Hofmeyr. Hofmeyr obtained an interim protection order under the Protection from Harassment Act of 2011, preventing Koch (and Missing) from harassing him or contacting any of his sponsors or business associates. The context was a disgraceful racist tweet by Hofmeyr, “Sorry to offend but in my books Blacks were the architects of Apartheid. Go figure”. In response to this tweet, Koch (and Missing) , launched a civil campaign against racism (principally on social media), by publicly denouncing and ridiculing Hofmeyr’s views, and also encouraging others, including companies sponsoring Hofmeyr, to distance themselves from his views.

It was this response by Koch that caused Hofmeyr to obtain a protection order. On the return day, Koch and Missing successfully overturned the interim protection order. The Randburg Magistrate’s Court held that the campaign launched by Koch did not constitute “harassment” under the Act, as it was not “unreasonable”, but rather protected freedom of expression. Hofmeyr, said the court, had exposed himself to criticism, satire and ridicule.

Punitive costs were awarded against Hofmeyr, and at the end of the case, a bizarre altercation ensued between Hofmeyr’s representative Dan Roodt and the puppet (of course available on YouTube here).

The case is important for the media as it shows that the Harassment Act cannot be abused to stifle legitimate commentary and satire in our democracy . I hope this was the first and last attempt by a public figure to use the machinery of the Harassment Act to attempt to chill free speech.

Disclosure: My team and I acted for the media in the Oscar case, the Khampepe case, the National Key Points case and the Cecil Motsepe case; and for Koch and the puppet in the Chester Missing case.

[1] The Times Poster, 29 November 2014