THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 784/2015

In the matter between:

PRIMEDIA BROADCASTING (A DIVISION OF
PRIMEDIA (PTY) LTD)
FIRST APPELLANT
SOUTH AFRICAN NATIONAL EDITORS’ FORUM               SECOND APPELLANT
RIGHT2KNOW CAMPAIGN                                                        THIRD APPELLANT
OPEN DEMOCRACY ADVICE CENTRE                                FOURTH APPELLANT
and
SPEAKER OF THE NATIONAL ASSEMBLY                          FIRST RESPONDENT
CHAIRPERSON OF THE NATIONAL COUNCIL
OF PROVINCES                                                                  SECOND RESPONDENT
SECRETARY TO PARLIAMENT                                             THIRD RESPONDENT
MINISTER OF STATE SECURITY                                       FOURTH RESPONDENT

Neutral Citation: Primedia Broadcasting v Speaker (784/2015) [2016] ZASCA 142
(29 September 2016)
Coram:
Lewis, Cachalia, Tshiqi, Swain and Zondi JJA
Heard:
7 September 2016
Delivered:   29 September 2016, corrected 23 November 2016
Summary:  Constitutional law: Parliament: The rules and policy adopted by
Parliament governing the broadcast of disorder in the Parliamentary Chamber violate
the public‘s right to an open Parliament and are unconstitutional and unlawful. The
disruption of the cell phone signal in Parliament during the State of the Nation
address was in contravention of the s 4(1) of the Powers, Privileges and Immunities
of Parliament and Provincial Legislatures Act 4 of 2004 and was unlawful.

___________________________________________________________________

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town (Dlodlo and
Henney JJ concurring and Savage J dissenting, sitting as court of first instance):
reported sub nom Primedia Broadcasting Ltd & others v Speaker of the National
Assembly & others 2015 (4) SA 525 (WCC) .
1 The appeal is upheld with the costs of two counsel.
2 The order of the court a quo is set aside and replaced with the following:
‗(a) It is declared that clause 8.3.3.2 of Parliament‘s Policy on Broadcasting and Rule
2 of Parliament‘s Television Broadcasting Rules of Coverage headed ‗Disorder on
the Floor of the House‘ are unconstitutional and unlawful in that they violate the right
to an open Parliament.
(b) It is declared that the manner in which the State of the Nation proceedings in
February 2015 was broadcast was unconstitutional and unlawful.
(c) It is declared that the use of a telecommunication signal jamming device in
Parliament, without the permission of the Speaker of the House of Assembly and the
Chairperson of the National Council of Provinces, is contrary to s 4(1) of the Powers,
Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004
and is unlawful.
(d) The respondents are ordered to pay the costs of the application, including the
costs of two counsel.
___________________________________________________________________
JUDGMENT

Lewis JA (Cachalia, Tshiqi, Swain and Zondi JJA concurring)
[1] Democracy in South Africa is predicated on open government in which all
citizens participate. The Constitution thus affords all South Africans the right to see
and hear what happens in Parliament. Section 59 of the Constitution deals with

‗Public access to and involvement in National Assembly‘ and s 72, in identical terms
(but with reference to the Council), deals with public access to and involvement in
the National Council of Provinces. Section 59 reads:
‘(1) The National Assembly must—
(a) facilitate public involvement in the legislative and other processes of the
Assembly and its committees; and
(b) conduct its business in an open manner, and hold its sittings, and those of its
committees, in public, but reasonable measures may be taken—
(i) to regulate public access, including access of the media, to the Assembly and
its committees; and
(ii) to provide for the searching of any person and where appropriate, the refusal
of entry to, or the removal of, any person.
(1) The National Assembly may not exclude the public, including the media, from a
sitting of a committee unless it is reasonable and justifiable to do so in an open and
democratic society.‘ (My emphasis.)

[2] Of course not all members of the public are able to attend sittings of
Parliament. But the media is able to bring to their attention what happens in sittings
by virtue of radio and television broadcasts, through newspapers and now also
through social media such as Twitter. In so far as television and radio broadcasts are
concerned, s 21 of the Powers, Privileges and Immunities of Parliament and
Provincial Legislatures Act 4 of 2004 (the Powers Act), provides for regulation of the
broadcast feed. It reads:
‗(1) No person may broadcast or televise or otherwise transmit by electronic means the
proceedings of Parliament or of a House or committee, or any part of those proceedings,
except by order or under the authority of the Houses or the House concerned, and in
accordance with the conditions, if any, determined by the Speaker or Chairperson in terms of
the standing rules.
(2) No person is liable to civil or criminal proceedings in respect of the broadcasting,
televising or electronic transmission of proceedings of Parliament or a House or committee if
it has been authorized, under subsection (1) and complies with the conditions, if any,
determined under that subsection.‘

[3] Parliament has adopted both a broadcasting policy and rules pursuant to s 21
of the Powers Act: the constitutional validity of certain provisions of the rules and
policy is challenged in this matter. I shall deal with their precise terms in due course.

The trigger for the constitutional challenges is the events that took place in
Parliament on 12 February 2015 when the President of the Republic, Mr Jacob
Zuma, was scheduled to address a joint sitting of Parliament, delivering the State of
the Nation Address (SONA).

[4] The appellants are a broadcasting company, Primedia Broadcasting, A
Division of Primedia (Pty) Ltd (Primedia); the South African National Editors‘ Forum
(SANEF), a non-profit organization whose members are editors and journalists; the
Right2know Campaign, and the Open Democracy Advice Centre, both of which are
civil society organizations that promote openness and public awareness of the right
of access to information in the public domain. The appellants maintain that the
respondents, the Speaker of the National Assembly, the Chairperson of the National
Council of Provinces, the Secretary to Parliament and the Minister of State Security
violated the public‘s rights to see and hear what was said and done in Parliament on
12 February 2015 in two ways.

[5] First, the State Security Agency (the Agency), without seeking the authority of
Parliament, employed a device that disrupted – jammed – telecommunication signals
when the sitting began. Second, when there was a disruption of the proceedings at
the start of the sitting, the parliamentary television broadcast feed was limited to
showing the face of the Speaker, Ms Baleka Mbete, and showed nothing of a scuffle
that broke out between members of the Economic Freedom Fighters (EFF) and
security officials as they tried to force EFF members of Parliament out of the
Parliamentary chamber.

