S v Pistorius: Open justice, media coverage of court proceedings and the elephant in the room

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The murder trial of the world-famous paralympic athlete and icon Oscar Pistorius, in connection with the killing of his girlfriend, the model Reeva Steenkamp, was the first criminal trial to be televised live in South Africa. This case generated unprecedented media coverage and was declared the newsmaker of the year for 2014.

Pistorius was charged with murder, read with the provisions of section 51(1) of the Criminal Law Amendment Act 105 of 1977, as well as three counts of contravening sections of the Firearms Control Act 60 of 2000. On 12 September 2014 Masipa J acquitted Pistorius of murder, but convicted him of culpable homicide for the killing of Steenkamp. In addition, he was convicted on one count in terms of the Firearms Control Act. On the conviction of culpable homicide he was sentenced to five years’ imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act 51 of 1997, and on the firearms-related conviction he was sentenced to three years’ imprisonment, wholly suspended for five years. The court ordered that the sentences be served concurrently.

The state applied for leave to appeal against both the conviction on culpable homicide and the sentence imposed in respect thereof. On 10 December 2014 Masipa J granted leave to appeal only against the conviction on culpable homicide.

Pistorius was released from prison on 19 October 2015 and placed under house arrest. The appeal hearing in the supreme court of appeal was heard on 3 November 2015 and judgment was reserved. On 3 December 2015 the court ruled in favour of the state and the conviction on culpable homicide was set aside and replaced with a conviction of murder. The case was remitted to the trial court for consideration and imposition of a fresh sentence. Pistorius lodged an application for leave to appeal to the constitutional court on 11 January 2016 but this application was refused on 3 March 2016.

Pre-sentence proceedings took place before Masipa J from 13 to 15 June 2016. The state argued that the prescribed minimum sentence of 15 years’ imprisonment should be imposed. Pistorius was, however, sentenced to six years’ imprisonment. On 26 August 2016 the state brought an application for leave to appeal against this sentence on the basis that it was shockingly inappropriate, which application was dismissed with costs. The state subsequently petitioned the supreme court of appeal for leave to appeal, but the outcome of the petition is still pending.

This contribution will not focus on the legal question of whether Pistorius acted intentionally or negligently when he shot and killed Reeva Steenkamp. The focus will be placed on the impact the live televising of the proceedings, in both the trial court and the court of appeal, had on the trial of the accused and the criminal justice system in general.

The trial was preceded by an application launched by the electronic and printed media in Multichoice (Proprietary) Limited v National Prosecuting Authority 2014 1 SACR 589 (GP), where permission was sought to cover the entire trial of Pistorius via radio and television broadcasts as well as through photographs in the printed media. The judgment highlighted the interaction between the proper functioning of the criminal justice system and the zealousness of the media to cover court proceedings. Different, apparently conflicting constitutional rights, such as the right to a fair trial on the one hand and the right to freedom of expression and the principle of open justice on the other hand, became relevant during this inquiry.

The applicants argued that both Pistorius and the deceased were local and international icons, which generated immense public interest both locally and internationally. They highlighted that the bail proceedings had been chaotic, as there had been insufficient space for reporters and members of the public. Permission was sought to install television and still cameras in court to cover the trial in the media. This application was originally opposed by both the director of public prosecutions and Pistorius on the ground that it might impact on the fairness of the trial. After discussions, the director of public prosecutions withdrew his objection, but Pistorius objected against broadcasting of the trial by any means.

In its judgment, the court set out the historical approach to applications by the media to cover judicial proceedings by analysing prior applications. In addition, the court referred to SA Broadcasting Corporation Ltd v Thatcher [2005] 4 All SA 353 (C) where a comparative legal overview of the coverage of court proceedings in the United Kingdom, the United States of America, Canada, Australia and New Zealand was undertaken.

