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[2014] ZAGPPHC 37
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Multichoice (Proprietary) Limited and Others v National Prosecuting Authority and Another (10193/2014) [2014] ZAGPPHC 37; [2014] 2 All SA 446 (GP); 2014 (1) SACR 589 (GP) (25 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 10193/2014
DATE:
25 FEBRUARY 2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In the matter
between:
MULTICHOICE
(PROPRIETARY)
LIMITED
.....................................................
First
Applicant
COMBINED
ARTISTIC PRODUCTIONS
CC
.................................................
Second Applicant
PRIMEDIA
BROADCASTING, A DIVISION OF
PRIMEDIA (PTY)
LTD
...........................................................................................
Third
Applicant
AND
THE NATIONAL
PROSECUTING AUTHORITY
...........................................
First
Respondent
OSCAR
LEONARD
PISTORIUS
....................................................................
Second
Respondent
In re
:
THE
STATE
…................................................................................................
(CASE
NO: 13/25513)
VS
OSCAR LEONARD
PISTORIUS
AND IN RE:
MEDIA
24
LIMITED
.......................................................................................
(CASE
NO: 10378/14)
TIMES
MEDIA GROUP LIMITED
INDEPENDENT
NEWS AND MEDIA LIMITED
AND
DIRECTOR OF
PUBLIC PROSECUTIONS
NORTH GAUTENG
OSCAR LEONARD
PISTORIUS
E.Tv
PTY LIMITED
E.Sat PTY
LIMITED
Heard: 19
February 2014
Delivered: 25
February 2014
Summary:
Application for broadcast permission of criminal trial –
Contestation of Constitutional Rights – Right of Freedom of
Expression – Right to a Fair Trial – Open Justice
Principle - Balancing exercise of contesting rights – Court’s
discretionary power in terms of Section 173 of the Constitution –
objective is to uphold Interests of Justice. Full audio
and limited
audio-visual and photography relief permitted.
JUDGMENT
MLAMBO, JP
[1]
The electronic, broadcast and print media have approached this Court
to grant them permission to broadcast the entire criminal
proceedings
in the matter of The State vs Oscar Leonard Pistorius (Pistorius).
They seek permission to do this through audio, audio-visual
and
photographic means. The matter brings into sharp focus the interface
between the functioning of the criminal justice system
on the one
hand and the quest by the media and press to participate in that
system on the other hand. This interface finds expression
in a number
of critical constitutional rights that are seemingly on a collision
course with one another. These are the rights of
an accused person
and the prosecution to a fair trial on the one hand and the freedom
of expression rights of the media as well
as the open justice
principle.
The
facts:
[2]
Pistorius is due to stand trial on a charge of murder arising from an
incident that took place during the night of 14 February
2013, a date
recognized by many as Valentine’s Day. During this incident Ms
Reeva Steenkamp (Steenkamp) lost her life. Steenkamp
and Pistorius
were involved in a romantic relationship. This trial is due to
commence on 3 March 2014 in this Court. e.Tv and e.Sat
(the e.Tv
applicants) approached this court in August last year by way of
notice of motion seeking permission to broadcast the
entire criminal
trial proceedings through audio-visual and/or alternatively audio
means. At that stage the Director of Public Prosecutions
(DPP) as
well as Pistorius opposed the relief sought. Later, other applicants
filed applications similar to the e.Tv application,
specifically
representing the print and broadcast media.
[3]
The print media applicants
[1]
sought the permission of this Court to install cameras in the trial
court room to take still photographs of the entire proceedings.
This
application was similarly opposed by Pistorius. In the background
there were discussions between all the applicants, the DPP
and to
some extent Pistorius seeking to strike a compromise position
regarding the relief sought by the applicants and the stance
adopted
by the DPP and Pistorius. At that stage the broadcast media
applicants
[2]
had not filed
papers even though they were involved in the discussions. These
applicants filed their application on the eve of
a meeting convened
by the Deputy Judge President of this Court aimed at bringing all the
parties together with a view to case managing
and streamlining the
matter. The broadcast media applicants pertinently sought the
permission of the Court to televise the
entire criminal trial
proceedings. As a result of the ongoing discussions, the opposition
by the DPP fell away after a compromise
position was arrived at which
the applicants were agreeable to. I will revert to this part of the
matter later on in this judgment.
Pistorius is not amenable to the
compromise position arrived at and remains steadfastly opposed to the
relief sought by the applicants.
