The Supreme Court of Appeal (SCA) has granted former President Jacob Zuma and his Umkhonto WeSizwe (MK) Party leave to appeal a High Court ruling that dismissed their application against the South African Broadcasting Corporation (SABC) over its use of the term ‘government of national unity (GNU)’ to describe the current coalition government.
The decision was handed down on August 20 by Justices Tati Makgoka and Erica Weiner. It sets aside the Gauteng High Court’s earlier dismissal of the case.
Use of the term GNU
The applicants, Zuma and the MK Party, argue against the SABC’s use of the term GNU. They said it is misleading, inaccurate, and politically biased. They argued that it violates constitutional principles and the public broadcaster’s mandate.
In their application for leave to appeal, the applicants contended that the High Court erred in its judgement. They said it failed to address critical constitutional issues. They also argued that the SABC’s conduct breached its duty. Its duty to provide accurate, impartial, and independent information to the public. This as mandated by the Constitution and the Broadcasting Act.
“The devastating impact of the impugned judgement is that it failed in multiple ways to resolve the dispute between the parties as defined by both sides in the pleadings,” stated Thabo Kwinana, the applicants’ attorney, in his founding affidavit.
“Instead, it went on to traverse issues not raised by the parties themselves. And thereby non-suited the appellants from having their actual dispute resolved in any judicial forum.”
Broadcaster’s constitutional obligation
The applicants argued that the SABC’s use of the term “GNU” to describe the coalition government. This excludes the MK Party and other significant political players, and is factually incorrect. They said it undermines the broadcaster’s constitutional obligation to provide accurate and unbiased information.
“At the core of the SABC’s impugned conduct is that the SABC, as a public broadcaster, continues to peddle false, inaccurate, and/or politically biased narratives,” Kwinana asserted.
“It is common cause that millions of South Africans, including members of the second applicant, only have access to SABC News radio, print, and/or television bulletins as their sole and/or primary news source. They have a constitutional right to receive impartial, accurate, and independent information from the SABC.”
The applicants’ case is rooted in their claim that the SABC’s actions violate several constitutional provisions. These include Section 16, which guarantees the right to freedom of expression and access to accurate information. And Section 195, which outlines the principles of public administration, including impartiality and accountability.
“The SABC, as a public broadcaster, is constitutionally mandated to provide information that is accurate. Where the information provided is not accurate, it is duty-bound to inform the public that such information is incorrect or has certain limitations,” Kwinana argued.
The applicants also criticised the High Court for failing to consider whether there were compelling reasons for granting leave to appeal.
Compelling reasons
“The court should not have stopped at enquiring as to whether there were reasonable prospects of success that another court would find differently. But [it] should have gone further to enquire as to whether there were other compelling reasons why leave to appeal should be granted,” Kwinana stated.
The applicants took issue with the High Court’s characterisation of the dispute as a mere political debate over terminology. In her judgement, Judge Denise Fisher dismissed the application. She stated: “The Constitution does not accord to persons the right to hear only information which is considered objectively accurate.”
However, the applicants argued that this interpretation undermines the SABC’s constitutional and statutory obligations.
“The learned judge failed to grasp the legal and constitutional bases of the application. Which resulted in extraneous issues not even raised by either party being entertained. And also… the essential issues being ignored,” Kwinana stated.
The applicants further argued that the High Court erred in its application of the principle of subsidiarity. This requires litigants to rely on legislation when enforcing constitutional rights.
Dangerous precedent
They contended that the principle does not apply to the political rights. These as outlined in Sections 10, 16, and 19 of the Constitution. The applicants emphasised the broader implications of the case. They argued that the SABC’s conduct, if left unchecked, would set a dangerous precedent for public broadcasters.
“It would be constitutionally abhorrent for SABC’s conduct to be left unchecked,” Kwinana stated.
“The unique position of the SABC in our constitutional, statutory, and/or regulatory environment must be distinguished from other private media institutions or players.”
