Can dagga couple broadcast their own case?

01 August 2017 - 14:21 By Katharine Child
Marijuana plants. File photo
Marijuana plants. File photo
Image: Paula Bronstein

Do a couple have the right to broadcast a legal case they are part of?

The case of dagga couple Jules Stobbs and Myrtle Clarke to legalise the use of dagga finally started on Tuesday.

But the morning's legal arguments dealt with whether Clarke and Stobbs could live stream their own trial to website Fields of Green for All.

The arguments centred on whether only traditional media‚ that hold broadcast licences‚ have the right to broadcast a trial or if Section 16 of the Bill of Rights allows “everyone” as the right to freedom of expression.

On Friday‚ the Judge Natu Ranchod ruled Stobbs and Clarke could live stream the trial subject to strict conditions‚ which prohibit them from editing visual clips after the fact.

The seven state departments cited in the case and Doctors for Life appealed against the Judge's decision on Tuesday.

Doctors for Life Advocate Reg Willis SC suggested the real reason Stobbs and Clarke want the case broadcast was not given by them.

“They have lied” he told the court to gasps from the gallery and not given “their real motivations" for the case‚ he said.

Willis accused the pair of wanting to sell footage to SABC and make money off the feed. The judge reprimanded Willis for bringing new evidence into the appeal‚ which is not permitted.

Willis argued that Stobbs and Clarke and Fields of Green for All do not have "locus standi" to broadcast the matter. This means they do not have legal rights to ask to broadcast court the case as they are not a media house.

The state advocate also told the court‚ they could not do so because they were not broadcasters.

Advocate William Mukhari said anyone broadcasting a court case needed to be licensed.

“All the cases about broadcast [a court case] heard at the high court‚ and the Supreme Court have always been [brought by]-the media… This is a case that goes to uncharted water….

"It is a case where members asking to be broadcast are unregulated and are plaintiffs in the case and are standing accused of offences [arrested on dagga possession and dealing charges] : They are asking the court give me the right to live stream trial unregulated. That cannot be correct."

Judge Ranchod asked what the difference was between a media house live streaming a case and a private party doing so?

Advocate Mukhari said media was regulated under the Broadcast Act and could face consequences if they the breached rules of broadcast.

But the judge replied that there would be penalties if the Fields of Green website breached his court order‚ which details the rules of live streaming.

“This is live stream‚ not editing and no changing [permitted]‚” he stated.

Judge Ranchod also pointed out that the Bill of Rights Section 16 allows "everyone" the right to "impart information”.

Speaking to open justice‚ the judge asked what the difference was between a member of the public going into an open court and seeing what was happening or watching a live stream from their home or office.

Mukhari did not answer this question.

Mukhari also said Stobbs and Clarke had a personal interest in broadcasting the case and their broadcast would affect their right to a fair trial. He repeatedly pointed out that they face a potential criminal trial for possession and dealing in dagga if they lose their current case to legalise it.

Mukhari told the court that the current law's “default position” is that all trials must be open to medial‚ but he did not explain why this didn't apply to the dagga couple's request to live stream the case.

Advocate Don Mahon acting for Stobbs‚ Clarke and their website Fields of Green For All‚ read to the court a Supreme Court judgment that found it was "irrational" to believe that media houses are the only reporters of news. He also said that forcing a hearing in court of the live streaming debate after two months of correspondence was "mischievous” and a deliberate attempt by Doctors for Life and the state to delay proceedings in the legalisation case.

He also said a live stream would allay state and Doctors for Life concerns about misrepresentation of the trial.

He pointed out that neither the state nor Doctors for Life had answered questions on what the difference was between the plaintiffs broadcasting a trial and media houses doing so.