The timely demise of criminal defamation law

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 →

Are some politicians scandalising the court?

In recent weeks, following the Al-Bashir scandal, some of our most powerful politicians have made provocative statements highly critical of aspects of our judiciary.

It is now notorious that the government is alleged to have breached a clear court order: that Al-Bashir not be allowed to leave South Africa until such time as the court had rendered its final ruling in the case. (For a good summary of this low point in our constitutional history, see this Mail & Guardian article and the Johannesburg Bar Council’s media release on the issue).

Gwede Mantashe, the Secretary General of the ruling party, never one to mince his words, got the ball rolling on 21 June 2015, saying to the television programme Carte Blanche:

“There is a drive in sections of the judiciary to create chaos for governance. And we know, that if it doesn’t happen in the Western Cape High Court it will happen in the Northern Gauteng. Those are the two benches where you always see that the narrative is totally negative and create a contradiction.”

SA Communist Party secretary and Minister for Higher Education and Training, Blade Nzimande, quickly followed suite stating on 7 July 2015 that the judiciary was interfering with the state through its overreaching judgments (see News24 article).

In the same week it was also reported that Minister of Police Nkosinathi Nhleko had allegedly made a statement previously that “some elements of the judiciary meet with characters to produce certain judgments.” (see EWN article).

These statements led to an unprecedented show of force by the leaders of our judiciary, which released a statement on 8 July 2015 emphasizing the importance of respecting court orders and taking issue with what they called “general gratuitous criticism” and “repeated and unfounded criticism of the Judiciary.” Continue reading →

Access to court papers is part of open justice

This article was published in the Mail & Guardian newspaper on 19 June 2015.

Justice must not only be done, it must be seen to be done. This is the essence of the principle of open justice. Put differently, the public has a right to have access to the courts, to observe how matters will be decided and to obtain court documents relating to those cases.

The past few months have been particularly important for this principle. First, the Supreme Court of Appeal in the South African National Roads Agency (Sanral) case handed down a significant judgment, which clarified that court documents should be available to the public from the time that they are filed – and thus well before the actual court hearing. Continue reading →

“It tolls for open justice” – City of Cape Town v Sanral

Last week, the Supreme Court of Appeal (SCA) handed down its decision in the appeal by the City of Cape Town against a Western Cape High Court decision which had dramatically undermined the principle of open justice.

The City of Cape Town (the City) is reviewing the decision of the SA National Roads Authority (Sanral) to, amongst other things, declare parts of the N1 and N2 national roads as toll roads. In the course of this review application, Sanral applied to court to restrict the City from referring to what it alleged to be Sanral’s confidential information in one of the City’s affidavits in the review. The information had been obtained by the City pursuant to the rules of court, which obliged Sanral to make available the administrative record of its decision.

Now this application by Sanral is standard in cases involving confidential information – what happens is that the parties to litigation try to agree to a confidentiality regime that will apply to certain information. If a regime cannot be agreed upon, the party seeking secrecy can approach the court to rule on the matter. Such applications are always considered on the basis that granting secrecy would depart from the general rule of openness, and secrecy will only be permitted exceptionally.

The Western Cape High Court ruled that Sanral had not made out a case for the confidentiality it contended for. But the court then did something extraordinary – it ruled that the administrative record which Sanral had filed was in any event covered by the “implied undertaking” rule, which had the effect that the record could not be made public without Sanral’s or the court’s consent, until the main review case was heard in court. This rule, which comes from the law in the United Kingdom, provides that documents discovered by a party in litigation cannot be used for any collateral purpose (such as making the documents public). The rule also hits any document – such as the City’s affidavit – which quoted from the administrative record.

And the court then went event further – holding that rule 62(7) of the Uniform Rules of Court had the effect that in any event, the public cannot access the content of a court file until the case is called in court.

Continue reading →

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 case – a 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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