By Tracey Stewart, legal expert and counsel for Highbury Media
The much-anticipated axe murder trial got off to a slow start at the Western Cape High Court this morning following an 11th-hour application to live stream the proceedings, brought forward by Media 24 on Friday.
Media24, represented by Senior Counsel Advocate John Butler brought an application to Judge Desai on Friday (the eve of the trial, in court days, which was set to start today) to seek an order that would allow media to take still photographs in court (when proceedings were not underway) and to have two cameras in court that would record proceedings and broadcast the trial through live streaming on a website.
This morning at 10 am, the presiding judge, Siraj Desai, gave his ruling on the media streaming application after advising the court that he had carefully considered this matter and that his order was not cast in stone:
Media can take still photographs two minutes before proceedings and up to 15 minutes after proceedings.
Media24 can have two video cameras placed in court and can video the proceedings. The cameras must remain unattended.
No photographs or videos of any exhibitions to be taken without the express permission of the court.
No recording or photographs when Marli Van Breda is in court or testifying.
Judge Desai requested co-operation from the media and advised that should he at any time consider the order was affecting the accused’s right to a fair trial, he would change the order as he deemed fit.
Effectively, this is the same order that was allowed in the Oscar Pistorius case, however, Media24 doesn’t intend broadcasting this trial on TV. Instead, the media house wanted a ruling to favour live streaming the proceedings on its website.
Before Judge Desai made the decision, an argument on the matter was heard from Advocate Butler for Media24 who stressed that the general public is, through media, able to exercise their right to the access to justice and by allowing this application, it would provide the public the opportunity to witness our justice system.
The NPA opposed the application, saying they are against the ‘Hollywoodisation’ of court cases.
On Friday, van Breda’s lawyer asked the court to protect his client from the media, arguing that this matter is different to Pistorius’s as Pistorius had admitted to shooting through the door. He also raised the obvious issues around intimidation of witnesses as well as the rule that witnesses cannot be inside the courtroom before giving evidence as evidence heard in court by witnesses who have yet to testify may influence their testimony and there will be no control over this interference if the media is streaming the trial.
Media 24’s legal representative did not give reasons for the last minute application in court today.
While the argument that the general public should be given access to the administration of justice, there is also the matter of the media being entertained in urgent last minute applications, which have the effect of delaying an accused’s right to a speedy and fair trial.
Advocate Buikman, Henri’s sister Marli’s court-appointed curator, made a special request to protect the accused’s sister who miraculously survived the attacks that fateful night.
Advocate Van Zyl for the first respondent and Advocate Botha for the second respondent requested reasons from the Judge for making his order as they wish to consider an application for leave to appeal.
Today, Advocate Botha noted they would be seeking leave to appeal directly to the Supreme Court of Appeal and had considered approaching the Constitutional Court directly.
The Defence team was frustrated that Media24 had brought this application so late as it meant a delay in the criminal proceedings. Advocate Botha complained that media should read their own papers and would know full well when the matter was set down for trial.
Whenever a court makes an order, a party to the proceedings who is not happy with that order is entitled to request reasons for the order from the judge. Only once these reasons have been considered, the party may then bring an application for leave to appeal either to a full bench of the high court or straight to the Supreme Court of Appeal.
An application for leave to appeal is an application to the judge who made the order, asking that he give you permission to appeal his order on the basis that you believe another judge may, on the very same facts and argument, make another finding. The applicant in the leave to appeal can ask for leave to appeal to the full bench of the court they are in or to go straight to the Supreme Court of Appeal in Bloemfontein.
The parties indicated that the appeal proceedings would be handled on an urgent basis and should be finalised before 24 April 2017, the date the trial has been postponed to by Judge Desai.