VAN BREDA v MEDIA 24 LTD AND OTHERS 2017 (2) SACR 491 (SCA)
Fundamental rights — Right to freedom of expression — Freedom of press and other media — Right of media to broadcast court proceedings — Right to freedom of expression extending to public’s right to receiving information and to open justice — Preventing media from broadcasting proceedings amounting to limitation of both media and public’s right to freedom of expression — Default position being that no objection in principle to broadcasting — Media to request permission to broadcast on case-by-case basis — Court to use constitutionally mandated discretion to protect and regulate its own processes, in deciding such applications — Constitution, ss 16(1) and 173.
The right of the media to gather and broadcast information, footage and audio recordings of court proceedings flows from the right to freedom of expression in s 16 of the Constitution. This right, which includes the right to receive information and ideas, is for the benefit of both the media and the public. Not only is the media protected by the right to freedom of expression but it is also the ‘key facilitator and guarantor’ of the right. Free speech and open justice — a fundamental principle of the common law, that trial proceedings be conducted publicly in open court — are closely interrelated. Open justice, recognised by the Constitutional Court as a right of its own, has evolved so that the right does not belong only to the litigants but to the public at large. It means more than merely keeping the courtroom doors open; it means that court proceedings must where possible be meaningfully accessible to any member of the public who wishes to be timeously and accurately apprised of such proceedings. In an open democracy, based on the values of equality, freedom and human dignity, the right of the public to be informed is one of the rights underpinned by the value of human dignity. The media, reporting accurately and fairly on legal proceedings and judgments, make an invaluable contribution to public confidence in the judiciary and, thus, to the rule of law itself. (See  – and  – .)
Given the high levels of illiteracy, the print media is the preserve of a few. The majority of South Africans rely principally on radio and television for their news and information. The print media simply does not operate with the same kind of interactive speed or attract so wide and responsive an audience as television broadcasting does. There simply can be no logic in a court permitting journalists to utilise the reporting techniques of the print media but not permitting a television journalist to utilise his or her technology and method of communication, being the broadcasting and recording of proceedings, despite the fact that ‘live camera footage will be more accurate than a reporter’s after-the-fact summary’. In the light of the fact that members of the public acquire most of their news through the electronic media, precluding that sector of the media from taking cameras and microphones (their tools of trade) into the courtroom, self-evidently limited the s 16(1) rights of both the media and the public.
Permitting televising of court proceedings is the appropriate starting point; the default position had to be that there could be no objection in principle to
the media recording and broadcasting counsel’s address and all rulings and judgments (in respect of both conviction and sentence) delivered in open court. However, the right to a public hearing does not automatically mean that trials must necessarily be broadcast live in all circumstances. It is for the media to request access from the presiding judge on a case-by-case basis. The question whether, and under what circumstances, the media should be allowed to broadcast court proceedings provokes tension between the constitutional rights of the press to freedom of expression, on the one hand, and the fair-trial rights of an accused person, on the other. These competing constitutional rights, both essential to the proper functioning of any true democracy, should as far as possible be harmonised. It remained for the court — in exercising its discretion under s 173 of the Constitution to protect and regulate its own process, in the interests of justice — to balance the competing interests and the degree of risk involved in allowing cameras into the courtroom, against the degree of risk that a fair trial might not ensue, and limit the nature and scope of the broadcast where necessary to ensure the fairness of the proceedings before it. Thus, concerns of privacy and security may justify imposing appropriate restrictions on how the media go about gathering and transmitting information about judicial proceedings. A one-size-fits-all approach, banning all audio or visual broadcasting of criminal proceedings, could not amount to a proper exercise of a court’s s 173 discretion.
When a witness objects to coverage of their testimony, such witness should be required to assert such objection before the trial judge, specifying the grounds therefor and the effects such coverage would have upon their testimony. Courts must not restrict the nature and scope of the broadcast unless the prejudice is demonstrable and there is a real risk that such prejudice will occur; mere conjecture or speculation that prejudice might occur ought not to be enough. This approach entails a witness-by-witness approach. Such an individualised enquiry is more finely attuned to reconciling the competing rights at play than is a blanket ban on the presence of cameras from the whole proceeding when only one participant objects. If the judge determines that the witness has a valid objection to cameras, alternatives to regular photographic or television coverage could be explored that might assuage the witness’s fears.