SCA Issues Important Judgment on Video Recordings During Van Breda Trial
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 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 of an accused person to a fair trial.
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.
Willem van der Colff
dispute resolution director wvdcolff@ENSafrica.com cell: +27 82 788 0368
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