Burger picture: Media could scare off prospective witnesses

Pretoria - When a court case draws international attention and the journalists that feed it, you might expect a bit of naughtiness.

As my colleague Phillip de Wet pointed out, the tabloid press from some countries plays by different rules, and things like paying for interviews and chasing after witnesses to the point of harassment is not out of the question.

We have been apprehensively waiting for one of our foreign colleagues to mess things up.

But surprisingly, it was a local media house that drew first blood. Advocate Barry Roux SC was cut short in the middle of cross-examining the first witness Michelle Burger by the prosecutor Gerrie Nel to say that he was looking at a picture of the witness on some television channel.

The court quickly adjourned to investigate, and found that eNews Channel Africa (eNCA) had found an old photo of Burger somewhere on the internet, and was showing it on television while she was testifying.s

Last week, in a landmark ruling that opened up parts of the Oscar Pistorius murder trial to the media for broadcast purposes, Gauteng judge president Dunstan Mlambo said that a live recording of the trial could be broadcast, but no images and photographs of witnesses who did not wish to be shown could be taken.

Burger is one of the witnesses who has chosen not to have her image broadcasted.

The judge presiding over the Pistorius case, Thokozile Masipa, took a dim view of eNCA’s narrow interpretation of the ruling.

While Mlambo’s judgement only technically barred live ‘takes’ of the witnesses, she found that eNCA’s move violated the spirit of last week’s ruling.

She has now ordered that no images of witnesses may be taken, or shown in the media. (For the briefest moment, we feared that she would toss the media out entirely.)

By running Burger's photo in spite of the order not to, the media runs the danger of intimidating witnesses in future high-profile cases, who might choose to stay silent rather than risk exposing themselves to public scrutiny.

Interpretation

Speaking to News24, practicing advocate and Johannesburg Bar member Don Mahon said that when dealing with questions of interpretation, whether in relation to contracts, statutes or court orders, one cannot simply look at the strict grammatical meaning and stop there.

“There are various aids to interpretation and methods to be applied in coming to a conclusion, one of which is to ask oneself what the purpose of the order is and whether any particular interpretation which is sought to be ascribed does any damage to that purpose. 

“In other words, if you were to interpret it in a particular way, would that interpretation defeat the very purpose of the order? In this instance, one of the purposes of the order was clearly to shield the witnesses from having their faces broadcasted on television.

“To interpret the order in the sense that the prohibition is restricted to images of the witness in court defeats the purpose of the order. If that interpretation was to be applied (as it was by the broadcaster), it would render the order of judge president Mlambo superfluous,” Mahon said.

The eNCA initially defended its decision by saying that it was not in violation of the court order, but has since apologised.

“eNCA unreservedly apologises to the court, the parties and Michelle Burger for this unfortunate incident. No disrespect was intended. We did not understand the court order issued by Judge Mlambo to prevent this,” said eNCA group head of news Patrick Conroy in a statement.

Focus entirely on Roux

In spite of the annoying media distraction, the meat of things is between the lawyers and the witnesses. Once Roux swings into action, the focus is entirely on him.

Burger ended her cross-examination without budging on her version of what happened in the early morning of 14 February 2013 when Reeva Steenkamp was shot and killed not far from her home.

But under a gentler re-examination by the prosecutor, she finally broke down and cried when she described how she felt after overhearing what she described as an extremely traumatic event. Even from the distance of the overflow room next door to the main court, her voice crackled with emotion.

The ending to the first witness’s testimony may have placed the second one in a nervous state of mind, because Estelle van der Merwe (who also chose not to have her testimony on camera) was less at ease when she stepped up to the stand, and required Nel to calm her down before she could begin talking.

Second witness

Van der Merwe lives in the same estate as Pistorius, in closer approximation to Burger. She testified that before she heard the explosions, or gunshots, she heard the sounds of what could have been an argument.

She couldn’t make out what was being said or what language it was in. According to her, she heard another argument coming from outside the Pistorius home three weeks ago and determined that two males were having a row. This helped to convince her that the voice that kept her up in the early morning of Valentine’s Day last year was a woman’s.

“A woman’s voice is a higher than a man’s,” Van der Merwe said, via a new (and much better) Afrikaans interpreter.

“A man’s voice has [bass notes] and a woman’s voice varies when she is in a state of excitement. I heard a woman’s voice because of the variations [in the sound]. On 21 February 2014 I heard a man’s voice.”

However, Roux chose not to employ the same aggressive tactics with this witness as he did with Burger. This could be because Van der Merwe has testified that she also heard Pistorius crying out for help in a high-pitched voice, which may help prove the defendant’s contention that the first witness mistook Pistorius’ shouts for Steenkamp’s.

The next witness to be called to the stand was Charl Johnson, Burger’s husband. He was in the midst of giving his testimony when the day ended. The trial continues.

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