The trial of murder-accused Henri van Breda has attracted widespread media attention in recent months. Now, the Supreme Court of Appeal (“SCA”) has delivered an important judgment linked to the case regarding the media’s right to broadcast aspects of court proceedings – not only in the Van Breda case, but in other cases too. The SCA’s judgment, delivered on 21 June 2017, highlights the tension between the constitutional rights to freedom of expression and to a fair trial, and the need to harmonise these as far as possible.

The judgment should be of interest not only to those accused of crimes, but also to those who may be called to provide witness testimony in criminal cases and, potentially, civil trials. Shortly before the Van Breda trial started in the High Court, Media24 brought an urgent application requesting permission to video-record and broadcast the trial, as well as to take photographs and video footage in the courtroom before and after proceedings each day. The presiding judge, Judge Desai, granted an order agreeing to this request, subject to certain conditions. Van Breda and the National Director of Public Prosecutions appealed to the SCA, which granted them leave to appeal. In its decision, the SCA overturned the part of Judge Desai’s order that permitted the recording and broadcast of the trial, and sent the matter back to the High Court to reconsider the request in light of the principles the SCA set out in its judgment.

What the judgment means for other court cases

The SCA’s judgment sets a ground-breaking precedent for similar cases in future. At the outset, the SCA acknowledged that the media and courts are “locked in a mutual, if sometimes uncomfortable embrace” (quoting Canadian Chief Justice Beverley McLachlin PC). At the centre of this were the two constitutional rights that are at loggerheads, namely:

· the right to freedom of expression; and

· the right of an accused person to a fair trial.

The right to freedom of expression, the court noted, includes the right to receive, impart and disseminate information or ideas. The court also highlighted the media’s role in facilitating and guaranteeing this right for the public, and recognised that the majority of South Africans rely heavily on radio and television for news and information, and noted the important role of social media and the internet in this regard, outside traditional news outlets such as newspapers and radio. Central to this right is the “open justice” principle, which is often expressed by the maxim that “justice should not only be done, but should manifestly and undoubtedly be seen to be done.” On the other hand is the right to a fair trial. The SCA considered one of the “most persuasive” objections to broadcasting criminal trials – the effect that the cameras may have on witnesses, including the risk that witnesses may tailor their evidence after viewing the testimony of other witnesses.

The court criticised the inflexible approach taken by the National Director of Public Prosecutions, which had asked for a complete ban on broadcasting not only the Van Breda trial, but all future criminal proceedings. The court noted that, other than in limited exceptional circumstances, it is customary for courts to be open to the public and that allowing the broadcast of criminal matters expands the open court principle. However, the right to a public hearing does not automatically mean that all trials can be broadcast live on all occasions. The judge or magistrate hearing a particular matter can limit the nature and scope of broadcast to ensure the fairness of proceedings, provided this is in line with the Constitution. The SCA also cautioned that although the arguments in favour of allowing cameras in the courtroom were compelling, “South Africa is very much at the experimental stage of examining the possibilities brought about by new and improved media technology” and that the various competing interests need to be carefully balanced.

Going forward

Henceforth, the media should apply to the trial court for permission to broadcast on a case-by-case basis. The SCA considered that it would be “undesirable” for it to lay down rigid rules. Rather, each particular judge or magistrate must exercise its discretion after considering the circumstances of each case and balancing the risk of allowing cameras into the courtroom against the jeopardy of an unfair trial for either the accused or the complainant. A court may, for example, prohibit the broadcast of part of the proceedings or permit only audio broadcasting of proceedings. Insofar as legal representatives are concerned, “[t]he default position has to be that there can be no objection in principle to the media recording and broadcasting counsel’s address and all rulings and judgments … delivered in open court,” the court held. Witnesses may object to coverage of their testimony, by providing reasons for the objection and the effects he or she believes the coverage would have on his or her testimony.

This individualised approach recognises that there may be a distinction between expert, professional (such as police officers) and lay witnesses, and would also forestall spurious objections. Absent a cogent objection, the ruling allows for the filming or televising of all non-objecting witnesses. It is important to note that the courts will not restrict the nature and scope of the broadcast unless there is a real risk that it will result in demonstrable prejudice. Objections regarding prejudice may be raised by witnesses, the State and/or the accused. An important consideration is whether broadcasting proceedings will deter witnesses from testifying. However, mere conjecture or speculation that prejudice might occur will not be enough. The SCA did not set out a detailed procedure for trial courts to follow in this regard and, at this stage, it is uncertain whether this will happen via a formal application or an informal arrangement when a witness enters the witness box. This will, in all likelihood, be developed by the courts in day-to-day proceedings.

We predict that this judgment will not only pave the way for the broadcast of many more high-profile criminal matters, but it will likely pave the way for the broadcast of civil trials too. For witnesses, this means that they will have to be prepared, not only in terms of what their evidence will be, but also in terms of how it will potentially be presented. It seems that the uncomfortable embrace in which the media and the courts are locked is set not only to continue, but the public is likely to be treated to a glut of sensational courtroom trials over the next few years.

Willem van der Colff

dispute resolution director [email protected] cell: +27 82 788 0368