In Primedia Broadcasting (a division of Primedia (Pty) Ltd) and Others v Speaker of the National Assembly and Others (784/2015)  ZASCA 142;  4 All SA 793 (SCA) (29 September 2016) the events that led to the initial application that arose as a result of the State of the Nation Address (SONA) of the 12th January 2015 were described. Two such unforgettable events are the signal jamming in Parliament and the ousting of the Economic Freedom Fighters from the chambers. As a result, the Applicants initially made the application on the following grounds – firstly, the State Security Agency employed a device that jammed mobile telecommunication signals inside Parliament, the so called “signal jammer”. Consequently journalists and MPs attending SONA were unable to use their cellphones in order to inform members of the public not in attendance about the happenings in Parliament. Even though the latter lasted momentarily as it was swiftly addressed by the relevant authorities, it remained pivotal. Secondly, the Applicants averred that members of the public were denied the right to see for themselves events of national importance occurring on the floor of the Parliamentary Chamber because the cameras would not show the actual events except to show the faces of both Speakers of Parliament in the joint sitting. The essence of the judgment in the court a quo was that the Speaker was entitled to make such a ruling which was consistent with the rules and policies of Parliament. The Applicants appealed the latter decision, this article therefore focuses on the Appeal decision.
The issue that was central to this application was that of the right to an open Parliament, whether Parliament had rules and policies consistent with the Constitution and whether any limitation of rights as a result of these rules and policies was justifiable. As a matter of course, Section 59 and 72 of the Constitution of the Republic address the issues of public participation in both Parliament and the National Council of Provinces respectively. In lieu of the fact that not all public persons may at once attend processions in both houses at any given time, television and radio journalists report on the “goings-on” of such processions. So, their broadcast feed is regulated by Section 21 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 (hereafter the Powers Act). In light of the said section 21, Parliament adopted its own rules and policies. As a result thereof, if there was a disorder of sorts in the house, the cameras are meant to only focus on the Speaker of Parliament and not show the chaos on the house floor. It was clear at the outset in the court papers that the following facts existed:
- the Parliamentary Policy on broadcasting was adopted in August 2009 but it appeared that SANEF (South African National Editor’s Forum) only found out about this Policy only in late January 2015 in a meeting between itself and Parliament i.e. after the SONA of the 12th January 2015,
- the Broadcasting Rules were adopted in September 2003 but Primedia learnt of the said rules only when Parliament served their Answering Affidavit.
Consider the following and judge for yourselves: Why did Parliament shy away from informing the relevant stakeholders of their rules and policies on broadcasting after adopting them? So, it appeared that it was only in August 2014 that these rules and policy of Parliament were evoked and the cameras only focused on the Speaker i.e. that was the first ejectment of the Economic Freedom Fighters (EFF) from Parliament. To clarify, when broadcasting parliamentary proceedings, the live feed is forwarded first to the Sound and Visual Unit (SVU) for editing before it is distributed to our television sets at home or elsewhere. The Director of the SVU is empowered to make the decision, firstly to decide what constitute the disorder and secondly to switch the cameras to the occupant/s of the chair of Speaker of Parliament. The Powers Act in section 27, by the way, makes it an offence to breach the provisions of section 21. So, in order to justify the limitation of their right to an open Parliament, the Respondents made various arguments as follows:
- that the limitation is necessary to protect and promote the dignity of Parliament – Ruling: the argument is contrary to the right of the public to know what is happening in Parliament and are entitled to know how their elected representatives fair in representing them,
- that the public has the right to view only the legitimate business of Parliament – Ruling: the members of the public have the right to see and hear what happens in the legislature and the argument therefore failed,
- that the disruption provisions of their rules and policies were minor in nature – Ruling: broadcasting effectively renders greater accurate reporting and most people would obtain their information from watching their television sets, so the argument failed,
- that the disruptive incidents are not ignored and the consequence of visuals of disorder and defiant conduct if repeatedly played is mitigated, that ill conduct would be encouraged thereby – Ruling: essentially it amounted to an authoritarian approach equated to an apartheid rule and against the spirit of our Constitution, therefore the conjecture inferred will not stand,
- that the limitation is consistent with International Best Practice and that they were extracted from the United Kingdom – Ruling: the court found the rules not consistent with our Constitution and also found that the European Union and the Scottish Parliament amongst others, they allow uncensored broadcasts, contrary to the international best practice averment.
On signal jamming the Intelligence Minister had said “…it was a mistake and would not be repeated…” and the Speaker of Parliament declared her ignorance of the device and that she had no idea the device was in the house. The court a quo found the argument of the Appellants moot because the incident was isolated and a mistake. The Supreme Court of Appeal found that the device and its use before and during SONA was unlawful and a violation of section 4(1) of the Powers Act but was quick to mentioned that other devices may be used by the security services to conduct a legitimate policing function.
- In the end, the court upheld the appeal.
- The order of the court a quo is set aside and replaced with the following:
(a) It is declared that clause 18.104.22.168 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 section 4(1) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 and is unlawful.’
By Phalen Selibi