He is opposed to any form of
coverage sought by the applicants. What is necessary at this early
stage, however, is to dispose of
an important housekeeping issue
relating to the three applications before me regarding the
consolidation of the print and broadcasting
applications with the
e.Tv application. That request is not opposed and in my view it is
prudent that all the applications be consolidated
and I hereby order
this.
[4]
What all the applicants have set as their launching base for the
relief they seek is in the first place the fact that Pistorius
is a
local and international icon and that Steenkamp was similarly
placed. In their collective view the criminal trial
proceedings,
due to commence in a week’s time, have captured
the attention and imagination of both the South African and
international
communities. Based on this it is their view that
is in the public interest that the heightened attention focused on
this
matter be adequately accommodated through the means for which
they seek permission, to record and inform these communities of the
trial proceedings as exhaustively as possible.
[5]
Secondly, reference was made to the near chaotic situation that was
experienced in the Magistrates Court of this city, when
Pistorius
applied for bail last year. It is common cause that during those
proceedings the courtroom allocated for the bail proceedings
was
wholly inadequate and could not accommodate all the journalists and
members of the public who showed up seeking to attend and
cover the
proceedings. It is also common cause that the media attention and
coverage of the bail proceedings attracted journalists
far beyond our
borders. Those proceedings were in fact extensively covered by
the print, broadcast and electronic media locally
and
internationally. The interest in the upcoming trial has remained very
strong with international media houses sending scores
of journalists
to cover it. This background is relied on as a basis by the
applicants to assert that it is in the public interest
that they be
granted permission to cover the trial with a view to informing all
and sundry about it.
Right
of freedom of expression
[6]
The applicants have forthrightly asserted their right to freedom of
expression which in their view justifies the permission
they seek.
The applicants also rely on the open justice principle for the
pending criminal trial proceedings to receive as much
publication as
possible. Section 16 of the Constitution
[3]
,
in particular section 16(1)(a), guarantees everyone the freedom of
expression which includes the freedom of the press and other
media as
well as the freedom to receive and/or disseminate information and
ideas. Our Constitutional Court articulated the content
of this right
in ,
South
African National Defence Union v Minister of Defence and Another
[4]
in the following terms:
“
Freedom
of expression lies at the heart of a democracy. It is valuable for
many reasons, including its instrumental function as
a guarantor of
democracy, its implicit recognition and protection of the moral
agency of individuals in our society and its facilitation
of the
search for truth by individuals and society generally. The
Constitution recognises that individuals in our society need
to be
able to hear, form and express opinions and views freely on a wide
range of matters.
”
[7]
In a further articulation of the freedom of expression right the
Constitutional Court in
Khumalo
and Others v Holomisa
[5]
stressed the following with regard to the role played by the media in
that regard:
“
The
print, broadcast and electronic media have a particular role in the
protection of freedom of expression in our society. Every
citizen has
the right to freedom of the press and the media and the right to
receive information and ideas. The media are key agents
in ensuring
that these aspects of the right to freedom of information are
respected
.”
[8]
Our Courts have also grappled with the issue of permitting the
exercise and enjoyment of the freedom of expression right in
court
proceedings. A decision that comes to mind is
Dotcom
Trading 121 PTY Limited v King NO and others
[6]
.
The issue in that matter was whether to allow the audio broadcasting
of the proceedings of the King Commission that was
established to
investigate match fixing in the sport of Cricket in this country.
That Court
[7]
expressed itself
on this issue as follows:
“
It
is almost self-evident in my view that the prohibition of the direct
radio transmission of proceedings by a radio broadcaster
constitutes
a limitation on what is essential to the activities of the medium of
communication. I have heard no argument
and I can see no reason
in logic why a limitation on what constitutes the very essence and
distinguishing feature of the radio
broadcasters’ medium of
communication does not constitute an infringement of the radio
broadcasters’ freedom which
is enshrined in section 16(1)(a).
It is not without reason, so it appears to me, that section 16(1)(a)
of the Constitution does
not limit its guarantee to the freedom of
the press, but specifically extends this freedom to other media of
communication and
expression as well. Each of these media of
communication and expression has its own distinguishing features and
each of them
can be limited in a different way. The video
camera most probably provides the ultimate means of communication.
But
radio also has its advantages over the print media. Not
only the words spoken, but the emphasis, the tone of voice, the
hesitations,
etcetera can be recorded and communicated. To
prevent the radio broadcaster from recording the evidence is to
deprive him
of that advantage over the print media”.
