In August 2014, Parliament’s live TV feed did not show the entry of public order policing members into the Chamber to forcibly remove MPs from the Economic Freedom Fighters. On 14 November 2014, these events were repeated. During the State of the Nation Address sitting this year, Parliament’s cameras were trained on the Speaker and the Chairperson to avoid showing the EFF’s Parliamentary caucus being ejected.

Media and concerned groups have since approached the courts in order to ensure that in future, the public is able to see what is going on during these moments. Broadcast company Primedia, the South African National Editors’ Forum (SANEF), the Right2Know group and the Open Democracy Advice Centre are taking on parliamentary officials and the Minister of State Security to challenge both Parliament’s broadcast policy and the controversial use of “signal jamming” equipment during SONA.

At the heart of the first matter is a clause within Parliament’s broadcast policy which states that normal broadcasting of parliamentary events may be interrupted during “occasions of grave disorder”, or “cases of unparliamentary behaviour”.

The applicants have asked that Parliament’s broadcast policy be declared unlawful. Arguing on their behalf in Cape Town on Monday, Steven Budlender noted that despite the fact that it was adopted in 2009, SANEF was not even aware of the policy’s existence until January of this year – an assertion which Speaker Baleka Mbete’s responding affidavit describes skeptically as “astonishing”. The applicants also say that the fact that there is no evidence that the public or media were consulted on the policy before its adoption is cause for further concern.

Budlender told the court that the Constitutional imperative of an “open Parliament” demanded that the public had a right to be shown what happened within it. The applicants are asking for a wide-angle shot of the Chamber to be maintained even during the kinds of disruptions that the National Assembly has played host to over the past year. In addition, they seek a court order declaring that the use of the signal-jamming device during SONA was unlawful.

The use of this equipment, which the State Security Agency (SSA) has explained was for purposes of security, had the effect of blocking telecommunications within the Chamber until media and opposition MPs protested. The SSA has maintained that it should not have been activated within the Chamber, and attributed the fact that it was to an “operational error” unrelated to any desire to block communications.

Parliament’s Speaker Baleka Mbete stated in her answering affidavit that the use of the device “came as a surprise”, because security details are not disclosed to Parliament’s officers. Mbete’s affidavit also stated that there was no reason for a court order against the use of signal jamming, because it was a mistake that will not be repeated.

An affidavit from the acting deputy director general of state security Sipho Blose, however, gives no such assurances.

“I cannot give an assurance that a signal disruptor will never be used again,” it reads. “It would depend on the nature of the threat which may have to be countered”.

Blose’s affidavit also says that an investigation by the SSA into the signal jamming is not complete, but it is known which staff member was responsible for the “operational error”.

Budlender argued in court that the fact that the SSA was able to employ signal-jamming equipment in the Parliamentary precinct without notifying the Speaker amounted to a blurring of the separation of powers. “The specific permission of the Speaker must be sought,” he said.

Representing Parliament and State Security, Jeremy Gauntlett also invoked the principle of the separation of powers, though in a different context. Parliament, Gauntlett contended, has a “hard-won ability” to determine how it runs, which should extend to its broadcast policy.

Showing scenes of violence or disruption in Parliament was not essential to the function of the institution, Gauntlett argued, but “the very antithesis of it”. He suggested that broadcasting such scenes would merely serve to feed the public’s “insatiable appetite for reality television”.

Parliament also argues that broadcasting grave disorder in the House might provide an incentive to unruly MPs to continue this conduct. Speaker Mbete’s affidavit suggests that it may “encourage the worst behaviour in Parliament”.

This notion is dismissed as lacking factual foundation by the applicants, who point out that even when the parliamentary feed is interrupted, journalists are still permitted to stay in the Chamber and report on what happens.

“Accounts of disorder that occur in Parliament will be repeated in the media whether or not the events are broadcast,” the applicants’ argument states. “The consequence is only that the account will be informed by personal observations, instead of an official feed of what happened.” Indeed, the applicants contend that the maintenance of the visual broadcast feed might actually deter bad behaviour – because MPs will be aware that an objective record of their conduct will be broadcast to the nation.

But the applicants also say that even if the broadcast of disorderly scenes does encourage disruptive behaviour from MPs, that still doesn’t amount to a reason not to show it: “The public is entitled to know how its representatives behave”.

Following arguments in court from both sides on Monday, judgment was reserved. Right2Know’s Murray Hunter expressed satisfaction with the day’s proceedings afterwards.

“I think it went well,” Hunter told the Daily Maverick. “The argument that Parliament doesn’t have the right to censor these things is persuasive. The things that happen in Parliament are by their nature public.”

Hunter said that this applied regardless of your feelings about the scenes of disruption we’ve seen in Parliament over the last few months.

“Whether or not you’re satisfied with what happened in Parliament, whether you think it’s taking on the features of a Jerry Springer fist-fight, doesn’t really matter,” Hunter said. “It isn’t acceptable for Parliament to cut us off.” DM

Read more:

• Judgment reserved in parly live feed case, on IOL

Main Photo: President Zuma laughs as members of the EFF are removed from Parliament during this year’s SONA. (Greg Nicolson)