[6] The use of the jamming device precluded Members of Parliament (MPs) and
journalists from using their cell phones to inform the public, outside Parliament, what
was happening at a significant national event, the SONA. When there was loud and
angry protest by those in the House about the jamming, the Speaker asked the
Secretary to investigate what was happening and the signal was restored. The
explanation for the jamming, which was that it was inadvertent, shall be discussed
later. The appellants sought an urgent order in the Western Cape Division of the
High Court that the jamming of the signal was unlawful and unconstitutional. A

majority of the full court that heard the application (Dlodlo and Henney JJ, Savage J
dissenting) refused that relief, but gave leave to appeal to this court.
[7] The second violation complained of by the appellants is that members of the
public were deprived of the right to see and hear what happened in Parliament when
members of the EFF asked the President when he would pay back the money that
had been spent on his private homestead in KwaZulu-Natal, Nkandla. The Speaker
refused to allow the questions. The EFF MPs refused to back down. The Speaker
ordered them to leave the Chamber. They refused. She requested the Serjeant-at-
Arms to remove the MPs. She then called in a large number of men whom she
referred to as ‗the parliamentary protection services‘, and a violent altercation
ensued. The EFF MPs were forcibly removed from the Chamber.

[8] When the members of the protection services entered the Chamber, the
broadcasting feed was focused on the Speaker and the Chairperson of the Council.
People outside the Chamber could thus not see the interaction between the EFF
MPs and the security staff through official means. Journalists who took videos or
photographs of the scuffle in fact did broadcast the activity in Parliament, but against
the provisions of s 21 of the Powers Act, and in violation of the rules and the policy of
Parliament on broadcasting. The public accordingly had to rely on poor and
unauthorized cell phone broadcasts or second-hand information on what had
happened. The appellants had thus also applied for an order (at the same time as
they applied for the order that use of the jamming device was unlawful) that the
respondents should ensure the openness of Parliament and that the manner in
which the live broadcast had been made was unlawful. In Part A of the application
they had sought an urgent order that the post-SONA debate in Parliament be open,
but that was refused, and the appellants persisted only with Part B of the relief asked
for.

[9] As the proceedings developed in the Western Cape Division, the applicants
discovered the existence first of the broadcast policy and later of the rules. They
amended the relief sought to include an order that the rules and policy that precluded
coverage of the scuffle between the security staff and the EFF MPs were
unconstitutional. (Initially the appellants had also asked for an order that the
respondents investigate the use of the jamming device, but had abandoned that by

the time of the hearing a quo.)  The majority of that court refused all the relief sought
in this regard as well, but granted leave to appeal to this court.
The procedural issue
[10] Parliament has made much of the late attack, in the course of the proceedings
in the court a quo, by the appellants on the policy and the rules. The appellants,
argues Parliament, should not be permitted to make up their case as they go along.
While that is, of course, the usual rule, it must be borne in mind that the application
was brought as one of urgency. At the time of instituting the application, the policy
was not well-known, although it was adopted in August 2009. The policy was brought
to the attention of SANEF only in late January 2015, when a meeting between
representatives of Parliament and members of SANEF was held to discuss events of
the previous year, and the coverage that SANEF considered inadequate.

[11] The broadcasting rules were adopted in September 2003. Primedia and the
other appellants were made aware of the existence and content of the rules only
when Parliament filed its answering affidavit in Part A of the application. The
appellants contend that since the rules inform the policy, and they are in
substantively the same terms, Parliament is not prejudiced by the late amendment to
the notice of motion that seeks to challenge both the policy and then the rules.

[12] While Parliament is skeptical about the professed ignorance of the appellants,
given that they have covered Parliamentary proceedings since the dawn of
democracy in 1994, the fact is that the rules in question deal with grave disorder and
unparliamentary behaviour.  It was only on 21 August 2014 that the rules and policy
were first invoked by Parliament to prevent the broadcasting of EFF MPs being
forcibly removed from Parliament. The sitting was suspended. On 6 November 2014
a heated exchange between an EFF MP and the Speaker occurred. The broadcast
heard and shown was focused on the Speaker and the incident was not broadcast.

[13] SANEF wrote to Parliament on 12 November 2014 referring to these events
and expressing its concern about the impact on media freedom of cutting the live
feed when there were disruptions of the proceedings. They asked for a meeting to be
held as a matter of urgency.  That meeting, with representatives of Parliament,
SANEF and the Press Gallery Association, was held only on 27 January 2015.

SANEF became aware of the policy on broadcasting and its contents only then. It
recorded its concerns about the policy on 30 January 2015, stating that it was
probably ‗in conflict with the constitutional values of transparency, accountability and
openness that should underpin the activities of the legislature‘.

[14] In my view, the explanations proffered by the appellants for the late attack on
the policy and the rules are reasonable. No prejudice was suffered by Parliament
since the same principles underlying the demand for an open and transparent
Parliament underlie the attack on the constitutional validity of the policy and rules. I
shall accordingly consider the appellants‘ complaint about the lack of constitutional
compliance in the policy and rules, and I shall do so together since, save for one
definition in the rules that the policy does not contain, they are in the same terms.

The provisions of the policy and the rules
[15] As Parliament points out, the appellants do not attack the validity of s 21 of
the Powers Act, pursuant to which the policy and rules were adopted. It accepts that
Parliament may determine the rules regulating the broadcasting of Parliamentary
proceedings. But, they argue, the rules must be framed in such a way as to ensure
that the public may see for itself, and hear, precisely what happens in Parliament.
People are entitled to see the disruptive behaviour of public representatives and the
response to it by forcible removal of them from the Chamber by security staff.
Measures to ensure that the broadcast meets the constitutional requirements of
openness and public participation must be reasonable, and not amount to
censorship. Indeed, ss 59(1) and 72(1) of the Constitution expressly state that
reasonable measures may be taken to regulate public access; and ss 59(2) and
72(2) provide that the public may not be excluded from sittings of committees ‗unless
it is reasonable and justifiable to do so in an open and democratic society‘.

