The Sins of the Media: The SABC Decision and the Erosion of Free Press Rights

South African Journal on Human Rights, Vol. 22, No. 4, p. 563, 2006

34 Pages Posted: 20 Apr 2007

See all articles by Robert Jacob Danay

Robert Jacob Danay

Allard School of Law

Jacob Foster

Kasowitz, Benson, Torres & Friedman LLP


In South African Broadcasting Corporation Ltd v National Director of Public Prosecutions, the Constitutional Court of South Africa dismissed an appeal against a decision of the Supreme Court of Appeal (SCA) denying the national public broadcaster the opportunity to record and broadcast proceedings of a five-day criminal appeal. The majority of the Court held that the SCA's exercise of discretion (including the formulation of a legal test) could only be interfered with if it was a "demonstrable blunder." Not only did the majority fail to appreciate that, for sound constitutional reasons, no deference ought to be due to the SCA's decision, it granted more than the usual deference by making use of the novel "demonstrable blunder" standard. Though some of the possible reasons underlying the majority's use of this new form of appellate review (including a fear that full media access might trivialise the court processes) may have been understandable, such reasons were either legally irrelevant or untenable. The SABC decision is part of a trend whereby the courts and the legislature, often dismayed by incidents of apparent unprofessional conduct by the media, have progressively eroded the constitutional right to a free press. This disquieting trend is based on a misunderstanding of the role of a free press in a constitutional democracy and could ultimately serve to exacerbate any lack of adequate press coverage of the government and the judiciary. Nevertheless, a proper understanding of the "open justice principle," recognised by the Constitutional Court in SABC as a constitutional imperative, represents a potential solution to the observed diminution of free press rights.

Keywords: human rights, freedom of the press, free press, south africa, cameras in the courtroom, cameras, media, courtroom, free expression, constitutional court, demonstrable blunder, appellate review, appellate, review, standard of review, standard, review, journalism, africa, shaik, zuma, deputy president

JEL Classification: K00, K10, K14, K19, K42

Suggested Citation

Danay, Robert Jacob and Foster, Jacob, The Sins of the Media: The SABC Decision and the Erosion of Free Press Rights. South African Journal on Human Rights, Vol. 22, No. 4, p. 563, 2006, Available at SSRN:

Robert Jacob Danay (Contact Author)

Allard School of Law ( email )

2329 West Mall
Vancouver, British Columbia BC V6T 1Z4

Jacob Foster

Kasowitz, Benson, Torres & Friedman LLP ( email )

101 California St.
Suite 2300
San Francisco, CA 94111
United States

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