THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 100/06
REPORTABLE

In the matter between

MIDI TELEVISION (PTY) LTD
Appellant

and

DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
(WESTERN CAPE)

Coram:
HOWIE P, NUGENT, CLOETE, LEWIS JJA &
SNYDERS AJA
Heard:
19 MARCH 2007
Delivered:
18 MAY 2007
Summary:
Restricting press freedom – prohibiting broadcast of
documentary unless DPP permitted first to view it –
whether constitutionally permitted.
Neutral citation:
This judgment may be referred to as Midi Television
(Pty) Ltd v Director of Public Prosecutions [2007] SCA
56 (RSA)
____________________________________________________________

JUDGMENT
____________________________________________________________

NUGENT JA

NUGENT JA:

[1] On 15 June 2005 an awful crime was committed in Cape Town.
Four men gained access to the home of Ms Norton, who was away at work
at the time, snatched her six month old child from the arms of her domestic
worker, and the child was deliberately stabbed to death. What had occurred
immediately captured the attention of the public and received extensive
media coverage, which continued as the police investigation progressed
and suspects were arrested. (The trial of the suspects commenced
subsequent to the commencement of these proceedings and was not
completed at the time this appeal was heard.)

[2] The appellant is a television broadcaster that broadcasts under the
name ‘e-tv’ and I will refer to it by that name for convenience.  Soon after
the crime was committed e-tv decided to make a documentary relating to
the events and their impact upon the child’s family for broadcast on a
weekly current affairs programme.  On 22 June 2005 it recorded interviews
with various people, including Ms Norton’s brother and her domestic
worker, who had witnessed what had occurred. A decision was taken not to
broadcast the documentary before the police had made arrests.  By 9 July
2005 four men and a woman had been arrested and charged and e-tv
proceeded to schedule its broadcast.

[3] It intended broadcasting the documentary on the night of Tuesday 2
August 2005.  On Friday 29 July 2005 the Director of Public Prosecutions
for the Western Cape (DPP) became aware that the documentary was to be
broadcast. His representatives asked e-tv to allow them to view the
documentary so as to satisfy themselves that the broadcast would not
prejudice the forthcoming trial but e-tv refused.  Discussions ensued,
certain undertakings were offered to the DPP, but the impasse continued.
On 2 August 2005 the DPP applied to the High Court at Cape Town as a

matter of urgency for an order prohibiting the broadcast until he had been
furnished with a copy of the documentary and had been afforded 24 hours
to institute any further proceedings that he might consider to be necessary.
E-tv agreed to suspend its broadcast pending the outcome of the
application, thereby relieving the urgency, and answering and replying
affidavits were filed.   The matter came before Zondi AJ who granted the
relief that was claimed.1 This appeal against that order is before us with his
leave.

[4] There is a preliminary matter that can be disposed of briefly. The
DPP’s objection to the broadcast of the documentary has since been
overtaken by events and he has withdrawn it. (As a result of the objection
being withdrawn the documentary had been broadcast at the time this
appeal was heard.)  It was submitted on his behalf that this appeal will
accordingly have no practical effect and should be dismissed on those
grounds.  Section 21A of the Supreme Court Act affords us a discretion to
dismiss an appeal for that reason2 but I do not think this is a case in which
we should do so.  The case raises important questions of law on which
there is little authority and they are bound to arise again.  With the benefit
we have had of full argument I think we should deal with those questions
not only to resolve what was contentious between the parties but also for
future guidance.

[5] Freedom of expression, which includes freedom of the press and
other media, is protected by s 16 of the Bill of Rights.  That a free press (by
which I mean the media in all its forms) is indispensable to democracy is
axiomatic and has been articulated so often that nothing is served by adding
to what has been said in that regard.  Yet the constitutional promise of a

1 Reported as Director of Public Prosecutions (Western Cape) v Midi Television (Pty) Ltd t/a E TV  2006
(3) SA 92 (C).
2 Cf Coin Security Group (Pty) Ltd  v SA National Union for Security Officers 2001 (2) SA 872 (SCA)
para 8 and Land en Landbouontwikkelingsbank van Suid Afrika v Conradie 2005 (4) SA 506 (SCA).

free press, like other constitutional promises, is not absolute.  In issue in
this appeal is the extent to which that protected freedom may be abridged in
favour of preserving the integrity of the administration of justice.

