To see justice done is justice for all

2010-04-24 12:50

The trial of the two farmworkers, one of whom is a child, who are accused of murdering Eugene Terre’ Blanche, raises the important constitutional issue of whether the case will be tried in the open.

The default provision of the Criminal Procedure Act is that all criminal trials take place in public. However, this is reversed where children – those under 18 – are facing trial.

The general rule, now contained in section 63(5) of the Child Justice Act, is that such trials are held in secret. But there are exceptions. The provision states that “no person may be present in any setting of a child justice court, unless his or her presence is necessary in connection with the proceedings ... or the presiding officer has granted him or her permission to be present”.

This vests in the presiding officer the discretion to ­allow media and the public to be present in court. And this discretion must be exercised in accordance with constitutional rights and principles, most importantly, the media’s right to freedom of expression and the principle of open justice.

Earlier this month, Media 24, Independent Newspapers, the SA National Editors’ ­Forum and launched an application in the Ventersdorp Magistrates Court requesting the presiding officer to exercise his discretion in favour of media and public access to the bail hearing of the child ­accused, and to the trial itself. The child decided at the eleventh hour to not apply for bail.

It is submitted that the case for access to the media is powerful. Neither of the accused has opposed the application, and the media has undertaken to protect the identity of the child at all times, which is in any event a requirement of the Criminal Procedure Act. The trial is a matter of manifest public interest: Terre’ Blanche was a controversial public figure, as perhaps the most well-known white supremacist in modern-day South Africa. And the speculation about why he was killed has already engaged the attention of the local and international media.

The National Prosecuting ­Authority’s (NPA) decision not to split the trials means the adult accused will be tried with the child, making the case for ­access stronger.

The NPA, which has indicated that it will oppose the media’s application, has reportedly suggested that the public should rest content with regular briefings as to what happens in court. With respect, even assuming that an accurate and complete summary will be presented to the public (which is besides the point), this approach makes nonsense of the principle of open justice.

As the Constitutional Court has held: “Seeing justice done in court enhances public confidence in the criminal justice process and assists victims, the accused and the broader community to accept the legitimacy of that process … Were criminal cases to be dealt with behind closed doors, faith in the ... justice system may be lost. No democratic ­society can risk losing that faith.”

This is a case which cries out for media and public access, with due safeguards to protect the interests of the child.

It is hoped that when the issue comes before the court in due course, the principles of open justice will prevail.

  • Milo is a partner at Webber Wentzel and visiting associate professor in media law at the University of the Witwatersrand. He is representing ­media in the application

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