The Commercial Case Law Index is a collection of judgments from African countries on topics relating to commercial legal practice. The collection aims to provide a snapshot of commercial legal practice in a country, rather than present solely traditionally "reportable" cases. The index currently covers 400 judgments from Uganda, Tanzania, Nigeria, Ghana and South Africa.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-matter expert postgraduate students from the University of Cape Town.
The case concerned the extent of the National Media Commission’s (‘the Commission’) legal mandate under the National Media Commission Regulations (‘the Regulations’). It was argued that certain provisions amounted to censorship, and control and direction of mass media communication as it required an operator to seek authorization of content prior to publication on a media platform, and were thus unconstitutional.
The issues for determination were: whether the original jurisdiction of the court was properly invoked; whether the cumulative effect of the impugned provisions amounted to censorship; whether the cumulative effect amounted to control and direction over professional functions and operations; and whether the Standard Guidelines issued under the regulations were vague and unconstitutional.
The jurisdictional issue concerned whether the plaintiff sought a striking down of provisions without scrutiny to assist the court in its determination. This issue was to be determined on an examination of the relief sought and the pleadings. What was important was that both raised a case cognizable under the Constitution, which the plaintiff’s documents did.
On the second issue, the court held that some form of censorship was permissible under the Constitution; however where censorship laws are introduced they must be justifiable by being reasonably required in the national security interest, for public order, public morality, or the protection of the rights of another. What the second defendant wanted was akin to prior restraint. With reference to case law, the court held that prior restraint was not legally justifiable. Law must be precise and guide future conduct, which it was not in this case. The regulations were contrary to the Constitution.
On whether the Commission was empowered to impose criminal sanctions, it was held that Parliament could not delegate this function to the Commission.
As regards the third issue, the court had to define ‘direction or control’ in the context of the Constitution. Control or direction as used in the provision had the same meaning and effect as telling operators what they should or should not do in their publications. This function belongs to the media, not the Commission.
The plaintiff’s claim was upheld.
The court considered an application by way of notice on motion for an interlocutory injunction restraining the respondents from enforcing the National Media Regulations pending the court’s determination of the substantive suit. The substantive suit related to declarations that the requirement for prior authorization of consent as well as the criminal sanctions were contrary to the Constitution.
The court confirmed that whereas in public law, a court ought to be slow in granting interlocutory injunction, it still has the power to grant one. This is especially so in exceptional cases where there is a need to restrain enforcement of legislation that is being challenged on substantial grounds. The courts will grant an injunction to avoid irreparable injury being caused by the enforcement of a potentially unconstitutional piece of legislation that is being challenged. On this basis, the application was granted.
The matter involve a ruling of contempt of court against the third and fourth respondents for their conduct in attacking the Chief Justice with an accusation of bias.
The court emphasised the importance of judicial independence as enshrined in the Constitution as a necessary element in maintaining judicial dignity and effectiveness, attributes that are crucial in upholding the democratic enterprise. Any attempt to disrespect the courts therefore amounts to an attack on the role of the courts and the community at large.
The court also emphasised the right to criticise the judiciary and its circumspection in exercising its power to charge citizens with contempt. However, should the conduct be of such gross a nature as to indicate a calculated attack, as in the present matter, the court would not refrain from the charge.
The court, however, acknowledged the harsh nature of the summary powers to charge for contempt, powers it accepted required circumspection. Nevertheless, the court considered the need to send a message to remind people to refrain from crossing the line between utilizing their freedom of expression and attacking the dignity of the court. It also invoked the principles of state policy which place duties to the citizenry to ensure the exercise of their freedoms upheld fundamental democratic principles. In the view of the court, the contemnors in question had dismally failed the above and therefore they were sentenced for contempt.