Supreme Court of Appeals and the merits of live stream vs fair trial

Henri van Breda

Henri Van Breda is facing three counts of murder, one of attempted murder, and one of obstructing the course of justice.

His parents – Martin, 54, and Teresa, 55 – and his brother Rudi, 22, were axed to death in their home at the luxury De Zalze golf estate in Stellenbosch in the early hours of Tuesday, January 27, 2015.

His sister Marli, 18, survived the attack, but sustained serious brain injuries and suffered amnesia.

Following an urgent application, on March 24, the Western Cape High Court heard the application to record and broadcast the trial.

On March 27, the day the trial was due to start, Judge Siraj Desai granted Media24 permission to install two cameras to record and or broadcast the proceedings, subject to certain guidelines.

Judge Desai said, at the time, that there was no real prospect of the trial being jeopardised.

On April 12, Van Breda and the NDPP filed an urgent application at the Constitutional Court to appeal the Western Cape High Court’s ruling allowing Media24 permission to broadcast the trial. The Constitutional Court dismissed the application on April 13.

Some expert witnesses had indicated they would feel uncomfortable testifying should the trial be broadcast

Van Breda’s lawyer Lorinda van Niekerk said that both Van Breda and the State indicated they intended appealing the order. Judge Desai then postponed the trial to April 24.

Both Van Breda and the National Director of Public Prosecutions felt his right to a fair trial would be compromised if it was broadcast.

Media24 was backing up its application to livestream the trial with Section 16 of the Constitution, which guarantees certain rights to freedom of expression, freedom of the media, and the right to access to information.

So on May 18, a full bench of appeal judges at the Supreme Court of Appeals in Bloemfontein heard the appeal.

The right to broadcast and live stream the murder trial of Henri van Breda had to be weighed against the risk of allowing cameras into the courtroom versus a fair trial.

“It shall be for the trial court to exercise a proper discretion, having regard to the circumstances of each case,” the SCA said.

In its ruling, the SCA said the court should examine, with care, the approach to be taken with regard to each application.

It said cameras were permitted to film or televise all non-objecting witnesses, and that spurious objections could also be dealt with.

“If the judge determines that a witness has a valid objection to cameras, alternatives to regular photographic or television coverage could be explored that might assuage the witness’ fears.”

But the SCA said that one of the objections relating to the opposition of cameras in courts was about the possible effect that cameras, and the audience they represent, may have on the testimony of witnesses in criminal trials.

“It will always remain open to a trial court to direct that some or all of the proceedings before it may not be broadcast at all or may only be broadcast in… audio form.

“It shall be for the media to request access from the presiding judge on a case-by-case basis.”

The court also rejected the State’s complete blanket ban of the case.

The SCA ordered Media24 to pay Van Breda’s costs.

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