The judgment handed down by the SCA last week regarding the filming of Henri van Breda’s criminal trial is a significant one, writes Willem de Klerk, an experienced litigation attorney and Johannesburg-based media lawyer, in an analysis on the News24 site. He says it adds to a body of law developed in recent years that promotes the principle of open justice and finally closes the door on the blanket exclusion of cameras in court.

In a unanimous judgment the court said the media’s role in accurately and fairly reporting on court proceedings makes an ‘invaluable contribution to public confidence in the judiciary and thus, to the rule of law itself’. After meticulously recording the growing acceptance of cameras in the courtroom in several major jurisdictions around the world, including the US, UK, Canada, Australia, New Zealand, Germany and Israel, the court came to the conclusion that it would be irrational to exclude television coverage of court proceedings as a rule.

What this judgment means is that televised court proceedings are not only an inescapable reality, but also one that is constitutionally ordained. Previous judgments that said otherwise must ‘yield to a new reality’, the court said. While judges retain the right to restrict television coverage of parts of trial proceedings, the court made it clear that such restrictions are not just for the asking. ‘Courts will not restrict the nature and scope of the broadcast unless the prejudice is demonstrable and there is a real risk that prejudice will occur’, the court said.

‘Mere conjecture or speculation that risk may occur ought not to be enough.’ In the result the SCA referred the matter back to the Western Cape High Court in order for it to tailor its ruling on televised coverage in light of these sentiments. De Klerk notes that we will have to wait and see how all of this plays out in the Van Breda trial. But ultimately there is no doubt that this is a landmark ruling and a bold step by the SCA in embracing new technology to promote open justice.

Full analysis on the News24 site

Judge Visvanathan Ponnan has gone where no appeal court has gone before, marrying the age-old principle of open justice with developments in modern communications technology, according to Dario Milo, a partner at Webber Wentzel and a visiting associate professor at Wits University, who acted for Media Monitoring Africa, the amicus curiae in the Van Breda appeal. The punch line, says Milo in a detailed analysis on the Daily Maverick site, 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 puts it, is the right to broadcast courts on whatever platform – whether it be Internet streaming, radio or television. Ponnan’s reasoning for the general rule permitting broadcasting is unassailable, says Milo. 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. Milo also discusses the practical implications of the judgment for the media. He writes: '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.'

Full analysis on the Daily Maverick site

Judgment