[6] It is important to bear in mind that the constitutional promise of a
free press is not one that is made for the protection of the special interests
of the press. As pointed out by Anthony Lewis, in a passage that was cited
by Cameron J in Holomisa v Argus Newspapers Ltd:3 ‘Press
exceptionalism – the idea that journalism has a different and superior status
in the Constitution – is not only an unconvincing but a dangerous doctrine.’
The constitutional promise is made rather to serve the interest that all
citizens have in the free flow of information, which is possible only if there
is a free press.  To abridge the freedom of the press is to abridge the rights
of all citizens and not merely the rights of the press itself.

[7] The extent to which the full enjoyment of a constitutionally
protected right might be limited is circumscribed by the Constitution itself.
Any such limitation is constitutionally permitted only if the limitation has
its source in law of general application and only to the extent that the
limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking into account,
amongst others, the factors enumerated in s 36.4

[8] Law of general application that purports to curtail the full exercise of
a constitutionally protected right might take the form of legislation, or a

3 1996 (2) SA 588 (W) at 610E.
4 36(1)  The rights in the Bill of Rights may be limited only in terms of law of general application to the
extent that the limitation is reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account all relevant factors, including –
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose and
(e) less restrictive means to achieve the purpose.’

rule of the common law, or even a provision of the Constitution itself.  In
each case the extent to which the intrusion that it purports to make upon a
protected right is constitutionally valid is to be evaluated against the
standard that is set by the provisions of s 36 because there are no other
grounds upon which it is permissible to limit protected rights.

[9] Where constitutional rights themselves have the potential to be
mutually limiting – in that the full enjoyment of one necessarily curtails the
full enjoyment of another and vice versa – a court must necessarily
reconcile them.  They cannot be reconciled by purporting to weigh the
value of one right against the value of the other and then preferring the
right that is considered to be more valued, and jettisoning the other,
because all protected rights have equal value. They are rather to be
reconciled by recognising a limitation upon the exercise of one right to the
extent that it is necessary to do so in order to accommodate the exercise of
the other (or in some cases, by recognising an appropriate limitation upon
the exercise of both rights)  according to what is required by the particular
circumstances and within the constraints that are imposed by s 36.  That
they are to be reconciled within the constraints of s 36 is apparent from the
following observation of Langa DCJ in Islamic Unity Convention v
Independent Broadcasting Authority:5
‘There is thus recognition of the potential that [freedom of] expression has to impair the
exercise and enjoyment of other important rights, such as the right to dignity, as well as
other State interests, such as the pursuit of national unity and reconciliation.  The right
is accordingly not absolute; it is, like other rights, subject to limitation under s 36(1) of
the Constitution.’

[10] The proper enquiry when evaluating the extent to which protected
rights might be limited by a statute (which must apply equally when

5 2002 (4) SA 294 (CC) para 30.  See, too, Moseneke DCJ in South African Broadcasting Corporation
Ltd v National Director of Public Prosecutions 2007 (1) SA 512 (CC) para 96 to similar effect, but cf
Langa CJ et al para 42.

protected rights are to be reconciled) was summarised by O’Regan J and
Cameron AJ, in a passage from their dissenting judgment in S v Manamela6
that received the approval of the majority,7 as follows:
‘The approach to limitation is, therefore, to determine the proportionality between the
extent of the limitation of the right considering the nature and importance of the
infringed right, on the one hand, and the purpose, importance and effect of the
infringing provision, taking into account the availability of less restrictive means
available to achieve that purpose.’

[11] In determining the extent to which the full exercise of one right or
the other or both of them might need to be curtailed in order to reconcile
them what needs to be compared with one another are the ‘extent of the
limitation’ that is placed upon the particular right, on the one hand, and the
‘purpose, importance and effect of the intrusion’, on the other hand.  To the
extent that anything needs to be weighed in making that evaluation it is not
the relative values of the rights themselves that are weighed (I have said
that all protected rights have equal value) but it is rather the benefit that
flows from allowing the intrusion that is to be weighed against the loss that
the intrusion will entail.  It is only if the particular loss is outweighed by
the particular benefit, to an extent that meets the standard that is set by s 36,
that the law will recognise the validity of the intrusion.