[16] The general policy statement in para 3 of Parliament‘s Policy on Filming and
Broadcasting is that:
‗Parliament will allow filming and the taking of pictures of its precinct and the
recording of proceedings that is in the public interest and related to the main
business of Parliament in conformity with acceptable standards of dignity,
appropriate behavior and conduct.‘ Paragraph 8.2.5 (d) provides that filming in

chambers can be done only with the permission of the Speaker or the Chairperson
presiding. The broadcast and rebroadcast of Parliamentary proceedings may be
made only from the official composite sound and visual feed provided by the Sound
and Vision Unit (SVU) of Parliament (para 8.3.1.1(b)). Broadcasting on television
must respect the ‗dignity and decorum of Parliament‘ and must be used only for the
purposes of fair and accurate reporting or proceedings (para 8.3.1.1(c)).

[17] Paragraph 8.3.2.2 of the policy deals with ‗Style and Presentation‘. The
Director of the SVU is given guidelines for filming and subpara(d) requires that the
Director, as a matter of general practice, must ‗switch to a picture of the occupant of
the Chair whenever he or she addresses the House: the principle must be applied all
the more strictly during any incidents of disorder or altercations between the Chair
and other Members‘. The paragraph deals generally with how proceedings are to be
filmed.

[18] Paragraph 8.3.3 of the policy deals with the ‗Management of disorder‘. The
first subpara relates to disorder in the public galleries. Paragraph 8.3.3.2 regulates
the filming of disorder on the floor. It reads:
‗Disorder on the floor of the House:
(a) Televising may continue during continued incidents of grave disorder or
unparliamentary behaviour for as long as the sitting continues, but only subject to the
following guidelines:
(i) On occasions of grave disorder, the director must focus on the occupant of the Chair
for as long as proceedings continue, or until order has been restored; and
(ii) In cases of unparliamentary behaviour, the director must focus on the occupant of
the Chair. Occasional wide-angle shots of the chamber are acceptable.‘
Paragraph 2 of the policy defines unparliamentary behaviour as ‗any conduct which
amounts to defiance of the person presiding over the proceedings, but which falls
short of grave disorder‘. The appellants argue that para 8.3.3(a) is unconstitutional
and thus unlawful.

[19] Rule 2 of the Rules of Parliament regulating ‗Television Broadcasting: ―Rules
of Coverage‖, headed ‗Treatment of Disorder‘, is virtually identical to para 8.3.3, save
that it includes a definition of grave disorder. Rule 2(a) states that ‗[b]y ―grave
disorder‖ is meant incidents of individual, but more likely collective misconduct of

such a seriously disruptive nature as to place in jeopardy the continuation of the
sitting‘. And rules 2(a) and (b) differ from the policy in that they state that in cases of
grave disorder or unparliamentary behaviour ‗the director should normally focus on
the occupant of the Chair‘, whereas the equivalent provisions of the policy require
that the director ‗must focus‘ on the occupant of the Chair. The rules are thus less
restrictive than the policy and confer a discretion on the director. I shall refer
generally to the provisions of both the rules and the policy attacked by the appellants
as the ‗disruption provisions‘.

[20] Any contravention of the rules or the policy constitutes an offence, by virtue of
s 27 of the Powers Act, which makes a breach of s 21 (under which the rules and
policy are determined) a criminal offence punishable and liable to a sentence of a
fine or imprisonment not exceeding 12 months, or both. That imposes serious
consequences for anyone broadcasting information other than that obtained via the
live feed of Parliament. Since many, if not most, of the journalists (and possibly MPs
too) were not aware of the restrictions on broadcasting they would have been
ignorant of the penalties to which they were subjected when sending out cell phone
footage in respect of the grave disorder and unparliamentary behaviour that
preceded the 2015 SONA. Yet but for those unlawful ‗broadcasts‘, the public would
have remained in the dark.

The right to public participation in the proceedings of Parliament
[21] The appellants argue that the Constitution creates a ‗default‘ position that
Parliamentary proceedings are open to the public and to the media.  Dealing with
freedom of expression and the right to open justice, Moseneke DCJ said in
Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re
Masethla v President of the Republic of South Africa & another [2008] ZACC 6; 2008
(5) SA 31 (CC) (para 39) that:
‗There exists a cluster or, if you will, umbrella of related constitutional rights which include, in
particular, freedom of expression and the right to a public trial, and which may be termed the
right to open justice.‘
And, more importantly (para 40):
‗This systemic requirement of openness in our society flows from the very founding values of
our Constitution, which enjoin our society to establish democratic government under the

sway of constitutional supremacy and the rule of law in order, amongst other things, to
ensure transparency, accountability and responsiveness in the way courts and all organs of
State function.‘ (Footnote omitted.)
[22] The founding provision of the Constitution, to which Moseneke DCJ referred,
and which is significant in this matter, is s 1(d):
‗The Republic of South Africa is one, sovereign, democratic State founded on the
following values:
. . .
(d) Universal adult suffrage, a national common voters‘ roll, regular elections and a multi-
party system of democratic government, to ensure accountability, responsiveness and
openness.‘

[23] Referring to Independent Newspapers, this court in Cape Town City v South
African National Roads Authority & others [2015] ZASCA 58; 2015 (3) SA 386 (SCA)
para 16, said, in relation to open justice, that the Constitutional Court had ‗confirmed
that the default position is one of openness‘. That was said in relation to court
proceedings. The same must, however, be even more true of proceedings in
Parliament. The default position must be that the public has access to proceedings
unless there is strong justification for departing from it. That flows too from the
provisions of ss 59 and 72 of the Constitution.

