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Willem de Klerk
The judgment handed down by the Supreme Court of Appeal (SCA) regarding the filming of Henri van Breda’s criminal trial is a significant one.
The judgment adds to a body of law developed over the past few years that promotes the principal of open justice and finally closes the door on the blanket exclusion of cameras in court.
In a unanimous judgment the court said that the media’s role in accurately and fairly reporting on court proceedings make an “invaluable contribution to public confidence in the judiciary and thus, to the rule of law itself”.
After meticulously recording the growing acceptance of cameras in the courtroom in several major jurisdictions around the world, including the US, UK, Canada, Australia, New Zealand, Germany and Israel, the court came to the conclusion that it would be irrational to exclude television coverage of court proceedings as a rule.
“The majority of South Africans rely principally on radio and television for their news and information,” the court observed. “There simply can be no logic in a court permitting journalists to utilise the reporting techniques of the print media but not permitting a television journalist to utilise his or her technology and method of communication … despite the fact that ‘live camera footage will be more accurate than a reporter’s after-the-fact summary’.”
One by one, the court dismantled all of the stock arguments typically raised against televised court proceedings. No longer do we have to deal with “flashbulbs and microphones”, the court said, and a discretely placed camera would not, as has been argued, undermine the “decorum” of the court. Keeping cameras out of the courtroom would also not prevent witnesses yet to testify from knowing what was already testified, because of technology like Twitter and Facebook. Instead, the court gave useful practical guidance on how to manage the risk of witnesses tailoring their evidence based on the testimony of others.
The argument that television cameras would have an adverse psychological impact on trial participants was also rejected as unsupported by studies elsewhere. The blanket exclusion of televised proceedings, as advocated for by the National Director of Public Prosecutions (NDPP), was rejected outright as impermissible. The better approach, the court said, would be to tailor the extent of televised coverage to cater for particular concerns in particular cases.
For example, the court suggested, if there are valid concerns about a specific witness, it could be ordered that his or her evidence not be televised in full, but instead be limited to audio broadcast only.
What this judgment means is that televised court proceedings are not only an inescapable reality, but also one that is constitutionally ordained. Previous court judgments that said otherwise must “yield to a new reality”, the court said.
While judges retain the right to restrict television coverage of parts of trial proceedings, the court made it clear that such restrictions are not just for the asking. “Courts will not restrict the nature and scope of the broadcast unless the prejudice is demonstrable and there is a real risk that prejudice will occur”, the court said. “Mere conjecture or speculation that risk may occur ought not to be enough.”
In the result the SCA referred the matter back to the Western Cape High Court in order for it to tailor its ruling on televised coverage in light of these sentiments. One would have to wait and see how all of this plays out in the Van Breda trial. But ultimately there is no doubt that this is a landmark ruling and a bold step by the SCA in embracing new technology to promote open justice.
The real winners, after all, are the public, who will no doubt benefit from live coverage of important trials in the future.
- Willem de Klerk is an experienced litigation attorney and Johannesburg-based media lawyer. He acts as legal representative for various Media24 publications.
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