The Pretoria high court will deliver judgment on whether Netflix can air their three-part documentary, which examines the circumstances of convicted rapist and murderer Thabo Bester's escape from prison, on Friday — 30 minutes before the scheduled airing time.
Bester and his alleged accomplice Nandipha Magudumana approached the court on an urgent basis to interdict and restrain Netflix from releasing, streaming, advertising or publishing the documentary which centres on their alleged crimes.
The duo argued the airing of the documentary would prejudice them, infringe on their right to a fair trial, dignity, the right to be presumed innocent until proven guilty and that it is defamatory.
The documentary is set to be released for streaming on Netflix on Friday and has been marketed extensively in South Africa and abroad.
On Thursday the court heard Magudumana entered into a contract with Story Scope, the production company behind the documentary, allowing the use of archive photos from her life and was paid for the use of the archive material.
Magudumana's counsel, advocate Lerato Moela, said in addition to the contract, Magudumana had entered into a commercial agreement that granted her the right to review and provide input on the final product before publication. However, the licence agreement was now being used to argue she could not view the material.
Moela further questioned the validity and enforceability of the contract, noting that at the time it was signed there was no power of attorney in place. He said she has the right to comment on the documentary and has been denied that right.
Advocate Tembeka Ngcukaitobi, representing Netflix, argued it was unacceptable for Magudumana to change her mind now after the contractual agreement which she signed under legal advice. He also argued there was no defamation as the documentary introduces nothing new but focuses on what is already in the public domain.
Bester’s counsel, advocate Benjamin MoAfrika wa Maila, has argued that Netflix has already presumed him guilty, infringing on his right to be presumed innocent until proven guilty. If the documentary is aired, there is a risk that prejudice will occur.
“We have 300-million [Netflix] subscribers who will be listening to people declaring a man who the court has not declared guilty, to be guilty, who are sure of what they do not know, that contradiction that they are sure of what they do not know, as if they were there when they saw him escape from a prison,” he said.
MoAfrika wa Maila argued that the matter was urgent as the documentary is supposed to be aired on Friday. He said if it is aired, the impact it would have made could not be reversed as this will also affect the trial. This infringes on Bester's right to be presumed innocent until proven guilty, as the respondents in the documentary state he faked his death and escaped the country — “preaching it as gospel”.
“Netflix is putting it as a confirmation, as if there is a judgment that he has escaped from prison and there has never been any proof that says he has escaped from prison. He has never been convicted on that and that is what the court needs to look into.”
MoAfrika wa Maila said the documentary, from its name, has already brought serious defamation to Bester.
“Now we have a beast in person and personified into the person of Thabo Bester. So then this documentary, from its naming element perspective, has already brought what we call a serious defamation to the person Thabo Bester. And we cannot sit and keep quiet when Thabo Bester, who is my client and the applicant in this matter, is being turned, or rather narrated, as a beast — because that's what the documentary suggests.”
He argued that the documentary creates the impression that he is guilty.
MoAfrika wa Maila further argued that the documentary refers to him as notorious, questioning how they concluded this. He said the documentary was sensationalised and included artistic manipulation.
“This also shows this documentary tries to drive a certain narrative about Bester. If Netflix publishes this tomorrow [Friday], in just one hour, it means we are going to have many people see this and public opinion and a public court would have decided otherwise about Bester.
“We are standing in one corner of the truth because he is also not given a right of response.”
Netflix asked for the application to be dismissed with costs.
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