[12] It is an established rule of the common law that the proper
administration of justice may not be prejudiced or interfered with and that
to do so constitutes the offence of contempt of court.  That is now
reinforced by the constitutional right of every person to have disputes
resolved by a court in a fair hearing8 and by the constitutional protection
that is afforded to a fair criminal trial.9 It is not contentious in all open and
democratic societies – and it was not contentious before us – that the

6 S v Manamela (Director-General of Justice Intervening) 2000 (3) SA 1 (CC) para 66.
7 See the majority in paras 33 and 34.
8 Section 34.
9 Section 35(3).

purpose that is served by those principles of law provides a proper basis for
limiting the protection of press freedom, and the reason for that is self-
evident.  The integrity of the judicial process is an essential component of
the rule of law.  If the rule of law is itself eroded through compromising the
integrity of the judicial process then all constitutional rights and freedoms –
including the freedom of the press – are also compromised.

[13] The exercise of press freedom has the potential to cause prejudice to
the administration of justice in various ways – it is prejudicial to prejudge
issues that are under judicial consideration, it is prejudicial if trials are
conducted through the media, it is prejudicial to bring improper pressure to
bear on witnesses or judicial officers – and it is not possible to describe
exhaustively how prejudice might occur.  What is more relevant in all cases
where there is the potential for prejudice is to determine when the risk of
prejudice will be sufficient to constitute an interference with the
administration of justice that justifies a corresponding limitation being
placed on press freedom. For the administration of justice does not take
place in private, completely shielded from public scrutiny and comment,
and there is always the potential for some element of prejudice when the
media report or comment on judicial proceedings.  What must be guarded
against, as pointed out by McLachlin J in a concurring opinion in Dagenais
v Canadian Broadcasting Corporation10 (I will return to that decision), is
the ‘facile assumption that if there is any risk of prejudice to a fair trial,
however speculative, [a ban on publication] should be ordered.’

[14] I do not think that guidance11 is to be had in that regard from
decisions of the United States Supreme Court in cases like Near v
Minnesota,12 and New York Times Co. v United States.13 The extensive

10 (1995) 25 CRR. (2d) 1 at 47.
11 Cf Mandela v Falati 1995 (1) SA 251 (W); Government of the Republic of South Africa v ‘Sunday
Times’ Newspaper 1995 (2) SA 221 (T).
12 283 US 697.

protection that is afforded to the press in that country is dictated by the text
and the historical setting of the First Amendment, which is not consonant
with our Constitution.  As pointed out by Kriegler J in Mamabolo:14
‘[O]ur Constitution ranks the right to freedom of expression differently [to the First
Amendment].  With us it is not a pre-eminent freedom ranking above all others.  It is
not even an unqualified right.  The First Amendment declaims a unequivocal and
sweeping commandment; section 16(1), the corresponding provision in our
Constitution, is wholly different in style and significantly different in content.’

[15] Nonetheless, even in jurisdictions that do not recognise the degree of
protection that is afforded by the First Amendment, the test to be overcome
before publication will be susceptible to prior restraint has always been
considerable.  In England, before the introduction of the Contempt of Court
Act 1981, Lord Scarman said in Attorney-General v British Broadcasting
Corporation15 that
‘[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.’
Similarly in Attorney-General v Times Newspapers Ltd16 it was said that a
ban on publication to protect the administration of justice would be allowed
only if there was ‘a real risk [of prejudice], as opposed to a remote
possibility’,17 or a risk of prejudice that was ‘serious or real or
substantial’.18  In Canada, before the decision of the Supreme Court in
Dagenais,19 a publication ban could be ordered only if a ‘real and
substantial risk of interference with the right to a fair trial’ could be
demonstrated.20 The Australian High Court held in Hinch and Macquire

13 403 US 713.
14 S v Mamabolo (E-tv, Business Day and the Freedom of Expression Institute intervening) 2001 (3) SA
409 (CC) para 41.
15 (1981) AC 303 (CA) at 362.
16 1974 AC 273 (HL).
17 Lord Reid at  299A.
18 Lord Morris of Borth-y-Gest at 303B-C.
19 Cited above.
20 Dagenais, above, at 27-28.

Broadcasting Holdings Ltd v Attorney General for the State of Victoria21
that a publication constituted contempt only if there was a ‘substantial risk
of serious interference with the trial’.

[16] What is required by all those tests (implicitly, even if not always
expressed) before a ban on publication will be considered is a demonstrable
relationship between the publication and the prejudice that it might cause to
the administration of justice, substantial prejudice if it occurs, and a real
risk that the prejudice will occur.  In my view nothing less is required in
this country and to the extent that the pre-constitutional decisions of this
court in Van Niekerk22 and Harber23 might suggest otherwise24 I do not
think they are consistent with what is to be expected in contemporary
democracies.  But merely to ask whether there is indeed a risk of prejudice
that meets those criteria does not end the enquiry. For as I indicated earlier,
the limitation must not only be directed towards a permitted end, but must
also be no more than is necessary to achieve its permitted purpose.

