With malice aforethought
29 May 2017 09:34 (South Africa)
Opinionista Pierre de Vos

Pistorius and that controversial Twitter ruling: questionable at best

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

The ruling by Judge Thokozile Masipa on Monday that evidence given by Professor Gert Saayman, the pathologist testifying in Oscar Pistorius’s murder trial, could not be broadcast live on radio or TV and that journalists were prohibited from live tweeting the testimony was both unwise and legally problematic. Here is why.

In his groundbreaking (and in, certain circles, controversial) decision to grant permission to media houses to broadcast the Oscar Pistorius murder trial live on radio and television, judge Dunstan Mlambo made a curious but telling observation.

In a country like ours, Judge Mlambo observed, perceptions continue to persist in the large sections of South African society, “particularly [among] those who are poor and who have found it difficult to access the justice system”, that the justice system treats the “rich and famous with kid gloves whilst being harsh on the poor and vulnerable”.

Judge Mlambo cautiously avoided the fact that the perception also persists among a large section of society that black criminal defendants and black victims of crime are often treated with less care and concern by the criminal justice system than white criminal defendants and white victims of crime. He also avoided mentioning the fact that many South Africans have the perception that politically well-connected criminal suspects receive preferential treatment.

Nevertheless, few observers would dispute the observation by judge Mlambo that many people in South Africa do harbour the perception that all criminal defendants and all victims of crime are (for various reasons) not always treated equally. Judge Mlambo’s remark in this regard was therefore uncontroversial.

However, he proceeded to make the following observation:

“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.”

It may well be true that the broadcasting of the trial will do much to inform and educate South Africans about the conduct of criminal proceedings.

More people may now understand that the state has to prove its case beyond reasonable doubt and that an accused does not have to prove his or her innocence. The important role that cross-examination can play in our adversarial system in order to test the veracity of evidence and the credibility of witnesses, has also become apparent.

But it is far from certain that the broadcasting of the trial will dispel perceptions about possible inequalities in our criminal justice system.

Most criminal defendants are tried in magistrates’ courts or in high courts far away from the media spotlight and trials are often delayed or postponed, sometimes for many years. Justice is often delayed and sometimes completely denied.

In an adversarial system criminal defendants who can afford to hire excellent lawyers may also well have an advantage over undefended or badly defended accused persons. In the absence of a skilled lawyer to cross-examine state witnesses it is less likely that any inconsistencies in testimony will be exposed and that the credibility of witnesses will be properly tested.

The Oscar Pistorius trial is therefore not a typical criminal case. This is so not only because of the intense media attention on the trial, but also because of the fact that both the state prosecution team and the lawyers for the defence are some of the best our system has to offer. In this regard, the trial is something of a showcase for the criminal justice system in South Africa. (However, the less said about the quality of court interpreters, the better.)

Given this larger context, it is not only imperative that the trial be conducted in a scrupulously fair manner. It is also vital that no decisions should be taken by the trial judge that could create the perception among sections of the South African population that the accused or the relatives of the deceased are given special treatment.

The principle of open justice requires that a trial be conducted in public – except in exceptional circumstances, where the interest of a vulnerable victim or witness needs to be protected. Members of the media are usually allowed to report fairly and accurately on a trial and since the inception of Twitter – bar one or two exceptions – journalists have also been allowed to live tweet the evidence of all witnesses who testify in a trial.

The initial ruling by Judge Masipa to ban live tweeting of the evidence of the pathologist, apparently to protect the sensibilities of the family of the deceased due to the potential graphic nature of the evidence, was therefore at best ill-advised.

The ruling immediately raised the question in the minds of many South Africans about whether the case was being handled differently because the accused was a famous and rich white man or because the deceased was a blonde middle class woman.

Lay-observers and some lawyers immediately drew comparisons with the trial of the man convicted of raping and murdering Anene Booysen. In that case, journalists were allowed to live tweet extremely graphic testimony about Booysen’s injuries. Booysens was poor and black and, of course, not famous. The possible sensibilities of Anene Booysen’s family were never raised and therefore never considered.