[9]
In
SA
Broadcasting Corporation Ltd v Thatcher and Others
[8]
the court was directly confronted with a request to broadcast
criminal court proceedings. The court, after conducting an
authoritative analysis of the legal landscape regarding this issue,
locally and internationally, granted limited coverage stating
that it
had to “
exercise
its discretion to issue a just and equitable order while taking
cognisance of its inherent power to regulate its own proceedings”.
This
involved balancing the right to privacy against the right of freedom
of expression which, in the case of the media, translates
into
freedom of the press
.
[10]
In addition to the
Dotcom
and
Thatcher
decisions, other
courts have also grappled with the issue
[9]
.
The two Courts in this country whose decisions bind me have also
spoken on this subject and I have derived valuable guidance from
the
decisions concerned. One such decision is from the Supreme Court of
Appeal in
South
African Broadcasting Corporation Limited v Downer SC NO and
others
[10]
.
In that matter the Supreme Court of Appeal considered and refused an
application by the SABC to televise and sound record
the appeal
proceedings it was due to hear. This decision was taken on
appeal to the Constitutional Court whose judgment is
reported as
South
African Broadcasting Corporation Ltd v The National Director of
Public Prosecutions
.
[11]
In its majority judgment our highest court whilst, confirming the SCA
decision, explored the appropriate approaches to be
followed by
courts when considering applications of this nature. I will
revert to these decisions shortly.
[11]
It must be stated that when considering the exercise of the media’s
freedom of expression right in the courtroom one
has to confront the
elephant in the room, that is the right to a fair trial which is
invariably asserted against the former right
as we see in the
Thatcher
and
Downer
decisions referred to earlier. It
is that situation that confronts us in this matter. Whilst this may
not have been so pronounced
in the
Dotcom
matter, this clash
of rights has featured prominently in the decisions of the SCA and
the Constitutional Court and how the competing
rights should be
balanced.
The
right to a fair trial
[12]
Pistorius contends that the live broadcasting of his criminal trial,
through audio (radio), audio-visual (television) and still
photographic means, will infringe his right to a fair trial.
His view is that the mere knowledge of the presence of audio
visual
equipment, especially cameras, will inhibit him as an individual as
well as his witnesses when they give evidence. He
has also
asserted that his Counsel may also be inhibited in the questioning of
witnesses and the presentation of his case. He further
is of the view
that covering his trial as is sought by the applicants will enable
witnesses still to testify to fabricate and adapt
their evidence
based on their knowledge of what other witnesses have testified.
In his view the requested broadcasting of
his trial will have a
direct bearing on the fairness of the trial and contends that should
the relief be granted he will most certainly
not enjoy a fair trial.
[13]
Our Constitutional Court has been vocal regarding the protection of
the right to a fair trial. Indeed any accused person
who
appears in a court of law facing any charge has the constitutionally
guaranteed right to a fair trial, which includes the foundational
values of dignity, freedom and equality which are central to a fair
trial. In this regard the Constitutional Court in
S
v Dzukuda and Others
;
S
v Tshilo
[12]
confirmed that the right to a fair trial is “…
a
comprehensive right and embraces a concept of substantive fairness …
”
and that “
at
the heart of the right to a fair criminal trial and what infuses its
purpose is for justice to be done and also to be seen to
be done
.”
Interest
of Justice
[14]
There is therefore a clear contestation of rights in this matter. In
resolving that contestation section 173 of the Constitution
enjoins
me in whatever I do to ensure that the interests of justice are
upheld. That section provides that “
The
Constitutional Court, the Supreme Court of Appeal and the High
Court of South Africa each has the inherent
power to protect and regulate their own process, and to develop the
common law, taking
into account the interests of justice
”
.
[15]
It is inevitable therefore that as any court goes about in exercising
its power in terms of section 173, it must engage in
a balancing
exercise especially, as we have here, it deals with a number of
competing rights, to ensure that the interests of justice
are
safeguarded. In the
South
African Broadcasting Corporation Limited vs Downer SC
[13]
matter
the Supreme Court of Appeal articulated the necessary balancing
exercise in the following terms: “
The
very issue here is whether that right should prevail at the expense
of the respondents’ competing constitutional rights.
To obtain
the answer requires us to undertake a balancing exercise in which the
rival rights are weighed up against each other
after having regard,
in the process, to the particular facts of the case. Implementation
of the required balancing exercise is
facilitated by the existence of
section 173 of the Constitution which declares this Courts inherent
power to regulate its own process.”