[17] In England, where s 4 of the Contempt of Court Act 1981 permits a
ban on publication only where it is ‘necessary’ for avoiding a substantial
risk of prejudice to the administration of justice, the Court of Appeal in R v
Sherwood, ex parte Telegraph Group25 expressed the proper approach to
the enquiry as follows:
‘[Would a publication ban eliminate the risk?] If not, obviously there could be no
necessity to impose such  a ban…. On the other hand, even if the judge is satisfied that
an order would achieve the objective, he or she would still have to consider whether the
risk could satisfactorily be overcome by some less restrictive means.  If so, it could not
be said to be ‘necessary’ to take the more drastic approach…. Suppose that the judge
concludes that there is indeed no other way of eliminating the perceived risk of

21 (1987) 164 CLR 15.
22 S v Van Niekerk 1972 (3) SA 711 (A) at 724H.
23 S v Harber 1988 (3) SA 396 (A) at 422H-I.
24 In both cases it was held that a publication is capable of sustaining a charge of contempt if it ‘tends’ to
prejudice the administration of justice.
25 (2001) 1 WLR 1983 at 1991G-1992A.

prejudice; it still does not follow necessarily that an order has to be made.  The judge
may still have to ask whether the degree of risk contemplated should be regarded as
tolerable in the sense of being “the lesser of two evils”.  It is at this stage that value
judgments may have to be made as to the priority between “competing public
interests”.’

[18] That approach replicates the material elements of the analysis that
was adopted by the Supreme Court of Canada in Dagenais,26 which in my
view also reflects what is required by s 36 of our Constitution.  In that case
the Chief Justice, writing for the majority, said the following:
‘The party seeking to justify the limitation of a right (in the case of a publication ban,
the party seeking to limit freedom of expression) bears the burden of justifying the
limitation.  The party claiming under the common law rule that a publication ban is
necessary to avoid a real and serious risk to the fairness of the trial is seeking to use the
power of the state to achieve this objective.  A party who uses the power of the state
against others must bear the burden of proving that the use of state power is justified in
a free and democratic society.  Therefore, the party seeking the ban bears the burden of
proving that the proposed ban is necessary, in that it relates to an important objective
that cannot be achieved by a reasonably available and effective alternative measure, that
the proposed ban is as limited (in scope, time, content, etc.) as possible, and there is a
proportionality between the salutary and deleterious effects of the ban.  At the same
time, the fact that the party seeking the ban may be attempting to safeguard a
constitutional right must be borne in mind when determining whether the
proportionality test has been satisfied.’

[19] In summary, a publication will be unlawful, and thus susceptible to
being prohibited, only if the prejudice that the publication might cause to
the administration of justice is demonstrable and substantial and there is a
real risk that the prejudice will occur if publication takes place.  Mere
conjecture or speculation that prejudice might occur will not be enough.
Even then publication will not be unlawful unless a court is satisfied that
the disadvantage of curtailing the free flow of information outweighs its

26 Cited above, at p 39.

advantage.  In making that evaluation it is not only the interests of those
who are associated with the publication that need to be brought to account
but, more important, the interests of every person in having access to
information.   Applying the ordinary principles that come into play when a
final interdict is sought, if a risk of that kind is clearly established, and it
cannot be prevented from occurring by other means, a ban on publication
that is confined in scope and in content and in duration to what is necessary
to avoid the risk might be considered.

[20] Those principles would seem to me to be applicable whenever a
court is asked to restrict the exercise of press freedom for the protection of
the administration of justice, whether by a ban on publication or otherwise.
They would also seem to me to apply, with appropriate adaptation,
whenever the exercise of press freedom is sought to be restricted in
protection of another right. And where a temporary interdict is sought, as
pointed out by this court in Hix Networking Technologies,27 the ordinary
rules, applied with those principles in mind, are also capable of ensuring
that the freedom of the press is not unduly abridged.  Where it is alleged,
for example, that a publication is defamatory, but it has yet to be
established that the defamation is unlawful, an award of damages is usually
capable of vindicating the right to reputation if it is later found to have been
infringed, and an anticipatory ban on publication will seldom be necessary
for that purpose. Where there is a risk to rights that are not capable of
subsequent vindication a narrow ban might be all that is required if any ban
is called for at all.28  It should not be assumed, in other words, that once an
infringement of rights is threatened, a ban should immediately ensue, least
of all a ban that goes beyond the minimum that is required to protect the
threatened right.

