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Columbia university. RECENT DEVELOPMENTS IN SOUTH AFRICAN MEDIA LAW. February 2014. DARIO MILO Partner, Webber Wentzel, Johannesburg Visiting Associate Professor in Media and Information Law, University of the Witwatersrand. OUTLINE. OPEN JUSTICE
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Columbia university RECENT DEVELOPMENTS IN SOUTH AFRICAN MEDIA LAW February 2014 DARIO MILO Partner, Webber Wentzel, Johannesburg Visiting Associate Professor in Media and Information Law, University of the Witwatersrand
OUTLINE • OPEN JUSTICE • Access to Radovan Krejčíř's appeal for asylum • Access to broadcast Oscar Pistorius' trial for murder • NATIONAL SECURITY • Passage of the Protection of State Information Bill • THE PLAINTIFF PRESIDENT • The Spear: President Zuma's dignity claim against an artist • The Rape of Justice: President Zuma's defamation claims against journalists, columnists and a cartoonist • PRIOR RESTRAINTS • Constitutional challenge to the Films and Publications Act • ACCESS TO INFORMATION • Judicial peek: access to the Khampepe-Moseneke report
open justice - Access to Radovan Krejčíř's appeal for asylum - Access to broadcast Oscar Pistorius' murder trial
open justice: Radovan Krejčíř's asylum appeal • Krejčíř fled from Czech Republic after his arrest for fraud and tax evasion • He entered South Africa illegally and reportedly set up a criminal enterprise (investigated for murder and robbery; now awaiting trial for tax evasion) • His asylum application was denied, but appealed to Refugee Appeal Board • Media sought access but Refugees Act required 'confidentiality at all times' • Media challenged the Act, arguing that, although asylum proceedings should generally be confidential, a blanket ban on access goes too far, and the Board should have a discretion to permit access in exceptional cases • High Court held that the blanket ban was justifiable, as it was necessary to give asylum-seekers an advance assurance of absolute confidentiality • Constitutional Court disagreed, declaring the ban unconstitutional as it unduly limited the freedom to receive and impart ideas and information • Constitutional Court replaced the ban with a discretion to permit public access where the information concerned was in the public interest or in the public domain, among other factors
open justice: Broadcasting oscarPistorius' trial • Significant challenges: • live audio/audio visual recording of a criminal trial never been done before in South Africa; • Foreign learning on the topic suggests that such broadcasting is far from unanimous– but there are some examples: • Particular states in the United States (for instance, Florida) • New Zealand • Scotland • Italy • International Tribunals (the ICTY and ICC) • Atmospherically (the OJ Simpson hangover) • 2 Main substantive arguments in opposition: • 1) So-called precognition of witnesses • 2) effect on witnesses
open justice: broadcasting oscarPistorius' trial • WITNESS PRECOGNITION: • we are now in the age of instant media where the public will already receive minute-by-minute coverage of the trial and witness's testimony via Twitter, blogs and online versions of traditional print media publications. • THEREFORE – the danger of precognition of witnesses is not exacerbated by live broadcasting in audio/audio-visual form.
open justice: broadcasting oscarPistorius' trial Effect on witnesses/witness reluctance • Embarrassment or distress are not a basis in South African law for a witness to refuse to testify • Important distinction between ordinary witnesses and expert witnesses
open justice: broadcasting Oscar Pistorius' trial • Other important factors: • Carefully negotiated agreementwith the National Prosecuting Authority • Agreement makes provision for witnessesto subject their consentto reasonable conditions: • for example that their face is obscured from public view or that only a “wide shot” may be taken • Revolutionary cameras proposed that will be entirely unobtrusive (not the dinosaurs of the past)
open justice: broadcastIngoscarPistorius' trial • Judgment was handed down on 25 February 2014 • The Court held that the matter involved a clear contestation of rights and that a proper balancing was needed in order to ensure that the interests of justice were safeguarded. • The Court emphasised that court proceedings are in fact public • Held: acceding to Pistorius' objections fully would perpetuate the situation where only a small segment of the community is able to be kept informed about what happens in court rooms because of this minority's access to tools such as Twitter. • The public would remain dependant on second-hand, summarised versions of journalists who report on the proceedings. • Court emphasised the importance of the public (including those who are poor) having a first-hand account of the proceedings.
open justice: broadcastIngoscarPistorius' trial • Court held that there was merit in Pistorius' fears that his witnesses may be inhibited in giving evidence. • Butaudio coverage does not carry the same intrusive potential as audio-visual broadcasting. • Accordingly – Court ordered that the following portions may be broadcast live: • Audioof the entire trial including testimony of all witnesses (including Oscar himself); • TV of opening and closing argument, any interlocutory applications, judgment on the merits and on sentencing (if applicable); • TV of all state expert witnesses and police witnesses; • TV of all other state witnesses unless they object in which case the court will decide whether to overrule the objection; • The Court emphasised that the presiding judge retains the ultimate discretion during the trial regarding the relief granted.
NATIONAL SECURITY - Passage of the Protection of State Information (Secrecy) Bill - Access to records of the President's palace security upgrade
NATIONAL SECURITY: the Secrecy Bill • On 12 November 2013, the South African National Assembly adopteda revised version of the Secrecy Bill, with 225 members of Parliament voting in favour and 88 voting against. • The Secrecy Bill has now been sent to President Jacob Zumafor assent. • Various interested parties, including media associations and public interest organisations, have threatened to challenge the constitutionalityof certain aspects of the Secrecy Bill once it has been signed by the President - including the lack of a public interest defenceand a public domain defence.
