Van Breda media coverage matter heads to Supreme Court

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Western Cape High Court Judge Siraj Desai. (File, 24.com pool)
Western Cape High Court Judge Siraj Desai. (File, 24.com pool)

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

However, they have indicated that they will now approach the Supreme Court of Appeal.

Desai 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 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."

Desai last Monday granted Media24 permission to film proceedings to be livestreamed following an urgent application.

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

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

In his reasons, delivered on Tuesday, 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 a fair public trial in which the rights of the media and the public were also respected.

The State and Van Breda appealed against his decision, arguing it would affect the administration of justice.

Among their arguments were that the livestream could alter witness testimonies, or intimidate witnesses while they testified.

During arguments on Wednesday, Desai said modern methods of communication means the notion of an open trial has acquired a new meaning, making open justice inevitable.

In his reasons, he said that, unlike a journalist's summary of the evidence, live coverage was a more accurate account of the actual evidence.

Hilton Epstein, SC, for the State, said that a courtroom was already intimidating for lay witnesses and that their trepidation may be aggravated by the knowledge that their testimony was being broadcast live to potentially millions of viewers around the world.

He also pointed out in the application that there was a possibility that the "aspiration of some witnesses to 'celebrity' status may lead to unreliable or misleading testimony".

The State said Desai failed to recognise that the adverse effects of broadcasting may not only be the intimidation of witnesses, but the possibility that counsel may grandstand, tailoring their arguments to the court of public opinion.

Francois van Zyl, SC, for Van Breda, said allowing the application may inhibit those in the witness box, saying the knowledge that the person is being recorded was the problem.

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.

* News24 is a wholly owned subsidiary of Media24.

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