The sky did not fall

2014-10-22 00:00

YESTERDAY marked the end of South Africa’s first true “live” trial as Oscar Pistorius faced his destiny with sentencing before Judge Thokozile Masipa.

Since March, we have been exposed to live broadcasts of every moment of the trial, millions of tweets, blow-by-blow coverage on scores of websites and millions of words in analysis and commentary. Much of the commentary was unprecedented for a criminal trial, yet, despite misgivings that the Pistorius trial could become South Africa’s first “trial by media”, the sky did not fall.

Rather, the Pistorius trial and the intense public scrutiny of the proceedings have been a watershed in our democracy, realising our Constitution’s values of “accountability, responsiveness and openness”.

Our justice system has been held up to searing examination by an army of citizen critics, but the fact that Masipa could produce a judgment in September, finding Pistorius guilty of culpable homicide rather than murder, a decision clearly at odds with much public sentiment, also underlines the strength of our system.

That she was able to divorce herself from the noise and the chatter, and arrive at her decision based on the evidence and arguments before her, proves that our courts can withstand the glare of such open proceedings. As Masipa commented in sentencing yesterday, courts do not exist to win “popularity contests”.

She held firm again yesterday, with a five-years sentence in which she carefully weighed up the needs of society, the public interest, retribution and mercy. As unpalatable as the sentence may be to thousands of South Africans, it was made independent of the baying mob, as all court decisions should be. There is an often-cited tenet that democracy is best served by an informed and engaged citizenry. There can be no doubt that the Pistorius trial has contributed to this. Who would ever have thought that the legal principle of dolus eventualis would be enthusiastically debated around dinner tables and braais across South Africa?

There is a lesson here for other state institutions as the media battle endlessly for information, data and an accounting of their affairs. It is possible to operate effectively, even under the glare of public scrutiny which our Constitution’s authors imagined and which those who run our country’s affairs appear so afraid of.

The Pistorius episode puts to bed quite decisively any notion of the influence the media might have over the views of citizens and the impact that might have on the ability of state institutions to act correctly.

The media are often accused, mainly by politicians, of pursuing an agenda at odds with that of the political party providing the critique, but, amazingly, at each election, citizens act according to their own beliefs and conscience, and vote in patterns that do not mimic their media consumption.

Pistorius’s trial and its outcome show that South Africa is ready for openness and transparency. It underlines the wisdom and courage of Judge President Dunstan Mlambo of the North Gauteng High Court, who granted media broadcast access to the trial, spawning a veritable Pistorius mini-industry in media, and making legal history in South Africa.

Media lawyer Willem de Klerk, writing on the website Grubstreet, reflected some months ago on how the trial and its proceedings have been left unscathed by media coverage despite the unprecedented access.

He also recorded Mlambo’s warning in his decision to grant access that “there is only one court that will have the duty to analyse and pass judgment in this matter. The so-called trial by media inclinations cannot be in the interests of justice … and have the potential to seriously undermine the court proceedings …”

De Klerk cited Justice Johan Kriegler’s comments in another decision which highlighted the need for openness in justice. “Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see.

“... This openness seeks to ensure that the citizenry know what is happening … so that the people can discuss, endorse, criticise, applaud or castigate the conduct of their courts.”

We in the media know, as do you, that our democracy is underpinned by a respect for the rule of law. We may debate, disagree and even denounce, but Masipa’s decision will not be overturned in the court of public opinion.

However you feel about the outcome of the Pistorius trial, you should be glad that you were part of this historic chapter.

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