The Western Cape Division of the High Court judgement that effectively allows Parliament to “mistakenly” jam transmission signals will be up for review if the parties who took the matter to court have their way.
The Right2Know (R2K) campaign and the Open Democracy Advice Centre (ODAC) have both indicated that they are consulting their lawyers in a bid to overturn the ruling. Their effort to prevent jamming of mobile telecommunication signals in the legislature were dealt a blow midweek last week when the majority judgement penned by Judge Dlodlo and agreed to by Judge Henney found in favour of the speaker of the national assembly, the minister of state security and other respondents.
The applicants first made an unsuccessful application for a temporary order preventing the legislature from tampering with audio and visual feeds even during chaos as witnessed during the State of the Nation Address (SONA). This latest finding, that both the signal jamming as well as Parliament’s selective broadcast of unparliamentary behaviour and grave disorder is justified follows, that ominous ruling. The fight for an open and accountable legislature seems to be far from over though, as the respondents now look to approach a higher court.
The disappointing majority judgement
R2K and ODAC expressed their disappointment at the majority judgement which represents the ultimate view of the court.
Judges Dlodlo and Henney believe the use of a jamming device ahead of the SONA was justified and lawful because signal disruptors are used legitimately to protect officials and dignitaries at such events. They also accept that the use of a signal disruptor for longer than necessary was an only an “unfortunate error” after the individual tasked with switching it off forgot to do so. They add that the issue is now “academic” after the Minister of State Security’s apology.
Judge Dlodlo has written that the separation of powers doctrine is why Parliament should be given the freedom to decide how and what is broadcast “because it clearly affects its functioning and dignity”. The two judges are of the view that the applicants failed to show how Parliament’s selection of visuals to be broadcast to the nation on that day was unreasonable and as such are not showing care for the dignity of that institution.
The encouraging minority judgement
“While the majority judgement dismissed the challenge to Parliament’s broadcasting policy, we are encouraged by a strong dissenting judgement from Judge Savage.”say R2K and ODAC in their press release.
Judge Savage’s differing view is likely to serve as the basis of an appeal of the outcome of the case. She remarks that in terms of the Constitution Parliament holds no right to dignity because that right is not afforded to institutions of government and that the restrictions on broadcast cannot be justified. Restrictions on broadcast are illogical as members of the public and the media who are present can see and record what happens in the house. Her finding is that the State Security Agency’s accidental use of signal jamming as well as Parliament’s policy on filming and broadcasting are unconstitutional, unlawful and invalid.
The likelihood of an appeal
A media lawyer taking part in the case also tweeted the intention to appeal the outcome of the case. The journey of this case, perhaps all the way to the Constitutional Court, is one to watch for it’s implications for openness, media freedom and the public’s access to public institutions.
@CharlduPlessc Yes: very slippery slope from protecting dignity of Parly 2 protecting dignity other public bodies at expense of free speech
— Dario Milo (@Dariomilo) May 29, 2015
Image: by CC 2.0/GCIS