As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
When footage of the Marikana massacre was broadcast on television news channels in South Africa and when newspapers subsequently published gruesome pictures of some of the bodies of the 34 (black) mine workers killed by the police, few people expressed concern about the dehumanising effect the publication of these images would have on the families of the Marikana massacre victims and on the rest of us. Very few people also commented on the media’s invasion of the privacy and the dignity of the 34 dead miners.
Because the miners who were killed on that day were black and working class and in no way famous, few people stopped to think about the human implications of publishing these images. After all, in our racist society, black bodies and the blood of black people (especially working class black people who are not famous) are seldom valued as highly as white bodies and the blood of white people (especially blond, famous, white people).
That is why you would never see pictures of the bodies of murdered blond white men or women published in newspapers. No editor in South Africa would dare to dehumanise white bodies in that way. The outrage from the vocal (mostly, but tellingly, not exclusively white) readers would engulf any publication who would dare to publish such pictures as the readers would feel that the privacy and dignity of the victims and their families were infringed in an outrageous and clearly impermissible manner.
But in our racist society, different rules apply to working class black mine workers.
There might, of course, have been good reasons to publish these images of the Marikana victims. The publication of these images exposed the brutality of the police and forced the government to institute a commission of inquiry. It could therefore be argued that it was in the “public interest” to publish some of these images. But in retrospect, I am not sure that in this case the public interest outweighed the interest of the dignity of those killed.
Besides, the question remains: would any publication have published images of 34 middle-class white people being mowed down by the police? I seriously doubt it.
In this context I will not share in the outrage at the publication by Sky News of pictures of the bloody toilet in which Steenkamp was gunned down by Pistorius. Goodness, the pictures do not even show graphic images of the woman who died at the hands of a famous but (it now appears) rather volatile and callous young man.
Besides, as far as I can tell, there is nothing illegal about the publication of these pictures. Although the Criminal Procedure Act prohibits the publication of the identity of an accused person in certain circumstances, there is nothing in the Act that prohibits the publication of pictures taken at a potential crime scene.
This is why you can take pictures of the scene of a car accident or of a scene where members of the police were involved in a shootout with cash in transit robbers. You can also publish pictures of the bank where a bank robbery occurred. And when members of the police confiscate pictures you have taken of a crime scene (or pictures you have taken of the police involved in some or other form of brutality or unlawful activity) they are breaking the law.
In deciding whether to publish pictures taken at a crime scene, only matters of taste (and of the politics of white and black bodies) determine whether those pictures should be published or not.
Of course, in terms of the common law, the media is prohibited from publishing information that would prejudice the fairness of any future criminal trial. This rule is generally referred to as the sub judice rule. But in the constitutional era this rule has been completely watered down to the point close to extinction. (Don’t believe any politician who tells you otherwise). This leaves the media with a wide discretion to decide for itself whether it would be wise to publish certain pictures of a crime scene or not.
In 2007, in the case of Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) the Supreme Court of Appeal (SCA) in 2007 confirmed that the broad scope of the so called sub judice rule (which prohibited the publication of most information regarding a forthcoming trial in the pre-constitutional era) has been severely curtailed by the Constitution.
In the context of a case dealing with pre-publication censorship imposed on the media in relation to reporting of criminal cases, the SCA summarised the new position as follows:
[A] publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information.
This test must be applied in the light of the principle set out by the Constitutional Court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others, which affirmed that – unlike members of the public commenting on Twitter – judicial officers will be presumed to be impartial in adjudicating disputes and will not easily be swayed by information published in the media.
In the SARFU case the late Louis Luyt asked several judges of the Constitutional Court to recuse themselves from the hearing because he feared that they would be biased against him. The Constitutional Court rejected this argument and pointed out that their “legal training and experience prepare judges for the often difficult task of fairly determining where the truth may lie in a welter of contradictory evidence”.
Unlike ordinary citizens who might jump to conclusions after seeing pictures of the Oscar Pistorius house after the shooting, judges will not easily be swayed by such pictures published out of context on a news website or on television.
Given this view, it would be impossible to argue that the publication of the Oscar Pistorius crime scene pictures would have any bearing on the outcome of the case. The presiding judge would, in any case, have had sight of the pictures at some point during the trial. If he or she saw the pictures in the media, it will be assumed not to have any influence on him or her and could not possibly be seen as affecting the fairness of the trial to come.
Of course, if specific pictures are presented in a manner that suggests that an accused is guilty of the offence, then this might have the effect of defaming the accused. If the accused is later acquitted, he or she could then sue for defamation – although that would usually be a very risky strategy because such cases have a tendency to destroy, rather than to rescue, the reputation of those who sue for defamation.
Given these legalities, the outcry against the publication of the pictures taken at the scene of the Reeva Steenkamp killing may have more to do with the fact that the pictures remind us that Pistorius actually violently killed a woman. The sight of all that blood makes it just a little bit more difficult to think of Pistorius as an innocent victim.
But because he is famous, because the story manufactured about him by the media inspired many, and because he is white and rich, some people find it difficult to square their image of Pistorius with pictures of all that blood in the toilet. Better then to blame Sky News for publishing the pictures than to confront the reality of how much blood is spilt when a man shoots and kills his partner.BACK TO TOP