On 27 July 2012 the North Gauteng High Court handed down judgment granting Carte Blanche permission to film and broadcast Glynnis Breytenbach's controversial disciplinary inquiry.

Breytenbach, a Senior Deputy Director of Public Prosecutions who was suspended from her position as the regional head of the specialised crime unit on 30 April 2012, was charged with, among other things, gross insubordination, improper conduct, and bringing the National Prosecuting Authority (NPA) into disrepute. She has been involved in various high profile cases, including the investigation into allegations of corruption against former crime intelligence head, Richard Mdluli, and the prosecution of Imperial Crown Trading in relation to the mining rights at Kumba Iron Ore's Sishen mine.

The print media were granted access by the chairperson of the disciplinary inquiry, but the NPA refused to permit the media access to the inquiry without a court order. The print media and the actuality television programme Carte Blanche, for which Webber Wentzel acted, accordingly launched an urgent application to compel the NPA to allow print and broadcast access to the proceedings.

The application was opposed by the NPA but supported by Breytenbach. The NPA argued that the disciplinary inquiry was private and that witnesses would not cooperate and would refuse to testify if the media was permitted to be present, particularly if the proceedings were broadcast.

Judge Ronel Tolmay granted the application for access. She held that:

"[The NPA] is in my view no ordinary employer. The NPA is a public institution established under the Constitution and has a particular constitutional mandate". …

"The NPA must not only pay lip service to the constitutional values that they are bound to uphold, but must be seen to do it. Therefore the public has a right to be present, via the media, at this hearing."

With regard to witnesses, the court criticised the NPA for failing to provide concrete evidence about alleged witness fears. The judge was also satisfied that the court order requested by Carte Blanche contained sufficient safeguards to protect the rights of witnesses and the integrity of the inquiry. The chairperson of the enquiry was, for example, provided with a discretion to prohibit the recording of a particular witness' testimony, and to enforce reasonable reporting restrictions.

In the past few years courts have ruled in favour of granting media access to quasi-judicial inquires on a number of occasions, including those of the Cape High Court Judge President, John Hlophe, and, earlier, the cricketer Hansie Cronjé. The Breytenbach judgment however signifies an important development as the court, for the first time, accepted that the media should be granted access to an internal disciplinary inquiry conducted by a public body in relation to one of its employees.

We welcome the judgment as it confirms the principle that public bodies are accountable to the public for the manner in which they conduct so-called internal affairs. The judgment also paves the way for the media to report on internal disciplinary inquiries by organs of state when the issues dealt with at the disciplinary inquiry are in the public interest.

First published on the Webber Wentzel website