An application was brought before the High Court of South Africa, Gauteng Division, Pretoria (the “High Court”) for the right to record and broadcast the proceedings of the criminal trial of local and international sports icon, Oscar Pistorius. On 25 February 2014 the Honourable Judge President Dunstan Mlambo handed down what can be regarded as a landmark ruling in South Africa, by allowing, for the first time in South Africa, court proceedings to be subject to audio, audio-visual and photographic coverage and thereby, bringing one of the most closely followed criminal trials into the homes of South Africans and international persons alike.

Oscar Pistorius is charged with the murder of Reeva Steenkamp, who he fatally shot in February 2013. Much like the murder trial of former US sportsman OJ Simpson who was also accused of murdering his partner, the enormous public interest in the matter and the extensive media coverage thereof, which the trial is set to generate (much like the OJ Simpson trial did), prompted the applicants to seek permission of the High Court to broadcast the criminal trial proceedings.

This application was actually a consolidation of three separate applications filed for essentially the same request by a number of media houses, both print and broadcast. Judge President Dunstan Mlambo felt it prudent to consolidate the three applications and as there was no opposition to the consolidation, the applications where duly consolidated. It must be noted that the opposition the Director of Public Prosecutions initially had to any media coverage in the court room had fallen away by this stage. Oscar Pistorius, however, continued to oppose any form of coverage sought by any of the applicants.

The High Court in this matter essentially had to balance competing constitutional rights, with Oscar Pistorius’ right to a fair trial on the one hand and the right to freedom of expression on the other and was further tasked with ensuring that each right found expression without being unduly limited.

Oscar Pistorius submitted that the live broadcasting of the proceedings of his criminal trial through any means whatsoever would infringe his constitutional right to a fair trial. The right to a fair trial is enshrined in section 35(3) of the Constitution of the Republic of South Africa, 1996 (the “Constitution”). Oscar Pistorius submitted two main reasons for his view that the broadcasting of the criminal trial would infringe this right: firstly, that the mere knowledge of audio-visual equipment would inhibit himself and his witnesses when they give evidence and secondly, witnesses still to testify would be enabled to fabricate and adapt their evidence based on their knowledge of the testimony of witnesses who had already testified. Oscar Pistorius held the view that broadcasting the trial would have a direct impact on the fairness of his trial.

The applicants submitted that their applications were an assertion of their right to freedom of expression. Section 16 of the Constitution affords all South Africans the right to freedom of expression, which includes freedom of the press and other media as well as freedom to receive and/or disseminate information and ideas. The High Court considered several South African rulings on the scope of this right and found that freedom of expression is not immune to limitation and further, case law has previously found that broadcasting, whether via television or radio, has the potential to distort the character of the proceedings in two main ways: first, due to the fact that television has a greater impact on a viewer compared to that of printed media releases and second, the recordings are easily edited and may be edited in such a way as to reflect an inaccurate or distorted account of what actually occurred during the proceedings.

The contestation of these two rights was clearly evident to the High Court and in resolving this contestation the High Court considered section 173 of the Constitution which provides that the presiding officer in such an instance must ensure that the interests of justice are upheld. The High Court considered both case law and the Constitution and found that the scope of the interests of justice does not only relate to the accused, who in this case is Oscar Pistorius, but also to the prosecution. The interests of justice further ensures that any other interested persons’ rights in the proceedings should likewise be promoted. The High Court therefore, in the interests of justice, had to balance these competing rights, ensuring each right found due expression and was in no way unduly limited.

The High Court further considered the principle of open justice whereby criminal proceedings in South Africa are to be public. The public interest in this matter was duly noted by the High Court, who recognised that it had a unique opportunity to provide a first-hand account of criminal proceedings that many South Africans would otherwise not have had an opportunity to experience. Therefore, if the criminal trial proceedings were to be broadcast, the principles of open justice will be fulfilled as they never have been before, with all South Africans able to follow first-hand the proceedings of a criminal trial. Judge President Dunstan Mlambo also took judicial notice of the negative perceptions that many South Africans have towards the justice system and expressed the hope that by enabling all South Africans to follow the proceedings first hand, some of these negative perceptions would be dispelled.

The High Court, after due consideration of the competing constitutional rights and after taking into account the interests of justice and the principle of open justice, made the following ruling:

  1. limited audio-visual coverage of the proceedings will be permitted. Multichoice and Primedia will be permitted to set up equipment subject to the specifications and conditions as enumerated in the ruling of this High Court. It is important to note that no audio-visual recording, televising, broadcasting or still photography of Oscar Pistorius or any of the witnesses called by the defence to testify will be allowed, as this would impair his right to a fair trial;
  2. audio coverage is permitted for the entire duration of the criminal proceedings;
  3. Media 24 is authorised to set up equipment to obtain still photography of the criminal trial subject to the specifications and conditions as enumerated in the ruling of this High Court;
  4. any witness whose testimony is to be broadcast in an audio-visual form may place any reasonable conditions on his or her consent thereto and any objections to the audio-visual recording or still photography of their testimony must be in writing, the presiding judge will have the final ruling on the objection;
  5. Multichoice, Primedia and Media 24 have been directed to make the feed from the broadcasts and still photography available to e.TV and any other broadcaster and/or media organisation; and
  6. very importantly the presiding officer of the criminal trial retains her discretion to direct the applicants to cease recording or broadcasting should it become clear the recording or broadcasting is impeding a witness’s right to privacy and dignity or Oscar Pistorius’ right to a fair trial.

Comment: The ruling, handed down by the High Court on the 25 February 2014, is truly ground-breaking by allowing, for the first time in South Africa, live coverage of a criminal trial. The High Court gave due consideration to the public interest in this matter and recognised that it was in a unique position to attempt to alter the negative perceptions that many South Africans have towards the justice system by allowing open access to the criminal trial of a well-known sports icon. The High Court further showed its mindfulness to the right to a fair trial and to the competing right of freedom of expression and, in promoting the interests of justice, sought to balance these two rights in a way that has never been done by the South African courts in this regard in the past. Apart from Oscar Pistorius being on trial, the extensive media coverage which the trial is set to receive will no doubt place the entire South African criminal justice system under scrutiny. Hopefully, unlike the OJ Simpson trial which left many questioning the US criminal justice system, the Oscar Pistorius trial will not disintegrate into a media circus nor leave South Africans and the international community questioning the integrity of the South African criminal justice system.