The airing of the Queen Modjadji series will not cause harm to the Balobedu royalty because the historical drama is work of fiction.
This is according to MultiChoice and producer Duma Ka-Ndlovu in their responding papers to an urgent interdict application over airing the series.
The series was scheduled to air on Sunday, but the Balobedu Royal Council and the royal family claim they were not consulted and did not consent to airing of the series.
The series centres around the first Modjadji rain queen, Maeelwakane, who died in 1854. The historical drama is therefore set over 200 years ago and is inspired by true events.
In court documents, advocate Terry Motau SC, representing both MultiChoice and Duma Ka-Ndlovu, said despite knowing about the imminent broadcast of the series from March 2024, the applicants chose to launch their application on July 4.
He said the applicants had speculated that the series would negatively or inaccurately portray them or impact the succession dispute and would somehow tarnish the culture of the Balobedu.
"...even if a fictional drama series based over 200 years ago can be said to engage the rights of the applicants, the applicants have set out no evidence at all that the series will cause any cognisable harm," read the papers.
Motau argued that the applicants could not show a basis to compel them to deliver either the "documentary" or the agreement they seek or to compel negotiations.
Requiring a broadcaster to justify its constitutionally protected speech in advance is a significant intrusion into the protection of free speech provided by the Constitution
— Terry Motau, SC
"Most fundamentally, the applicants have not and cannot meet the high threshold required in order to obtain a prior restraint of speech."
He argued that barring speech before it occurred was considered a significant infringement of the right to freedom of expression and labeled the council's relief as a "fishing expedition".
"Requiring a broadcaster to justify its constitutionally protected speech in advance is a significant intrusion into the protection of free speech provided by the Constitution and conflicts with the authority of both the Supreme Court of Appeal and the Constitutional Court on this point," he said.
Motau said there was no general principle in law that required a broadcaster to obtain permission in advance of publication or to provide a copy of a publication to a third party in advance.
"We therefore submit that not only is the extreme urgency with which this application has been brought self-created and unjustified but the applicants also fail to make out a case for the far-reaching relief that they seek on this urgent basis.
"The matter thus fails to be struck off the roll for lack of urgency and in any event to be dismissed o the merits."
Motau said if the applicants were unhappy about the contents of the series after they had watched it along with the public, they could use their position to speak out about it and educate the public on what they consider are true facts.
chabalalaj@sowetan.co.za
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