The Constitutional Court yesterday dismissed the SABC’s appeal against a Supreme Court of Appeal judgment which refused the public broadcaster permission to broadcast Durban businessman Schabir Shaik’s appeal proceedings next week.

The court ruled that the SABC had not established any basis for intervening in the exercise of the appeal court’s discretion to regulate its own process and ensure arrangements within its courtroom did not interfere with the administration of justice.

However, the court said the time had come for courts to embrace the principle of open justice and all that implied. “It should be borne in mind that the electronic media create some special difficulties for the principle of open justice. Broadcasting, whether by television or radio, has the potential to distort the character of the proceedings,” Chief Justice Pius Langa said in the majority judgment.

But Langa did not close the door altogether. He said an agreement entered into between the judiciary and the media in 1993 needed to be updated. The agreement’s principal provision was that sound and film recording could be made but not broadcast.

In a separate judgment concurring with the order, Judge Albie Sachs said the full coverage of appellate court proceedings should await the establishment of appropriately negotiated procedures.

Deputy Chief Justice Dikgang Moseneke, in a dissenting judgment, found the appeal court failed to consider that the right to a fair hearing included the right to a public hearing. It erred by pitting the right to freedom of expression against the right to a fair hearing.

With acknowledgement to Ernest Mabuza and Business Day.