What the High Court decided about broadcasting the Oscar Pistorius trial

As you know, the Pretoria High Court granted the media permission to broadcast the upcoming Oscar Pistorius trial but don’t expect to see TV footage of Pistorius or his witnesses giving evidence. Judge President Mlambo has imposed a number of restrictions on the coverage you can expect in the coming weeks. The reasons for these restrictions stem from the considerations Judge Mlambo took into account and how the judge balanced a number of competing rights.

For one thing, you probably won’t see any video of Oscar Pistorius’ or his witnesses’ testimony (although you may hear it on radio). You won’t see close-ups either. This decision is more about upholding rights than it is about the hype.

As you know, the Pretoria High Court granted the media permission to broadcast the upcoming Oscar Pistorius trial but don’t expect to see TV footage of Pistorius or his witnesses giving evidence. Judge President Mlambo has imposed a number of restrictions on the coverage you can expect in the coming weeks. The reasons for these restrictions stem from the considerations Judge Mlambo took into account and how the judge balanced a number of competing rights.

Weighing up competing rights

The various considerations and rights are summarised in the opening paragraph of the judgment:

The electronic, broadcast and print media have approached this Court to grant them permission to broadcast the entire criminal proceedings in the matter of The State vs Oscar Leonard Pistorius (Pistorius). They seek permission to do this through audio, audio-visual and photographic means. The matter brings into sharp focus the interface between the functioning of the criminal justice system on the one hand and the quest by the media and press to participate in that system on the other hand. This interface finds expression in a number of critical constitutional rights that are seemingly on a collision course with one another. These are the rights of an accused person and the prosecution to a fair trial on the one hand and the freedom of expression rights of the media as well as the open justice principle.

Judge Mlambo highlighted the media’s importance in a democratic society and quoted a number of court decisions dealing with the freedom of the press in the context of court proceedings. In the case of Khumalo and Others v Holomisa, the Constitutional Court said the following:

The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected.

Broadcasting the trial (and allowing for broader coverage of any trial) is closely linked to not only freedom of expression but also the principle of open justice. As Judge Mlambo pointed out –

Our Constitution is underpinned by a number of values and for purposes of this case I refer to openness and accountability. In this regard it is also important to take cognizance of the fact that sections 34 and 35(3)C) make it very clear that even criminal proceedings in this country are to be public. The basis for this is that courts of law exercise public power over citizens and for this it is important that proceedings be open as this encourages public understanding as well as accountability.

The Judge went on to quote from the case of S v Mamabolo in which the Constitutional Court said the following:

Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticize, applaud or castigate the conduct of their courts. And, ultimately, such free and frank debate about judicial proceedings serves more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the important attributes prescribed for the judiciary by the Constitution

That said, this isn’t just about the media’s interests. Pistorius’ legal team argued that broadcasting the trial would compromise his right to a fair trial. He went as far as to argue that if the trial is broadcast, he would be denied a fair trial. His concerns were summed up as follows:

Pistorius contends that the live broadcasting of his criminal trial, through audio (radio), audio-visual (television) and still photographic means, will infringe his right to a fair trial. His view is that the mere knowledge of the presence of audio visual equipment, especially cameras, will inhibit him as an individual as well as his witnesses when they give evidence. He has also asserted that his Counsel may also be inhibited in the questioning of witnesses and the presentation of his case. He further is of the view that covering his trial as is sought by the applicants will enable witnesses still to testify to fabricate and adapt their evidence based on their knowledge of what other witnesses have testified. In his view the requested broadcasting of his trial will have a direct bearing on the fairness of the trial and contends that should the relief be granted he will most certainly not enjoy a fair trial.

