Are we trying to delay inevitable? - Judge on attempt to stop livestream of Van Breda trial

2017-04-05 14:12
Henri van Breda (File, Jaco Marais, Netwerk24)

Henri van Breda (File, Jaco Marais, Netwerk24)

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WATCH: Henri Van Breda arrives at Cape Town High Court

2017-03-27 15:25

There was more drama in the Van Breda family murder case as a ruling allowing media to broadcast the trial was subsequently suspended on Monday. Watch the murder accused, Henri van Breda, arriving at the Western Cape High Court. WATCH

Cape Town - The notion of an open trial has acquired a new meaning, with modern methods of communication making open justice inevitable, Judge Siraj Desai said in the Western Cape High Court on Wednesday.

This was in response to the State and Henri Van Breda appealing against his decision to allow Media24 to livestream the triple murder accused’s trial.

"Aren’t we trying to delay the inevitable?" he asked Hilton Epstein, SC, for the State.

According to Epstein, allowing the broadcast would affect the administration of justice.

He argued that a courtroom was already intimidating for lay witnesses and that their trepidation may be aggravated by the knowledge that their testimony was being broadcast live to potentially millions of viewers around the world.

He also pointed out in the application that there was a possibility that the "aspiration of some witnesses to 'celebrity' status may lead to unreliable or misleading testimony".

The State said Desai failed to recognise that the adverse effects of broadcasting may not only be the intimidation of witnesses, but the possibility that counsel may grandstand, tailoring their arguments to the court of public opinion.

Francois van Zyl, SC, for Van Breda, said allowing the application may inhibit those in the witness box.

"It’s not the microphones or the camera – it’s the knowledge that [they] are being televised," he argued.

State will appeal

Desai last Monday gave permission for two unmanned cameras to film proceedings, following an urgent application by Media24, saying there was no real prospect of the trial being jeopardised.

In his reasons, delivered on Tuesday, Desai said that, while the courts had a duty to ensure Van Breda’s trial was conducted fairly and that the interests of the witnesses and processes were protected, the Constitution stipulated that his right was a fair public trial in which the rights of the media and the public were also respected.

The State said it would approach the Constitutional Court with its appeal.

Van Breda will go on trial on April 24, facing three counts of murder, one of attempted murder, and one of obstructing the course of justice.

His parents, Martin, 54, and Teresa, 55, and his brother Rudi, 22, were axed to death in their home on the luxury De Zalze golf estate in Stellenbosch in the early hours of Tuesday, January 27, 2015.

He handed himself to police in June and was granted bail of R100 000 on June 14.

Marli, 18, survived the attack, but sustained serious brain injuries and suffered amnesia.

Media24 made an urgent application two weeks ago for permission to share proceedings via its internet platforms, so that the public could follow the trial.

The company is backing up its application with section 16 of the Constitution, which guarantees certain rights to freedom of expression, freedom of the media, and the right to access to information.

Live coverage more accurate

Desai gave the green light, but said the allowance excluded images and recordings of Marli, after her legal representative Advocate Louise Buikman stressed the importance of shielding her from the media glare.

Exhibits could also not be recorded.

In his reasons, he said that, unlike a journalist's summary of the evidence, live coverage was a more accurate account of the actual evidence.

Following Desai’s granting of the application, the State and Van Breda's legal representatives told the court of their intention to appeal the decision once reasons were given.

Among their arguments were that the livestream could alter witness testimonies, or intimidate witnesses while they testified.

Desai countered that the "bald claim" that recording equipment in court may be seen to be inconvenient or intimidating should not constitute a limitation of the Constitutional rights of the media and the public under Section 16, regarding freedom of expression - which includes freedom of the press and other media, and the freedom to receive or impart information and ideas.

Van Breda's legal team opposed the application on the grounds that filming could impede his right to a fair trial.

Desai is expected to give his decision on Thursday.

* News24 is a wholly owned subsidiary of Media24

Read more on:    henri van breda  |  cape town  |  crime  |  van breda trial

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