Authored By: Promise Noxolo Mthiyane
University of South Africa
I. Case Citation and Basic Information
Full Case Name: Multichoice (Pty) Ltd and Others v National Prosecuting Authority and Another: In re S v Pistorius; Media 24 Ltd and Others v Director of Public Prosecutions, North Gauteng and Others
Citation: 2014 (1) SACR 589 (GP)[1]
Court: High Court of South Africa, Gauteng Division, Pretoria
Date of Decision: 25 February 2014
Bench: Mlambo JP
Area of Law: Constitutional Law, Media Law, Criminal Procedure, Open Justice
II. Introduction
The digital age has collapsed the physical barriers to courtroom access. In South Africa, the demand for televised justice reached fever pitch during the trial of Oscar Pistorius, culminating in a landmark ruling on broadcast rights in Multichoice v National Prosecuting Authority.[2]
The significance of this case lies in its reconciliation of two competing constitutional values: the principle of open justice in section 34[3] and freedom of expression in section 16,[4] versus the accused’s right to a fair trial in section 35(3).[5] While the Court permitted broadcast subject to conditions, it left several practical questions unresolved. This summary therefore not only describes the judgment but also critically evaluates whether the Court’s balancing approach provides sufficient protection for vulnerable court participants in an era of social media virality.
III. Material Facts
The dispute arose ahead of the high-profile murder trial of Oscar Pistorius. Several media houses, including broadcasters, applied for permission to broadcast audio and video of the proceedings.[6] The accused opposed the applications, as did the prosecuting authority at the outset, arguing that live broadcast would prejudice the accused, intimidate witnesses, and undermine judicial dignity.[7]
The High Court granted a hybrid order: live audio of the full trial, but video only of specified parts of the proceedings, including legal argument and the judgment.[8]
IV. Legal Issues
1. Do sections 16(1) and 34 of the Constitution confer a right to broadcast criminal proceedings?[9]
2. Does such broadcasting infringe the fair trial rights in section 35(3)?[10]
3. What factors must a court consider when exercising its discretion to permit or restrict broadcast?[11]
V. Arguments Presented
5.1 The Media Applicants’ Arguments
The media applicants argued that “public hearing” in section 34 must evolve to include virtual attendance. They relied on section 16(1)(a) and (b), which protect freedom of the press and other media and the freedom to receive or impart information, and submitted that broadcasting enhances accountability and public legal education. They distinguished between participants: judges and advocates assume public roles, while the risk to witnesses could be managed through judicial control and camera angles. They also cited comparative practice in other jurisdictions.[12]
5.2 The Opposing Parties’ Arguments
The opposing parties contended that broadcast amplifies exposure exponentially and risks “trial by media”. They submitted that live video intimidates witnesses and victims, particularly in gender-based violence cases, and that the courtroom could become entertainment, undermining dignity. While conceding that audio of the judgment was permissible, they opposed video of witnesses and the accused, and urged the Court to prioritise section 35 over sections 16 and 34.[13]
VI. Court’s Reasoning and Analysis
Mlambo JP adopted a contextual balancing approach.[14] The Court began by affirming open justice as inherent to the rule of law. However, it rejected both the media’s claim to an absolute right and the call for a blanket ban.
The Court’s key contribution was differentiating between media of broadcast. It held that audio of legal argument and judgment poses minimal risk because it does not capture demeanour, whereas video of witnesses presents a higher risk of intimidation and sensationalism. This distinction is sound, but the judgment is vague on how trial courts should weigh the relevant factors.
The Court listed relevant considerations: the nature of the case, the effect on witnesses, dignity, prejudice to a fair trial, and the public interest.[15] Yet it provided no hierarchy or weighting, which creates a risk of inconsistent application across magistrates’ courts. Furthermore, while the Court referred to Midi Television,[16] it did not engage with international jurisprudence on “gag orders” and post-broadcast editing, which is now the primary threat to a fair trial through TikTok and YouTube clips.
In my view, the Court correctly recognised the place of broadcast in open justice but did not give enough concrete guidance. The result is that vulnerable witnesses in rural courts may receive less protection than those in the Gauteng Division in Pretoria.
