The Webber Wentzel Media team represented Primedia Broadcasting and the South African Editors' Forum in an urgent application launched in the wake of the signal jamming and forcible removal of members of Parliament which took place during the 2015 State of the Nation Address. During the removals, the Parliamentary TV feed was focused on the Speaker and did not show the removal of MPs. The cell phone signal in Parliament was also jammed for a brief period, thereby preventing members of the media from communicating with anyone outside Parliament.

The application was brought together with the Right2Know Campaign and the Open Democracy Advice Centre, who were represented by the Legal Resource Centre. The application was brought against the Speaker of the National Assembly, the Chairperson of the National Council of Provinces, the Secretary to Parliament and the Minister of State Security.

This application sought to ensure that the television feed provided by Parliament accurately and comprehensively captures parliamentary proceedings and that signal jamming is not used again during sittings of Parliament.

The application was made in two parts. The first part sought an urgent interdict to ensure proper coverage of the upcoming debate on the State of the Nation address. The court refused to grant this urgent relief. The second part was a challenge to the constitutionality of Parliament's Policy on Filming and Broadcasting, which was argued on 20 April 2015.

The applicants argued that Parliament's failure to broadcast the altercation which happened on the floor deprived the public of meaningful information on what was transpiring in Parliament. Parliament sought to justify its conduct by relying on a section of its Filming and Broadcasting Policy which states that during incidents of "grave disorder" or "unparliamentary behaviour" cameras must be focused on the chairperson of the session for as long as the unruly conduct continues. Parliament also sought to rely on its power in terms of the Constitution to regulate its own process and to take reasonable measures to regulate public access, including measures to exclude the media and the public. The applicants argued that refusing to cover "unparliamentary behaviour" and "grave disorder" is an unjustified and unreasonable restriction on the right of all citizens to know what happens in Parliament and contravenes Parliament's duty to ensure that citizens can enjoy that right. This is particularly so in light of the important role which the media plays in realising the right to an open Parliament for ordinary South Africans.

The respondents gave undertakings that signal jamming devices will not be used in the same way again. However, the applicants asked the court to declare that the jamming which had taken place during the State of the Nation Address was unconstitutional and unlawful.

On 28 May 2015 the Western Cape Division of the High Court handed down its judgment. In a blow to media freedom, the majority judgment found that the restriction of coverage was a reasonable measure to regulate public access to Parliament. The Court went so far as to state that there is no duty on Parliament to broadcast conduct which is not legitimate parliamentary business, such as conduct that disrupts proceedings. The Court held that Parliament formulated its rules and policies in a reasonable manner and struck the correct balance between the duty to maintain the dignity of Parliament and the rights of the public to be informed about Parliament.

The Court also refused to grant an order preventing the use of signal jamming devices, and accepted that the use of such devices is within the discretion of the State Security Agency.

However, the minority judgment found that the measures taken by Parliament were unreasonable and would have declared the relevant parts of the rules and policy unconstitutional, unlawful and invalid. The minority judgment also declared that the manner in which the audio visual feeds were produced and the use of the jamming device during the State of the Nation Address were unconstitutional and unlawful.

In our view, the majority judgment sets a dangerous precedent which we consider out of keeping with the constitutional value placed on openness, accountability, free expression and media freedom. The court's emphasis on the right of Parliament to protect its 'dignity' is particularly problematic. The right to dignity which is protected by the Constitution is afforded to individuals and not to institutions, particularly not state institutions. Furthermore, as pointed out in the minority judgment, "[i]f the dignity and authority of Parliament is impaired by the behaviour [of MPs], it is difficult to understand why the impairment of dignity would not arise whether the public was present in the public gallery of Parliament or not." We agree with the minority judgment that government institutions cannot rely on the right to human dignity and there is no reason why limiting openness and public access would enhance the authority of an institution. If unchallenged, other state institutions may seek to rely on the same reasoning to hamper proper media coverage of their conduct and proceedings.

The applicants have applied to the Western Cape High Court for leave to appeal.

Issued by Webber Wentzel