Van Breda trial media ruling: Who were the winners?

2017-06-22 19:13
Henri van Breda is charged with multiple counts of murder. (Tammy Petersen, News24)

Henri van Breda is charged with multiple counts of murder. (Tammy Petersen, News24)

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Bloemfontein – The biggest winner in an appeal brought by murder accused Henri van Breda - who was challenging Media24's application to livestream his trial – is the media and the public. 

This is according to legal experts who explained that the ruling was a draw between Van Breda and Media24.  

Although the Supreme Court of Appeal (SCA) set aside the Western Cape High Court’s decision which states that during the sitting of the murder trial– Media24 is permitted to install two video cameras to record and or broadcast the proceedings with certain guidelines – legal experts believe this is not a victory for Van Breda. 

"It is kind of a draw between Van Breda and Media24," News24’s lawyer Willem de Klerk said.

"He [Van Breda] did not win his battle. The SCA said the blanket ban was not the way to go," De Klerk said.

He said the media had not lost their battle to livestream the trial proceedings, but the SCA had referred the matter back to the trial court to decide.   

READ MORE: Van Breda trial: SCA had to weigh merits of live stream vs fair trial

"There is no doubt in my mind. The judgment is clear that media role in covering the case is essential."

'Cameras are here to stay'

He said High Court Judge Siraj Desai’s order was broad, but the SCA had looked at other cases, including that of former Paralympian Oscar Pistorius, in order to arrive at their conclusion.

De Klerk said the court had concluded that "cameras are here to stay", although one still had to ensure a fair trial.

Media and information lawyer from Webber Wentzel Dario Milo told News24 that the SCA judgment was an affirmation of the default position, and that streaming or broadcasting everything that happens in any case was constitutionally required.

Milo added that this meant that witnesses and the accused in a criminal trial who object must have good reasons why their testimony should not be broadcast.

"In Van Breda's particular case, if he does not wish to have his evidence (if he testifies) broadcast, he must argue this before Desai J who will make a decision on the issue."

The SCA highlighted that the court should not restrict broadcasts, unless there was a real risk of demonstrable prejudice.

'Web of mutually supporting rights'

It ruled that the matter be remitted to the High Court for reconsideration, in accordance with the principles set out in this judgment.

It also said that Media24 should pay Van Breda’s costs. Media24 had delayed launching its application before Judge Desai.

The SCA said that, after his criminal trial had already started, Van Breda had to also contend with the appeal.

"He was forced at fairly short notice to cause counsel, other than counsel representing him in his criminal trial, to be briefed to argue the appeal before this Court."

The SCA pointed out that the media's right to gather and broadcast information, footage and audio recordings flowed from Section 16 of the Constitution.

The court also added that the right to freedom of expression was one of a "web of mutually supporting rights" that uphold the fabric of the constitutional order.

'Exercise proper discretion'

The court ruled that the right to broadcast and livestream Van Breda's murder trial had to be weighed against the risk of cameras in the courtroom affecting a fair trial.

"It shall be for the trial court to exercise a proper discretion, having regard to the circumstances of each case," the SCA said.

In its ruling, the SCA said the court should examine, with care, the approach to be taken with regard to each application.

It said cameras were permitted to film or televise all non-objecting witnesses, and that spurious objections could also be dealt with.

"If the judge determines that a witness has a valid objection to cameras, alternatives to regular photographic or television coverage could be explored that might assuage the witness' fears."

Judge Desai had granted Media24 permission to film proceedings to be livestreamed, following an urgent application.

Desai said, at the time, that there was no real prospect of the trial being jeopardised.

But the SCA said that one of the objections relating to the opposition of cameras in courts was about the possible effect that they, and the audience they represent, may have on the testimony of witnesses in criminal trials.

"It will always remain open to a trial court to direct that some or all of the proceedings before it may not be broadcast at all or may only be broadcast in... audio form.

"It shall be for the media to request access from the presiding judge on a case-by-case basis."

No blanket ban

The court also rejected the State's desire for a complete blanket ban on broadcasting the case.

Van Breda is 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 at the luxury De Zalze golf estate in Stellenbosch in the early hours of Tuesday, January 27, 2015.

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

Media24 was backing up its application to livestream the trial 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.

The SCA ordered Media24 to pay Van Breda's costs.

* News24 is a wholly owned subsidiary of Media24.

Read more on:    media24  |  henri van breda  |  judiciary  |  van breda murders

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