Quote of the week

[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.

David Medalie
6 June 2013

Trial by media? No, that’s impossible

When magistrate Daniel Thulare took a swipe at the media this week during a routine court appearance by Oscar Pistorius, the magistrate displayed a rather archaic, pre-constitutional view of the way in which the media is allowed to report on criminal matters in South Africa. He also expressed concern that Pistorius was being subjected to a “trial by media”. But the use of this term is both silly and spectacularly uninformed. Members of the media do not have the power to either try or to convict any accused person. It is the appropriate presiding judicial officer who has the power to try and (if he or she is guilty) to convict an accused.

During the court appearance of Oscar Pistorius, magistrate Thulare expressed concern that the course of justice was being perverted by the fevered attention the case was receiving in the media. “There appears to be a trial by the media houses of Mr Pistorius,” he said. “It would appear some of the [media] activities may amount, if not to scandalising the court system in the republic, then to contempt.”

It is unclear how any media activities around the Pistorius case could amount to “scandalising the court”. I suspect that magistrate Thulare became confused about two distinct and wholly separate aspects of the crime of contempt of court. “Scandalising the court” usually relates to the publication of opinions which tend, or are calculated, to bring the administration of justice into contempt. For example, suggesting that all judges in South Africa are guilty of personal favouritism and allow themselves to be influenced by personal and corrupt motives in judicially deciding matters would constitute scandalising of the court.

As the Constitutional Court explained in S v Mamabolo, the real offence of scandalising the court “is the wrong done to the public by weakening the authority and influence of a tribunal which exists for their good alone”. It is not the self-esteem, feelings or dignity of the judicial officer, or even the reputation, status or standing of a particular court that is sought to be protected, but the moral authority of the judicial process as such.

This notion of scandalising the courts does not preclude robust and informed public debate about judicial affairs because such debate:

promotes peace and stability by convincing those who have been wronged that the legal process is preferable to vengeance; by assuring the meek and humble that might is not right; by satisfying business people that commercial undertakings can be efficiently enforced; and, ultimately, as far as they all are concerned, that there exists a set of just norms and a trustworthy mechanism for their enforcement.

In Mamabolo the Constitutional Court drew a clear distinction between important and legitimate comment and criticism of judicial conduct and the decisions of judicial officers, on the one hand, and scandalising the court, on the other, and stated the following:

An important distinction has in the past been drawn between reflecting on the integrity of courts, as opposed to mere reflections on their competence or the correctness of their decisions. Because of the grave implications of a loss of public confidence in the integrity of its judges, public comment calculated to bring that about has always been regarded with considerable disfavour. No one expects the courts to be infallible. They are after all human institutions. But what is expected is honesty. Therefore the crime of scandalising is particularly concerned with the publication of comments reflecting adversely on the integrity of the judicial process or its officers.

This means that there is absolutely nothing wrong with criticising the outcome of a case or even with criticising a judge for having got the law wrong or for having been too lenient in sentencing a convicted criminal. But where that criticism would suggest that the judge got it wrong because he or she was corrupt or otherwise swayed by impermissible factors, then the crime of scandalising the court would loom large.

Of course, as mentioned above, when magistrate Thulare said the media was scandalising the court, he must have confused this rule with the so called sub judice rule about which I wrote earlier this week. Pointing this out does not scandalise the court – it merely engages in a robust discussion about the magistrate’s seeming lack of legal knowledge or understanding of the relevant legal principles.

But apart from this obviously muddled and outdated view of media reporting of criminal trials, magistrate Thulare’s comments can also be faulted on the basis that the notion of “trial by media” is a nonsensical and legally completely irrelevant concept.

When famous, rich, politically well-connected individuals or others who hold social power because of their white skins or their class and status are charged with criminal offences, they often complain about being subjected to “trial by the media”. Strangely, the same people never get upset about the “trial by media” of someone like Johannes Kana, charged with the brutal rape and murder of Anene Booysen. Neither do they claim there is a “trial by media” when the media refers to murder accused Johan Kotze as the “Modimolle Monster” or when the media refers to Wouter Basson as “Doctor Death”.

The fact of the matter is that it is inevitable that the reputation of any person who is charged with a crime will suffer negatively. When President Jacob Zuma was charged with fraud and corruption after Schabir Shaik was found guilty of bribing him, Zuma’s reputation surely suffered (at least among everyone who are not his most ardent supporters) – even though he had not been convicted of any crime.

When Johannes Kana was charged with the rape and the murder of Anene Booysen, his reputation must surely also have suffered – even though he had not been found guilty of any crime. Similarly, if I were ever to be charged with drunken driving, my reputation would take a knock (except, maybe, with Jackson Mthembu) long before a magistrate would have had the opportunity to test the evidence to determine whether I was guilty or not.

Section 35(3)(h) of the Constitution does guarantee for every criminal accused the right to be presumed innocent by the magistrate or judge who tries his or her case. The magistrate or judge must consider all the evidence placed before him or her by the prosecutors as well as the defence of the accused and must then make an impartial decision about the guilt or innocence of the accused after weighing up all the evidence.

This right also entitles an accused not publicly to be branded a criminal before he or she has been convicted of a crime. But the right cannot prevent members of the public from forming an opinion about the guilt or innocence of an accused. Hopefully, members of the public will try to keep an open mind for as long as possible and will not quickly jump to conclusions about the guilt or innocence of an accused. (For example, just as we cannot say for certain that President Zuma will be found guilty of fraud and corruption if he were ever to be charged, neither can we say for certain that he will be acquitted.)

But ordinary citizens are not judges and they will form opinions about the guilt or innocence of a person charged with a criminal offence. As more evidence about a specific case becomes public (and especially as the trial progress and evidence is presented in court) very few members of the public who follow the case will not at some point begin to lean towards a view as to either the guilt or innocence of an accused.

Nothing – and especially not the constitutional right to be presumed innocent by a magistrate or judge – can stop that from happening. But this means the media does have an important task to report accurately and fairly on criminal cases. The media has an ethical and legal duty not to brand the accused as a criminal before he or she has been convicted of a crime. The media should also try and provide an accurate reflection of the claims and counter claims relating to an alleged criminal offence committed by an accused. Members of the public will then be placed in the position where they will be able to draw their own conclusions as to the possible guilt or innocence of the accused.

Of course, if members of the media (or members of the public commenting on social media) make wild and unsubstantiated claims in which they brand the accused guilty of a crime even before conviction, they will be defaming the accused. In the event of the accused being acquitted, he or she could potentially then sue the culprits for defamation.

This does not mean we cannot speculate about the merits of the case and engage in informed discussion about the possibility that a specific defence put up by an accused would be successful. For example, some commentators would be far from certain that (even on the version of events provided by Oscar Pistorius during his bail application) his defence of putative self-defensive will be accepted by the court. If any of them write that Pistorius’ defence team will have an uphill battle in convincing the court of this defence, they would not be stating that Pistorius is guilty of murder. They would be engaging in informed discussion about the merits of the case against an accused who has not been found guilty of a crime and there would be no legal danger in doing so.

I imagine that it must be devastating to be charged with having committed a criminal offence. Nothing in the constitution or the law can protect you from the effects of facing such charges. Rich and famous people used to adulatory publicity are often shocked when the media (whom they used to fuel their fame and power), turn against them and report honestly about the criminal charges they face. And it is usually exactly at that point that they trot out the “trial by media” complaint

2015 Constitutionally Speaking | website created by Idea in a Forest