The court found that there was a direct conflict in this matter between the right of the accused to a fair trial and the right to freedom of expression, which includes the right to freedom of the press. In an attempt to balance these conflicting rights, the court should attempt to uphold the interests of justice. In terms of section 173 of the Constitution, the court has the power to regulate its own procedure and processes, taking into account the interests of justice. This balancing process should not have the result that one right will be watered down against the other. The values of openness and accountability underlie our constitutional democracy. Allowing media coverage, while still protecting the right to a fair trial, would make the justice system more accessible to the public at large and dispel negative and unwarranted criticism against the system. The court accordingly allowed the setting up of broadcasting equipment and determined which portions of the trial could be transmitted live as well as what could be filmed.

This contribution further affords an updated comparative legal overview of the five jurisdictions discussed in the SA Broadcasting Corporation Ltd v Thatcher. The in-court media cover guidelines applicable in New Zeeland are set out and discussed in detail. It is commented that these guidelines are comprehensive and well structured. It creates a practical framework to guide presiding officers when exercising their judicial discretion to allow or refuse media coverage.

The main arguments in favour of and against media coverage are then evaluated. These arguments are based on the interest and role of the various role players concerned with court proceedings as well as the underlying constitutional rights the role players rely on.

The media argue that they have the duty to provide members of the public with information, which in turn will educate members of the public about the judicial process and promote the principle of open justice. Section 16 of the Constitution supports this view.

Caution is expressed that the media often sensationalise high-profile cases and in that sense do not act as mere agents of the public reporting objective facts. Advocacy journalism affords the opportunity for journalists to resort to subjective reporting. What a television viewer sees is not what happened in court, as the final production is often influenced by the prejudices and ideological or political views of the producer.

The judiciary especially is critical of the media coverage of court proceedings, as it is feared that the dignity of court proceedings as well as the competency of courts to regulate their own proceedings may be impacted on. It is pointed out that these arguments do not have much merit today, as digital broadcasting equipment is totally unobtrusive and operates almost unnoticeably.

The parties to court proceedings are very important role players and the infringement there may be on the fairness of trials by media coverage is real, as it may have a negative impact on the parties, witnesses and the quality of evidence. The mere presence of television cameras may cause witnesses to be intimidated and become reluctant to testify. A real danger exists that witnesses may be influenced in their testimony and even adapt their evidence if they are able to follow the evidence of witnesses testifying before them. This, in fact, took place in the Pistoriustrial when witness Darren Fresco admitted that he knew before testifying which issues would be canvassed with him as he watched the broadcasted evidence of witnesses who testified before him.

It is concluded that section 16 of the Constitution, which guarantees freedom of the press as well as the right to receive and share information, is in direct conflict with the right of an accused to a fair trial. This perceived conflict is created mostly by the insatiable craving of the public for real courtroom dramas and the pursuit of profit by media houses.

The negative effects of media sensationalism and irresponsible journalism can be prevented if other means are employed to give the public at large access to court proceedings, such as webcams being installed in courtrooms. In view of the fact that only 52% of South Africans have access to the internet and that the cost of streaming an entire trial is expensive for the end user, this mechanism seems impractical.

As 78% of South Africans have access to public radio and television broadcasts, it is recommended that a specially dedicated public television channel, akin to the current parliamentary channel, be utilised to cover high-profile cases. To eliminate the danger that the public broadcaster might be unwilling to broadcast high-profile cases involving politicians for example, it is suggested that any interested party, even members of the public, may apply to the presiding officer to have the trial covered on the dedicated public channel. It is suggested that the New Zealand application procedure be adopted and applied locally in this regard.

The problem of influencing witnesses may be addressed by introducing a lag period between the actual testimony of the witness and the broadcasting thereof. This will, however, affect the live character of the transmission. It will not be feasible to sequester witnesses as is done with jury members in high-profile cases in the United States of America.

Live media coverage of the Pistoriustrial indeed afforded the first opportunity for ordinary members of the public to observe the operation of the South African justice system first-hand without attending court. The coverage furthermore supported and enforced the principle of open justice.

Keywords: accusatorial system; freedom of the press; media coverage of court proceedings; open justice; right to fair trial; right to freedom of expression; S v Pistorius

Lees die volledige artikel in Afrikaans: S v Pistorius: Ope geregtigheidspleging, mediadekking van hofverrigtinge en die olifant in die kamer

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