[24] In Minister of Health & another v New Clicks South Africa (Pty) Ltd & others
(Treatment Action Campaign & another as amici curiae) [2005] ZACC 14; 2006 (2)
SA 311 (CC) paras 111-113) Chaskalson CJ explained the goal of the Constitution –
the foundation of a democratic and open society.  He said, after quoting the
provisions of ss 59 and 195: ‗The Constitution calls for open and transparent
government, and requires public participation in the making of laws by Parliament
and deliberative legislative assemblies.‘

[25] Ngcobo J approved this statement in Doctors for Life International v Speaker
of the National Assembly & others [2006] ZACC 11; 2006 (6) SA 416 (CC) para 138,
and emphasized the importance of public access to Parliament (para 137):
‗Public access to Parliament is a fundamental part of public involvement in the law-making
process. It allows the public to be present when laws are debated and made. It enables
members of the public to familiarize themselves with the law-making process and thus be

able to participate in the future. The opportunity to submit representations and submissions
ensures that the public has a say in the law-making process.‘

[26] Earlier, Ngcobo J described the importance of openness in the law-making
process. He said (para 115):
‗The participation by the public on a continuous basis provides vitality to the functioning of
representative democracy. It encourages citizens of the country to be actively involved in
public affairs, identify themselves with the institutions of government and become familiar
with the laws as they are made. It enhances the civic dignity of those who participate by
enabling their voices to be heard and taken account of . . . . It strengthens the legitimacy of
legislation in the eyes of the people. Finally, because of its open and public character, it acts
as a counter-weight to secret lobbying and influence-peddling.‘

[27] The appellants argue that it is just as important for those who do not make
submissions to Parliament, and who do not have the privilege of being in the public
gallery, to know what is happening in Parliament – hence the need for media reports
and broadcasting. Freedom of expression that inheres in the media (s 16(1)(a) of the
Constitution) is of primary importance. In Democratic Alliance v African National
Congress & another [2015] ZACC 1; 2015 (2) SA 232 (CC), Cameron J said in the
majority judgment (para 122):
‗The Constitution recognises that people in our society must be able to hear, form and
express opinions freely. For freedom of expression is the cornerstone of democracy. It is
valuable both for its intrinsic importance and because it is instrumentally useful. It is useful in
protecting democracy, by informing citizens, encouraging debate and enabling folly and
misgovernance to be exposed. It also helps the search for truth both by individuals and
society generally. If society represses views it considers unacceptable, they may never be
exposed as wrong. Open debate enhances truth-finding and enables us to scrutinize political
argument and deliberate social values.‘  (My emphasis, footnote omitted.)

[28] The appellants argue that political speech is at the heart of the media‘s and
the public‘s right to freedom of expression. This was the view expressed by this court
in Mthembi-Mahanyele v Mail & Guardian Ltd & another [2004] ZASCA 67; 2004 (6)
SA 329 (SCA) para 66:
‗The State, and its representatives, by virtue of the duties imposed on them by the
Constitution, are accountable to the public. The public has the right to know what the officials
of the State do in discharge of their duties.‘

The behaviour of MPs in Parliament is something which the public has the right to
see and hear. It is political speech of the first order. And freedom of speech in
Parliament is fundamental to an open and democratic State: Chairperson of the
National Council of Provinces v Malema & another [2016] ZASCA 69; [2016] 3 All SA
1 (para 11).

[29] The right to vote held by all adult citizens in the country can be exercised
meaningfully only if voters know what their representatives do and say in Parliament.
And since the vast majority of people are not actually in Parliament, they must rely
on public reports and broadcasts. As Cameron J also said in Democratic Alliance
(above, para 135), the right of individuals to make political choices is ‗made more
meaningful by challenging, vigorous and fractious debate‘.  Whether the broadcasts
relayed to the public in the manner dictated by the rules and the policy are
sufficiently informative and accurate, is the essential question.

The test of reasonableness
[30] The right to see and hear what happens in Parliament is not unlimited. The
appellants accept this. But, they argue, the limitations must be reasonable. Sections
59 and 72 of the Constitution expressly say so. Any measure adopted by Parliament
must be objectively reasonable. If it is not, it may be subject to review and
constitutional challenge. In considering whether a measure is reasonable, a court
must balance parliamentary autonomy with the right of the public to participate in
public affairs: Doctors for Life para 146.

[31] The test to be applied is not only whether the limitation is proportionate to the
end sought to be achieved, but also whether other measures would better achieve
the end, or would do so without limiting others‘ rights. This is the test in the
limitations provision in the Constitution (less restrictive means to achieve the
purpose – s 36(1)(e)). In S v Manamela & another (Director-General of Justice
Intervening 2000 (3) SA 1 (CC), O‘Regan J and Cameron J said (para 66) in a
dissenting judgment, but the particular passage was approved by the majority of the
court):
‗The approach to limitation is, therefore to determine the proportionality between 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.‘
[32] In determining the reasonableness of a limitation in so far as an administrative
decision is concerned, where the power conferred identifies a goal to be achieved,
but does not dictate a method of achieving it, a court should pay due respect to the
route chosen by the decision-maker: Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism & others [2004] ZACC 24; 2004 (4) SA 490 (CC)
para 48. O‘Regan J, expressing this principle, continued:
‗This does not mean, however, that where the decision is one which will not reasonably
result in the achievement of the goal, or which is not reasonably supported on the facts or
not reasonable in the light of the reason given for it, a Court may not review that decision. A
Court should not rubber-stamp an unreasonable decision . . .‘.
The same principle must apply to the adoption by Parliament of measures under s
21 of the Powers Act.

The appellants’ arguments that the disruption clauses are unreasonable
[33] The appellants argue that the disorder clauses are unreasonable for various
reasons. First, they serve no purpose: not showing scenes of grave disorder and
unparliamentary behaviour is futile. The events are reported by other means;
journalists in Parliament at the time of disorder are not precluded from reporting on it.
Thus the prohibition on broadcasting actual shots of disorder will not prevent the
public from knowing that it has occurred. Second, although the public may learn
about the incidents of grave disorder or unparliamentary behaviour, they will not
learn about it through the most direct and accurate means – a television broadcast.
The public may receive inaccurate or unbalanced accounts of what has happened.