And
further “
the
interest of justice will naturally encompass the requirements of
section 34 and 35(3) but in addition the court is empowered
to decide
how best the parties competing rights can be
accommodated.”
[14]
[16]
The Constitutional Court has also given guidance to courts in general
on how to go about when considering applications of this
nature and
upon the exercise of their powers under section 173. In
South
African Broadcasting Corporation v
The
National Director of Public Prosecutions
[15]
the Constitutional Court confirmed that section 173 affirms the
impartiality and independence of the courts especially in the regard
that the section recognizes the inherent power of the courts to
regulate and protect their own processes. The court further
confirmed that in the exercise of the inherent power in section 173
the courts must ensure that primarily their proceedings are
fair.
The overarching objective of any court in the exercise of its power
in terms of section 173 is that the court must
take into account the
interests of justice. Of particular importance is what the
court said in paragraph 37 that:
“
When
courts exercise the power to regulate their own process it is
inevitable that that power will affect rights entrenched in chapter
2
of the Constitution. A Court must regulate the way proceedings
are conducted and this will inevitably affect both the right
to a
fair trial (section 35 of the Constitution) and the right to have
disputes resolved by courts (section 34). Courts are
bound by
the provisions of the Bill of Rights and therefore bear a duty to
respect those rights. In exercising the power,
therefore, they
must take care to ensure that those rights are not unjustifiably
attenuated
”.
[17]
The phrase interests of justice does not only relate to an accused
person’s right to a fair trial but also to the prosecutions
right to the same right as well as that other interested persons
rights in the same proceedings should also be promoted.
In
S
vDlamini; S v Dladla and Others; S v Joubert; S v Schietekat,
Kriegler
J described the phrase as ‘
a
useful term
denoting
in broad and evocative language a value judgment of what would be
fair and just to all concerned
’
.
[16]
As part of this court’s effort to regulate it’s processes
a practice directive was also issued some time ago to regulate
matters of this nature. The balancing exercise that courts must
undertake is related to how and to what extent does the court allow
the enjoyment of each right asserted.
Balancing
exercise
[18]
The right to a fair trial asserted by Pistorius suggests that the
freedom of expression rights to which the applicants lay
claim should
be attenuated and that the open justice principle should necessarily
suffer the same fate. It is inevitable that in
the exercise of the
balancing act as well as the power found in section 173, the rights
at issue in this matter will inevitably
be limited in one way or the
other. The approach to ensuring that each right finds
expression and the extent thereof was
in my view clearly articulated
by the Supreme Court of Appeal in the matter of
Midi
Television Pty Limited v Director of Public Prosecutions
(Western Cape)
[17]
in par 9 to the following effect:
“
Where
constitutional rights themselves have the potential to be mutually
limiting – in that the full enjoyment of one necessarily
curtails the full enjoyment of another and vice versa – a court
must necessarily reconcile them. They cannot be reconciled
by
purporting to weigh the value of one right against the value of the
other and then preferring the right that is considered to
be more
valued, and jettisoning the other, because all protected rights have
equal value. They are rather to be reconciled by recognising
a
limitation upon the exercise of one right to the extent that it is
necessary to do so in order to accommodate the exercise of
the other
(or in some cases, by recognising an appropriate limitation upon the
exercise of both rights) according to what is required
by the
particular circumstances and within the constraints that are imposed
by s 36
”.
[19]
It is this test that I have employed in considering the applications
and the rights asserted by the protagonists before me.
My point
of departure is to ensure that each of the rights asserted find
proper expression and enjoyment without being unduly limited.
In oral
argument before me I was directed to the different forms of coverage
sought i.e. audio-visual, audio and still photography.
What is
clear however when one considers the opposing representations filed
on behalf of Pistorius is that whilst the focal point
of his
opposition is directed at the live audio-visual coverage of the
criminal proceedings, his opposition to the audio and still
photography coverage of the trial requires further attention.
