WRAP | Judge dismisses Bester, Magudumana's urgent bid to interdict broadcast of Showmax documentary

Wilson has declined to order costs against Bester and Magudumana in the case, after pointing out that they were both inmates.

Court adjourns.

- Karyn Maughan

Wilson says Bester and Magudumana's papers show a "generalised anxiety" about the Showmax documentary.

He says that they have failed to show that they will suffer real prejudice if the Showmax documentary airs.

As a result, their bids to interdict the documentary broadcast must fail.

- Karyn Maughan

Wilson has made it clear that his ruling will accord with the SCA ruling on the NPA application against e.tv with regard to the Dina Rodrigues prosecution.

He says that ruling shows that, for an interdict blocking the broadcast of a programme to be granted, it needs to be shown that the broadcast will result in real trial prejudice and that this damage cannot be speculative.

- Karyn Maughan

Wilson says the events around Bester's escape have been a matter of considerable media coverage.

He says Bester and Magudumana are now seeking to block the release of a documentary on the saga until they have seen it and contend that it may damage their rights to a fair trial.

- Karyn Maughan

Argument is wrapped up. Wilson is now delivering his judgment.

- Karyn Maughan

Correction: Budlender referred to G4S Secure Solutions (Pty) Ltd in his papers, when in fact, the company in question was G4S Correction Services (Bloemfontein) Pty Ltd. 

- Karyn Maughan

Ferreira says Showmax "would have loved" to have interviewed Magudumana or Bester, but were not allowed to do so.

- Karyn Maughan

Ferreira says the e.tv ruling makes it clear that the broadcast of an interview with a state witness was not prejudicial to a trial.

So, whether Magudumana's brother was called to testify or not, his interview with Showmax was not a basis to block the release of the documentary.

- Karyn Maughan

Ferreira says Bester and Magudumana's case is "far weaker" than that brought by the NPA - because the state knew that e.tv had interviewed witnesses that were going to testify against Rodrigues and her co-accused, who stood accused of orchestrating the murder of her then boyfriend's baby.

- Karyn Maughan

Ferreira says the SCA ruling on the NPA application against e.tv over a programme on the Dina Rodrigues trial demonstrates that Bester and Magudumana have no legal basis to interdict the Showmax documentary.

- Karyn Maughan

Nick Ferreira now argues for MultiChoice.

- Karyn Maughan

Mashishi says Showmax is not entitled to argue that Tracking Thabo Bester is "a matter of public interest" when it makes money from the documentary.  

"But can't it be both?" Wilson asks, before contending that reporting on matters of public interest can also be profitable.  

- Karyn Maughan

Mashishi says Magudumana's objection to the airing of the documentary is that it ventilates evidence that hasn't been found to be true yet.  

Magudumana is not claiming that she will be defamed.

Instead, she argues, that the documentary will impact on her trial.  

Wilson points out that this may be advantageous to Magudumana, particularly if a witness contradicts what he or she said in the documentary when he or she testifies.

- Karyn Maughan

"It goes without saying that Ms Magudumana ought to be afforded to present her defence like any other accused person who is presumed innocent until proven guilty. The airing of the documentary series before the matter has been adjudicated amounts to sub judice," Magudumana heads of argument state.

- Karyn Maughan

Morland wraps up.

Advocate Keitumetse Mashishi will now argue for Magudumana.

- Karyn Maughan

Wilson asks Morland exactly what "stress" will be placed on the role players in the Bester trial if the documentary is aired.

Morland again insists that Bester has a reasonable apprehension of harm to the administration of justice.

He again states that Bester believes he should have "some form of say-so" in relation to content that concerns him.

- Karyn Maughan

Bester's heads of argument begin with a Nelson Mandela quote: "A nation should not be judged by how it treats its highest citizens, but its lowest ones."

- Karyn Maughan

Morland admits that he cannot indicate exactly what prejudice Bester and his trial rights would suffer if the Showmax documentary is aired (largely because Bester has not seen the documentary).

Wilson says the law is clear that a "speculative proposition" of potential harm is not enough to justify a pre-publication interdict.

- Karyn Maughan

Wilson says it appears that Bester wants to interdict a documentary that will not be kind to him.

Morland says Bester has a "reasonable apprehension" that the documentary "will impair the administration of justice" in his upcoming trial.

- Karyn Maughan

Morland says Bester contends that he should be required "to give input" on the Showmax documentary.

- Karyn Maughan

Advocate Llewellyn Morland is arguing for Bester.

Wilson says he doesn't understand on what legal basis Bester is seeking a pre-publication interdict on the basis that his comment must first be sought from Showmax.

He says Showmax is not a party to the Press Code, which governs journalistic practice.

- Karyn Maughan

The hearing has started.

Judge Stuart David James Wilson says he has read the papers.