27 Hix Networking Technologies v System Publishers (Pty) Ltd 1997 (1) SA 391 (A) at 401D-G.
28 Cf Cream Holdings Ltd v Banerjee [2004] 4 All ER 617 (HL), interpreting s 12(3) of the Human Rights
Act 1998, which allows for a interim restraint on publication only if the court is satisfied that at trial the
applicant is ‘likely to establish that publication should not be allowed’.

[21] Turning to the present case the papers reflect a curious game of cat-
and-mouse between the DPP and e-tv concerning the contents of the
documentary:  the DPP surmises what the documentary might contain, e-tv
responds that he is wrong, the DPP challenges e-tv to demonstrate that he is
wrong by producing the documentary, e-tv responds that it is not obliged to
do so, and so it goes round in circles.  I do not think we can become caught
up in that.  We cannot attach any weight to fragments of secondary
evidence as to what the document might or might not contain.  On the
evidence that is before us the documentary is related to the crime and it
contains interviews with at least two people who allege that they witnessed
it, but beyond that we are in the dark as to its contents and the appeal must
be considered on that basis. (The documentary has been broadcast since the
order in this case was made but we cannot take account of that for purposes
of this appeal.)

[22] The DPP did not ask for an outright ban on publication and the
reason for that is obvious:  he did not know what the documentary
contained and so he could not say that the administration of justice would
be prejudiced if it was broadcast.  All he could say was that the
documentary might possibly have that effect, depending upon its contents,
and he pointed to how that might occur. He suggested, for example, that in
their interviews the witnesses might have given accounts that differed from
what they told the police, with the result that the discrepancies might be
used to discredit their evidence.  It was also suggested that the safety of
witnesses might be at risk if their identities were revealed to the public. As
to the DPP’s first concern I would have thought that if witnesses have
indeed given discrepant accounts of what they observed it would be more
conducive to the interests of justice and of a fair trial that the discrepant
accounts be exposed rather than that they be hidden.  And bearing in mind
the wide exposure that had been given to the identity of the witnesses by

the time the documentary was to be broadcast the prospect that their safety
would be further endangered by the broadcast seems to me to be remote. In
any event those possibilities exist as no more than conjecture that falls
altogether short of justifying an outright ban on publication and that is no
doubt why such a ban was not sought.

[23] But what the DPP sought instead was an order prohibiting e-tv from
broadcasting the documentary until it provided a copy to the DPP and
allowed him sufficient time to apply for a further order if he considered it
to be necessary. In effect what he sought, and was granted, was an order
compelling e-tv to disclose the documentary as a precondition to exercising
its ordinary right to broadcast, which had the effect of banning publication
unless e-tv submitted to the condition.

[24] The learned judge in the court below was alive to the importance of
protecting press freedom and referred extensively to cases to that effect
both in this country and abroad.  Against that he said that the right of the
state to mount an effective prosecution must be balanced and he concluded
as follows:
‘In my view in the interest of the administration of justice and the public, the right to
freedom of expression should give way to a right to a fair trial.  It is in the interest of the
public that the [state] should effectively prosecute cases so that its safety and security is
ensured.  It will accordingly not be for the public good that information upon which the
[state] will rely in prosecuting a case is used in a manner which undermines its
obligation to fight crime’.
To the extent that he meant that the conduct of a fair trial could not be
permitted to be compromised by the exercise of press freedom the
observation that he made is unexceptionable. But without a reasonable
apprehension that the conduct of the trial would indeed be compromised by
the broadcast of the documentary, that in itself provided no grounds for
prohibiting the broadcast.  If the documentary is broadcast and it is indeed

unlawful then e-tv will be liable to prosecution but it cannot be prohibited
without grounds for apprehending that it will be unlawful. The judge went
on to express his reasons for granting the relief as follows:
‘In this matter the [DPP] does not seek to arbitrarily interfere with [e-tv’s] editorial
independence.  All that it seeks is to have access to the broadcast material in order to
satisfy itself that its right to a fair trial is protected.  The limitation to [e-tv’s] right to
freedom of expression claim is in the circumstances reasonable.  It is reasonable in
relation to the interest that is sought to be protected and does not go beyond that
interest.  The restriction is not only rationally connected to a legitimate objective that is
sought to be protected and does not go beyond that interest’.

