Much white heat has been generated in court already over the issue of bringing the cameras in.
On the one hand the debate has been couched in the catch-phrases of media freedom and “open justice” principles, that it is “in the public interest” to have wall-to-wall television coverage of every word uttered, every gesture from the witness box, every argumentative rant from a lawyer, every grunt from the public gallery.
That is unfortunate because, of course, the media will have access to the court.
Except not all the media because not everyone can be accommodated, so media outfits have agreed to a lottery to secure places in court. Those who don’t get a prime seat will be able to view proceedings from a separate courtroom via a closed-circuit television link.
On the other hand, it is argued that the right of Pistorius to a fair trial will be jeopardised by the intrusive cameras, with potential witnesses intimidated by having their statements relayed live around the world.
But courtrooms are intimidating spaces anyway, even for the innocent, perhaps more so than any television camera can be.
Nineteenth century libertarian philosopher and legal theorist Jeremy Bentham had an extremely healthy dose of scepticism about the ability of legal systems to operate ethically at all times.
His strident “where there is no publicity there is no justice” remark remains an important yardstick for any court system sensitive to public oversight.
It is the basis on which most democracies apply the principle of open justice and access to the courts.
In theory, the libertarian idea is that the search for truth is better served by open justice. Importantly, a transparent process promotes the accountability of all those participating in the legal process, not least the presiding officers.
The media often make the mistake of claiming special rights in relation to matters of public interest such as reporting on court trials. It is rooted in the idea of the media as a fourth estate in relation to the three arms of government – the executive, legislature and judiciary.
The media may well see a victory in a decision today if cameras are allowed into the Pistorius trial.
But the fact that the public is almost perversely interested in what happened that fateful night when Pistorius shot Steenkamp doesn’t make anything that happens in court over the next month in our interest.
In so-called mature democracies – Britain, Canada and some parts of the United States spring to mind – the media may even enjoy a relationship of mutualism, where joint committees of editors and jurists or prosecutors co-ordinate the interaction between the media and the court system.
But, while there is merit in an approach that facilitates the media’s mass communication and watchdog functions in society, we should be wary of arguing for journalists having a better right than any other citizen to access information and, in that way, diminishing the agency of ordinary citizens. Open justice must be attached to freedom of expression rather than freedom of the media.
Our own now-deceased chief justice Pius Langa drew a neat distinction between the responsibility borne by the courts to ensure that justice is done, and the power of the media to determine whether justice is seen to be done.
“Judges and magistrates have little power outside of the courtroom to explain or defend their positions and are uniquely reliant on journalists to convey their decisions to the broader population,” said Langa. “With this power comes responsibility ... to report on the work of the courts accurately and fairly, but not uncritically.
“It is vital for the proper administration of justice that the public is correctly informed about what the courts do.”
Given our apartheid-era history – and the growing tendency even among mature democracies – to use secretive judicial and extra-judicial measures against opponents of the state, we should be less concerned about the public interest associated with celebrity trials.
In the 1980s, the state security apparatus built a high security special court at Kenton-on-Sea, literally to hide the terrorism and related trials of anti-apartheid activists. I was one of a couple of journalists who, over a year, covered the first terrorism trial to be convened in Kenton, which offered very little hope that a fair trial could emerge from the secretive, brutalised environment, out of the public eye, away from human rights proponents.
But for the commitment of reporters and editors (the latter sometimes grudgingly so because of their innate conservatism or concern about resources being soaked up by allocating staff to cover these cases) the public would have been none the wiser about the parade of people who appeared in this special court and the outcome of the cases.
This is the critical role that Bentham had in mind for the media 200 years ago, not a voyeuristic journey into people’s broken and sordid lives.
Our courts hold the line against a state with an authoritarian bent, although there are disconcerting examples – even in the Dispatch area of circulation – of court officials attempting to stymie media efforts to shine the spotlight on the powerful, monied and popular, who find themselves on the wrong side of the law.
Bizarrely, in a number of cases in East London, women court officials have played key roles in shielding male rape accused from the glare of publicity.
Promoting these key principles in support of open justice are of little benefit for Pistorius, as his every gesture and utterance will be scrutinised by the media assembled in court and possibly (we shall know for sure later today) beamed into living rooms around the world.
The public should not expect scintillating legal cut-and-thrust, although the evidence leading will be carefully orchestrated and the cross-examination stultifying. It’s unlikely that any of the lawyers will plumb the turgid depths.
But wall-to-wall court coverage will prove not to be as exciting as an episode of your favourite reality TV programme.
- From the Daily Dispatch
