IN THE REGIONAL COURT FOR THE REGIONAL DIVISION

OF BRITS HELD AT BRITS

CASE NO:  SH105/2021

DATE:  2021.10.14

In the matter between:

THE STATE

and

NULAMANGO & ANOTHER                                                 Accused

JUDGMENT ON MEDIA ACCESS

TO SEXUAL OFFENCES PROCEEDINGS

MAGISTRATE:  MOGOTHLA MAMETSE

A     BACKGROUND

The two accused appear before this Regional Court sitting in Brits on the following counts:

Three counts of sexual exploitation of children in contravention of Section 17(3), read with Section 1, 2, 50, 56A, 58, 59 and 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007.

Four counts of compelling or posing children to witness sexual act in contravention of Section 21(2), read with Section 1, 2, 50, 55, 56A, 58, 59 and 60 of the Criminal Law (Sexual Related Matters) Amendment Act, 32 of 2007.

Five counts of sexual assault in contravention of Section 5, read with Section 1, Section 50, Section 55, Section 58, Section 59, and Section 60 of the similar Act.

Four counts of child abuse in contravention of Section 305(3)(a), read with Section 22(1), Section 320 of Act 38 of 2005.

Three counts of contravention of Section 10(1), read with Section 1 and Section 11 of Act 92 of 1996, mainly performing or termination of pregnancy or prevent a lawful termination of pregnancy.

It is apparent from the charge sheet and the annexure to the charge sheet, that the ages of the alleged victims range from 14 years to 18 years.

The applicant contacted the Court two weeks before the date of the hearing of the matter, that Carte Blanche intends to bring an application for these proceedings to be televised.  On the date of the hearing of this matter, the Court became aware that the defence counsel, Advocate Khumalo, was not served with the letter notifying the Court of this application.  The court adjourned and informed the applicant to serve Advocate Khumalo with the documents intended to be used in this application.

Advocate Khumalo, upon receipt of the documents, requested that the matter be adjourned until 13 October 2021 to receive instruction from his client.  On 13 October 2021, both the state and the defence confirmed that they possessed the documents, and they were ready to proceed.

The application before the Court is centred around the following:

The applicant requested permission to film, from time to time, the proceedings on a delayed basis and the proceedings which will ultimately be broadcast on Carte Blanche and the following are germane their request:

1. Audio visual or filming of two accused pleas, however the name and the particulars of the victims should not be disclosed.
2. Audio visual or filming of the accused plea explanation and then the name of the alleged victims, should not also be disclosed.
3. Audio visual or filming of the accused testimony and cross-examination.
4. Audio visual of addresses by the state and the defence.
5. Audio visual of filming of judgment.
6. Audio visual of filming of sentence delivery, if applicable.

The state opposed the application on the following grounds:

The state witnesses the state intend to call are minors and that the state intends to apply that the witnesses testify in camera in terms of the provisions of Section 153 of the Criminal Procedure Act, Act 51 of 1977, herein referred to as the Act.

The state intends to apply for the provision of Section 154 of the Act, that the particulars as well as the identity of the state witnesses should not be disclosed.

The offences, which the accused face, are sexually related and the witnesses would be exposed to secondary trauma if they testify, and their evidence will be filmed.  

The state further quoted the decision of Van Breda and for purposes completeness, the citation of the case is the NDPP v Media24 Limited & Others and HC Van Breda v Media24 Limited & Others, (425/2/2017) [2017 ZASCA 97].  The decision was delivered on 21 June 2017.  The state indicated that the factual background of this case differs from the one at hand, because in Van Breda’s case, the charges involved killing of a human being and the case at hand is sexually related.

Advocate Khumalo also opposed the application on the following grounds:

The accused are already subjected to public trial and prosecution, as the applicant already published their details and negative information about them.  Advocate Khumalo then handed a document that was identified as EXHIBIT B and this document is a letter dated 3 October 2019 from the attorney of the two accused addressed to Carte Blanche, to inform this Court about the conduct of the applicant.

The accused lives are in danger due to the fact that the applicant had acted irresponsibly by publishing their details in its program aired on 6 October 2019.  Both accused are principals of the school, and their identity and status are adversely affected.  

The defence counsel was not properly notified about this application as the applicant did not follow the due process.  He failed to notify the defence counsel by way of notice of motion.  The defence did not have a proper opportunity to consult with the accused and the defence witnesses, some of whom are children and if their evidence is televised, they will be exposed to secondary trauma.

The applicant is not responsible and trustworthy as it failed to comply with the provision of Section 154 of Criminal Procedure Act as it published the details of the accused and their footage before they appeared before the court.

B     LEGAL PRINCIPLES

Section 16 of the Constitution headed Freedom of Expression provide as follows:

“Everyone has the right to freedom of expression, which include:

1. freedom of the press and other media;
2. freedom to receive or impart information or ideas;
3. freedom of artistic creativity;
4. academic freedom; and
5. freedom of scientific research.

2.  The right in (1) does not extend:

a)    to propaganda for war;

b)    incitement of imminent violence;

c)    advocacy of hatred that is based on race, ethnicity, gender or religious and that constitute incitement to cause harm.” 