[25] The basis upon which the order was made, as appears from the
passage that I referred to above, was to allow the DPP  to satisfy himself
that the administration of justice would not be prejudiced if the broadcast
took place, and in that respect the learned judge erred. What was before the
learned judge was an application for a final interdict (albeit that the
duration of the interdict was limited to the period that e-tv resisted
submitting to the condition) and it fell to be determined in accordance with
ordinary principles.29 The question to considered was whether any law
obliged e-tv to furnish a copy of the documentary to the DPP before it was
broadcast, and not whether it was reasonable to require e-tv to do so.  I
have already pointed out that the law prohibits e-tv from broadcasting
material that prejudices the administration of justice. But there is no
general principle of our law, whether in the common law, or in a statute, or
to be extracted from the Constitution, that obliged e-tv to furnish its
material to the DPP before it was broadcast,30 and least of all a law that
prohibited it from broadcasting the material unless it could first
demonstrate that the publication would not be unlawful.  The law generally
allows freedom to publish and freedom is not subject to permission. In the

29 Setlogelo v Setlogelo 1914 AD 222 at 227.
30 Cf the Films and Publications Act 1996, which is not applicable in the present case.

absence of a valid law that restricts that freedom a court is not entitled to
impose a restriction of its own.

[26] Counsel for the DPP submitted that the Promotion of Access to
Information Act 2000 entitles the DPP to have access to the documentary,
and that the effect of the order was merely to grant him such access.
Perhaps the Act does entitle him to have access to the documentary, but
access to information in terms of that Act is subject to compliance with a
comprehensive process that contains its own checks and balances. There
was no compliance in this case and the Act does not authorise a court to
simply bypass those procedures.  But even if the DPP were to be entitled to
a copy of the documentary in terms of the Act it would not follow that he is
entitled to a prohibition on publication until it is furnished.  It was also
submitted on his behalf that his request for disclosure of the documentary
was eminently reasonable and again, perhaps it was, but that misses the
point. The question is not whether it might have been reasonable for e-tv to
have submitted to the request but rather whether it was obliged to do so in
law.  It was not.  In the absence of a law obliging e-tv to furnish the
documentary to the DPP before it was broadcast the first requirement for
the grant of a final interdict – a clear right – was not met and the interdict
ought to have been refused.

[27] Counsel for the DPP asked what the DPP could be expected to have
done to ensure that an imminent publication did not compromise an
impending trial.  I fear that he must do what any person must do in similar
circumstances: he must expect that freedom will not be abused until he has
adequate grounds for believing the contrary. But he may not require the
press to demonstrate that it will act lawfully as a precondition to the
exercise of the freedom to publish in the absence of a valid law that accords
him that right.

[28] The appeal is upheld with costs that include the costs of two counsel.
The order of the court below is set aside and the following order is
substituted:
‘The application is refused with costs that include the costs of two
counsel.’

___________________
R W NUGENT
JUDGE OF APPEAL

CONCUR:
HOWIE P)
CLOETE JA)
LEWIS JA)
SNYDERS AJA)
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
18 May 2007
Status:
Immediate

MIDI
TELEVISION
(PTY)
LTD
v
DIRECTOR
OF
PUBLIC
PROSECUTIONS (WESTERN CAPE)

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

* * *

The Supreme Court of Appeal (SCA) today (18 May 2007) held that a court
may not prohibit a television broadcaster from broadcasting material until it
had satisfied the Director of Public Prosecutions (DPP) that the broadcast
would not interfere with a forthcoming criminal trial.  It held that a prohibition
on publication of material relating to forthcoming criminal proceedings was
permitted only if it could be shown that the publication might cause
substantial prejudice to the trial and that there was a real risk that the prejudice
would occur.

The appeal concerned a documentary that was made by e-tv concerning a
crime that had been committed in Cape Town.  The DPP insisted on viewing

the documentary before it was broadcast so as to satisfy himself that it would
not prejudice the forthcoming trial.  When e-tv refused the DPP applied for
and was granted an interdict by the High Court at Cape Town.

The SCA said that the constitutional protection of press freedom may be
abridged only to the extent that it is necessary to do so for the protection of
other rights.  It held that the DPP must expect that that freedom will not be
abused until he has adequate grounds for believing the contrary.  He may not
require the press to demonstrate that it will act lawfully as a pre-condition to
the exercise of the freedom to publish.  That had not been demonstrated and
the order should not have been made by the High Court.

The order of the High Court was set aside.