/ 5 January 2005

Rights, Camera, but Little Action

At the start of the Schabir Shaik trial two members of each news agency were given access to courtroom proceedings, but by the end of October it seemed there were more lawyers around than members of the media.

The reason for this is fairly clear. Despite what LA Law would have you believe, court proceedings can be drawn out and boring. Why then the recent slew of applications to televise court proceedings, and should cameras be allowed in court?

Until recently, although television cameras could be used to film the proceedings of the Constitutional Court and the Supreme Court of Appeal, they were generally not permitted in the High Court. Then, in the application brought by Mark Thatcher to overturn a subpoena, permission was granted to film the proceedings subject to certain conditions.

This permission was granted based essentially on the arguments raised by e.tv in its application to film the Shaik trial — in respect of which permission was denied. The difference? The Shaik trial is a criminal matter in which witnesses are required to give evidence, whereas in the Thatcher application no evidence was led and only argument was presented.

Today there seems to be no reason for judges or magistrates to block television cameras from a court where evidence is not being led. This much was recognised by Judge Squires in the Shaik matter when, in refusing e.tv’s application, he did not rule out the possibility of closing argument and judgment being televised. At the time of writing the latter application is still pending.

The question, then, is should television cameras be allowed in court proceedings (whether criminal or civil) where witnesses are required to give evidence?

Faced with the fact that there is no rule prohibiting broadcasters from bringing television cameras into court, it remains a matter of judicial discretion. Judges need to consider, amongst other factors, whether witnesses giving evidence have a right to privacy and whether the right to a fair trial may be compromised.

The application brought by e.tv in the Shaik proceedings was the first of its kind. Judge Squires was required to weigh up the right of the media to impart information, the right of the public to receive information, the right to privacy of witnesses, and the right of the accused to a fair trial.

In the circumstances of the case the former two rights won out against the latter two, but this should not create a strict rule — it could always happen that a witness waives the right to privacy, which in turn may not impact upon the right to a fair trial.

In a world where security cameras on street corners are becoming increasingly common, the right to privacy is a shrinking one. This is certainly true of high profile personalities accustomed to dealing with the media, which clearly encompasses certain of those giving evidence in the Shaik trial. Such witnesses would, in all likelihood, not be intimidated by the presence of cameras in the courtroom.

Moreover, should cameras become the norm, witnesses will come to accept that having their evidence televised is part and parcel of coming to court and telling the truth.

Ultimately, having cameras in court will not result in the type of media frenzy seen during the infamous OJ Simpson trial. It certainly did not have this effect in the various Commissions of Inquiry that were televised locally, such as the Hefer Commission.

In this sense, the judiciary could probably afford to place its confidence in the electronic media — after all, they do have a regulatory body watching what they do.

Dan Rosengarten is a partner at Rosin Wright Rosengarten and is the attorney who represented e.tv in the application to televise the Shaik proceedings. Subsequently, he represented e.tv, 702 and CapeTalk in the application to provide an audio-link from the Shaik proceedings.