Visvanathan Ponnan, judge of the Supreme Court of Appeal (SCA), likes his open justice judgments to have good openings. In handing down the leading decision on the right to access court papers in 2015 – where the City of Cape Town sued the South African National Roads Authority Ltd over its toll road project – Judge Ponnan began, “with apologies to John Donne of course, perchance he for whom the toll tolls may be so ill as not to know that it tolls for open justice.”
So too his latest judgment for a unanimous SCA on Wednesday in the Henri van Breda media appeal – “TV, or not TV, that is the question”, Ponnan JA quoted.
And what a judgment it was. In a scholarly analysis worthy of a master’s thesis – all the more remarkable for the fact that the argument in the appeal was only a month before – Judge Ponnan has boldly gone where no appeal court has gone before, marrying the age-old principle of open justice with developments in modern communications technology.
The punch line of the case is that broadcasting court cases is now the general rule and not the exception. The media is entitled as a matter of constitutional right to broadcast court proceedings in their entirety (whether civil or criminal trials, applications or appeals). It is for anyone contending otherwise – the accused in a criminal trial or witnesses, for example – to persuade the court that broadcasting should not take place. This is a fundamental and profound change in approach – the “starting point”, as Ponnan JA puts it, is the right to broadcast courts on whatever platform – whether it be internet streaming, radio or television.
The Van Breda case has caught the public’s attention not least because of the gruesome facts. Henri van Breda stands accused in the Western Cape High Court of murdering three of his family members with an axe (his younger sister survived the attack). He has pleaded not guilty, saying an intruder committed the murders. Just before the trial began, Media 24, a news publisher, brought an urgent application to record and broadcast the trial. The National Director of Public Prosecutions (NDPP) and the accused, Van Breda, opposed Media 24’s application. The trial judge – Siraj Desai – ruled in favour of Media 24’s application, permitting the audio-visual broadcasting of the entire trial – though he allowed any party to approach him for any variation or amendment of his order. Van Breda and the NDPP were refused leave to appeal by Judge Desai, but the SCA took the appeal on petition. In the meanwhile, the trial commenced, without any broadcasting (which had been suspended pending the SCA’s decision).
Judge Desai’s ruling in the lower court was a significant step forward in South Africa’s evolving jurisprudence on broadcasting the courts. It followed the landmark decision in 2014 in the Oscar Pistorius case, where the judge president of the Gauteng High Court, Dustan Mlambo, allowed live broadcasting for the first time in South Africa’s history, of Pistorius’s criminal trial – the entire trial was broadcast live through audio, and audio-visual broadcasting was permitted of the argument, the judgment, evidence of state experts and police officers, and the lay witnesses who consented. “[W]ith Pistorius”, said Ponnan JA in the Van Breda appeal, “the Rubicon had been crossed. The Pistorius trial … changed irreversibly the manner in which the media and the justice system of our country converge”.
But while Mlambo’s and Desai’s decisions were themselves ground-breaking, they were cases at a provincial level in our court hierarchy. This is why the SCA’s decision in Van Breda is so important. It is now the leading South African authority in favour of the proposition that broadcasting court cases is constitutionally mandated – flowing both from the right to freedom of expression and media freedom, and the right of open justice. And, as Ponnan JA’s deep dive into the position in other jurisdictions shows, Van Breda is now one of the leading global authorities in favour of broadcasting court cases (Ponnan JA considers the legal position in the United States, Canada, England and Wales, Northern Ireland, Scotland, Australia, New Zealand, Germany, Israel and Brazil, and numerous international tribunals).
Ponnan JA’s reasoning for the general rule permitting broadcasting is unassailable.
The right of the media to broadcast flows from section 16 of the Constitution, the right to freedom of expression, which in this context goes hand in hand with the principle of open justice – that court proceedings must be conducted in the open. There is no logic, says the SCA, in permitting journalists to use the reporting techniques of the print media – yesterday’s technology – but not permitting a television journalist to “utilise his or her technology and method of communication”, especially where the latter will be more accurate than the second-hand accounts of the print journalist. “Televised proceedings thus aid in the public oversight of the judiciary”, and broadcasting enables proceedings to be meaningfully accessible to the public.
