The Gauteng High Court in Johannesburg has dismissed Thabo Bester and Dr Nandipha Magudumana's urgent application to have Showmax's documentary interdicted from airing this afternoon. The matter was heard in absentia of the two applicants.
Bester and his lover Magudumana are both incarcerated pending their trial on charges relating to a well-known escape from custody which took place well over a year ago. In his ruling, Judge Stuart Wilson said the applicant's escape from custody, how it was achieved, the characters involved in it and what happened afterwards have been a matter of substantial public interest. "It is common cause between the parties that the respondents wish to broadcast can be analysed in two parts, the first is that the material it contains is already in the public domain, there is no suggestion that the broadcast of that material is likely to prejudice the administration of justice or affect the fairness of the applicants forth coming trial. The second part of the documentary concerns an interview with the witness whose name appears on one of the indictments related to the trials. The suggestion is that there's something about broadcasting an interview with that individual that may prejudice the applicant's right to a fair trial or otherwise impair the administration of justice. I questioned council for the applicants quite closely and they were both fair and disciplined in their submissions," .
"Reading the applicants papers, I find almost nothing that rises to speculation. What is in their papers is a generalised anxiety that a documentary is about to be broadcast, that will talk about them and affect their interest. There remains a residue of Mr Bester's application, I am not sure how to characterise it. Bester is aggrieved that a documentary is about to be broadcast about him and event in his life and he has not been given a prior opportunity to comment and which he has not been engaged by the producers. I was asked to accept that Mr Bester's unhappiness about this rose to the level which I would be required to balance it with the respondent's freedom of expression," Wilson said as he read his judgment. He added that while the contents of the Press Code maybe relevant, it does not grant Bester the free-standing right to interdict the airing of the documentary in this case. "There's accordingly no basis that I recognise in law, upon which relief the applicants have sought can be granted, the application must be dismissed without cost," said Wilson. The ruling means that the documentary will be available on the streaming platform. Wilson also ruled that the applicants and the defendants will pay their own costs.
Speaking on behalf of Bester's council, Neo Motsatsi, said they were obviously disappointed. Motsatsi said they would have at least expected the court to allow them space to view whatever is in the documentary that was said by Magudumana's brother, who was interviewed in the documentary. "In our papers, we've also attached quite a lot of papers with evidence that Mr Sekeleni claims to have given to the documentary. However, we're very happy that the court has not granted any cost order against our clients," she said.
NO TIME TO APPEAL
She added that it was unfortunate that there is no time to appeal because the documentary was flighting this afternoon. Motsatsi said they will only be able to discuss the outcomes of the case with Bester because he is in solitary confinement, and they have to apply to the correctional facility 48 hours prior to visitation. Magudumana's legal counsel, Machini Motloung, said they were obviously disappointed by the ruling. "This is not what we had expected. We litigated with a purpose and were confident about our case but now we are discouraged. Of course, we won't be able to appeal now but we will do it in a different form. Our client hasn't been given any opportunity, whatsoever, from the date of incarceration until now to say anything. Now someone wants to say something on her behalf so she has spokespersons I believe.She will have an opportunity at some point to give her own side" he said. He added that Magudumana will be doing her own doccie. "Definitely a documentary is coming soon, "said Motloung.