In keeping with the approach suggested by the Supreme Court
of
Appeal, in
Downer
,
it is not open for me to look at the value of each right and
disqualify it in favour of another. My task is to look at each
right at stake and permit its enjoyment to achieve the objective for
which it is asserted. In this regard the freedom of
expression
right, which itself is not immune from limitation, goes a long way
into complementing the open justice principle that
is relevant in the
context of this matter and also requires articulation in my
decision. When considering the freedom of
expression right in
so far as it relates to the audio-visual request, in particular, the
cautionary injunction that was mentioned
by the Constitutional Court
in
South
African Broadcasting Corporation Limited vs The National Director of
Public Prosecutions
[18]
must not be lost sight off. I have in this regard what that
court said in par 68 to the effect that:
“
Before
turning to the question of the order, we consider it helpful to set
out some considerations which in our view need to be
taken into
account in the future when the question of televising court
proceedings is raised. The time has come for courts to embrace
the
principle of open justice and all it implies. However, in our view,
it should be borne in mind that the electronic media create
some
special difficulties for the principle of open justice. Broadcasting,
whether by television or radio, has the potential to
distort the
character of the proceedings. This can happen in two ways: first, by
the intense impact that television, in particular,
has on the viewer
in comparison to the print media; and second, the potential for the
editing of court proceedings to convey an
inaccurate reflection of
what actually happened. This is particularly dangerous given that
visual and audio recordings can be edited
in a manner that does not
disclose the fact of editing. This distorting effect needs to be
guarded against. It arises not so much
from the presence of cameras
and microphones interfering with the court proceedings themselves.
But more dangerously, it may arise
from the manner in which coverage
can be manipulated, often unwittingly, to produce communications
which may undermine rather than
support public education on the
workings of the court and may also undermine the fairness of the
trial. Such distortions are much
more likely to arise from edited
highlights packages than from full live broadcasts.”
[20]
It is also instructive not to forget that the Constitutional Court
itself mentioned that in exercising the power in section
173;
especially to uphold the interests of justice; both accuracy and
balance are necessary to ensure this. Furthermore it
is
necessary to keep in mind that in the open democratic society
envisaged by our Constitution and “in which the public have
a
right of access to the workings of the judicial system”, the
issue is not whether the electronic, broadcast or print media
-
should be allowed to cover court proceedings, “
but
how guarantees can be put in place to ensure that the public is
indeed well informed about how the courts function
”
[19]
when dealing with proceedings before them.
[21]
I am not persuaded that the objection by Pistorius to the coverage of
his pending criminal trial should be jettisoned to the
extent he
suggests. I have found merit in the argument on behalf of the
applicants that acceding to the objection by Pistorius
fully will
perpetuate the situation that only a small segment of the community
is able to be kept informed about what happens in
court rooms because
of this minority’s access to tools such as Twitter.
Acceding to that argument will also perpetuate
the reality that the
community at large remains dependent for news on what happens in the
court room from the summarised versions
of the journalists and
reporters who follow these proceedings. These summarised
versions or accounts have, in my view, been
correctly categorized as
second hand, liable to be inaccurate as they also depend on the
understanding and views of the reporter
or journalist covering the
proceedings
The
principle of open justice
[22]
My views to the objections raised by Pistorius find support in the
open justice principle. Acceding to the objection in their
entirety
will surely jettison the noble objectives of the principle of open
justice when one takes cognizance of our development
in the
democratic path. At this day and age I cannot countenance a
stance that seeks to entrench the workings of the justice
system away
from the public domain. Court proceedings are in fact public
and this objective must be recognized.
[23]
Our Constitution is underpinned by a number of values and for
purposes of this case I refer to openness and accountability.
In this regard it is also important to take cognizance of the fact
that sections 34 and 35(3)C) make it very clear that even criminal
proceedings in this country are to be public. The basis for
this is that courts of law exercise public power over citizens
and
for this it is important that proceedings be open as this encourages
public understanding as well as accountability.
Perhaps the
clearest endorsement of the open justice principle is by the
Constitutional Court in
S
v Mamabolo
[20]
where it was stated:
“
Since time
immemorial and in many divergent cultures it has been accepted that
the business of adjudication concerns not only the
immediate
litigants but is a matter of public concern which, for its
credibility, is done in the open where all can see.
Of course
this openness seeks to ensure that the citizenry know what is
happening, such knowledge in turn being a means towards
the next
objective: so that the people can discuss, endorse, criticize,
applaud or castigate the conduct of their courts.
And,
ultimately, such free and frank debate about judicial proceedings
serves more than one vital public purpose. Self-evidently
such
informed and vocal public scrutiny promotes impartiality,
accessibility and effectiveness, three of the important attributes
prescribed for the judiciary by the Constitution”
.
[24]
It is also worth our while to take cognizance of what the House of
Lords has said in this regard in the matter of
McCartan
Turkington Breen (A Firm) v Times News Papers Limited
[21]
to the effect that
“
In a
modern, developed society it is only a small minority of citizens who
can participate directly in the discussions and decisions
which shape
the public life of that society …. The majority cannot
participate in the public life of their society
… if they are
not alerted to and informed about matters which call or may call for
consideration in action. It is
very largely through the media …
that they will be so alerted and informed. The proper
functioning of a modern participatory
democracy requires that the
media be free, active, profession and inquiring”.