[34] Thus the public is deprived of being able to see exactly what has happened,
and must rely on second-hand accounts. In Dotcom Trading 121 (Pty) Ltd v King NO
& others 2000 (4) SA 973 (C) at 987C, Brand J said that a visual recording ‗most
probably provides the ultimate means of communication‘. And in Multichoice (Pty)
Ltd & others v National Prosecuting Authority & another: In re S v Pistorius; Media 24
Ltd & others v Director of Public Prosecutions, North Gauteng & others 2014 (1)
SACR 589 (GP), Mlambo JP, in dealing with the live television broadcasting of the
(by now notorious) trial of Oscar Pistorius, said (para 21):

‗I have found merit in the argument on behalf of the applicants [broadcasters], that acceding
to an objection by Pistorius [to the extent of the broadcast] fully will perpetuate the situation
that only a small segment of the community is able to be kept informed about what happens
in courtrooms, because of this minority‘s access to tools such as Twitter. Acceding to that
argument will also perpetuate the reality that the community at large remains dependent, for
news on what happens in the courtroom, on the summarised versions of the journalists and
reporters who follow these proceedings. These summarised versions or accounts have, in
my view, been correctly categorised as second-hand, liable to be inaccurate, as they also
depend on the understanding and views of the reporter or journalist covering the
proceedings.‘

[35] The appellants contend that accurate reporting is not only desirable but also
necessary. The media has a ‗responsibility to report accurately‘ because the
consequences of inaccurate reporting can be harmful: In Brummer v Minister for
Social Development & others [2009] ZACC 21; 2009 (6) SA 323 (CC) Ngcobo J said
that access to information is fundamental to the rights guaranteed by the
Constitution. He said (para 63):
‗[A]ccess to information is crucial to the right to freedom of expression which includes
freedom of the press and other media and freedom to impart information or ideas. As the
present case illustrates, Mr Brummer, a journalist, requires information in order to report
accurately on the story that he is writing. The role of the media in a democratic society
cannot be gainsaid.  Its role includes informing the public about how our government is run,
and this information may very well have a bearing on elections. The media therefore has a
significant influence in a democratic State. This carries with it the responsibility to report
accurately. The consequences of inaccurate reporting may be devastating. Access to
information is crucial to accurate reporting and thus to imparting accurate information to the
public.‘ (Footnotes omitted.)

[36] The Broadcasting Policy itself requires fair and accurate reports of
proceedings (clause 8.3.1.1(c) above). The appellants argue that preventing the
public from seeing and hearing scenes of grave disorder and unparliamentary
behaviour must give rise to inaccurate or less accurate reporting. They rely in this
regard also on a dissenting judgment in a decision of the Canadian Supreme Court
in New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of
Assembly) [1993] 1 SCR 319 at 403e-g, where Cory J said:

‗If Canadians are to have confidence in the actions of their elected representatives, they
must have accurate information as to what has transpired in the legislative assemblies and
House of Commons. Informed public opinion is the essential bedrock of a successful
democratic government. Accurate information can only be obtained by the public through the
work of a responsible press which must today include television coverage.‘
Cory J continued (at 408i-409a):
‗The video camera provides the ultimate means of accurately and completely recording all
that transpires. Not only the words spoken but the tone of voice, the nuances of verbal
emphasis together with the gestures and facial expressions are recorded. It provides the
nearest and closest substitute to the physical presence of an interested observer.

So long as the camera is neither too pervasive nor too obtrusive, there can be no
good reason for excluding it. How can it be said that greater accuracy and completeness of
reporting are to be discouraged? Perhaps more Canadians receive their news by way of
television than by other means. If there is to be informed opinion in today‘s society, it will be
informed in large part by television reporting.‘

[37] The appellants point out that the majority of that court differed with Cory J only
because it held that a decision to remove strangers from Parliament was part of
Parliament‘s privilege that originated in English rules. The South African
constitutional provisions requiring public participation in an open Parliament are very
different.

[38] The third ground for contending that the disorder provisions are not
reasonable limitations on the right to an open Parliament is that the public has an
interest in knowing about incidents of grave disorder. It has the right to know who
causes it and who regulates it. The disorderly conduct of MPs – public
representatives of the people – is a matter of public concern. South Africans have a
right to know how Parliamentarians and parliamentary officials behave. It is not only
proper behaviour that is of concern: ‗loud, rowdy and fractious‘ political life is good
for democracy, said Cameron J in Democratic Alliance (para 133), above. The public
has a right to witness it. And the public has a right to know not only what the Speaker
or the Chairperson says during moments of disorderly behaviour, but also to see
how MPs are treated by security staff who forcibly evict them from the Chamber. The
public has a right to know how the legislative arm of government operates.

[39] The fourth reason advanced by the appellants in contending that the
limitations are unreasonable is that broadcasting what happens in Parliament does
not constitute support for or encouragement of disorder. Viewers are not going to
embark upon disorderly conduct just because they see it. They will decide for
themselves whether MPs have behaved appropriately, whether the presiding officer
manages the situation properly or whether security staff use undue force.

[40] Another ground for contending for unreasonableness, in my view, is that the
decision to train the camera on the face of the presiding officer when there are
incidents of grave disorder or unparliamentary conduct is not that of the person
responsible for a sitting: it is the Director of the SVU who decides what constitutes
grave disorder or unparliamentary conduct. The Director is given a discretion to
make a distinction on the basis of rules that are not clear. It is he or she who decides
whether or when there is grave disorder or merely unparliamentary behaviour. On
what basis? The policy and rules are not clear. The limitation on the right to an open
Parliament should be  clear in order to be reasonable.

The justifications for limitation
[41] Of course Parliament has tried to gainsay these grounds for claiming that the
disruption clauses constitute unreasonable limitations on the right to an open
Parliament. The majority of the court a quo accepted Parliament‘s defences.
Parliament claims that just as a court has the power to tailor the manner in which
proceedings are published and broadcast, as in Multichoice, above where Mlambo
JP issued very specific directions (para 30) as to what parts of the proceedings could
be broadcast and what not,  so Parliament has the power to tailor the manner of the
broadcast of sittings. The appellants point out, however, that in this matter we are
dealing with the public‘s right to know what their public representatives say and do in
Parliament. Any limitation on that right must be reasonable in that context. We are
not concerned here with fair trial rights and an accused‘s right to a fair trial. A court‘s
power to  limit the broadcast of any evidence or conduct that might jeopardize a fair
trial must invariably be different from Parliament‘s power to limit the public‘s right to
an open Parliament. In my view that is correct.

[42] The first justification of the limitations advanced by Parliament is that the
disruption provisions are necessary to protect and promote the dignity of Parliament.
On the assumption that Parliament enjoys dignity, it is argued that the conduct of
some MPs will cause the public to think less of the institution or its presiding officers.
If the public sees such incidents, the dignity of the institution will be impaired. The
contention fails to recognize that it is not the broadcast that may impair Parliament‘s
dignity but the behaviour of MPs and parliamentary officials that do so. In any event,
as Savage J observed in her dissenting judgment, members of the public in the
gallery of Parliament would witness disorder and Parliament‘s dignity, if impaired,
would suffer in any event.

