A recent judgment handed down by the Broadcasting Complaints Commission of South Africa (BCCSA) against Talk Radio 702 could seriously impair the ability of broadcasters to report on court proceedings.
In August 2012, 702 covered the trial of ‘Sunday rapist’ Johannes Steyn. Steyn was accused of abducting, raping and murdering several young women and was convicted on all charges. During the trial, Steyn testified in his own defence. On 23 August 2012, an Eyewitness News reporter interviewed the mother of one of Steyn’s victims. Reacting to Steyn’s testimony from earlier that day, she expressed her shock and disbelief at Steyn’s denial that he had ever met her daughter. She insisted that he had met her daughter and implied that he was, in her view, guilty of the crime.
A listener lodged a complaint about the news bulletin with the BCCSA on the basis that the interview with the victim’s mother amounted to a ‘trial by media’ and infringed Steyn’s right to be presumed innocent. The initial BCCSA Tribunal ruled against 702 and ordered it to pay a fine of R20 000. The broadcaster appealed and the judgment, which dismissed the appeal, was handed down on 16 April this year.
The provision of the BCCSA Code that the Appeal Tribunal considered was clause 11 of the Free to Air Broadcasting Licencees Code that requires broadcasters to ensure that news is reported truthfully, accurately and fairly. The Appeal Tribunal held that the requirement of fairness in clause 11 has the effect that a broadcast should not constitute contempt of court or unduly infringe on the rights of the parties in a civil or criminal case. Accordingly it considered whether the integrity of the judicial process was violated by the broadcast of the news bulletin.
The most worrying parts of the decision are the views expressed by the Appeal Tribunal that:
- An interview of this nature “could pose a real risk to the administration of justice and could easily evolve into doubt in the minds of the public about the integrity of the courts”;
- Such prejudging amounts to a trial by media and is unfair to the accused. It is also unfair to witnesses and the court “who may feel pressurised by the media attention and the projected outcome of the case”; and
- The administration of justice will be “prejudiced if the media broadcast interviews that cast doubt on the veracity of what has been said in court by the judge, counsel or witnesses”.
The judgment flies in the face of the guidance provided by the Supreme Court of Appeal in Midi Television (Pty) Ltd (the consortium that won the rights to broadcast e.tv) versus Director of Public Prosecutions (Western Cape)  concerning restrictions on reportage based on the so called sub judice rule. In that case the Director of Public Prosecutions (DPP) requested an interdict to prevent e.tv from broadcasting a documentary on the murder of baby Lee Jordan. The DPP was concerned that the broadcast, which was going to contain interviews with various witnesses to the murder, would prejudice the upcoming trial. The SCA held that the test to be applied in each case is whether there is:
A demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice substantial prejudice if it occurs; and a real risk that prejudice will occur.
Although the BCCSA referred to the Midi Television judgment, it appears to have misunderstood the substance of the judgment. The idea that members of the public may have decided to believe the victim’s mother instead of the accused is purely speculative. Even more speculative is the notion that if the accused had been acquitted, the public would have lost confidence in the judicial process simply because of the statements made by the victim’s mother.
Reasonable members of the public are aware that courts make decisions on the basis of the evidence presented to them and do not take into account the views of individuals who did not testify in court. It is also to be expected that a victim’s parent would express the view that an accused person is guilty and it is accordingly difficult to see how the broadcast of such views could substantially affect the perceptions of a reasonable member of the public or influence the court.
The judgment in Talk Radio 702 versus Gericke is overly restrictive of the right to freedom of expression. The effect of the judgment, until such time as it is set aside, is that broadcasters that broadcast information which casts doubt on evidence given in court, such as the views of the victim’s family, may risk an adverse ruling from the BCCSA.