[25]
In balancing the competing rights at stake it is my view that the
objection by Pistorius regarding the audio-visual recording
as well
as the still photography of him and his witnesses should not be taken
lightly. It was argued on his behalf forthrightly
that the
inhibitory effect of audio-visual recording equipment, in particular
the knowledge and awareness thereof by himself and
his witnesses,
will be great when they give their evidence. This potential was
recognized by our highest court in the
SABC
vs NDPP
[22]
.
For this reason I am
of the view that the audio-visual or televising and still photography
of Pistorius and his witnesses when they
testify be disallowed as
this has the potential to deprive him of a fair trial on the grounds
spelt out in argument on his behalf.
I am persuaded that there is
merit in his fears and that of his witnesses that they may be
disabled somewhat in giving evidence.
[26]
On the other hand audio coverage in my view does not carry the same
inhibitory or intrusive potential as the audio-visual form
of
coverage. In my view whilst there may be no visual image of
Pistorius and his witnesses as they testify they should however
be
heard on radio. I am fortified in my view by what the Constitutional
Court said in
SABC
v NDPP
[23]
that : “
It
might well be considered advisable to start with coverage on a trial
basis”
and
in footnote 60 the following is relevant
:
“A further factor that might be considered is whether or not to
start purely with radio coverage. Although print, radio
and
television are all instruments of the media, each presents its own
possibilities and each carries its own dangers for inappropriate
use.
Radio is, accordingly, less amenable to being used in such a way as
to risk misrepresentation and misunderstanding than is
television.
”
[27]
I have further considered the extensive interest that the pending
criminal trial has evoked in the local and international
communities
as well as in media circles. My view is that it is in the
public interest that, within allowable limits, the
goings on during
the trial be covered as I have come to decide to ensure that a
greater number of persons in the community who
have an interest in
the matter but who are unable to attend these proceedings due to
geographical constrains to name just one,
are able to follow the
proceedings wherever they may be. Moreover, in a country like ours
where democracy is still somewhat young
and the perceptions that
continue to persist in the larger section of South African society,
particularly those who are poor and
who have found it difficult to
access the justice system, that they should have a first-hand account
of the proceedings involving
a local and international icon. I have
taken judicial notice of the fact that part of the perception that I
allude to is the fact
that the justice system is still perceived as
treating the rich and famous with kid cloves whilst being harsh on
the poor and vulnerable.
Enabling a larger South African
society to follow first-hand the criminal proceedings which involve a
celebrity, so to speak, will
go a long way into dispelling these
negative and unfounded perceptions about the justice system, and will
inform and educate society
regarding the conduct of criminal
proceedings.
[28]
I must hasten to mention that the decision I have come to should be
embraced with the objective I have spelt out in this judgment.
I mention this as it has come to my attention that there are media
houses that intend to establish 24 hour channels dedicated to
the
trial only and that panels of legal experts and retired judges may be
assembled to discuss and analyse the proceedings as they
unfold.
Because of these intentions, it behoves me to reiterate that there is
only
one court
that will have the duty to analyse and pass
judgment in this matter. The so-called trial by media
inclinations cannot be
in the interest of justice as required in this
matter and have the potential to seriously undermine the court
proceedings that
will soon start as well as the administration of
justice in general.
[29]
Despite the order that I have arrived at it must be understood that
the presiding judge over the criminal trial retains the
ultimate
discretion during the trial regarding aspects of the relief granted
in this matter which may require her attention as
the trial unfolds.
[30]
I have also considered the compromise position mentioned earlier,
reached by all applicants with the DPP. In the circumstances
the
following order is granted:
1. The applicants,
MultiChoice and Primedia
, or their authorized representatives,
are permitted to set up equipment in accordance with the
specifications below to obtain a
video and audio recording and/or
transmission of the permitted portions (as indicated in 3 and 4
below) of the criminal trial of
Oscar Leonard Pistorius under case
number 13/25513 (“
the trial
”).