[43] The appellants argue that if the Speaker or Chairperson deals lawfully and
fairly with those who disrupt proceedings, and the proceedings are broadcast, the
dignity of the institution would be enhanced rather than impaired. Parliament‘s
argument, on the other hand, is that the disruption provisions temper the strong
impact that a television broadcast would have. This was accepted by the majority in
the court a quo. In my view, that is contrary to the right of the public to know what is
happening in Parliament during a sitting. It is not for Parliament to determine how
people will react to what happens in the Chamber. The public is entitled to know
exactly what happens and individuals may themselves evaluate how their elected
representatives fare. This justification for the limitation on the right to an open
Parliament has no basis.

[44] Secondly, Parliament contends that the public has a right to view only the
legitimate business of Parliament. Incidents of disruption and disorderly behaviour
are the antithesis of legitimate Parliamentary business. They undermine the proper
functioning of Parliament rather than promote it. Thus, goes the argument, there is
no parliamentary obligation to foster such conduct by providing an unlimited
audience for it. It is reasonable thus to preclude the televising of disorderly MPs, for
they are not engaged in the legitimate business of Parliament.

[45] However, the appellants ask only that the events while Parliament is in
session be broadcast. The fact that MPs or the Speaker or Chairperson may act in
an unacceptable manner does not mean that the business of Parliament becomes

illegitimate. And members of the public have the right to see and hear elected
members of Parliament misbehave. They are entitled to know what happens in the
legislature. I consider that this justification for the disruption provisions must fail.

[46] Thirdly, Parliament contends that the limitations to the right to an open
Parliament resulting from the disruption provisions are minor in nature. Only serious
disruptions may not be broadcast and other reporting and public access are not
prevented. The appellants argue, rightly in my view, that because broadcasting
provides greater accuracy than other forms of reporting, it is necessary, in order to
discharge the duty to report accurately, to ensure the broadcast of the scenes of
disruption in the Chamber. And the public is entitled to see and hear scenes of
disruption so that it can call MPs to account for their conduct.

[47] The appellants argue further that ‗it is at the margins where speech is
disruptive, offensive and controversial that the right to freedom of speech has real
practical value‘. If the right to an open Parliament were limited to proceedings that do
not involve controversy and bad behaviour, the right would be meaningless.
Moreover, the fact that disruption is reportable by other means does not detract from
the fact that most people obtain their information from watching television: precluding
broadcasts of disruption thus deprives most of the general public from gaining that
information. The finding by the majority of the court a quo that the limitation of the
right to an open Parliament is of a minor nature, ‗compared to the damage that may
arise in the absence of these measures‘ is thus to be rejected.

[48] The fourth argument for the reasonableness of the limitations raised by
Parliament is put thus in the Speaker‘s answering affidavit: she said that the
disruption provisions are such that ‗the incidents are not ignored, but the
consequences that visuals of disorder and defiant conduct would have if broadcast
to the world, and played repeatedly, is mitigated. An audience for conduct striking at
the heart of Parliament‘s functioning would be guaranteed, and such ill-discipline
would thereby, be encouraged.‘

[49] The court a quo accepted the contention, despite the fact that it was not
substantiated. Savage J, on the other hand, held that even if broadcasting did

increase disorder, the justification amounted to ‗an authoritarian approach to
openness and media freedom, one similar to that adopted by the apartheid State‘.
She added that ‗It is an approach that is not condoned by our Constitution and is out
of keeping with the fundamentals of our constitutional democracy.‘ I agree.
[50] Moreover, the prohibition on publication on the assumption that it may cause
harm, is lawful only where the prejudice that it would cause is demonstrable. ‗Mere
conjecture or speculation that prejudice might occur will not be enough‘: Midi
Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape)
[2007] ZASCA 56; 2007 (5) SA 540 (SCA) para 19. Parliament did not show that the
broadcast of disorderly conduct would in any way cause harm, let alone encourage
further disorder.

[51] The last argument raised by Parliament in relation to the reasonableness of
the limitations is that they amount to international best practice. It asserted in its
papers that the disruption provisions are drawn directly from the rules of Parliament
in the United Kingdom. That may be correct, but that does not mean that the rules
are consonant with our Constitution. Parliament referred to parliamentary rules
around the world that are similar. The appellants, on the other hand, referred to rules
of the Scottish Parliament and of the Indian lower house, the Lok Sabha, as well as
the European Union. Those legislatures allow uncensored broadcasts of
proceedings.  The comparative analysis is interesting, but in the end, this court must
determine the constitutionality of the disruption provisions in the context of the nature
of our democracy and the provisions of the Constitution referred to earlier.

[52] I consider, therefore, that the justifications offered for the limitation of the right
to an open Parliament do not survive scrutiny, and conclude that the disruption
clauses are unconstitutional and thus unlawful, and that the manner in which the
SONA 2015 proceedings was broadcast was unconstitutional.

[53] In view of the conclusion to which I have come it is not necessary to consider
the appellant‘s alternative argument that the entire policy is unlawful since it was
concluded through an irregular process.

The jamming issue

[54] The appellants sought an order in the court a quo that the use of a device that
disrupted all cellular telephone signals during the SONA sitting was unlawful. The
majority held that the relief sought was moot as the incident was isolated and a
mistake had been made. Savage J, on the other hand, considered that the issue was
live and that the use of the device by the State Security Agency was unlawful.

[55] In response to the application for a declaration that the use of a device to
disrupt the signal in the Chamber of Parliament was unlawful, the Minister of State
Security stated that the disruption when the sitting commenced was accidental. The
Agency, said the Minister, was empowered to fulfill national counter-intelligence
responsibilities. Counter-intelligence is defined in the National Strategic Intelligence
Act 39 of 1994 as ‗measures and activities conducted, instituted, or taken to impede
and to neutralise the effectiveness of foreign or hostile intelligence operations, to
protect intelligence and any classified information, to conduct vetting investigations
and to counter any threat or potential threat to national security‘.