- Karyn Maughan

The threatening email states as follows: "Why do you make and want to distribute a documentary through Showmax using Dr Nandipha Magudumana and her co-accused without consulting her and her lawyers? How can you take her story and make it yours? Why do you do this when she is still in custody awaiting trial? Who gave you permission to do this? Did you meet any member of her family to do this? Are you going to publish to South Africa and the World heresays? Are you hungry for money to an extent that you act like scavengers? At the end you will regret what you are doing. This is South Africa. We are going to deal with severely, legally.  

"I curse you for writing stories you know nothing about. You are scavengers, exceptionally greedy and corrupt ones. You do not know the legal implications of all what you are doing. Your explanation in other platforms like press media, radio, You Tube you can't or you avoid to answer direct and simple questions. I thought you were both ladies at Stonehill not knowing that you are such unbecoming fake production stoneheaded representatives. The SA and World public are not foolish as you greedy opportunists.

"I will cast a spell for the devil to send to he'll (sic). Zola Mbongwe."

- Karyn Maughan

Magudumana has not denied that her father threatened the production crew for the Showmax documentary.

The email in question was not sent under Sekeleni's name.

- Karyn Maughan

Zolile Sekeleni is seen in the Bloemfontein Magistrate's Court.

He is one of the accused in the Thabo Bester escape case.

It is alleged that he threatened the Showmax production team.

(Photo by Frikkie Kapp/Gallo Images)

Budlender has also claimed that Magudumana's father Zolile Sekeleni has "sent a threatening email to the production team" of the Showmax documentary.

"These threats are unwarranted and demonstrate that there is a drive to suppress freedom of expression and impede the broadcasting of the documentary despite its importance."

He invites Magudumana "to distance herself from these unwarranted and distressing threats".

Sekeleni is facing trial for allegedly assisting in Bester's escape.

- Karyn Maughan

Budlender says he is "advised that [Magudumana] has no general legal entitlement to reply to statements about her in the media".  

He adds: "While the Press Code of Ethics and Conduct for South African Print and Online Media... creates a right of reply, this does not apply to Showmax, which is not a member of the Press Council."

- Karyn Maughan

Budlender: "There is no basis in our law for Showmax to provide the documentary to [Magudumana] for her to preview before it is broadcast. Showmax does not have to seek her permission to broadcast the documentary."

- Karyn Maughan

Budlender has slammed Magudumana for launching her urgent bid to block the release of the Showmax documentary 16 hours before it was due to start streaming.  

He again argues that her arguments for why the release of the documentary should be blocked are "unsustainable".

- Karyn Maughan

The hearing on the Bester and Magudumana application is yet to begin.

The series is due for release at 16:00.

- Karyn Maughan

Budlender denies that any of the people interviewed for the Showmax documentary were paid R300 000, as alleged by Bester.

He does, however, confirm that Magudumana's brother Nkosinathi Sekeleni was paid R30 000 for the "exclusive rights" to his story and for "sourcing materials from his childhood that were relevant to his interviews".

- Karyn Maughan

While Bester has argued that he has a "right" to "fair and balanced media portrayal", Budlender says this "claimed right... does not exist".

- Karyn Maughan

Budlender: "It is true that the producers of the documentary have not interviewed Mr Bester or sought his comment on the documentary. This is because the producers were informed during a phone call on 22 February 2024 with the National Spokesperson for the Department of Correctional Services, Singabahko Nxumalo, that, generally, interviews with parolees or inmates are not allowed unless a request for special permission for such an interview is lodged with the Minister of Correctional Services and granted.

"The producers were also informed during this phone call that such permission is usually only granted in respect of educational programmes involving inmates or parolees and in such instances, the Department would be in partnership with the production company to produce such a programme."

- Karyn Maughan

Budlender confirms that Magudumana's brother Nkosinathi Sekeleni was interviewed for the Showmax documentary, but says Sekeleni has not been approached to be a state witness against Bester.  

"And even if he was, this would not preclude him from being interviewed in the documentary. This was indeed precisely what happened in the Midi-TV case: the facts concerned a documentary concerning the Baby Jordan murder, and e-TV 'recorded interviews with various people, including [Baby Jordan's mother's] brother and her domestic worker, who witnessed what had occurred' (to quote from the Supreme Court of Appeal's recordal of the facts)," he adds.

- Karyn Maughan

Thabo Bester appears in Bloemfontein Magistrate's Court.

Several suspects are facing charges related to aiding and abetting the escape of a prisoner in the Thabo Bester case.

(Photo by Frikkie Kapp/Gallo Images)

Budlender says the Showmax Bester documentary series "explores issues pertinent to the daily lives of South Africans and is firmly in the public interest. It particularly explores the following key issues:

• "the failure at the Department of Correctional Services where a prisoner, i.e., [Bester], seemingly had the privileges of a free citizen, arguably even greater privileges compared to an average South African free citizen earning minimum wage;
• "how [Bester] escaped from prison;
• "the issues pertaining to private and public prisons and the role played by G4S Secure Solutions (SA) (Pty) Limited, which was the private security company at Mangaung prison where [Bester] was incarcerated;
• "the failure of the South African Police Service to act timeously and with dedication following the escape of [Bester] from prison;
• "why [Bester] was not registered at birth and went through the schooling system, and was arrested several times without ever being registered with the Department of Home Affairs;
• "the devastating prevalence of gender-based violence in South Africa as [Bester] is a convicted rapist and murderer and astonishingly was walking free from 3 May 2022 to 7 April 2023 when he was finally arrested by Tanzanian authorities; and
• "The issues of our porous borders and how the applicant might have crossed them without passport verifications being done".

