State approaches SCA, ConCourt over Van Breda livestreaming request

2017-04-10 16:33
Henri van Breda with his attorney Lorinda van Niekerk. (Tammy Petersen, News24)

Henri van Breda with his attorney Lorinda van Niekerk. (Tammy Petersen, News24)

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Cape Town - The National Director of Public Prosecutions has applied to the Supreme Court of Appeal, as well as the Constitutional Court, for urgent leave to appeal the Western Cape High Court's decision to allow Media24 to livestream the trial of triple murder accused Henri van Breda.

According to an affidavit in support of the application, Western Cape Director of Public Prosecutions Rodney de Kock said the fair trial rights of both the prosecution and the accused "will be impaired and their prejudice will be irreparable if the trial is broadcast".

Van Breda also intended to seek leave to appeal to the Constitutional Court and, conditionally, to the Supreme Court of Appeal, he said.

De Kock, in his statement, said the extension of the principle of open justice to include broadcasting created a potential conflict of three rights – to privacy, freedom of expression and to a fair public hearing and trial.

"It is submitted that the concept of open justice should not become the 'open sesame' for opening the doors of court to the media, without considering the paramount concern of criminal justice – to afford both the accused and the prosecution a fair trial," he argued.

"And when the rights of the prosecution and accused are compromised, to the point where the infringement might affect the outcome of the trial, the court must impose controls and protocols to ensure that any infringement of the rights of the prosecution and accused do not affect the ultimate verdict."

'Aggravated pressure'

The presence of cameras in court would undoubtedly be nerve wracking for many witnesses, De Kock said in his affidavit.

"A courtroom is intimidating for witnesses, many of whom would not ever have been in a courtroom. Their anxiety is intensified by live telecast or recording.

"If a witness or an accused is evaluated on responses in circumstances where he or she faces this aggravated pressure, and demeanour will play a role in assessing credibility, the interests of open justice are subverted."

An added danger, he said, was the "aspiration of some of the witnesses for quasi-celebrity status," which may lead to them exaggerating their role in the case.

"By contract, eye witnesses to criminal conduct may be deterred from coming forward in the first instance for fear of the harsh flare of public scrutiny attendant upon live broadcasts of high profile trials," he said.

Allowing the livestreaming may also lead to trials within trials over whether a witness should be broadcast, bogging down proceedings, De Kock argued.

Order 'can be easily varied'

Western Cape High Court Judge Siraj Desai on Thursday refused the State and Van Breda leave to appeal his decision allowing Media24 permission to livestream the axe murder accused's trial.

He had said the National Director of Public Prosecutions and the accused "both continue to resist the video recording and broadcast of the criminal trial".

"It seems to me that in the modern era of rapidly increasing methods of mass communication, to decline this order would be inconsistent with the current, and certainly the future, reality," he said.

There was no evidence to support the State's claim of the possible adverse effects of broadcasting the testimony of witnesses, Desai ruled, nor was it easily ascertainable how Van Breda's fair-trial rights would be compromised.

"If there is any hint of that occurring, the order granted by me can be easily varied."

Two unmanned cameras would be allowed in the courtroom, but the allowance excluded exhibits and images and recordings of Van Breda's sister Marli, after her legal representative Advocate Louise Buikman stressed the importance of shielding her from the media glare.

Media rights

Desai said there was no real prospect of the trial being jeopardised.

In his reasons 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 to a fair public trial in which the rights of the media and the public were also respected.

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 is 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.

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

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