Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.
I must confess that I am dreading the weeks and months ahead as the trial of the alleged killers of Eugene Terreblanche gets under way. The past few days have shown that the killing of Terreblanche has become something of a Rorschach test for South Africans. Many of us seem to have interpreted the killing of Terreblanche by projecting our own fears, prejudices, hatreds and ideological and emotional commitments onto the events of the weekend. This has exposed the serious racial fault-lines in our society for all to see.
My first reaction to a report that the entire trial of the 15 year old accused and his 28 year old co-accused would be held in camera was therefore one of relief. Maybe this will spare us from the relentless and sensationalistic coverage by the media and allow us to paper over the racial fissures in our society.
According to George Baloyi, spokesperson for the NPA, the entire trial would be held in camera, due to the age of the one accused. “The law is very clear the trial must take place in camera,” he said. NPA head Menzi Simelane confirmed that there would only be one trial, saying thus far “from the information, they are the only ones involved in the crime”.
The problem is, despite the practical problems with conducting two separate trials and despite the trauma that a public trial might inflict on the body politic, I am not sure that having the trial of the adult accused in secret would be either wise or lawful and constitutional.
Section 16(1)(a) and (b) of the Constitution provides that everyone has the right to freedom of expression, which includes freedom of the press and other media as well as freedom to receive and impart information or ideas. Section 34 does not only protect the right of access to courts but also commands that courts deliberate in a public hearing. This guarantee of openness in judicial proceedings is again found in section 35(3)(c) which entitles every accused person to a public trial before an ordinary court.
It is clear from section 63(5) of the Child Justice Act that the 15 year old accused could (and probably should) be tried in camera. It is also clear from the jurisprudence of the Constitutional Court that this provision is constitutionally valid as it is aimed at protecting the best interest of the child concerned. However, a cursory look at the Child Justice Act and the relevant jurisprudence of the Constitutional Court reveals that the adult accused might well have to be tried in open court.
First, section 63(2) of the Child Justice Act states that “where a child and an adult are charged together in the same trial in respect of the same set of facts” the Child Justice Act will apply to the child while the Criminal Procedure Act will apply to the adult. This could suggest that both could be prosecuted in the same court where the trial would be conducted in secret, or it could mean that the secrecy provision applicable to the young accused should not apply to the adult. To solve this riddle it will be necessary to seek help in the Criminal Procedure Act.
The Criminal Procedure Act contains two relevant provisions in this regard. Section 152 states that usually criminal proceedings in any court shall take place in open court. This provision is qualified by section 153 of that Act which states that:
If it appears to any court that it would, in any criminal proceedings pending before that court, be in the interests of the security of the State or of good order or of public morals or of the administration of justice that such proceedings be held behind closed doors, it may direct that the public or any class thereof shall not be present at such proceedings or any part thereof.
The Act also states that in a case where a trial is held in camera “the court may direct that no information relating to the proceedings or any part thereof held behind closed doors shall be published in any manner whatever”. This means the whole trial could be held in secret and one would only be able to ascertain details of the case if a judgment is written and published in a bona fide law report. If one assumes that these sections are constitutionally valid – something that is far from certain, given its potentially rather broad ambit – it will have to be interpreted in such a way that it conforms to the spirit, purport and object of the provisions in the Bill of Rights quoted above.
The Constitutional Court has made several statements in this regard, emphasizing the importance for the credibility of the administration of justice of having public trials. In SABC v NDPP, Langa CJ stated the following:
Open justice is observed in the ordinary course in that the public are able to attend all hearings. The press are also entitled to be there, and are able to report as extensively as they wish and they do so. Courts should in principle welcome public exposure of their work in the courtroom, 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 courtrooms). 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.
More recently in Shinga v The State Yacoob J explained the constitutional interest in open court rooms in the following terms:
The survivors of crime, those accused of it and the broader community have a right to see that justice is done in criminal matters.Seeing justice done in court enhances public confidence in the criminal-justice process and assists victims, the accused and the broader community to accept the legitimacy of that process. Open courtrooms foster judicial excellence, thus rendering courts accountable and legitimate. Were criminal appeals to be dealt with behind closed doors, faith in the criminal justice system may be lost. No democratic society can risk losing that faith. It is for this reason that the principle of open justice is an important principle in a democracy….
The requirement of fairness must also take into account that all victims and their families have an abiding interest in the outcome of the appeal and have a right to attend the proceedings so that if the appeal should succeed, they have at least been given the opportunity to witness the process that gave rise to this result. It is a fundamental tenet of the administration of justice and the rule of law that appeals, particularly criminal appeals, are not held behind closed doors.
Sadly, the forthcoming trial will take on considerable importance as many South Africans have interpreted the killing of Terreblanche in racial terms. In the absence of a public trial for the 28 year old accused, gossip and conspiracy theories are bound to emerge and distrust of the judiciary among some members of the public will be heightened. This problem will become more acute if a verdict or a sentence imposed (in the event of the accused being found guilty) fail to garner approval of a certain section of the population.
Although there are some practical problems with the splitting of the trials of the child and the adult accused, and although one does not know whether evidence led at the trial might inflame emotions, it therefore seems imperative that the trial of the adult accused be conducted in public. A failure to do so runs the risk of discrediting the trial (and to some extent the whole judiciary) in the eyes of those who do not agree with a verdict or a possible sentence.
One hopes that all involved in this trial will consider the constitutional requirement for open justice as set out above before proceeding with a secret trial for both accused in this case. They will also have to take note of the fact that it is imperative to conduct the trial in such a way that it enhances, rather than detracts, from the legitimacy of the judiciary. Excessive secrecy may well lead to misunderstandings and distrust and may well allow people to question the legitimacy of the legal process – regardless of the outcome – in a manner that could severely harm the authority and integrity of the judiciary.
Although I am slightly conflicted on this issue, on balance, given the legal framework and the jurisprudence of the Constitutional Court, the decision of the NPA to conduct both trials in camera therefore seems wrong on policy grounds. The decision also seems to be constitutionally problematic. A rethink by the NPA is thus required.BACK TO TOP