The Judge accepted that Pistorius’ concerns are valid and set about balancing his right to a fair trial with the media’s right to freedom of expression and the principle of open justice. This process doesn’t involve placing more value in one or another right over the others but rather as the Court in Midi Television (Proprietary) Limited v Director of Public Prosecutions proposed –

Where constitutional rights themselves have the potential to be mutually limiting – in that the full enjoyment of one necessarily curtails the full enjoyment of another and vice versa – a court must necessarily reconcile them. They cannot be reconciled by purporting to weigh the value of one right against the value of the other and then preferring the right that is considered to be more valued, and jettisoning the other, because all protected rights have equal value. They are rather to be reconciled by recognising a limitation upon the exercise of one right to the extent that it is necessary to do so in order to accommodate the exercise of the other (or in some cases, by recognising an appropriate limitation upon the exercise of both rights) according to what is required by the particular circumstances and within the constraints that are imposed by s 36.

Judge Mlambo was also cognisant of the risks with televised broadcasts and referred to the judgment of the Constitutional Court in South African Broadcasting Corporation Limited vs The National Director of Public Prosecutions where the Court said the following:

Before turning to the question of the order, we consider it helpful to set out some considerations which in our view need to be taken into account in the future when the question of televising court proceedings is raised. The time has come for courts to embrace the principle of open justice and all it implies. However, in our view, it should be borne in mind that the electronic media create some special difficulties for the principle of open justice. Broadcasting, whether by television or radio, has the potential to distort the character of the proceedings. This can happen in two ways: first, by the intense impact that television, in particular, has on the viewer in comparison to the print media; and second, the potential for the editing of court proceedings to convey an inaccurate reflection of what actually happened. This is particularly dangerous given that visual and audio recordings can be edited in a manner that does not disclose the fact of editing. This distorting effect needs to be guarded against. It arises not so much from the presence of cameras and microphones interfering with the court proceedings themselves. But more dangerously, it may arise from the manner in which coverage can be manipulated, often unwittingly, to produce communications which may undermine rather than support public education on the workings of the court and may also undermine the fairness of the trial. Such distortions are much more likely to arise from edited highlights packages than from full live broadcasts.

What was interesting about Judge Mlambo’s judgment is how the judge differentiated between the impact radio and TV could have. In striking a balance between these competing considerations, Judge Mlambo made a series of orders.

What you will be able to see and hear

For starters, TV broadcasts will not include Pistorious’ or his witnesses’ testimony. Judge Mlambo ruled on this aspects as follows:

In balancing the competing rights at stake it is my view that the objection by Pistorius regarding the audio-visual recording as well as the still photography of him and his witnesses should not be taken lightly. It was argued on his behalf forthrightly that the inhibitory effect of audio-visual recording equipment, in particular the knowledge and awareness thereof by himself and his witnesses, will be great when they give their evidence. This potential was recognized by our highest court in the SABC vs NDPP. For this reason I am of the view that the audio-visual or televising and still photography of Pistorius and his witnesses when they testify be disallowed as this has the potential to deprive him of a fair trial on the grounds spelt out in argument on his behalf. I am persuaded that there is merit in his fears and that of his witnesses that they may be disabled somewhat in giving evidence.

TV broadcasts will likely include much of the State’s experts and witnesses although the Court made allowance for concealing witnesses’ identities if they require this. You will also be able to follow legal arguments and similar aspects of the trial.

On the other hand, you will probably be able to listen to most of the trial on radio as, Judge Mlambo reasoned, radio doesn’t have quite the same impact as TV or TV’s more problematic features in this sort of situation. The Court also imposed a number of restrictions on still photography which exclude photography of Pistorius, his witnesses and other witnesses who object. The judgment goes into quite a bit of detail about which cameras may be placed where, how they may be operated and supervised and more. Something else you won’t see are emotional close-ups of anyone. Those have also been prohibited.

Once again, be mindful of what you tweet

The point of allowing the trial to be broadcast is not to play to the hype surrounding the trial but more to give effect to the various rights and public policy considerations involved here (at least from the Court’s perspective). Judge Mlambo made a special point of addressing concerns about the planned coverage which everyone should take a few moments to consider:

I must hasten to mention that the decision I have come to should be embraced with the objective I have spelt out in this judgment. I mention this as it has come to my attention that there are media houses that intend to establish 24 hour channels dedicated to the trial only and that panels of legal experts and retired judges may be assembled to discuss and analyse the proceedings as they unfold. Because of these intentions, it behoves me to reiterate that there is only one court that will have the duty to analyse and pass judgment in this matter. The so-called trial by media inclinations cannot be in the interest of justice as required in this matter and have the potential to seriously undermine the court proceedings that will soon start as well as the administration of justice in general.

