The June 2017 judgment of the Supreme Court of Appeal (SCA) in Van Breda v Media 24 & Others allowed the live televising of a criminal trial. It brought joy and happiness to any journalist armed with a camera, and benefitted the public in a multitude of ways.
The SCA held that, “In permitting the televising of court proceedings this Court is doing no more than recognising the appropriate starting point” and that “It shall be for the media to request access from the presiding judge on a case-by-case basis”.
Finally journalists, media houses and documentary makers were able to “request access” without bringing a substantive court application on notice which would involve around R50 000, an attorney, an advocate and an affidavit – and, thereafter, a judgment or ruling.
The Henri van Breda trial Judge Siraj Desai told the court at the conclusion of the proceedings that, “This is the first trial that was fully covered by the media – the press. The court welcomed the role the media played in reporting these court proceedings. The live broadcast not only ensured that first hand, accurate information was conveyed to the public, but I am happy to say it appears to be – at a distance – it enhanced the analysis of the evidence and the proceedings by the media commentators.”
The murder of Jayde Panayiotou
The April 2015 murder of Port Elizabeth (now Gqeberha) schoolteacher Jayde Panayiotou shocked the nation. Her businessman husband was convicted of the contract killing (dressed up as a kidnapping) of his wife Jayde.
In November 2021 hitman Luthando Siyoni stood trial and was convicted for his part in the murder of Jayde.
This journalist timeously sent a well-motivated media request to the presiding officer, prosecution and defence in the Siyoni trial. Requests to courts across the land that had been made before this filming request had outcomes in favour of the media. Naidu simply ignored the request, and the evidence of Christopher Panayiotou was not captured with a television camera.
Naidu appeared before the Judicial Service Commission (JSC) earlier this year and was interrogated by Commissioner Narend Singh concerning his attitude to open justice.
The arrogant attitude displayed by Naidu at his JSC interview was breath taking. The same holds true for his mendacious and flawed explanation to the JSC concerning the chronology of events relating to the filming request. A trail of evidence in possession of the JSC and Naidu showed that his explanations were demonstrably false. He was not appointed to the bench.
View the relevant part of the JSC interview here.
The media has a constitutional duty
The Constitutional Court upheld the SCA’s decision in Van Breda. Section 16(1) of our bill of rights states that, “Everyone has the right to freedom of expression, which includes– (a) freedom of the press and other media; …”
Judge Eberhard Bertelsmann explained it in a 2002 judgment in favour of the media “The media, …, have an indubitable right, and indeed the duty, to inform the public about matters which fall in the public domain …. This right is safeguarded and the duty is imposed by the Constitution.”
How should a presiding officer approach a filming request?
A presiding officer in any public hearing must adopt the approach set out in the SCA judgment, from receiving and responding to a written request made by anyone from a citizen journalist to a production house. This includes the manner in which the SCA stated that a criminal trial should be conducted in the glare of television cameras. Naidu did not do this. He told the JSC that, “Judges cannot engage with members of the public.”
Judges and journalists are both members of the public. It was lost on him that journalists, like judges, have a constitutional duty.
Senzo Meyiwa murder trial
Top media counsel Ben Winks late last month argued for permission to film, in the Johannesburg High Court, the criminal trial of those accused of the murder of Orlando Pirates footballer Senzo Meyiwa.
Winks stated that it is not for those trying to assert constitutional rights to be put to the expense of a substantive (read R50 000) court application on every occasion, as Naidu would have it. It is for those seeking to limit these rights who should be launching an application, and take the risk of a costs order being awarded should they lose with costs on what is settled law. Winks told Judge Tshifhiwa Maumela that this was “the price of living in a constitutional democracy”.
His argument was crisp and to the point. It prevailed.
Watch the televised argument of Ben Winks from two minutes and five seconds into the video. Acting Judge Naidu would do well to watch it too.
* Opinions expressed in posts published on The Media Online are not necessarily those of Arena Africa or the editor but contribute to the diversity of voices in South Africa.