On Wednesday, various media groups approached the court for permission to broadcast aspects of the murder trial of Oscar Pistorius live on television and radio. The application raises important constitutional questions about the manner in which the court should deal with the intense public interest (not necessarily to be conflated with the public interest) in the Pistorius case while jealously guarding the right of the accused to receive a fair trial.
When Oscar Pistorius goes on trial on 3 March in the North Gauteng High Court for the killing of his girlfriend, Reeva Steenkamp, an army of journalists from across the world will pack into the courtroom, crouched over their laptops, smart phones and tablets, ready to “live tweet” every detail of the trial to the inquisitive public.
Only a few family members of the accused and the deceased and the journalists seated in the public gallery will be able to witness proceedings in the trial.
BT (Before Twitter), the general public would not have had immediate access to every word and gesture of the prosecutors, the accused and the various witnesses called to testify in the trial. The public would have had to rely on second hand reports provided by journalists during breaks in the proceedings.
Twitter has changed all this.
Following proceedings in a criminal trial on Twitter can have an immediacy and can provide nuance and detail about the testimony and cross-examination of witnesses that can make or break the reputation of witnesses.
As the bail hearing of Oscar Pistorius demonstrated, in the age of Twitter it is very difficult to protect the privacy or the dignity of a witness in a criminal trial. Journalists “live tweeted” the testimony of former detective Hilton Botha, leading to widespread ridicule on social media.
However, this does not mean that the court should allow the broadcasting of proceedings in a criminal trial if this would negate the fair trial rights of the accused. Nevertheless, because there are no jury trials in South Africa and because our courts assume that the judge and assessors will not easily be swayed by media reports on a trial, the dangers posed to fair trial rights by the broadcasting of a trial is probably often overstated.
Those who oppose the broadcasting of criminal trials on radio and television argue that the presence of radio and TV in court could be too invasive, could intimidate or overwhelm witnesses, could infringe on the accused’s right to privacy, could inhibit interactions between counsel and the bench, and could turn the trial into a media circus in which prosecutors, defence lawyers and even the judge “act” for the cameras to the detriment of the accused and his or her right to a fair trial.
To counter this, lawyers for the media groups asking to broadcast the Pistorius trial are arguing that modern technology would enable the operation of TV cameras via remote control, making them relatively unobtrusive. They have also agreed that “unconsenting witnesses” would not be filmed, thus protecting such witnesses against an invasion of their privacy.
Despite these arguments it is not clear that the court will grant permission to the media groups to broadcast aspects of the trial live on radio and television.
In deciding whether to grant permission for the broadcasting of most aspects of the Pistorius trial, the court will have to rely on the general principles set out by the Constitutional Court in South African Broadcasting Corporation Ltd v National Director of Public Prosecutions and Others.
This case dealt with an application by the SABC to broadcast the proceedings before the Supreme Court of Appeal in the appeal of Schabir Shaik against his conviction for fraud and corruption.
The majority of the Constitutional Court explained that when considering whether to broadcast court proceedings, the overriding interest to consider was not that of the broadcasters but that of the public and of the accused.
A strong constitutional consideration to take into account when deciding on whether to grant permission to broadcast court proceedings was the right of South Africans to know and understand the manner in which one of the three arms of government – the judiciary – functioned.
The judicial function should not, said the court, be “shrouded in mystique and protected at all times from the prying eye of the camera or the invasive ear of the microphone”.
The right of the people to be informed of judicial processes presupposes that courts are open and accessible. The fact that courts do their work in the public eye is a key mechanism for ensuring their accountability.
The Constitutional Court pointed out in the Shaik case that section 35(3)(c) of the Constitution includes as one of the aspects of the right to a fair trial, the right to “a public trial before an ordinary court”.
Several advantages could thus be associated with the broadcasting of court proceedings. Open courtrooms are likely to limit high-handed behaviour by judicial officers and to prevent railroaded justice.
Open justice could therefore be said to be an important part of that right to a fair trial and thus served as a great bulwark against abuse.
Courts should in principle welcome public exposure of their work in the court room, subject of course to their obligation to ensure that proceedings are fair. The foundational constitutional values of accountability, responsiveness and openness apply to the functioning of the judiciary as much as to other branches of government. These values underpin both the right to a fair trial and the right to a public hearing (ie the principle of open court rooms). The public is entitled to know exactly how the judiciary works and to be reassured that it always functions within the terms of the law and according to time-honoured standards of independence, integrity, impartiality and fairness.
In the subsequent case of Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of South Africa and Another, the Constitutional Court affirmed the constitutional imperative of dispensing justice in the open.
This systemic requirement of openness in our society flows from the very founding values of our Constitution, which enjoin our society to establish democratic government under the sway of constitutional supremacy and the rule of law in order, amongst other things, to ensure transparency, accountability and responsiveness in the way courts and all organs of state function. From the right to open justice flows the media’s right to gain access to, observe and report on, the administration of justice and the right to have access to papers and written arguments which are an integral part of court proceedings subject to such limitations as may be warranted on a case-by-case basis in order to ensure a fair trial.
However, because the Shaik case dealt with an appeal – and not a criminal trial as such – the ringing endorsement of open justice to be found in the Shaik judgment is not directly applicable to the Pistorius case. Neither is the Independent Newspapers case, which dealt with the question of whether certain court documents could be kept secret, directly applicable to the question raised by the Pistorius application.
In fact, the Constitutional Court in the Shaik case suggested that it would be inappropriate to permit radio or television broadcasting of a criminal trial proper, remarking that:
no one suggested that the electronic media should be permitted to broadcast criminal trial proceedings when evidence is led and witnesses are cross-examined. Ordinarily, it will not be in the interests of justice for trial proceedings to be subjected to live broadcasts.
The court reasoned that the right to privacy of each individual witness was of overriding importance. Where this right was infringed, it could lead to an unfair trial and could conflict with “the public interest in a democratic criminal justice system” which brings wrongdoers to book while ensuring that justice is done to them. This was so because there was a real danger that witnesses would be prejudiced, intimidated, inhibited or prevented from communicating sensibly by the thought of having to appear on television.
Nevertheless, the court also quoted with approval a passage from a lower court judgment indicating that where both the State and the defence witnesses consented to the televising of their evidence, this would not necessarily render the trial unfair.
The Shaik judgment was handed down BT (Before Twitter) in 2006. Although there are indeed dangers inherent in the broadcasting of a criminal trial – amply demonstrated by the media circus that developed during the OJ Simpson trial – I would argue that these dangers could easily be managed by a competent judge who is in control of his or her courtroom and is able to manage the media by issuing the appropriate guidance or instructions.
The fact is that even if permission is not granted to broadcast the Pistorius case on radio and television, witnesses are going to be exposed to the immediate reporting allowed by Twitter. As long as the media use Twitter in a manner that does not undermine the right to a fair trial and as long as the presiding judge ensures that the media is kept in check, this will not affect the fairness of the trial.
If you take into account that new technology – including Twitter – has made it almost impossible to shield witnesses entirely from public scrutiny and publicity, and that there is no empirical evidence to suggest that a properly run trial broadcast on radio and television would in fact threaten the fairness of a trial, I cannot see why prelimiary permission should not be granted to broadcast certain aspects of the trial.
But given the mixed signals sent by the Constitutional Court jurisprudence on the matter (discussed above), it is far from clear that such permission would indeed be granted by the court to broadcast aspects of the trial – including the testimony of witnesses who had agreed to it.