The Constitutional Court had missed an opportunity to demonstrate that it wants the public to have greater awareness of justice at work by refusing the SABC the right to broadcast the Schabir Shaik appeal case, the broadcaster’s attorney said on Thursday.
Ursula Pearce was reacting to the court’s decision not to interfere with the Supreme Court of Appeal’s refusal to allow video broadcasts of convicted fraudster Shaik’s case in the appellate division next week.
The SABC asked the Appeal Court for permission to broadcast visuals of the appeal proceedings without sound, arguing that this was protected by the Constitution’s free speech provision.
The court ruled that section 173 of the Constitution gave it discretion to regulate its own processes where this accorded with the interests of justice.
Asked to overrule the Appeal Court, the Constitutional Court decided it could not, unless the Appeal Court had made a “demonstrable blunder” and the exercise of its discretion was “based on incorrect legal principles or incorrect facts”.
In a dissenting judgement, Deputy Chief Justice Dikgang Moseneke, with Judge Yvonne Mokgoro concurring, found that the Appeal Court’s discretion did not translate into judicial authority.
Judge Albie Sachs agreed with the majority, but differed with their reasons. He challenged courts, and the Appeal Court in particular, to revisit their inflexible attitude towards the presence of cameras and microphones.
“In my view, full electronic coverage of Appellate Court proceedings must wait the establishment of appropriately negotiated procedures for guaranteeing accurate, balanced and fair broadcasting.
“The time has come for the judiciary, in particular in the appellate division, to look the question of television and radio coverage squarely in the eye.”