Helen Suzman Foundation v The South African Broadcasting Corporation SOC Ltd and Others (52160/16) [2016] ZAGPPHC 606 (20 July 2016) per Murphy J.

Yesterday the high court granted an order to force the SABC to exercise editorial discretion in accordance with the Constitution and the relevant statutes and not to enforce a ‘censorship’ decision.  It is interesting that although the order is not final it will operate until the final determination of a second part of the application.  So it ‘including any appeal of [sic] the review proceedings under Part B’.  Clearly the intention is to allow the order to continue even if the SABC attempts to drag out the other proceedings by appealing or reviewing them.  Not unexpectedly the SABC was ordered to pay the costs on a punitive scale.

Order as granted

[Note: numbering removed for ease of understanding]

1     Pending the final determination of Part B of this application, including any appeal of the review proceedings under Part B:

  • each of the respondents is interdicted from giving effect to, implementing or enforcing the censorship decision, as defined in paragraph 9 of the founding affidavit of Francis Antonie (“the founding affidavit”);
  • the first and second respondents are required to exercise their editorial discretion in accordance with the Constitution, the Broadcasting Act, 1999, and the Broadcasting Complaints Commission of South Africa Free-To-Air Code of Conduct for Broadcasting Service Licensees, 2009, and in accordance with the following order:

The first, second and fourth to eleventh respondents are interdicted from adopting or giving effect to any decision, policy, guidelines or instruction which would require the events in [note: omitted in this text] below not to be broadcast, reported upon, covered, publicised, disseminated to the public, or afforded media coverage (“the relevant decisions”).  For the avoidance of doubt, this includes any policy, guideline or instruction which would result in partial coverage without visuals, or preclude coverage, by the first respondent of the following:

  • any peaceful protest or demonstration;
  • any violent protest or demonstration;
  • any peaceful or violent protest or demonstration against service delivery;
  • any peaceful or violent protest or demonstration against the Policy (as defined in paragraph·92 of the founding affidavit);
  • any peaceful or violent protest or demonstration against government or a public body, at any level (local, municipal, provincial, regional or national);
  • any protest, demonstration, commentary or news piece which portrays, or has the potential to portray government (at any level); or any political leader or government employee or officer, including a member of the National Executive, in a negative light;
  • any politically motivated protest or demonstration (whether violent or peaceful);
  • any events or actions (including violent or peaceful protest or demonstration) that reflects, or may reflect, any political party or politician in a negative light; and/or
  • any events or actions (including violent or peaceful protest or demonstration) that reflect, or may reflect, negatively upon the President of the Republic of South Africa;

2      The first respondent is liable to pay the cost of the application for Part A relief on the scale as between attorney and client, including the costs of two counsel.