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p>In other words, be careful what you say online, in public discussions and, especially, if you are commenting on the case as part of the planned public broadcasts. As the judge said, there is one court that will adjudicate this matter and made any determinations of guilt. As far as the law is concerned, Pistorius is innocent unless the Court subsequently finds otherwise.

Big changes for Magistrates Courts in South Africa

Magistrates Court, King Williams Town

South Africa’s Magistrates Courts are about to undergo a substantial change, reportedly from tomorrow, 15 October 2010. The first big change is that the rules that govern much of how these courts operate are about to change and the changes are fairly substantial. Some of the changes include making provision for service of court papers by email and fax as well as increasing the distance attorneys may be from the court for the purposes of court process delivery before needing to appoint a local correspondent attorney. There are also fairly significant changes being made to court procedure generally which bring the Magistrates Court rules more into line with the High Court rules. It isn’t clear what happens to existing proceedings and whether the old rules will apply to those proceedings.

One of the biggest changes is the introduction of a civil Regional Court with expanded jurisdiction to hear not only higher value cases (the ordinary or district Magistrates Courts have an upper jurisdictional limit of R100 000) but also to hear family law matters. The Divorce Courts established a few years ago will be subsumed into this new Regional Court structure. The Department of Justice published some information about these courts on its website:

The Department of Justice and Constitutional
Development has amended the Magistrate’s
Courts Act of 1944 giving powers to Regional
Courts to deal with civil cases.
President Jacob Zuma announced the
commencement of the Jurisdiction of Regional
Courts Amendment Act which came into effect on
9th August 2010, the National Woman’s Day.

The Regional Courts were established in 1952 to
deal with serious criminal offences and mete out
harsher penalties.
The amendments increase access to justice to
members of the public, in particular, women and
children who go to courts daily for the resolution
of family related disputes relating to divorce;
maintenance; adoption; and matters relating to
custody of minor children.

CASES NOW DEALT WITH BY REGIONAL COURTS
INCLUDE

  • Family disputes including: divorce;
    maintenance; adoption; and matters relating
    to custody of minor children.
  • Disputes over movable and immovable
    property of between R100 000 to R300 000
    which were dealt with by the High Court before
    the amendment.
  • Credit Agreements of between R100 000 to
    R300 000.
  • Road Accident Fund Claims of between R100
    000 to R300 000.

BENEFITS OF THE AMENDMENT
Reduced time of finalisation of cases:

  • There are now 62 more Regional courts to deal
    with same workload that the 3 former divorce
    courts.
  • This will assist in reducing case backlogs both
    at the High Courts and Magistrates Courts.

Reduced Costs:

  • Proceedings in the High Courts are complex
    to the extent that attorneys and advocates are
    usually instructed resulting in high litigation
    costs.
  • Regional courts have a reduced scale of costs in relation to the High Court, and simplified proceedings which includes the use of
    mediation in resolving civil disputes.
  • Registrars and assistant registrars appointed
    at each regional court to provide assistance to
    member of the public.

Of course it is all well and good to introduce these new rules and this court structure but the courts’ administration needs to function properly. I have a few cases pending in the Johannesburg Magistrates Court where we are unable to take the matters further because files can’t be found. What we sorely need is a digital court filing and administration system and there doesn’t seem to be any meaningful effort to achieve this by the Department of Justice. Manual court administration is failing and simply can’t support courts’ current caseloads effectively.

That said, these changes are encouraging. I just hope we see more systemic changes soon.


Image credit: Magistrates Court, King Williams Town by Kleinz1, licensed CC BY NC ND 2.0