National Director of Public Prosecutions v Media 24 Limited & others and Henri Christo Van Breda v Media 24 Limited & others

Henri Christo Van Breda was charged with murdering three of his family members with an axe at the family home in an exclusive security estate near Stellenbosch. Shortly before his trial commenced in the Western Cape Division, Cape Town, Media 24 brought an urgent application to install video cameras in the courtroom to record and broadcast the proceedings, or alternatively to broadcast by microphone and sound. Both Van Breda and the National Director of Public Prosecutions (NDPP) opposed the application. Desai J granted the application with conditions, allowing cameras during sittings with various guidelines. Both Van Breda and the NDPP appealed. The Constitutional Court refused direct leave to appeal but the SCA granted leave on 26 April 2017 on an expedited basis.

• Whether the media has a constitutional right to broadcast criminal proceedings using audio-visual technology
• How to balance the right to freedom of expression (section 16 of the Constitution) with the right to a fair trial
• Whether a blanket ban on broadcasting criminal proceedings is constitutionally permissible
• What discretion courts have under section 173 of the Constitution to regulate broadcasting of court proceedings
• What test should be applied when deciding whether to permit cameras in courtrooms

The appeal succeeded to the extent that paragraph 1.3 of the order of the high court was set aside. The matter was remitted to the high court for reconsideration in accordance with the principles set out in the judgment. The costs of appeal of the appellant, Henri Christo Van Breda, were to be paid by Media 24.

Courts have inherent power under section 173 of the Constitution to regulate broadcasting of court proceedings in the interests of justice. This power must be exercised by balancing the right to freedom of expression (section 16) and the principle of open justice against the right to a fair trial. Courts ought not to restrict the nature and scope of broadcast unless prejudice is demonstrable and there is a real risk that such prejudice will occur - mere conjecture or speculation is insufficient. A blanket ban on all broadcasting constitutes an impermissible limitation of constitutional rights. The proper approach is a case-by-case assessment with: (1) a default position permitting broadcast of counsel's addresses and all judgments; (2) a witness-by-witness determination of objections with reasons required; (3) distinction between types of witnesses (expert, professional, lay); (4) consideration of less restrictive alternatives (audio only, voice distortion, delayed broadcast); (5) careful consideration of accused's objections. The test from Midi Television applies: courts will not restrict broadcast unless the prejudice is demonstrable and there is a real risk it will occur.

The court made extensive observations about: (1) The historical development of cameras in courtrooms in various foreign jurisdictions and international tribunals; (2) The vital watchdog role of media and the public's right to receive information; (3) Television being a more effective medium than print media for many South Africans given illiteracy levels; (4) The argument that "gavel to gavel" complete coverage may be preferable to limited or no coverage; (5) The reality that social media (Twitter, Facebook) already allows live text-based communications from courtrooms, so the risk of witness "tailoring" already exists; (6) The observation that most empirical studies from US states found minimal negative effects from cameras in courtrooms; (7) The proposition that high-profile cases may require even more transparency rather than less; (8) The courts' power to use various protective measures for vulnerable witnesses; (9) That South Africa is at an experimental stage with this technology; (10) That as society becomes more attuned to cameras in courtrooms, the novelty will dissipate.

This is a landmark judgment in South African law establishing the constitutional framework for cameras in courtrooms. It represents a significant shift from previous reluctance to allow broadcasting of criminal trials. The judgment affirms that the principle of open justice in a constitutional democracy extends to audio-visual access, not merely physical presence in court. It establishes that there is no blanket prohibition on broadcasting criminal proceedings, but rather a case-by-case discretionary approach. The judgment recognizes the importance of media freedom and public access to justice in the modern technological age, while providing safeguards to protect fair trial rights. It provides detailed guidance to lower courts on how to exercise discretion when considering media applications to broadcast proceedings, including the witness-by-witness approach and protective measures available.