South Africa: Review of 2015, Sanral and SAA cases gave weight to media freedom – Dario Milo

14 01 2016

South AfricaLAST year was in some respects an annus horribilis for our young democracy. It began with the State of the Nation controversy in February, when members of the Economic Freedom Fighters (EFF) were removed forcibly from Parliament for persisting in asking when President Jacob Zuma would pay back the state funds spent on upgrading his homestead at Nkandla.

In the middle of the year, the government disobeyed a court order compelling it to arrest Sudanese President Omar Al-Bashir, and it ended with president Zuma’s reckless decision to remove finance minister Nhlanhla Nene from his position.

In contrast, media freedom had a fairly good year. The most important case was ironically one in which the media was not directly involved: City of Cape Town v. Sanral ([2015] ZASCA 58), in which the city asked for a review of the decision to declare parts of the N1 and N2 national roads as toll roads.

Sanral applied to court to restrict the city from referring in its affidavit to confidential information obtained under the rules of court and that obliged Sanral to make the administrative record of its decision available. The Western Cape High Court ruled that the information should remain secret because the common law and the rules of court had the effect that court documents generally only become public when the case begins in court.

The city appealed to the Supreme Court of Appeal, with a number of media organisations joining the case as amici. In an unequivocal affirmation of the principle of open justice, the appeal court held that “court records are, by default, public documents that are open to public scrutiny at all times. While there may be situations justifying a departure from that default position … any departure is an exception and must be justified.”

The Sanral case settles the issue of when court documents become public in our law. The answer is that they are now general public documents from the moment the document is filed in court. This is a stunning victory for court reportage.

Another important case was handed down a week before Christmas: the decision by Judge Roland Sutherland in favour of Business Day, Moneyweb and City Press v South African Airways ([2015] ZAGPJHC 293 (SAA).

The airline had obtained an extraordinary midnight interdict unfairly against the newspapers, prohibiting them from publishing a legally privileged opinion from its internal legal adviser. The opinion confirmed that SAA was trading recklessly. It had been leaked to the media, and all three media had published articles before the court order came to their attention.

In these circumstances, the court had no difficulty in overturning SAA’s interdict.

“The metaphor of a horse having bolted is inadequate; a better image might be that (a) virus has infected the world’s literate population,” [21] said Judge Sutherland.

The order “was futile even as the ink dried upon it” because it would serve no purpose in protecting a confidentiality that had already been shattered. Moreover, legal privilege has to yield to the public interest: “the controversy about SAA and its dependence on taxpayer funds (is) a demonstrably obvious topic about which every citizen has a tangible interest to be informed”.

The SAA case illustrates how valuable the public interest defence is for the media, and how in the digital age of instantaneous global publication, interdicts are ineffective in protecting secrets.

A case that did not end as well for the media, and which is now on its way to the appeal court, came about as a result of the State of the Nation chaos. Primedia Broadcasting v Speaker of National Assembly ([2015] ZAWCHC 72), the South African National Editors’ Forum and non-governmental organisations challenged two restrictions.

The first was that the State Security Agency had placed a device in Parliament that “jammed” telecommunications signals. This restriction would have hit journalists in the gallery hard, as they use Twitter to communicate to their followers.

The second restriction related to Parliament’s live broadcast of the proceedings. In accordance with Parliament’s broadcast policy, if there is any incident that constitutes grave disorder or unparliamentary behaviour, the cameras must be trained on the Speaker and not on the incident concerned (except for occasional wide-angle shots being permitted in the case of unparliamentary behaviour). The application of this policy had the result that when the EFF’s MPs were removed forcibly — clearly a matter of great public interest — television viewers did not see this at all.

Judges Daniel Dlodlo and Robert Henney held that the restrictions in Parliament’s broadcasting policy were reasonable to “protect the dignity of Parliament by tempering the especially strong impact that the visuals of disorderly conduct, if broadcast to the world and played repeatedly … would have”.

On the signal jamming, the majority of judges held that the issue was academic as the State Security Agency had conceded that it had been mistaken not to unjam the signals once the president and other dignatories were in Parliament, where there was no longer a threat of a remote-controlled explosive device being detonated.

Judge Kate Savage (in a minority judgment) said the broadcast policy restrictions “unreasonably limit public access to a visual broadcast of important events involving elected representatives”. She also held that the signal jamming was unlawful. At the heart of the case is whether the restrictions Parliament imposes to protect its dignity are reasonable. It is to be hoped that the appeal court will adopt the minority’s approach when the case comes before it this year.

The African National Congress made the welcome announcement in September that it would spearhead legislation to remove criminal defamation from our common law. As Minister in the Presidency Jeff Radebe said: “No responsible citizen and journalist should be inhibited or have the shackles of criminal sanction looming over him or her.” The draft legislation to implement this is keenly awaited.

Far less welcome last year was the Films and Publications Board’s draft online regulation policy. The draft policy demands what is practically impossible and legally offensive: that online content be classified before it is published.

The only consolation for the online media is that the board has accepted that Press Council members will be exempt, an important endorsement for self-regulation. And the Press Council has beefed up its code to regulate online content.

In this new year, two swords of Damocles still hang over the media: the Protection of State Information Bill, which president Zuma has not yet signed into law; and a mooted parliamentary investigation into a statutory regulator to regulate the print media. At least we can be sure that, if such laws come about, our courts will not hesitate to interrogate their constitutionality.

Dario Milo is a partner at Webber Wentzel attorneys and visiting associate professor at Wits University

This article orginally appeared in Business Day and is reproduced with the permission of the author.


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