[56] The Agency had determined that the risks and security threats attendant on
the 2015 SONA were major. One of the threats it sought to guard against was the
risk of hidden explosive devices in the precincts of Parliament that could be activated
by a radio signal or a cell phone, including devices that might be carried on remote
controlled drones. The Agency considered that these risks were at their highest
when the President, the Deputy President and other important people were outside
the Parliamentary Chamber. The Chamber itself was secure since it had been
‗swept‘ prior to the SONA session to ensure that there were no explosive devices in
the Chamber. The Agency had used the signal disrupting device to ensure that there
were no threats before the President and his entourage entered the Chamber. The
device was supposed to have been switched off before the session began. The
technician charged with this duty had forgotten to switch the device off, something
which his superior noticed as soon as he saw the protests of MPs and journalists on
television. He issued an instruction to the technician to switch it off, which was done,
and the signal was restored. The entire incident had been a mistake that would not
be repeated, said the Minister.

[57] The Speaker, on the other hand, had professed ignorance of the device and
did not know that it was in the building. She too had reacted to the protests in
Parliament and asked the Secretary to Parliament to investigate. The Minister
claims, and the majority of the court a quo found, that the issue was no longer live.
But the appellants contend that the lawfulness of the use of a jamming device is still
an issue and ask for an order that it be declared unlawful.

[58] Even if a mistake had given rise to the disruption of signals during the
parliamentary session, the question remains whether the use of the device was ever
lawful. If not, the issue is far from moot, and needs to be determined. In Buthelezi &
another v Minister of Home Affairs & others [2012] ZASCA 174; 2013 (3) SA 325
(SCA), this court held that the legality of the conduct of the Minister of Home Affairs
in failing to take a decision on whether to grant a visa to the Dalai Lama, even
though the purpose of the visit had long passed by the time the case was heard in
the high court, remained a live issue. Nugent JA said (para 4) that ‗whether or not
the authorities had acted lawfully was and remains a live issue‘.

[59] And in Minister of Justice and Constitutional Development & others v
Southern Africa Litigation Centre & others [2016] ZASCA 17; 2016 (3) SA 317 (SCA)
(the Omar al Bashir matter), this court held that the question whether Al Bashir was
immune from arrest in South Africa, even though he had already left the country,
should be decided. First, because the question whether Al Bashir was immune from
arrest remained a live issue and secondly because it was a matter of public
importance. In my view, since the Minister has not undertaken that the device will not
be used again, but instead contends that its use was lawful and that he may use it
again, without Parliament‘s authority, the question must be determined.

[60] The appellants argue that the use of the jamming device when Parliament
was in session was a breach of the right to an open Parliament, and that it was in
violation of s 4 of the Powers Act. The first breach is acknowledged by the Minister.
He says that it was a mistake. I shall deal only with the question whether the use of
the device was also in breach of the Powers Act.

[61] Section 4 of the Powers Act, which deals with the presence of members of
security services (defined in accordance with s 199 of the Constitution – that is,
defence force, police and intelligence services) in the precincts of Parliament, reads:
‗(1) Members of the security services may—
(a) enter upon, or remain in, the precincts for the purpose of performing any policing
function; or
(b) perform any policing function in the precincts,
only with the permission and under the authority of the Speaker or Chairperson.
(2) When there is immediate danger to the life or safety of any person or damage to any
property, members of the security services may without obtaining such permission enter
upon and take action in the precincts in so far as it is necessary to avert that danger. Any
such action must as soon as possible be reported to the Speaker and the Chairperson.‘

[62] The plain purpose of s 4(1) is to protect the independence of Parliament. Only
the presiding officers may decide what the security services may do on its precinct.
The Speaker, as I have said, professed ignorance as to the existence of the jamming
device. She had obviously not consented to its use. But she and the Minister
maintain that it is but a matter of detail. She had had a meeting about security
arrangements for the SONA with members of the Agency before the SONA. How it
went about securing the precinct and the Chamber was not for her to determine. The
Speaker knew that security arrangements would be put in place. The majority in the
court a quo, although it had held that the matter was moot, found that the details of
security measures were left to the discretion of the Agency.

[63] The appellants argue, however, that any action that might interfere with the
ordinary functioning of Parliament, and which might threaten the openness of
Parliament, would have to be specifically authorized. If the security services are
entitled to take any action, or use any device it thinks fit, then s 4(1) has no purpose.
They contend that the use of a signal disrupting device was not merely a detail. It
was a measure implemented that could, and did in fact, interfere with communication
in Parliament. The permission of the Speaker was thus required before the device
was set up in Parliament. Savage J found that the use of the jamming device was
contrary to the provisions of s 4(1) of the Powers Act. I agree.

[64] In the circumstances, the use of the signal disrupting device both before and
during the SONA was unlawful. This judgment must not be read to suggest,
however, that the use of any device or equipment by security services to execute a
legitimate policing function, without the permission of Parliament, is unlawful. It is
sufficient for present purposes to hold that the use of a telecommunications signal
disrupting device was unlawful in the circumstances in which it was used prior to the
SONA in February 2015.

[65] Accordingly, I consider that the appeal must be upheld. Although the
appellants asked that this court craft broadcasting provisions for Parliament that
would be lawful, I consider that that would be to intrude on the Legislature‘s domain.
It is Parliament‘s prerogative and right to determine its own rules and policy,
provided that the measures it adopts are reasonable limitations of the right to an
open Parliament. It is sufficient that the disruption provisions be declared
unconstitutional and unlawful.

[66] In the circumstances:
1 The appeal is upheld with the costs of two counsel.
2 The order of the court a quo is set aside and replaced with the following:
(a) It is declared that clause 8.3.3.2 of Parliament‘s Policy on Broadcasting and Rule
2 of the Parliament‘s Television Broadcasting Rules of Coverage, headed ‗Disorder
on the Floor of the House‘ are unconstitutional and unlawful in that they violate the
right to an open Parliament.
(b) It is declared that the manner in which the State of the Nation proceedings in
February 2015 was broadcast was unconstitutional and unlawful.
(c) It is declared that the use of a signal jamming device in Parliament, without the
permission of the Speaker of the House of Assembly and the Chairperson of the
National Council of Provinces, is contrary to s 4(1) of the Powers,  Privileges and
Immunities of Parliament and Provincial Legislatures Act 4 of 2004 and is unlawful.‘
(d) The respondents are ordered to pay the costs of the application including the
costs of two counsel.

