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Oscar Pistorius and the evolution of witness protection

Phillip De Wet

A court order around the release of a witness's photograph during the Oscar Pistorius trial could have troublesome implications for media freedom.

Athlete Oscar Pistorius. (AFP)

ANALYSIS

The privacy of witnesses testifying in the murder trial of athlete Oscar Pistorius is a recurring issue – and rules clarified on Monday may need further tweaking.

A week into Pistorius's trial for the murder of Reeva Steenkamp, Judge Thokozile Mapisa on Monday gave detailed reasons, and a slight variation, on a court order around the publication of pictures of witnesses in the matter.

And while it represents an important step towards increased protection for witnesses, it could have troublesome implications for media freedom should it become a template for future matters.

Mapisa issued a hasty order in the first week of the trial after prosecutor Gerrie Nel halted proceedings because broadcaster eNCA had shown a file picture of the first witness, Michelle Burger, while she was giving testimony.

Burger was among the witnesses who had objected to having her testimony broadcast on live television, but in what was considered a finely-tuned compromise between witness privacy and open justice, the testimony of all such witnesses was allowed to be broadcast live as audio-only.

Nel, Burger and Mapisa were all concerned that her photograph was being shown alongside her testimony, and Mapisa's ruling soon after showed she considered it a breach of the original compromise. To close what may or may not have been a loophole, Mapisa ordered that no photographs of objecting witnesses may be published during the course of the trial, and specifically included newspapers in the order.

Public figures vs 'private witnesses'
Under usual rules for criminal cases photographs of witnesses – any witnesses – may be published as soon as the witness leaves the witness box and has no further role to play in proceedings.

But, as Mapisa said, at the start of proceedings on Monday, in the trial of Pistorius "we are here not dealing with a normal situation".

In varying and clarifying her order, Mapisa distinguished between public figures and "private witnesses", ordinary people with an expectation of privacy who are dragged into a high-profile court case. And such private witnesses, the judge said, deserve special protection from the court.

As a result of her order, photographs of public-figure witnesses who object to having their testimony on television will be allowed once they have completed their testimony, but not while they are under oath. If Pistorius himself objects to television coverage of his testimony, as he almost certainly will, this will prevent any newspaper or media organisation from publishing any photographs of him whatsoever for the several days he will like spend under oath.

The extra protection extended to private witnesses means that no photographs of them, whether new or historic, may be published for the full duration of the trial.

Limited picture-ban
In the Pistorius matter, the trial is supposed to end by March 20 – making the picture-ban a very limited one. But other criminal cases can drag on for years; in the most extreme example yet seen in South Africa is the prosecution of the Boeremag traitors, which lasted more than a decade. 

Had similar rules been in place during the Boeremag trial, that would have implied that any publication of any pictures of objecting witnesses would have been banned for more than 10 years, with troublesome implications for media freedom and the public interest.

In a further complication in the Pistorius case, prosecutor Gerrie Nel on Monday attempted to call forensic pathologist Gert Saayman but proceedings were halted because of a media issue. Saayman himself, Nel said, with the support of both prosecution and defence, did not not feel it appropriate that audio broadcast of his testimony be allowed.

Saayman is expected to provide graphic evidence of the nature of the wounds suffered by Steenkamp, and to describe in detail how she died.

Mapisa did not immediately grant an order in that regard as, Nel said, counsel for affected media organisations wanted to argue the matter, and was not yet in court. 


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