VII. Judgment and Ratio Decidendi
Decision: Broadcast was permitted, subject to the conditions of the hybrid order described above.[17]
Ratio: There is a constitutional basis for broadcasting court proceedings, derived from sections 16 and 34, but it is subject to limitation and to judicial case management. Courts must balance open justice against the right to a fair trial on a case-by-case basis. Audio broadcast of judgment is presumptively permissible, while video requires stricter scrutiny.[18]
VIII. Critical Analysis
8.1 Significance of the Decision
This case is significant because it was the first time a South African court authorised the live broadcast of a full criminal trial. Before it, the position on broadcasting criminal proceedings was largely untested at trial level.[19] It effectively brought open justice into the twenty-first century. Without it, we might not have seen the Meyiwa trial broadcast on television.
8.2 Implications and Impact
On the positive side: Ordinary people, like my gogo (grandmother) in Durban, can now watch what happens in court without taking a taxi to Pretoria. It makes the justice system feel less secret.
On the negative side: I worry about witnesses. Imagine testifying about something traumatic, knowing that your face will be on national television and on TikTok the next day. The judgment did not adequately deal with this. With social media, people can clip ten seconds of a trial and make it go viral out of context, which is dangerous for fair trials.
Comparative perspective: The United Kingdom has historically barred cameras from most criminal courtrooms, while practice in the United States varies considerably between jurisdictions. South Africa tried to find a middle ground, which makes sense because our Constitution values both transparency and dignity.
8.3 Critical Evaluation: My View
I think the Court made the right call. We need transparency; corruption and secret trials are what broke public trust in the first place.
But I also think the Court left too much to chance. Saying “courts must decide case by case” sounds good, but what about a magistrate in a small town who has never dealt with the media before? They need clear rules.
In my opinion, three things need to happen next:
1. Clear rules: The Rules Board for Courts of Law must issue guidelines, for example: “Audio is permitted, but video of witnesses requires special permission.”
2. Protect witnesses: Courts should appoint someone whose job is to explain to witnesses what broadcast means and to assist them if they are harassed online afterwards.
3. Deal with social media: We need a law that criminalises the editing of court clips to mislead the public, because right now anyone can take a five-second clip and ruin someone’s reputation.
If we do not do these things, Multichoice will be a good idea that causes new problems. The Court opened the door to transparency, but now Parliament and the judiciary must make sure people are not hurt walking through it.
IX. Conclusion
Multichoice is important because it brought our courts into the digital age. It affirmed that the public has a right to see justice being done, not just to hear about it afterwards.
But the real test is what happens next. Technology is moving faster than the law. In five years we will be dealing with AI-generated deepfakes of court footage, and I do not think this judgment anticipated that.
The main lesson is that transparency is good, but it cannot come at the cost of fairness. If we balance the two properly, this case will be remembered as the one that made South African justice open to everyone. If we do not, it will be remembered as the one that turned courtrooms into reality television.
References
[1] Multichoice (Pty) Ltd and Others v National Prosecuting Authority and Another: In re S v Pistorius; Media 24 Ltd and Others v Director of Public Prosecutions, North Gauteng and Others 2014 (1) SACR 589 (GP).
[2] Multichoice (n 1).
[3] Constitution of the Republic of South Africa, 1996, s 34.
[4] Constitution of the Republic of South Africa, 1996, s 16.
[5] Constitution of the Republic of South Africa, 1996, s 35(3).
[6] Multichoice (n 1) para 1.
[7] Multichoice (n 1).
[8] Multichoice (n 1).
[9] Constitution of the Republic of South Africa, 1996, ss 16(1) and 34.
[10] Constitution of the Republic of South Africa, 1996, s 35(3).
[11] Multichoice (n 1).
[12] Multichoice (n 1).
[13] Multichoice (n 1).
[14] Multichoice (n 1).
[15] Multichoice (n 1).
[16] Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA).
[17] Multichoice (n 1).
[18] Multichoice (n 1); Constitution of the Republic of South Africa, 1996, ss 16 and 34.
[19] See South African Broadcasting Corporation Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC).
