In a number of judgements the Constitutional Court has confirmed the critical role of the media in the development of a deliberative democracy in our country - the most recent illustration being that of Cameron J in the Mcbride case. That judgement again confirmed the commitment of the courts as custodians of freedom of speech and thus in protecting and developing the ground rules upon which the exercise of press freedom is exercised.
The role of the press and the obligations that flow from that freedom were well articulated by O'Regan J in Khumalo v Holomisa : ' They (the media) bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which are crucial to the development of a democratic culture . As primary agents of the dissemination of information and ideas they are inevitably an extremely powerful institution in a democracy and have a constitutional duty toact with vigour , courage integrity and responsibility .'
But I want to talk more about the other side of the relationship , the role of the media in protecting and promoting the judiciary . In this task I draw heavily upon a splendid lecture by Chief Justice Ngcobo (to SANEF forum dinner 13 February 2010) which I commend to all . He raises three roles which the media can play in the development of a rights and justice culture: 1. The media can empower the public to be aware of their rights so that may vindicate them in the courts . Although citizens will have an innate conception of rights , I would argue that far to little public education has take place to spread knowledge of the panoply of rights contained in our constitutional text.
The media can contribute greatly to the legitimacy of the judicial institution . As Alexander Bickel wrote back in 1962, in coining the concept of counter majoritarianism , courts have no sword or purse - they rely upon the public confidence to ensure that they have the kind of legitimacy to ensure their vigorous long term survival. Speaking of counter majoritarianism , the President yesterday , in effect , challenged the judiciary to debate this question It is one manifestly deserving of debate.
Hence , the media by way of a sober engagement with this question of the scope of courts and the limits of its powers within the doctrine of separation of powers can ensure the development of our constitutional culture.
3 The media can act as the translating service ensuring that the technical and sometimes arcane language employed in judgements can be made accessible to the public. In this the judiciary may want to consider whether the dense language and style employed can not be converted into plain language which in turn can assist in this task.
The judiciary can also assist the media in these tasks by extending the present practices of the Constitutional Court by prehearing press releases , summaries of judgement s when delivered and access to documents on a website.
But some countries have gone much further . For example the Supreme Court of the UK now allows television coverage of all arguments before it . You can now watch and listen on Sky website to these arguments. In Brazil there is a separate TV channel which covers courts and indeed even the judges conferences when they discuss cases are televised !
It is a sad fact that the media have cut down on the resources they devote to courts but some imagination can surely assist the position . Use can be made of members of the legal community and in particular academics to add commentary whether in print , in supplementing possible TV coverage and on radio - the most important medium in present SA.
As Justice John Didcott said back in 1995 in lamenting the poor court coverage , it is questionable whether effective constitutional government can exist if the press fail in its elementary duty of enlightening the public about the reasoning behind court decisions . All too often the media concentrate on the unfortunate exceptions , the gory and the sensational , arguably not realising that the judiciary , both critical to democracy and the future of a free media is a fragile institution , particularly in a new democracy and where courts are enjoined to act in a transformative fashion by our constitution . It goes without saying that the press should hold the judiciary to its responsibilities including , where necessary critical coverage of judicial performance . But at the same time it , as another key institution which faces the counter majoritarian dilemma , must act to ensure the understanding of the role of the judicial institution and its place in the development of deliberative democracy.
To the extent that the judiciary can assist the media in elucidating upon its performance by way of a media spokesperson or committee , or by engaging journalists as to what actually happens in courts , this should occur . But at the same time , the very institution that looks to the judiciary for its ultimate protection , owes a responsibility to the protection of a crucial but fragile institution - the judiciary.