(FXI/IFEX) – The following is an FXI statement: FXI’s response to SCA’s ruling on SABC’s application to broadcast Schabir Shaik’s appeal The FXI is disappointed with the Supreme Court of Appeal’s (SCA) ruling today dismissing an application by the South African Broadcasting Corporation (SABC) to televise and sound record the proceedings of Schabir Shaik’s appeal. […]
(FXI/IFEX) – The following is an FXI statement:
FXI’s response to SCA’s ruling on SABC’s application to broadcast Schabir Shaik’s appeal
The FXI is disappointed with the Supreme Court of Appeal’s (SCA) ruling today dismissing an application by the South African Broadcasting Corporation (SABC) to televise and sound record the proceedings of Schabir Shaik’s appeal. The Institute has read the judgement and considers it to be retrogressive for media freedom in South Africa, and fails to take into account the peculiar demands of reporting for radio and television. Broadcasters need camera and microphone access to the courtroom to capture material, and disallowing them from using their “tools of the trade” in the courtroom prejudices against these media relative to the print media.
The FXI supports the SABC’s argument in its application that it would be in the public interest to allow the broadcast media in court, and does not believe that this wish is driven simply by a self-interested concern with improving ratings. There is a considerable public interest in the appeal. The SABC’s broadcasting services are the most popular media in the country, especially radio. In making this judgement, the SCA is preventing those who rely overwhelmingly on these services – rather than print media – from accessing information as the story unfolds.
The judgement also adopts a disconcerting approach to delayed sound broadcasts, stating that these will “most times contain soundbites, present a considerable risk of misinterpretation . . . and consequent misunderstanding”. This is presumptuous, as it assumes that journalists are prone to “get it wrong”, and that this possibility must not even be allowed to arise. If SABC journalists do get it wrong, then mechanisms of recourse are available.
The SCA also alludes to the potentially disruptive presence of the broadcast media, as the presence of cameras and microphones could intimidate, stress or distract judges and lawyers in their appeal hearing. This is old style thinking, and does not reflect current sentiments internationally on the interaction between media and court processes. Open court means just that: open for the public, including through the media. Given the court had already given the applicant leave to record the visuals, it is difficult to fathom how the stresses of being on camera would be unbearable with the addition of microphones, which are hardly more intrusive than bulky cameras and equipment. Moreover lawyers and judges are required to speak into microphones routinely in order to create a record, so they can hardly be said to be unused to such “intrusive” devices.
The court appears to bend over backwards to accommodate the real or imagined fears of counsel and the judges, even referring to the “distraction of the extensive publicity that will ensue”. With respect, the “extensive publicity” will ensue regardless of whether there are live broadcasts are made or not. The Shaik trial gripped the attention of the nation and there seems little reason to believe that this appeal hearing will be any different, especially with the Zuma trial imminent and with the outcome of Shaik’s appeal being of critical importance to the Zuma trial.
It was common cause between the parties that the exercise of Shaik’s right to privacy was not an issue. The only issue which fell to be decided therefore was the proper balancing of Shaik’s right to a fair trial and the SABC’s right to free expression.
Shaik’s right to a fair trial in terms of s35 of the Constitution is limited to various rights, none of which have been violated to Shaik’s detriment in this application to broadcast. In concluding that “. . . live or recorded sound broadcasting should not be allowed unless the court is satisfied that that justice will not be inhibited . . .”, the judge employs the dubious authority of a quote from a British judge’s speech at a broadcasting seminar.
The argument made by the SCA about public perception pre-judging the Zuma matter is patronizing. This argument implies that public perception must be managed through the control of information in the broadcast media, which is a dangerous assumption. With respect to the argument that witnesses in the pending Zuma trial may be frightened off by live coverage, it should be noted that if a compelling reason can be shown, then specific applications for in-camera hearings or delayed broadcast hearings could be made. But there should not be a presumption that any and all witnesses will be shrinking violets when it comes to media publicity, as many witnesses will be public figures who will be used to the glare of publicity.
The FXI firmly believes that an urgent appeal to the Constitutional Court should be filed by the SABC. The policy of the Constitutional Court itself appears to favour live broadcasts in its own court.
The Cape High Court recently decided in favour of televising proceedings by the SABC in the Mark Thatcher’s court battle to avoid being questioned by Equatorial Guinea in connection with a coup attempt in that country. The substance of the court’s decision in that case was that media and legal profession need to work hand in hand to ensure that justice triumphs and that public trust in the legal system remains solid.
In similar high-profile cases overseas, live television has been allowed. The entire hearing of the appeal of the UK Lockerbie bombing trial in 2002 was streamed live by the BBC on its website. Interestingly in that case, the court drew a clear distinction between appeals, which are normally confined to legal argument, and trials involving live witnesses. The latter are unlikely to be televised. In the US, also in 2002, family members and victims were permitted to watch a broadcast version of the trial of Zacarias Moussaoui, the only person so far indicted in connection with the September 11 terrorist attacks. Closed-circuit coverage was provided, as was done in the trial of Timothy McVeigh after the Oklahoma bombing.
The FXI agrees wholeheartedly with the approach adopted by the Cape High Court and Constitutional Court, as well as the UK and US courts, and calls for a similarly progressive approach to be adopted in the SCA in future appeals.
