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[2017] ZAWCHC 120
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S v Van Breda (SS17/16) [2017] ZAWCHC 120 (31 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: SS17/16
In the matter between:
THE
STATE
V
HENRI
CHRISTO VAN
BREDA
Accused
RULING:
TUESDAY, 31 OCTOBER 2017
DESAI,
J:
This
is the 54
th
day of the trial. The Accused is indicted
before us on several charges
inter alia
of murder, the victims
being members of his family. The State has closed its case and
several witnesses have already testified in
support of the Accused’s
defence. The matter is being livestreamed and also broadcast from
time to time on national television
following the judgment of Ponnan
JA in
Van Breda and Media 24 Limited & Others
handed down
on 21 June 2017 under case number 425/2017 in the Supreme Court of
Appeal.
I
have read the said judgment and I am now being called upon to give
further effect to it in the present circumstances.
Mr
Botha, appearing for the Accused, has indicated that his client, the
Accused, wishes to testify but asks that the livestreaming
and
television broadcast be suspended during the course of his testimony.
He submits that his client suffers from some speech impediment
and if
his testimony is televised his client may “stutter or even
mutter”. This he argues may have a negative impact
upon the
quality of his client’s evidence.
Mr
Botha expressly conceded that he could not argue actual prejudice to
the Accused’s case if the livestreaming continues.
At best for
his client it was contended that there was potential prejudice. I am
not persuaded that there is a real risk of substantial
prejudice to
the administration of justice. Such prejudice, if any, is not
demonstrable in this instance.
The
right to broadcast information and of course the right to freedom of
expression flow from section 16 of the Constitution and
are accepted
pillars of the constitutional order (see
Van Breda
supra
at
para 10) and essential in the endeavour to achieve open justice.
Pursuant
to paragraph 71 of the
Van Breda
judgment
supra
the
Court has taken into account the degree of risk involved in the
further livestreaming of the trial and the possibility of
jeopardising
the Accused’s fair trial rights as a consequence
thereof.
Mr
Botha did not, in fact, indicate any possible prejudice to the
Accused’s right to a fair trial. When it was put to Mr Botha
that the court consisted of experienced triers of fact and it would
not hold against any witness a speech impediment, he pointed
out that
the possibility of subconscious influence remains. This warrants no
further comment.
What
the Court is called upon to do is exercise a proper discretion in the
specific circumstances of this case. Having carefully
considered what
Mr Botha has to say, I am disinclined to make inroads into a
constitutionally defined right especially in that
the objections
advanced on behalf of the accused appear not to be sufficiently
significant or substantial.
In
the result, the application to bar the broadcast of the Accused’s
evidence is refused. This order may be revisited at any
stage should
the need arise.
……………………
DESAI,
J