South African Broadcasting Corporation Limited v The National Director of Public Prosecutions and Others

The SABC applied to the Supreme Court of Appeal (SCA) for permission to record and broadcast live on radio and television criminal appeal proceedings brought by Schabir Shaik and others against their corruption convictions. Shaik had been convicted of corruption in relation to payments to former Deputy President Jacob Zuma. The SCA refused the application, holding that broadcasting would inhibit justice by placing stress on counsel and judges and might prejudice the pending trial of Zuma by deterring witnesses from testifying. The SCA permitted soundless video recording only. The SABC sought leave to appeal from the Constitutional Court on an urgent basis.

• Does the right to freedom of expression in section 16 of the Constitution include the right of broadcasters to televise and broadcast court proceedings live with sound?
• What is the scope and nature of the power of courts under section 173 of the Constitution to regulate their own process?
• What approach should an appellate court adopt when reviewing the exercise of a court's section 173 discretion to limit broadcasting?
• How should courts balance the right to freedom of expression and the media against the right to a fair trial?
• Does the principle of 'open justice' in sections 34 and 35(3)(c) require courts to permit live broadcasting of appeal proceedings?

Leave to appeal granted. Appeal dismissed. SABC ordered to pay costs of second to twelfth respondents, including costs of two counsel.

When a court exercises its section 173 power to regulate its own process in a manner that affects constitutional rights, it must ensure the extent of impairment is proportional to the purpose sought. An appellate court should only interfere with such an exercise of discretion in narrow circumstances: where the court did not act judicially, was influenced by wrong legal principles, misdirected itself on facts, or reached a decision no reasonable court would reach. In balancing freedom of expression against fair trial rights, a court may adopt a test that privileges ensuring fairness of proceedings, particularly where the court remains open to the public and press and only the extension to live broadcast is at issue. The question is not whether an appellate court would have made the same decision, but whether the lower court committed a demonstrable blunder.

The majority noted that ordinarily it will not be in the interests of justice for trial proceedings (where evidence is led) to be broadcast live, but the position may differ for appeal proceedings. Courts should welcome public exposure of their work subject to ensuring proceedings remain fair. The time has come for courts to embrace the principle of open justice fully, but appropriate guarantees must be in place to ensure accurate and balanced broadcasting, particularly regarding edited highlights which carry risks of misrepresentation. The 1993 agreement between media and judiciary (Goldstone Concordat) should be reconsidered and updated. Courts might consider starting with radio coverage or coverage on a trial basis. Moseneke DCJ (dissenting) emphasized that section 173 does not confer unbounded authority to limit entrenched rights and that any limitation must meet section 36 proportionality standards. He noted the majority of South Africans receive news via radio/television rather than print media. Sachs J emphasized that appellate courts are under a constitutional obligation to facilitate public understanding of their work and should not determine broadcasting access on a case-by-case basis according to judges' comfort levels, but rather through pre-established principled guidelines developed through negotiation with broadcasters.

This case addresses the tension between freedom of expression/media rights and fair trial rights in the context of broadcasting court proceedings. It establishes that courts have inherent power under section 173 to regulate their own processes but must do so consistent with constitutional rights and values including openness and accountability. The judgment recognizes the importance of the principle of 'open justice' and the role of the media in informing the public about judicial proceedings, while acknowledging legitimate concerns about the impact of broadcasting on fair trial rights. The case highlights the need for the judiciary to develop clear guidelines for electronic broadcasting of court proceedings. It distinguishes trial proceedings (where witnesses testify) from appeal proceedings in terms of the appropriateness of broadcasting.