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
#OscarPistorius Today’s lesson: Don’t rush to conclusions. Wait for both sides. Examine everything.
— Alex Eliseev (@alexeliseev) February 20, 2013
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.
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.