David Matlala

BProc (University of the North) LLB (Witwatersrand) LLM (UCT) LLM (Harvard) HDip Tax Law (Witwatersrand) is a professor of law at the University of Limpopo.

February 2007 (1) South African Law Reports (315 – 624); January [2007] 1 All SA Law Reports no 1 (pp 1 – 132) and no 2 (133 – 220)

Constitutional Law

Power of a court to protect and regulate its own process: Section 173 of the Constitution provides among other things that the Constitutional Court, Supreme Court of Appeal and High Court have the inherent power to protect and regulate their own process. In line with this power the practice of the SCA is to allow television to record proceedings before it as much as is desired as long as there is no sound recording. In South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC) the applicant sought leave of the Constitutional Court to appeal against the decision of the SCA prohibiting it from conducting live and recorded coverage, both on television and radio, of the much publicised Shabir Shaik corruption appeal. In brief the applicant wanted to have unrestricted television and radio coverage of the appeal while the SCA was prepared to allow coverage which excluded sound recording. The majority of the CC per Langa CJ (Moseneke DCJ and Mokgoro J dissenting) granted leave to appeal and dismissed the appeal with costs. The court said that it would interfere with a decision of the SCA only if the latter had not acted judicially in exercising its discretion or had based the exercise of that discretion on wrong principles of law or a misdirection on material facts. In other words it would interfere with a decision of the SCA only if the latter committed some ‘demonstrable blunder’ or ‘reached an unjustifiable conclusion’. The nature of the matter required a value judgment by the SCA as to how best to discharge its responsibility of ensuring that the proceedings before it were fair and to reconcile that obligation with the public’s right to be informed of the conduct of those proceedings. In the instant case it could not be said that in its application of the legal principles and a consideration of the constitutional rights at stake, the SCA had acted in such a way as to justify a conclusion that its decision was not judicially made.

With acknowledgements to David Matlala and De Rebus.