Why Thabo Bester, Nandipha Magudumana oppose doccie, and Showmax's reasons to screen

Thabo Bester and Nandipha Magudumana's lawyers will be in the high court on Friday urgently trying to prevent Showmax from running its docuseries Tracking Thabo Bester, due to stream on Friday evening.

They have separately applied for interdicts to prevent the streaming of the docuseries until they have seen it.

Bester wants the court to prevent it streaming aspects that concern his “prior convictions and personal life” and that concern “his criminal trial presently in process” until he is provided with a reasonable opportunity to provide input.

Magudumana has asked the court to interdict the series until she has been given an opportunity to watch it and then for a further 30 days for her to “institute such proceedings, if any, for an appropriate order as she may deem appropriate”.

But Showmax says the series is based on facts that are already in the public domain and have been the subject of widespread media reports. There will be no affect on their trial and their applications would breach Showmax’s right to freedom of expression. Showmax has also accused Bester of, in truth, being motivated by money: what he really wants is to profit from the film, it said.

Bester said in his founding affidavit the series puts the fairness of his trial at risk. “The mere fact that the public is presented with evidence which I have not even had disclosed to me, in my own trial, is a violation of proper procedure. Furthermore, the contamination of role players in the trial is inevitable as well as third parties which would have an unduly prejudicial effect on me,” he said.

He added that though he has previous convictions, he still had rights: “I am still entitled to have my particulars treated in a fair and even-handed manner.

“Certain content of the documentary seeks to descend into contended [contested] factual issues and analysis thereof, pertaining to issues which are yet to be determined by a trial court,” he said.

The series’ contents “fall within the ambit of matters which are interesting to the public and not matters which are of public interest”. Showmax was a commercial, for profit, entertainment streaming service which provided paid-for viewing and streaming. It was “neither a news outfit nor a journalistic entity servicing the public interest at large”, said Bester.

Based on the teasers and public statements Showmax had made about the series, it was “palpable that the motivation of the respondent is predicated on sensationalism for commercial profit and not for what they state as public interest nor upon matters of bona fide journalistic or news reporting.”

If Showmax was a media publication it would be bound by a requirement to obtain comment from him. Yet it never sought to.

“I respectfully contend that I am still entitled to be treated with the same rights, fairness, and decency as any unconvicted citizen,” said Bester.

Magudumana said she had seen from Showmax’s website that some of the people interviewed in the documentary were people who would testify at her criminal trial and it “might have an impact on how my trial is conducted”. She had written to Showmax asking that her attorneys be allowed to view the documentary beforehand but the request was refused.

“I contend that though the respondents see my life as nonvaluable and my name as ‘plainly matter of public interest’, I am however still human and entitled to be treated with respect and dignity to which I deserve. By their conduct the respondents have already prosecuted and punished me before my trial even begins,” she said.

The streaming of the documentary series threatened to infringe her right to a fair trial under section 35 of the constitution.

But Steven Budlender SC, group general counsel at MultiChoice Group, the holding company of Showmax, said the truth is Bester “is aggrieved that he has not profited from the production of Showmax’s documentary”.

“He wants to protect only this pecuniary interest in this application. This is clear from his letter of demand attached as annexure 'FA1' to the founding affidavit.”

The letter of demand says: “We have not granted your company any rights as appearing on the power of attorney held by our firm and our client instructs that he has not granted Showmax or any person any rights or authority to produce, distribute or commercially exploit a documentary or film based upon or taken from his life.”

Budlender said neither Bester nor Magudumana have “come close” to meeting the legal test for “prior restraint” — gagging something before its release.

The orders they seek “can only be granted in exceptional circumstances where there is a substantial risk of prejudice to [them] and the administration of justice in [their] trial. No such risk exists in this case. There is not even a remote possibility of any prejudice”.

He said they had not established that the parties involved in the documentary would be participating in their criminal trials. And even if they were, they had failed to establish that the broadcast of the documentary would prejudice their trials.

“The information in the documentary was sourced from public sources and archives. It is already widely available in the public domain and nothing can be achieved by interdicting the broadcast of the documentary,” said Budlender.

On the people listed by Magudumana, who she was concerned about being witnesses, Budlender said “to the producer’s knowledge” they had not been requested to be witnesses at her criminal trial.

“I deny the respondents do not value the applicant’s life. The documentary concerns matters relating to failures by government institutions; it is of public interest,” said Budlender.

Responding to Bester, he said Showmax had, in the past, broadcast a number of documentaries covering matters of public interest.

“Showmax does not have to be classified as a journalist or identified as such to produce documentaries. The content of the documentaries should be considered to determine whether they are in the public interest. In this case the documentary is unquestionably in the public interest.”

Showmax did not have a legal obligation to get Bester’s input, he said. He also denied the series was for sensationalism. “It is about issues in the public interest. It was produced in good faith.”

The case will be heard in the Johannesburg high court before judge Stuart Wilson.

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