What about Oscar Pistorius' rights under section 35(3)(c) of the Bill of Rights?
The verdict of Justice Mapisa in the murder trial of Oscar Pistorius has solicited much comment from criminal law experts. There is another aspect, though, which has received only cursory attention as the trial evolved: the rights of the accused under section 35(3)(c) of the bill of rights.
This provision determines that: ‘Every accused person has a right to a fair trial, which includes the right to have a public trial before an ordinary court.'
There are various elements of this right that must be considered in an inquiry whether a trial has been fair in a specific instance, viz
Who is the bearer of this right?
Against whom can this right be asserted?
What is meant by a ‘public trial'?
What is meant by ‘an ordinary court'?
To start with the first inquiry: The above provision identifies the bearer of this right as ‘every accused'. It is therefore not the public (including the media) or the victim, but the accused (in this case Pistorius) who can assert this right.
The second inquiry is against whom the accused can assert this right. In terms of section 8(1) of the Constitution, the bill of rights ‘binds the legislature, the executive, the judiciary and all organs of state'. The intention of this provision is to curb state power in order to prevent state organs from infringing upon rights of persons that are protected by the bill of rights.
Section 35 regulates how state organs have to perform their duties in relation to the investigation of crime and how criminal trials should be conducted. There are potentially four state organs against whom these rights can be asserted:
- the legislature is bound to make criminal laws that are in conformity with the fundamental rights, which are guaranteed by this provision;
- the prosecuting authority is bound to conduct its criminal investigations and the institution of criminal proceedings in a manner that respects all these rights;
- the criminal police (as part of the executive branch) that assists the prosecutors with criminal investigations and who have the power of arrest in order to secure public safety is also bound by these rights, and
- the judges presiding in the trial must also conduct their powers to be in accordance with these rights.
Thirdly, what is meant with a ‘public trial'? This simply means that the judiciary and prosecutors may not conduct trials in secret. Secret trials, which are often conducted a pro forma basis in authoritarian regimes to seal the destiny of political dissidents that a regime wants to get rid of, are not allowed. This is why the bill of rights of a constitutional state requires that trials should be public and why there are relatively strict rules for hearings ‘in camera'.
Implicit to this right is that a trial must be open to the public, for example, that the press can report on a trial. Press freedom under section 16(1)(a) of the bill of rights can therefore impact on the right to a fair public trial, but press freedom could be limited by the rights of the accused if that would impact on the fairness of the trial. The court will have to weigh up press freedom against the right to a fair trial. Press freedom, for example, will still be guaranteed if journalists may attend the trial and report on that.
Finally, trials should be conducted by ‘an ordinary court'. This requirement implies that an accused has the right to a hearing by a trained judge that performs the duties of a court of law. There are exceptions insofar as lay persons are involved. Specialists in certain fields may assist judges as assessors when legislation permits that, eg a chartered accountant that could assist in a tax court where a judge is required to assess the legality of bookkeeping practices in a tax evasion case. It must be an ordinary court, though. Hearings by so-called "people's courts" that take on the form of a kangaroo court are precluded. A mob may not take the law in its own hands.
In Multichoice (Properties) Ltd and Others v The NPA and Pistorius (see here - PDF), a number of media institutions brought a lawsuit before the trial started to allow them to broadcast the whole trial life on television because it ‘captured the attention and imagination of both South African and international communities'. It almost sounded like an important sports event like the where TV stations were vying for the broadcasting rights, willing to millions for it.
Pistorius and the National Prosecuting Authority opposed the life televised broadcasting of the trial. They argued that Pistorius' rights to a fair trial would be infringed if he was subjected to a world-wide life televised broadcast of the trial due to the enormous media stress this would cause.
The presiding judge was thus required to weigh up the rights of Pistorius to a fair trial under section 35(3)(c) with press freedom under section 16(1)(a) of the bill of rights of the TV stations and some print media who joined the application.
In considering the matter, MLambo JP did not approach the rights of Pistorius under section 35(3)(c) of the bill of rights as rights that also limits judicial power. Instead he referred to the power of the courts under section 173 of the Constitution to determine their own procedures as if the judicial sphere is not subject to section 8(1) of the bill of rights and if the function of the judge is merely to balance the right of the media houses to press freedom and Pistorius' right to a fair trial.
A major consideration of the court was to give effect to a so-called principle of ‘open justice' which he linked to the open democratic society envisaged by the Constitution ‘in which the public have a right of access to the workings of the judicial system'. He based this right of the public on section 173 of the Constitution. The latter provision, however, does not create such a right for the public. It merely curbs the power of the legislature and the executive to interfere in the judicial sphere.
It appears that the presiding judge based this postulated ‘open justice principle' on section 1(d) of the Constitution. According to him, this principle aims at supporting ‘public education on the workings of the court' in order to foster openness and accountability. Thus, the presiding judge interpreted section 35(3)(c) to mean that ‘even criminal proceedings in this country are to be public'.
Section 1(d), however, does not refer to justice or the judiciary. It refers to the multiparty system of democratic government which must ensure accountability, responsiveness and openness. The focus is on political parties and democratic representation in the legislative and executive state organs and that they should be held accountable. One therefore cannot postulate a theory of ‘open justice' in a judicial context with reference to this provision.