Moreover, the traditional justifications for resisting broadcasting court cases do not hold water. Thus cameras are no longer obtrusive and disruptive, and privacy concerns have to give way where disputes are being resolved in public fora. More significantly, the SCA addressed the biggest obstacle to permitting broadcasts – that witnesses who have not yet given evidence are able to see the evidence of those who have already testified, which poses the risk that they may tailor their evidence. While this precognition risk could not be lightly dismissed, in a criminal case the accused already has access to witness statements in advance of the trial, and “the adversarial nature of criminal proceedings … should enable the judge to safely make findings as to whether or not a witness’ testimony has been tainted by the exposure”. Also, even without audio-visual reportage, live text-based communications such as Twitter and Facebook are already used by the media to report – so the risk of witness tailoring already exists. One may add to the SCA’s reasoning on this score that witness management is the responsibility of the parties to the case – a witness who allows himself to become immersed in publicity surrounding a trial exposes himself to rigorous cross-examination in relation to possible tailoring.
All of this justifies the SCA’s starting point – the default rule – that the media has the constitutional right to broadcast court proceedings.
But Ponnan JA also emphasises that this default rule may be departed from if the circumstances warrant this. Courts are always able to regulate their own process on a case-by-case basis. Witnesses or an accused who object to the broadcast of their testimony must motivate for a restriction on the broadcast – and even if such objections are valid, less restrictive alternatives, such as delayed broadcasts and audio with no visuals should be considered. So restrictions on broadcasts are not readily to be granted – the objecting party must demonstrate a real risk of demonstrable prejudice; mere speculation that there will be prejudice will not suffice.
Having set out his reasoning for the default position, Ponnan JA finds – somewhat surprisingly and unfairly given that the effect is the same – that “not all of the reasoning of Desai J can be supported” and therefore set aside Desai J’s regime for permitting broadcasting of the Van Breda trial. The SCA remitted the case to Desai J to reconsider the position in light of the principles in the judgment.
Because of this ultimate result, technically, the appeal by Van Breda and the NDPP succeeded, and Media 24 was ordered to pay Van Breda’s costs. But in substance the battle has clearly been won by the media and the public.
What are the practical implications of the judgment for the media?
Where the media wishes to broadcast a court case – whatever the case may be (civil or criminal, application or trial, appeal or court of first instance), it must notify the presiding judge concerned of its intention to do so. The media must do so timeously, to avoid inconveniencing the court and the parties, and to avoid a risk of an adverse costs order.
When considering such a request, the presiding judge must proceed from the point of departure that broadcasting of everything in the case is permitted.
It will almost always be the case that there cannot be any valid objection to broadcasting all cases which do not involve oral evidence – applications and appeals, judgments, and arguments by counsel and attorneys.
Where oral testimony is involved – principally in criminal and civil trials – broadcasts should be permitted as a default rule, but if a witness or a party objects, that objection should be carefully interrogated as to whether there is a real risk of substantial prejudice to the administration of justice posed by the broadcasting. If so, other alternatives to live audio-visual coverage – such as audio or delayed broadcasts – should be considered. And as in the Pistorius case, different kinds of witnesses – experts, professionals and lay witnesses – may require different treatment.
In the end, to answer Ponnan JA’s opening question, “TV or not TV?”, the Van Breda case has confirmed that cameras in courts are not only here to stay, but that this is mandated by our Constitution in order to facilitate open justice and the right of the public to hear and see what goes on in our courts. With Van Breda, our jurisprudence has now reached a point of no return on the presence of cameras in court. DM
Dario Milo is a partner at Webber Wentzel attorneys and a visiting associate professor at Wits University. He acted for Media Monitoring Africa, the amicus in the Van Breda SCA appeal, and for MultiChoice and Primedia in the Oscar Pistorius case.
Photo: Henri van Breda, who is accused of a triple murder, arrives at the Western Cape High Court for his trial in Cape Town, South Africa, 26 April 2017. EPA/NIC BOTHMA
Penguins push other penguins into the water to check if it is free of predators.