HELD ON: 08-06-2000


ON RESUMPTION: 08.06.2000

R U L I N G 08.06.2000

Prior to the commencement of this Commission, I made a ruling, the effect of which was to exclude from the public sittings of the Commission, television cameras and also audio live relaying of the evidence given.

Midi Television (Pty) Ltd, the proprietor of the TV station,, has now applied to me to set aside that ruling, and a similar application has been made on behalf of the organisation Live Africa. My ruling was made pursuant to the provisions of Section 4 of the Commission's Act 8/47, which reads:

"Sittings to be public. All the evidence and addresses heard by a Commission, shall be heard in public, provided that the Chairman of the Commission may in his discretion exclude from the place where such evidence is to be given, or such address is to be delivered, any class of persons or persons whose presence at the hearing of such evidence or address, is in his opinion not necessary or desirable."

In other words, if I believe in my discretion that the presence of any person or class of persons is either unnecessary or undesirable, I may exclude them from attendance.

It was argued yesterday, by Mr Gilbert Marcus SC, on behalf of, or Midi Television, and also by Mr Cainer, a representative of Live Africa, that my ruling will have infringed the constitutional right to freedom of expression, which is more particularly to be found in Article 16 of the Constitution of the Republic of South Africa, and which provides, (1) thereof, that:

A. Everyone has the right to freedom of expression, which includes freedom of the press and other media.

B. Freedom to receive or impart information or ideas."

I was told that live TV would ensure that a wider public would have live and contemporaneous access to the sittings of the Commission. And perhaps I should mention at this stage that the right entrenched in Section 16 of the Constitution, is not an absolute or unqualified right, it must be exercised according to the prevailing circumstances in the particular situation.

Now I was reminded to get back to counsel's argument of the intense public interest which has been engendered by this

Commission, and I was told that allowing a wider form of immediate publication would give status and credibility to the Commission. I did not read into that the innuendo that without it, the Commission would lack either status or credibility, but as I was told and as I'm very well aware of, generally speaking, that would facilitate a greater degree of openness. That in very broad outline was the argument that was made on behalf of the two Applicants.

Counsel for the United Cricket Board, advised me that their client will abide with the Commission's decision. Counsel for Mr Hansie Cronje, Mr Dickerson SC, and counsel for 37 of the players and officials of South African cricket, Mr Fitzgerald SC, as also Ms Batohi who is leading the evidence, opposed the application.

Mr Dickerson suggested that allowing this wider and somewhat formidable form of further publication, was unnecessary and would put an undesirable strain on people who participate here as witnesses. He reminded me, not that I needed reminding, that his client was already under tremendous pressure from the media and that live media coverage of him giving evidence, would merely exacerbate this. Mr Dickerson also pointed out that the fact and the presence of this particular type of media would engender in witnesses, a reluctance to testify freely and voluntarily and that witnesses will, or may well be intimidated and uneasy. I'm not saying this in any sense derogatorily of the medium that is sought to be used, I'm merely stating it as a factual submission from counsel.

This Commission is seeking the truth and the source of that truth is to be found almost exclusively, but certainly very materially, in the evidence, the oral testimony of witnesses. And I believe that unless the ambience in which they testify is witness friendly, as far as giving evidence before a Court or a Commission can ever be witness friendly, unless it is that, there is a very real possibility that they will not come forward with the truth. This would stifle the Commission, and it is a risk which must, I believe, at all costs be avoided, even if that means that the public is deprived of valuable sources of information.

In that context, it must be borne in mind that these hearings are public, transcripts of the evidence will be available and the wider public will be informed, not only by the print media, but also by the audio and visual media, although not to the extent that the latter would like.

My concern at the inhibitions which may affect witnesses, outweighs the desirability of the additional facilities which would be available to the public were I to grant this application.

Accordingly, what is sought by and Live Africa, is not necessary to the smooth running of the Commission and does not derogate from the public's entitlement to coverage of the sittings of the Commission. And having regard to the possible adverse effect on witnesses and the consequent debilitation of the Commission, the presence of these media is not desirable and because it could seriously impact on the effectiveness of the Commission, that is doubly so.

Accordingly, in the exercise of my discretion, neither television nor the audio service provided by Live Africa, will be permitted to operate at and during the sittings of this Commission.

I shall now take a short adjournment, so that those media can please excuse themselves from further attendance.


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