Technical
specifications
2. The equipment
shall comply with the following specifications:
2.1 three cameras,
as depicted in annexure A (“the cameras”), shall be
installed in the courtroom where the trial is
to take place, at least
72 hours before the trial commences;
2.2 the cameras
shall be installed in locations in the courtroom which are as
unobtrusive as possible, and so that the proceedings
are not
interfered with. The locations of the cameras shall be
substantially in the areas of the courtroom indicated in annexure
B;
2.3 the cameras
shall be remotely controlled from a control room and no camera
personnel are permitted to be present in the courtroom
to operate the
cameras during the trial;
2.4 the cameras must
be pre-set to ensure that no extreme close-ups of any witness, legal
representatives, the presiding judge,
or any person in attendance at
the trial, takes place;
2.5 the equipment is
not permitted to record in any manner any confidential communication
between legal representatives or between
clients and their legal
representatives, or any bench discussions (between the judge and any
lay assessors that may be appointed).
The presiding judge shall
specifically direct when recording should start and when should they
stop;
2.6 the equipment
shall be deactivated so that no recording whatsoever can take place
while the court is not in session, including
any breaks (such as
lunch and tea breaks), and during the time before the court is in
session and after the judge has adjourned
the trial at the end of
each day;
2.7 the cameras
shall not be accompanied by any “movie lights”, flash
attachments or artificial lighting devices and
no visible or audible
light or signal is permitted;
2.8 MultiChoice and
Primedia may install their own audio-recording system provided that
this is unobtrusive and does not interfere
with the proceedings;
2.9 The Judge
President and/or the Deputy Judge President and/or the presiding
judge and/or the Court Manager may visit the control
room to check
how the recorded images would appear on the Television screens when
broadcast and to give directions regarding the
images to be broadcast
to avoid “extreme close up images”.
The
portions of the trial that may be recorded and broadcast
3. MultiChoice and
Primedia are permitted to broadcast the audio recording of the entire
trial in live transmissions, delayed broadcasts
and/or extracts of
the proceedings.
4. MultiChoice and
Primedia are permitted to broadcast the audio-visual recording of
the following portions of the trial only,
in live
transmissions, delayed broadcasts and/or extracts from the
proceedings:
4.1 Opening argument
of the state and accused;
4.2 Any
interlocutory applications during the trial;
4.3 The evidence of
all experts called to give evidence for the state, excluding evidence
of the accused and his witnesses;
4.4 The evidence of
any police officer or former police officer in relation to the crime
scene;
4.5 The evidence of
all other witnesses for the state unless such a witness does not
consent to such recording and broadcasting
and the presiding judge
rules that no such recording and broadcasting can take place;
4.6 Closing argument
of the state and the accused;
4.7 Delivery of the
judgment on the merits; and
4.8 Delivery of the
judgment on sentence, if applicable.
5. The Media 24
applicants or their authorized representatives are granted permission
to set up equipment to obtain still photography
of the trial, subject
to the following conditions:
5.1 Two still
photography cameras will be fixed at locations within the courtroom.
These will be used for purposes of taking
and publishing still
photographs of the court proceedings during the trial, subject to the
provisions set out below;
5.2 The cameras
shall be installed in locations in the courtroom which are as
unobtrusive as possible, and so that the proceedings
are not
interfered with;
5.3 Each of the
cameras shall be controlled by one of the applicants’
representatives, who will at all times remain behind
the cameras
while court is in process;
5.4 The aforesaid
cameras may not be moved while the Court is in session, and no
changes of lenses or film shall be permitted while
the Court is in
session.
5.5 No extreme
close-up photographs of any witness, legal representative, the
presiding judge, or any person in attendance at the
trial shall be
taken;
5.6 Flash
photographs shall not be permitted;
5.7 No artificial
lighting devices and/or visible or audible light or signal shall be
permitted;
5.8 No cabling for
the cameras on the floor of the court shall be permitted;
5.9 No identifying
names, marks, logos or symbols may be used on any equipment or
clothing worn by the representatives of the applicants;
5.10 The Media 24
applicants are permitted to take still photographs during the entire
trial, excluding the accused and his witnesses
when they testify,
provided that witnesses other than expert witnesses for the state or
police officers or former police officers
who testify at the trial;
5.11 may object to
being photographed whilst giving evidence and if the presiding Judge
rules that such witness may not be photographed
whilst giving
evidence, the applicants shall refrain from doing so; alternatively
5.12 may subject his
or her consent to reasonable conditions, including that his or her
face be obscured in any photograph published
or that only wide-angle
photographs of him or her be allowed, meaning photographs that
include not only the witness but as much
of the physical surrounds of
the courtroom as is technically possible.