NATIONAL SECURITY: the Secrecy Bill • Possible offences: • Espionage offences (s 36) • Receiving state information unlawfully (s 37) • Hostile activity offences (s 38) • Harbouring or concealing persons (s 39) • Interception of or interference with classified information (s 40) • Registration of intelligence agents and related offences (s 41) • Attempt, conspiracy and inducing another person to commit offence (s 42) • Disclosure of classified information (s 43) • Failure to report possession of classified information (s 44) • Provision of false information to national intelligence structure (s 45) • Destruction or alteration of valuable information (s 46) • Improper classification (s 47) • Failure by head of organ of state or official of organ of state to comply with Act (s 48) • Prohibition of disclosure of state security matter (s 49)
THE PLAINTIFF PRESIDENT - The Spear: President Zuma's dignity claim against an artist - The Rape of Justice: President Zuma's defamation claims against journalists, columnists and a cartoonist
PLAINTIFF PRESIDENT: the SPEAR • The Spear was part of an exhibition by the renowned artist, Brett Murray, called "Hail to the Thief II" – a satirical attack on abuses of power and corruption, particularly by the ruling party, the ANC. • The Spear drew inspiration from the iconic poster of Lenin, but featured President Jacob Zuma with an exposed penis. • President Zuma and the ANC brought an urgent application to interdict Murray's work from being displayed at the Goodman Gallery, on its website, as well as the website of the City Press newspaper. • President Zuma and the ANC argued that the painting infringed the dignity and reputation of the President. In response, it was argued that the painting was legitimate comment and protected artistic and political speech. • The painting was defaced before the court proceedings began. • The matter was ultimately settled.
PLAINTIFF PRESIDENT: the SPEAR • Before the Films and Publications Board, the Appeal Tribunal set aside the decision of the classification committee to assign an age restriction of 16N to the image: • "Any contention that the painting would be harmful to children on the grounds that it seriously undermines and is insensitive to African culture would have to be supported by evidence. There was no such evidence before the … committee. The evidence before it was that there was work of artistic merit that dealt with political issues and questions by drawing on the relationship between sex and power."
PLAINTIFF PRESIDENT: the RAPE OF JUSTICE • One of 14 claims against media between 2006-2010 (totalling ±R60 million) • Zuma claimed damages of R4 million (reputation) and R1 million (dignity) from Sunday Times, its editor MondliMakhanya, and the cartoonist Zapiro • Zuma claimed the cartoon untruly and unfairly represented him as a rapist (despite his acquittal on a charge of rape two years earlier) • Defence: • metaphor for anticipated abuse of the justice system (for months, Zuma and his supporters had waged a campaign of undermining the courts, to have his corruption charges dropped or dismissed, ultimately successful) • truth in the public interest, alternatively fair comment • Defendants dragged Zuma to trial to face cross-examination • Zuma reduced his claim to R100,000, then dropped it on the eve of trial, and had to pay half of the defendants' legal costs • Zuma was later compelled to drop all remaining suits against the media
PRIOR RESTRAINTS - Challenge to the Films and Publications Act
PRIOR RESTRAINTS • Administrative prior restraints: control is exercised before publication – by an administrative body • In Print Media South Africa v Minister of Home Affairs and Another 2012 (12) BCLR 1346 (CC) the Constitutional Court struck down provisions of the Films and Publications Act which required publishers (except newspapers which are subject to the jurisdiction of a separate press code) to submit intended publications which contained particular kinds of sexual conduct for prior approval to an administrative body. • The CC held that the regimeof prior classification limited the right to freedom of expression and that this limitation was not justifiable as it did not achieve its purpose in a proportionate manner. • The CC endorsed the statement by Lord Scarman in Attorney-General v British Broadcasting Corporation [1981] AC 303 (CA) at 362: • "[T]he prior restraint of publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be ordered where there is a substantial risk of grave injustice".
ACCESS TO INFORMATION - Judicial peek: the Khampepe-Moseneke report
access to information: khampepe-moseneke report • In 2002 the former President, Thabo Mbeki, dispatched two sitting judges (Deputy Chief Justice Dikgang Moseneke and Justice Sisi Khampepe) to Zimbabwe to conduct an investigation on the elections. • Judges sent "to assess the constitutional and legal challenges that had emerged in Zimbabwe and to report on those matters to the President directly in confidence".
access to information: khampepe-moseneke report Report completed in 2002 Added twist: On 7 February 2014, the parties were informed that the copy of the report in the High Court's possession had gone missing and could not be found M&G requests report under PAIA 28 July 2008: Request refused by the Deputy Information Officer 60 days to lodge an appeal under the Promotion of Access to Information Act – appeal unsuccessful M&G applies to the High Court Judgment: 4 June 2010; ordered to grant M&G access to the report 14 February 2013: High Court orders state to release report 30 October 2013: High Court grants State leave to appeal to the Supreme Court of Appeal At present, a date for the (second) hearing before the Supreme Court of Appeal has not as yet been set. President appeals to the SCA Judgment: 14 December 2010; appeal dismissed President appeals to the CC Judgment: 29 November 2011; remitted to High Court
access to information: khampepe-moseneke report • In order to discharge this burden of proof, the Constitutional Court held in President of the Republic of South Africa v M & G Media Ltdthat: • The proper approach to the question whether the [public body] has discharged its burden under PAIA is therefore to ask whether the [public body] has put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemption claimed. • The recitation of the statutory language of the exemptions claimed is not sufficient for the [public body] to show that the record in question falls within the exemptions claimed. Nor are the mere ipse dixit affidavits proffered by the [public body]. • The affidavits for the [public body] must provide sufficient information to bring the record within the exemption claimed.
Legal Notice: these materials are for training purposes only and do not constitute legal or other professional advice
