The judge in the Schabir Shaik corruption trial on Tuesday turned down an application by e.tv to televise proceedings, but left the door open for broadcast of the closing stages of the case.
Judge Hillary Squires said television cameras would be ”conspicuously intrusive” in the already crowded courtroom, would distract everyone there and could both intimidate witnesses and intrude on their right to privacy.
E.tv said it will study the judgement and consider whether to launch a Constitutional Court challenge.
Squires’s decision, delivered shortly after 2pm, followed a day of legal argument on Monday by e.tv’s senior counsel, Gilbert Marcus, and the state and defence teams, both of which opposed the application.
Squires said e.tv had based its application on Section 16 of the Constitution, which guarantees freedom of expression to all people, including the media, and covers the right to receive and impart information.
Marcus had also argued that televising the proceedings would be nothing more than an extension of the requirement in law that a trial be held in open court.
Shaik’s advocate, Nirmal Singh, had argued that a broadcast could infringe Shaik’s right to a fair trial.
Squires said if it could be said that any witness was in any way intimidated or dissuaded by the prospect of his evidence being filmed, or that he withheld facts, ”then the question of a fair trial could be put at serious risk”.
”The decision is, which right should defer to the other; the decision being complicated by the fact that the choice is not between right and wrong, but between right and right,” he said.
He did not think it was acceptable to suggest that televising the evidence of a witness amounted to no more than that witness testifying in an ordinary open court.
The broadcast would undoubtedly be a visible operation, and the cameras — for which there is not enough room in the courtroom for one, let alone the three e.tv proposed — would be ”conspicuously intrusive”.
For most people, they would be a distracting factor even if they are not giving evidence.
He also said one has to imagine the effect on a witness who knows that every ”inadvertent folly” and embarrassment, every frown of hesitation, unguarded response or personal detail could appear broadcast over and over again in people’s living rooms, or will be preserved forever on tape.
Allowing this would potentially undermine a court of appeals decision that held that the right to privacy includes the right to decide when and under what circumstances private thoughts, statements, reactions and idiosyncrasies should be made public.
In the light of the refusal by the state and the accused to consent to such evidence being televised, and given the likelihood of witnesses being inhibited or intimidated, he did not think he could accede to the application.
But even though the bid to televise the entire proceedings was refused, this did not mean e.tv’s request ”can never be entertained”.
He said the Constitution gives him discretion to organise his own courtroom.
Speaking for himself, and not even for the Natal provincial division of the High Court, he would have no objection to the televising of the later parts of the trial ”where the difficulties I have described are no longer an obstacle”.
This could include final argument ”if anyone is still interested”, he said — to laughter from the courtroom — or his judgement.
E.tv can approach him later ”to see if some accommodation of this request can be achieved”.
By agreement, there would be no order of costs relating to the e.tv application.
E.tv attorney Dan Rosengarten said afterwards it was ”obviously a very disappointing decision”, and that the judge had left minimal leeway for the station.
He said the judge had had to weigh up the right to privacy and the right to a fair trial against the right to freedom of expression.
”We have just approached the parties to try and get permission to televise the opening argument tomorrow, and there was an objection on behalf of the accused. They said a formal application would be necessary.
”A decision’s been taken that, given the short time available, no such application would be brought.”
He had no doubt that e.tv will apply to televise at least the closing argument and judgement.
”We are going to get a copy of the judgement to read it and consider whether there is any opportunity of taking the matter further to the Constitutional Court.”
He said Squires had seemed to leave the door ”slightly open” for an approach by radio to broadcast proceedings.
National Prosecuting Authority (NPA) spokesperson Sipho Ngwema welcomed what he called a ”very balanced judgement”, and said witnesses have to be free to testify without distraction and intimidation.
”As the NPA we think we will be able to put arguments as we have in the past in a less intimidating environment.”
With the e.tv application out of the way, Shaik’s criminal trial is set to start at 10am on Wednesday.
Shaik, Deputy President Jacob Zuma’s financial adviser, faces two counts of corruption and one of fraud, stemming from his alleged bankrolling of Zuma in return for support for his business interests, and what the NPA says was a bribe to Zuma related to the arms deal.
Shaik’s former business associate Professor Themba Sono, now an Independent Democrats politician, will be the first witness to take the stand.
Though Shaik attended Monday’s proceedings, he was not in court on Tuesday. — Sapa