6. Any witness whose
testimony is to be broadcast in audio-visual form may subject his or
her consent to such broadcast to reasonable
conditions (which shall
be communicated to MultiChoice and Primedia or their representatives
by the state including:
6.1 The broadcasting
of the evidence from behind with the face of the witness obscured
from public view;
6.2 The broadcasting
of the evidence from the front but with the face of the witness
obscured from public view;
6.3 The broadcasting
of the evidence only by way of a “wide shot”, i.e the
central camera placed at the back of the
courtroom would depict the
entire courtroom with the judge at the center of the image and the
witness only visible in the background;
6.4 The Presiding
Judge may on good cause withdraw the permission and/or change the
conditions set out above.
7. Objections by
witnesses to the audio-visual recording and the still photographing
of their evidence shall be in writing and will
be served on the
Prosecution and the accused’s attorney and be delivered to the
Office of the Deputy Judge President at least
24 hours before the
testimony of the said witness to avoid delaying the trial. The
Deputy Judge President shall first deal
with the said objections in
chambers and if same cannot be resolved, the presiding judge shall
make a final ruling on the issues
after hearing the parties.
8. Notwithstanding
the above, the presiding judge shall retain a discretion to direct
that, in the event that it becomes apparent
that the presence of the
cameras or the recording and/or transmitting and/or broadcasting is
impeding a particular witness’s
right to privacy, dignity
and/or the accused’s right to a fair trial, MultiChoice and
Primedia and the print Media 24 applicants
will be directed to cease
recording and/or transmitting and/or broadcasting and/or
photographing of the testimony.
9. The MultiChoice
and Primedia and the Media 24 Applicants are directed to
make the feed from the authorized broadcasts
and still photograph
referred to above available free of charge to the e.Tv applicants and
any other broadcaster and/or media organization
in “clean”
form, that is free of any logos.
10. There is no
order as to costs.
D
MLAMBO
JUDGE
PRESIDENT, GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA,
PRETORIA
Representation
for the Multichoice and Primedia applicants
:
Counsel
....................................................................................
Adv F Snyckers
Instructed by
Attorneys:
............................................
Webber
Wentzel Attorneys
(Ref:
Dario Milo/2461431)
Representation
for the Media 24 applicants:
Counsel
......................................................................................
Adv
N Ferreira
Adv
N Muvangwa
Instructed by
Attorneys:
...............................................
Willem
de Klerk Attorneys
(Ref
Willem de Klerk/M24/A/032)
Representation
for the e.Tv applicants:
Counsel
..................................................................................
Adv S Budlender
Instructed by
Attorneys:
….......................
Rosin
Wright Rosengarten Attorneys
(Ref:
D Rosengarten)
Representation
for 1
st
respondent
State
Attorney, Pretoria
(Ref:
7221/2013/z64/jb
Representation
for 2
nd
respondent
Counsel
............................................................................................
Adv
B Roux SC
Instructed
by
.....................................................................
Ramsay
Webber Attorneys
(Ref:
Brian Webber/gm/P165399)
[1]
Media 24 Limited, Times Media Group Limited, Independent News and
Media SA Limited.
[2]
Multichoice (Proprietary) Limited, Combined Artistic Productions CC
and Primedia Broadcasting, a Division of Primedia (Pty) Ltd.
[3]
No 108 of 1996.
[4]
[1999] ZACC 7
;
1999
(4) SA 469
(CC) at par 7.
[5]
[2002] ZACC 12
;
2002
(5) SA 401
(CC) at par 22.
[6]
2000(4)
SA 973 (C).
[7]
Brand
J (now JA) with Hlophe JP and Traverso DJP at par 43.
[8]
[2005]
4 ALL SA 353
(C) at par 31.
[9]
Midi
Television (Pty) LTD t/a E-TV v Downer and Others (D+CLD15927/04)
and (D+CLD 17272/04).
[10]
[2007]
1 ALL SA 384
SCA.
[11]
[2007(1) SA 534 (CC).
[12]
2000(4)
SA 1078 (CC) at par 9 and 11 page 1091 – 1092.
[13]
supra
[14]
At
para s 15 - 16.
[15]
Supra
[16]
[1999] ZACC 8
;
1999
(7) BCLR 771
(CC) at par 46.
[17]
[2007] ZASCA 56
;
2007
(5) SA 540
SCA.
[18]
Supra
fn 11 at par 68.
[19]
Supra
at par 70.
[20]
[2001] ZACC 17
;
2001
(3) SA 409
(CC) at par 29.
[21]
[2000]
2 ALL ER 913
S922.
[22]
Supra fn 11.
[23]
Supra
fn 11 at par 72.