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March 31, 2016

How lawful was it for the State Security Agency to use a device that jammed mobile telecommunication signals in Parliament?

This interesting point was argued in Primedia Broadcasting, A Division of Primedia (Pty) Limited and others v Speaker of the National Assembly and others 

Events which occurred during the 2015 State of the Nation Address (“SONA”) were at the heart of the present matter. The State Security Agency employed a device that jams mobile telecommunication signals. Consequently journalists and MPs attending SONA were rendered unable to use their cellphones in order to inform members of the public not in attendance about the happenings in Parliament. It was also averred by the applicants in this matter that members of the public were denied the right to see for themselves events of national importance occurring on the floor of the Parliamentary Chamber when the following took place.

The applicants challenged the constitutional validity of paragraph (a) of Parliament’s Policy on Filming and Broadcasting (“the Policy”) and raised the question of whether any order was to be made regarding the jamming incident that occurred shortly before the SONA. The premise of Primedia’s  case was that all South Africans have a right to know what happens in Parliament and that includes a right to see and hear for themselves disruptions by members of Parliament.

Held that the provisions of sections 57 (1) and 70 (1) of the Constitution of the Republic of South Africa, 1996, empower Parliament to make rules and orders concerning its business. The various rules and policies adopted and approved by Parliament are essential for its ordered operation. There is no obligation on Parliament to broadcast conduct that clearly obstructs or disrupts its proceedings and conduct that unreasonably impairs its ability to conduct its business in an orderly and regular manner acceptable in a democratic society because such conduct is not legitimate Parliamentary business. Thus, the challenge levelled against the policy had to fail.

The Court then considered the request for a declaration that the use of the jamming device at SONA was unlawful. Section 12 of the Intelligence Services Act 65 of 2002 provides the authority for the acquisition and use of signal disruptor devices by the State Security Agency. The Court could not deny the agency the use of the devices when circumstances demanded same to be used in order to counter any threat or potential threat to national security.
To succeed the applicants needed to show that Parliament’s determination regarding televising of gross disorder and unparliamentary conduct was unreasonable. They failed to do that. The majority of the court therefore dismissed the application.