_______________________
C H Lewis

Judge of Appeal

APPEARANCES

For the First and Second Appellants:
S Budlender (with him M Bishop and M
Maenetje)
Instructed by:
Webber Wentzel Attorneys, Johannesburg
Honey Attorneys Inc., Bloemfontein

For the Third and Fourth Appellants:
Legal Resources Centre, Cape Town
Honey Attorneys Inc., Bloemfontein

For the First to Third Respondents:
J J Gauntlett SC (with him M R Townsend)
Instructed by:
The State Attorney, Cape Town
The State Attorney, Bloemfontein

For the Fourth Respondent:

F van Zyl SC (with him D J Jacobs SC)
Instructed by:
State Attorney, Cape Town
State Attorney, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT
OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

29 September 2016

STATUS

Immediate

Primedia Broadcasting v Speaker [2016] ZASCA 142 (29 September 2016)

The Supreme Court of Appeal today upheld an appeal against an order of the
majority of a full court of the Western Cape Division of the High Court that
limitations on the right to an open Parliament were not unconstitutional.

Democracy in South Africa is predicated on open government in which all
citizens participate. The Constitution affords all South Africans the right to see
and hear what happens in Parliament. Sections 59 and 72 of the Constitution
provide that the business of the National Assembly and of the National Council
of Provinces houses of Parliament must be conducted in an open manner and
that the public and media have the right of access, subject to reasonable
measures regulating that right.

Not all members of the public are able to attend sittings of Parliament. But the
media is able to bring to their attention what happens in sittings by virtue of radio
and television broadcasts, through newspapers and now also through social
media such as Twitter. In so far as television and radio broadcasts are
concerned, s 21 of the Powers, Privileges and Immunities of Parliament and
Provincial Legislatures Act 4 of 2004 (the Powers Act), provides for regulation of

the broadcast feed. It limits the right to broadcast by stating that broadcasting
may be done only with the permission of Parliament and in accordance with
rules determined by the Speaker of the Chairperson. Television broadcasts are
made under the direction of an official who is the head of the broadcasting unit
of Parliament – the Director.

Parliament has adopted a policy and rules on broadcasting. These both
preclude the televising and broadcasting of disruptions in the Chamber, and
require that during a sitting, where there is disorderly conduct or
unparliamentary behaviour, the camera must be focused on the Speaker and
the Chair. The provisions of the rules and the policy are referred to as the
‘disruption provisions’.

The appellants, a broadcasting company and civil society organizations,
including the South African National Editors Forum, challenged the constitutional
validity of the disruption provisions. The triggers for the constitutional challenges
were the events that took place in Parliament on 12 February 2015 when the
President of the Republic, Mr Jacob Zuma, was scheduled to address a joint
sitting of Parliament, delivering the State of the Nation Address (SONA). The
appellants maintain that the respondents, the Speaker of the National Assembly,
the Chairperson of the National Council of Provinces, the Secretary to
Parliament and the Minister of State Security violated the public’s rights to see
and hear what was said and done in Parliament on 12 February 2015 in two
ways.

First, the State Security Agency, without seeking the authority of Parliament,
employed a device that disrupted – jammed – telecommunication signals when
the sitting began. Second, when there was a disruption of the proceedings at the
start of the sitting, the parliamentary television broadcast feed was limited to
showing the Speaker, Ms Baleka Mbete, and showed nothing of a scuffle that
broke out between members of the Economic Freedom Fighters (EFF) and
security officials as they tried to force EFF members of Parliament out of the
Parliamentary chamber.

The use of the jamming device precluded Members of Parliament (MPs) and
journalists from using their cell phones to inform the public, outside Parliament,
what was happening at a significant national event, the SONA. When there was
loud and angry protest by those in the House about the jamming, the Speaker
asked the Secretary to investigate what was happening and the signal was
restored. The explanation for the jamming was that it was inadvertent. The
appellants sought an urgent order in the Western Cape Division of the High
Court that the jamming of the signal was unlawful and unconstitutional. The
majority of the full court that heard the application refused that relief.

The second violation complained of by the appellants is that members of the
public were deprived of the right to see and hear what happened in Parliament
when members of the EFF asked the President when he would pay back the
money that had been spent on his private homestead in KwaZulu-Natal,
Nkandla. The Speaker refused to allow the questions. The EFF MPs refused to
back down. The Speaker ordered them to leave the Chamber. They refused.
She then called in a large number of men whom she referred to as ‘the
parliamentary protection services’, and a violent altercation ensued. The EFF
MPs were forcibly removed from the Chamber.

When the members of the protection services entered the Chamber, the
broadcasting feed was focused on the Speaker and the Chairperson of the
Council.  People outside the Chamber could thus not see the interaction
between the EFF MPs and the security staff through official means. Journalists
who took videos or photographs of the scuffle in fact did broadcast the activity in
Parliament, but against the provisions of s 21 of the Powers Act, and in violation
of the disruption provisions. The public accordingly had to rely on poor and
unauthorized cell phone broadcasts or second-hand information on what had
happened. The appellants had thus also applied for an order that the
respondents should ensure the openness of Parliament and that the manner in
which the live broadcast had been made was unlawful. The majority of the full
court refused that relief as well.

On appeal, the appellants accepted that the right to an open Parliament was not
unlimited but argued that the restrictions imposed by the disruption clauses were
not reasonable. The SCA held, in favour of the appellants, that the restrictions
were unreasonable. The limitation of the television broadcast was futile, as
journalists informed the public about the scuffles in any event; it resulted in
inaccurate reporting when the public has a right to accurate reports; the
limitation deprived the public of the right to know who causes, and controls,
incidents of disorder; and not broadcasting scenes of disorder does encourage
other such incidents. The SCA held also that the disruption provisions were not
clear and had to be interpreted by the Director as and when incidents of
disruption occurred. The court thus held that these provisions were
unconstitutional and unlawful.

Although the Minister claimed that the signal disruption at the start of the SONA
was the result of a mistake made by the operator of the telecommunications
signal jamming device (and the full court considered that the issue had become
moot), the appellants contended that its use, without the permission of
Parliament, was in any event unlawful in terms of s 4 of the Powers Act. The
SCA held that the use of the jamming device, in the particular circumstances of
the case, had contravened s 4 and was thus unlawful.

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