As far as the right of the media to gather and broadcast the information, the Supreme Court of Appeal in Henri Christo van Breda and Media24, as quoted above, the following was said:

“The right of the media to get together and broadcast information, footage and audio recording flows from Section 16 of the Constitution.  The right to freedom of expression is one of a work of mutually supporting rights that hold up the fabric of the constitutional order.  The right is not limited to the right to speak, but also to receive information and the idea.  The media holds a key position in society.  They are not only protected by the right to freedom of expression but are also the key facilitator and guarantor of the right.  The media’s right to freedom of expression is thus not just (or evenly primary) for the benefit of the media.  It is for the benefit of the public.”

Freedom of speech goes hand in hand with open justice.  In the case of City of Cape Town v National Roads Authority Limited & Others, [2015] ZASCA 58, 2015 (3) SA page 386, the Supreme Court of Appeal the following was said:

“First, it assists in the search for the truth and plays an important role in informing and educating the public.  

Secondly, it enhances accountability and deters misconduct.

Thirdly, it has a therapeutic function offering an assurance that justice has been done, a sense of communal catechist.”

Members of the public have the right to access to court, and the accused person has a right to a public trial before the ordinary court.  The right of access to a public court, which is one of longstanding, does not belong only to the litigant in any given time, but to the public at large.  See S v Mamabolo, 2007(3) SA, page 409 (CC).

Section 152 of the Criminal Procedure Act, (the Act), makes provision that criminal proceedings in any court shall take place in an open court, except expressly provided otherwise by this Act or any other Act.  

The method of broadcasting of court proceeding involves the usage by the media of a video camera and sound recording equipment to communicate public events directly to the members of the public.  In this day and age, the majority of South Africans rely primarily on radio and television for their means and information.  See Dotcom Trading 121 (Pty) Ltd t/a Life Africa Network News v King N.O., 2000 (4) SA page 973 (C).

The following was said in S v Jaipal & Others; S v Tshilo, 2004 (4) SA, page 107 (CC):

“The right to a fair trial has been interpreted as including the fundamental values of dignity, freedom, equality which lay at the heart of a fair trial in the field of criminal proceeding.”

The total bar on broadcasting of judicial proceedings limits the right to freedom of expression in terms of Section 16 of the Constitution.  It is illogical not to restrict filming outside the court and restrict it inside the court.  Television allows viewers to feel that they are present in the courtroom.  

EVALUATION OF THE SUBMISSIONS THAT WERE MADE ON BEHALF OF THE STATE AND THE DEFENCE COUNSEL.

The applicant [through its journalist, Mr. Beamish] has submitted a plan to Court on how the proceeding shall be televised and unfold.  The state’s concern can be addressed in the following manner:

The applicant indicated that it does not intend to televise the testimony of the state witnesses.  The public prosecutor indicated that she would apply for the witnesses to testify in camera in terms of the provision of Section 153 of the Act and once this application is granted, the testimony of such witnesses shall not be televised.

The state also indicated that it would apply that the provision of Section 154 of the Act, be implemented.  Once this application is granted, the names and the identity of the witnesses shall not be published.

The defence argument that the accused’s life and safety shall be put on risk if the evidence is televised, does not hold water as there is no basis upon which they have made this submission.  No proof has been placed before this Court that their life is already in danger.

The fact that the applicant has already televised or published the identity of the accused as well as that of the relative and the sister has no bearing on this case.  The accused were within their rights to lay criminal charges against the applicant.  They failed to do so.  The argument of counsel that they did not know about it, is misplaced as they sought advice from their attorneys who wrote the 3 October 2019 letter to the applicant and that letter was already handed in by the defence as an exhibit.

The identity and the particulars of the accused is already known as they have appeared before the Court on several occasions.  The submission by the defence counsel that the defence witness shall be exposed to secondary trauma if they testify, and their evidence is televised; this can also be addressed because the defence can make an application that each defence witness testify in camera if they are still minors.

And furthermore, the fact that the factual background of Van Breda’s case, as well as the Pistorius case are distinguishable from the case at hand is not convincing as the legal principles are the same.  

Consequently, the Court makes the following order:

1. Carte Blanche is permitted to broadcast the audio-visual recording of the following portions of the trial only in delayed broadcast and/or an extract from the proceedings:
   1. Opening arguments of the state and the accused.
   1. Plea of the accused, name of the victim excluded.
   1. Any interlocutory application during the trial.
   1. Evidence of the accused and their witnesses, excluding evidence of the child witnesses.  If any witness objects to be televised, the Court will listen properly to that presentation and will make the necessary informed decision.
   1. Closing arguments of the state and the accused.
   1. Delivery of the judgment on the merits.
   1. Delivery of the judgment on sentence, if applicable.
2. Broadcast or filming of the proceedings should not compromise the decorum of the Court.  The broadcast or filming should not disturb the smooth running of the proceedings and in the event of a failure to comply with this, the Court shall immediately order that the televising be stopped immediately.
3. The Court will evaluate this matter on a witness-by-witness basis, and, at that time, the Court will make an appropriate ruling.

That is the decision of the Court.

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