Dispute Resolution: Broadcasting of court cases

We acted as the attorneys of record for Media24 Ltd and assisted Adv. John Butler SC and Adv. Marilaena Maddison with the necessary research and the drafting of the application and the founding affidavits.

The matter originally arose out of an urgent application, brought by Media24 Ltd in the Cape High Court, that it be allowed to televise and/or sound record the proceedings in the criminal case involving proceedings against Mr Henri van Breda which had attracted widespread media attention as he was accused of allegedly murdering three of his own family members with an axe.

Mr van Breda and the National Director of Public Prosecutions (“NDPP”) opposed the application. Judge Siraj Desai ruled in favour of Meda24 Ltd, permitting the audio-visual broadcasting of the entire trial. Judge Desai, nonetheless, allowed any party to approach him for any variation or amendment of the order. Mr van Breda and the NDPP were refused leave to appeal by Judge Desai but the Supreme Court of Appeal (“SCA”) took the appeal on petition.

The main issue before the SCA was the extent to which audio-visual broadcasting of criminal proceedings should be allowed, if at all. The approach of the NDPP was that there should be a blanket prohibition on live broadcasting in all criminal proceedings. Mr van Breda in turn requested the Court to allow only the broadcasting of Counsel’s arguments and the rulings and judgment of the Court.

The SCA found that the matter provokes a tension between the rights of the media to freedom of expression on the one hand and the fair trial rights of an accused person on the other.

The SCA held that the right to freedom of expression is not limited to the right to speak, but includes the right to receive information and ideas. The SCA further recognised the key position that the media holds in society and found that the Constitutional right to freedom of expression goes hand in hand with the principle of open justice, according to which trial proceedings should generally be conducted publically in an open Court.

In respect of the right to a fair trial, the SCA acknowledged that one of the most persuasive objections relating to the opposition of cameras in Court is the possible effect that cameras, and the larger audience they present, may have on the testimony of witnesses in criminal trials. In this regard, the SCA held that courtrooms are already public places with a physical public presence and that it was open to debate whether such public presence could be said to have an inhibiting or distracting effect on Counsel, Judges and/or the witnesses.

The SCA held that it was undesirable that any rigid rules be laid down as to how a request, by the media for the broadcasting of a trial, ought to be considered and held that it shall be for the trial court to exercise a proper discretion having regard to the circumstances of each case and appropriately balance the competing rights at play.

The SCA ruled that the default position is that there can be no objection in principle to the media recording and broadcasting court proceedings and that it is for a witness to object and specify the grounds for such objection as well as the effects that such coverage would have upon his or her testimony. The objecting party, however, must demonstrate a real risk of demonstrable prejudice mere speculation that there will be prejudice will not suffice.

The importance of the judgment is that it established that the media is entitled, as a matter of Constitutional right, to broadcast court proceedings in its entirety and that the onus is on anyone contending otherwise to persuade the court that broadcasting of the proceedings should not take place.

This case is now the leading South African authority in favour of the proposition that broadcasting court cases is constitutionally mandated flowing both from the rights to freedom of expression and media freedom and the right of open justice.