- Karyn Maughan

Budlender says Showmax's Bester documentary "contains no new facts about [Bester or his] pending criminal trial, but rather has taken existing and reported on content and thematically organised it into a four part series".

- Karyn Maughan

Budlender: "There is not even a remote possibility of any prejudice to [Bester]. He has not established that any of the parties involved in the documentary are participating in his criminal trial; and even if they were, he has failed to establish that the broadcast of the documentary would prejudice his trial in any way."

- Karyn Maughan

According to Budlender, none of the arguments made by Bester for why the broadcast of the Showmax documentary should be blocked are sustainable.  

"[Bester] impermissibly and unreasonably seeks to infringe Showmax’s and its viewers’ constitutional rights to freedom of expression - which includes freedom of the press and other media".

- Karyn Maughan

Budlender argues that Bester is "aggrieved that he has not profited from the production of Showmax’s documentary".  

"He wishes to protect only this pecuniary interest in this application," he adds - and says this is clear from Bester's letter of demand to Showmax.  

- Karyn Maughan  

Multichoice General Counsel Steven Budlender says Showmax's documentary is based "on notorious facts" about Bester "which are all already in the public domain and have been the subject of widespread reportage in the media".  

He adds: "The documentary draws on a wide range of publicly available source material, including consultation with the journalists who first broke the story. The documentary also reports on various matters concerning the functioning of government institutions and societal issues relating to the crimes for which the applicant was convicted."

- Karyn Maughan

Nandipha Magudumana wants to prevent Showmax from airing the Tracking Thabo Bester documentary series.

(Photo by Mlungisi Louw/Gallo Images/Volksblad)

Magudumana argues that the release of the Showmax documentary, which she admits she has not seen, will cause her "irreparable harm" if it is streamed later on Friday.  

She says Showmax and Multichoice "seek to poison the well by creating a biased impression and subject me to "the court of public opinion".  

It will be argued that this conduct by Showmax and Multichoice is "undesirable and should not be allowed by this Court".

- Karyn Maughan

Magudumana: "I am not against the respondents broadcasting the documentary. In fact, I am very much interested in it and will watch it when released and/or broadcasted.

"However, I am against the documentary being broadcasted before I have seen it, more specifically before the end of my trial as I believe it will have an impact on my trial and the subsequent result."

- Karyn Maughan

Magudumana: "The intended streaming of the documentary threatens to infringe upon my right to fair trial in terms of section 35 of the Constitution. I would not want to see myself being prosecuted by the media before the matter is concluded in the normal course of the legal action."

- Karyn Maughan

Magudumana argues that she "did not grant any right" to Showmax, Multichoice and "any party to film and produce a documentary in my name".  

"I was never interviewed in relation to the purported documentary series such omission raises imminent concerns regarding the accuracy and correctness of the version which stands to be shown," she adds.  

"I am facing criminal charges against myself which could change my personal status and life forever. I do not take these lightly".

- Karyn Maughan

"To this end, I contend that even though the respondents see my life as nonvaluable and my name as 'plainly a matter of public interest', l am, however, still human and am entitled to be treated with respect and dignity to which I deserve. By their conduct, [Showmax and Multichoice] have already prosecuted and punished me before my actual trial even begins."

- Karyn Maughan

In her urgent application against Showmax and Multichoice, Magudumana says she fears that the Tracking Thabo Bester documentary will compromise her rights to a fair trial.  

"One of my fears with the [Showmax] documentary is that the facts which may be provided by the various witnesses interviewed might relate directly to the evidence which still stands to be proved or disproved by the State and myself during my trial."  

This, she argues, "might have an impact on how my trial is conducted and the subsequent results thereof".

- Karyn Maughan

In her papers, Magudumana describes herself as "a Medical Doctor currently detained at Bizzah Makhatha Correctional Centre in Kroonstad" who is "allegedly arrested and accused of committing several offences, including dishonesty and deceit, assisting an escape, fraud, corruption and violating bodies".  

She, like Bester, expresses concern that the Showmax documentary will include interviews with several potential state witnesses against her, including her own brother and the family of Katlego Bereng Mpholo, the young man whose body was used to fake Bester's suicide and enable his escape from Mangaung Correctional Centre in May 2022.

- Karyn Maughan  

No one from ENCA is in court.

As a result, SABC and Newzroom Afrika are granted permission to film the Bester and Magudumana arguments and Showmax's response to them - which is now scheduled to take place at 11:30.

- Karyn Maughan