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

Are some politicians scandalising the court?

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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

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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

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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