It seems fair to conclude that the court conflated the right of an accused not to be tried in a secret trial to be a right of the court to educate the public on criminal justice with the aid of media houses. Hence, the broadcasting of the whole trial life world-wide was to ‘encourage public understanding as well as accountability [of the courts]'.
Mlambo DP justified his decision with reference to
"... perceptions that continue to persist in the larger section of South African society, particularly those who are poor and who have found it difficult to access the justice system, that they should have a first-hand account of the proceedings involving a local and international icon. I have taken judicial notice of the fact that part of the perception that I allude to is the fact that the justice system is still perceived as treating the rich and famous with kid gloves whilst being harsh on the poor and vulnerable. Enabling a larger South African society to follow first-hand the criminal proceedings which involve a celebrity, so to speak, will go a long way into dispelling these negative and unfounded perceptions about the justice system, and will inform and educate society regarding the conduct of criminal proceedings."
The Constitution does not mandate judges to perform public education initiatives on the back of an accused just because he happens to be a celebrity, though. Every accused has the right to equal treatment (section 10 of the bill of rights). The court may therefore not subject a public figure to a trial with a world-wide life broadcast where he is crucified on social networks and tried by the media just because he is ‘an icon', whereas other accused are not subjected to having to stand trial under such circumstances.
If there is a need for public education about how the criminal justice system works, this would fall in the domain of the Department of Justice. Apart from that, if the education of poor South Africans who have reservations about the justness of the criminal justice system were the goal, it does not explain why the judge allowed the world-wide broadcasting for any reason other than sensationalism.
Section 165 of the Constitution clearly specifies judicial power as adjudication: the courts must apply the Constitution and the law impartially and without fear, favour and prejudice. The rights of an accused may therefore not be prejudiced because he is a celebrity. The right to a fair trial is a right of ‘every accused' and this right can be enforced against the judiciary in terms of section 8(1) of the Constitution.
The presiding judge left the final say on the public broadcasting of the whole trial to the discretion of the judges in the trial court, who went along with his ruling. One then had to observe whether the fairness of the trial could be ensured under these circumstances.
When some witnesses refused to testify because they did not want to be subjected to a world-wide life dissection of their testimony and cross-examination under these circumstances having seen what happened to the first witnesses, the warning flash lights should have alerted the court that justice is not being served by this ruling. At that stage the presiding judge should have realised that a fair trial was jeopardised and should have limited press covering to journalists in the public gallery.
The next red light started flickering when Pistorius cracked under the psychological stress of the life broadcasts of his testimony under cross examination. The negative impact of such a public broadcasting, which Justice Mlambo anticipated, became a reality.
The trial was suspended so that Pistorius could be observed by a psychiatrist for a month. The latter testified that he suffered from a stress syndrome as a result of the trial being broadcasted life world-wide and the extraordinary public focus by the press and the social media severely affected him.
Yet, again the judge did not step in to limit media coverage to journalists in the public gallery. In the verdict the judge then observed that Pistorius did not make a good figure as a witness and made conflicting statements. This was to be foreseen. Any accused would be intimidated if he has to consider the impact of every word he says in the witness stand if he knows that he is not only standing trial but must ‘perform' before a world-wide life audience that is watching each day of the trial like the next episode of a ‘delightful soap opera'.
There is no provision in the bill of rights that gives media institutions the right to the life televised broadcasting of a criminal trial as if a criminal trial is a soap opera. In weighing up the accused's right to a fair trail and press freedom, the court should have applied the principle of proportionality and if the goal of press freedom could have been guaranteed by a less intrusive measure, the court was obliged to select that. In this case it would have been ordinary press coverage by journalists.
It may therefore be sensible to consider comparative law in this regard. Section 8(1) of the South African bill of rights, which binds the judiciary to ensure a fair criminal trial in terms of section 35, is similar to art 1(3) of the German bill of rights. One can therefore refer to it on a comparative basis to determine the scope of powers of the judiciary to make such rulings. Section 39(1)(c) of the bill of rights makes provision for that.
In Germany, there are very strict rules pertaining to the broadcasting (whether on TV or audio on the radio) of judicial proceedings. In terms of section 169 2nd sentence of the Courts Constitution Act (Gerichtsverfassungsgesetz), radio and television broadcasting as well as the making of audio tapes or videos with the purpose to broadcast its contents publicly are not allowed. The only exception to the rule is regulated by section 17 of the Constitutional Court Act (Bundesverfassungsgerichtsgesetz). The opening of court proceedings (until the court acknowledges the presence of the parties before the court) and the judgment of the court may be broadcasted by radio or on television or recorded for such purposes.
Thus, the corruption trial of the former Federal President of the country, Christian Wulff, which certainly had the potential to have the same type of covering like Pistorius as a public figure, was not allowed to be filmed and broadcasted. His public career and marriage was destroyed by overzealous indictment of the press, yet he was finally acquitted in the sanity of court rooms where justice could prevail.
The American Constitution, by contrast, does not contain a similar provision than section 8 of the South African and art 1(3) of the German Constitution that explicitly curbs the powers of state organs to infringe upon fundamental rights. That might explain why a public broadcasting in the case of OJ Simpson was possible. These systems are not comparable.
** Dr Loammi Wolf is a specialist in constitutional law.
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