It matters not whether such comparisons are unfair or whether – unlike in the Booysen case – the pathologist requested his evidence not to be reported in this manner. What matters is the perception created by the seemingly different treatment of the two cases (and many others besides) where there are such stark differences in the social status of the victims (based on the class and/or the race of the victims).

After all, justice must not only be done, but must also be seen to be done.

Judge Masipa wisely reversed the decision to prohibit live tweeting of the pathologist’s evidence in the Oscar Pistorius trial this morning, restoring the default position that currently applies in criminal trial across South Africa. This decision will go some way to address perceptions – whether correct or not – that our courts do not always value the bodies of poor black people and those of rich white people equally.

However, the further decision not to allow audio or audio-visual broadcasting of Professor Saayman’s testimony due to the possible graphic nature of the evidence (a decision which was not reversed this morning), raises further questions.

The judgment by Judge Mlambo made a distinction between broadcasts of audio recordings of the trial and broadcasts of audio-visual recordings of the trial.

Judge Mlambo ruled that MultiChoice and Primedia were permitted to broadcast the audio recording of the entire trial in live transmissions, delayed broadcasts and/or extracts of the proceedings.

The order therefore allows for the audio broadcast of the testimony by all witnesses – including those of expert witnesses for the state as well as that of the accused – regardless of whether the witnesses want audio recording of their testimony to be broadcast or not.

It also permitted the media houses to broadcast the audio-visual recording (that is, TV pictures) of portions of the trial under certain conditions. This includes permission to broadcast the audio-visual recordings of the evidence of all experts called to give evidence for the state, as well as the evidence of any police officer or former police officer in relation to the crime scene. The order does not provide for expert witnesses of the state or police officers to decline to have either audio recordings or audio-visual recordings broadcast.

However, the order does allow other witnesses for the state to decline to consent to have audio-visual recordings of their testimony broadcast. It also allows witnesses whose testimony is to be broadcast audio-visually to request that certain reasonable restrictions are imposed on such broadcasts.

The order does provide for an exception to this general rule that not only audio recordings but also audio-visual recordings of all evidence by expert witnesses of the state and all police officers could be broadcast. This exception is couched in the following terms:

“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.”

In the instance of the testimony of Prof Saayman, there was no indication that allowing either audio recordings or audio-visual recordings of the testimony of would have impeded his dignity or privacy or would have impacted on the fairness of the trial. It is therefore unclear on what legal basis the decision was made not to allow audio recordings and audio-visual recordings of this testimony to be broadcast.

As Judge Mlambo indicated in his judgment, the decision to allow audio recordings of the entire trial to be broadcast and to allow audio-visual recordings of certain parts of the trial to be broadcast is something of an experiment.

Some trial lawyers and procedural law academics I have spoken to expressed some concern that the ruling could impact on the fairness of the trial. This is so, they argue, because future witnesses may listen to or watch the testimony and cross-examination of other witnesses and may be tempted to adjust their testimony accordingly.

Whether this concern is valid in the age in which detailed reporting on the evidence and cross-examination of witnesses are reported on Twitter, is far from clear.

But this is not the point here. The point is that the original order ruled that the trial judge would retain a discretion to prohibit either audio recordings or audio-visual recordings of the testimony of a witness only in cases where the privacy or dignity of the witnesses had to be protected or where the fairness of the trial would be affected.

As none of these concerns clearly applied to the testimony of Prof Saayman, and given that the testimony of many other witnesses are being broadcast live, the decision by the trial judge not to allow either audio or audio-visual recordings of this expert witness of the state to be broadcast is questionable at best.

It may be that in future, courts will rule that the open justice experiment launched in the Oscar Pistorius trial poses too many risks. But as the experiment is in full swing, the trial judge must ensure that the rules (as laid down by Mlambo J) are scrupulously and even-handedly applied to ensure that the trial indeed helps to dispel some (if not all) of the concerns many South Africans have over the fairness of the criminal justice system. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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