Thabo Bester demands profits from Showmax documentary

“The applicant is unhappy about the broadcast and wants to stop it, which is the reason for this application. The simple reality is that the applicant 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.”

Budlender argues that the Tracking Thabo Bester 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”.

“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.”

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Viewers’ rights

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

“The application 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.”

Budlender argued the orders that Bester seeks can only be granted in “exceptional circumstances” where there is a substantial risk of prejudice to him and the administration of justice in his trial.

“There is not even a remote possibility of any prejudice to the applicant. 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.”

No new facts

Budlender said Showmax’s 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”.

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.”

No interviews with Bester

Budlender agrees that the producers of Tracking Thabo Bester have not interviewed 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, Singabhako 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,” Budlender said.

Bester’s rights and payment

Budlender said Bester has argued that he has a “right” to “fair and balanced media portrayal”.

“This claimed right also does not exist.”

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

“From the vague assertions in these paragraphs, I assume that the applicant is speaking about the interviews of Mr Nkosinathi Sekeleni.

“ I admit that Mr Sekeleni was interviewed. He was paid R30 000. The payment was for the exclusive rights he granted the production team to conduct, record, and broadcast his interviews and for sourcing materials from his childhood that were relevant to his interviews.

“The production team did not induce him to conclude the agreement with a promise of him gaining anything else,” Budlender said.

In her papers 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.

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

The premiere of the first episode of Tracking Thabo Bester is scheduled for 15 March 2024, exclusively on Showmax.