In the past weeks, hundreds of thousands of people around the world have been able to hear and see on television, radio and the Internet the evidence being led in the criminal trial of Oscar Pistorius. Pistorius stands accused of murdering his girlfriend, Reeva Steenkamp, on Valentine’s morning last year. He also faces three charges of offences under the Firearms Control Act 60 of 2000 for allegedly discharging a firearm in a public place (relating to the incidents at Tasha’s and the sunroof shooting) and the alleged possession of ammunition that he was, so the state argues, not properly licensed to possess. The case kicks off again next week Monday for the defence to lead its evidence (with Oscar widely expected to give evidence), after being postponed due to the illness of one of the assessors.

The Oscar criminal trial is one that has already had its fair share of media-related issues.

The unprecedented public access to the criminal trial was made possible because of a judgment of the Judge President of the Pretoria High Court, Dunstan Mlambo on 25 February 2014, Multichoice (Pty) Ltd and others v The National Prosecuting Authority and another. You can read the judgment here. In his landmark judgment, Mlambo JP ordered that the entire criminal trial could be broadcast in audio form, and that much of the trial could also be televised.

I acted in the application for access for Multichoice, Combined Artistic Productions (the producer of the Oscar Pistorius Trial: A Carte Blanche Channel), and Primedia Broadcasting, the owner of EyeWitness News. It seemed to me at the outset that this case would never be won in the usual adversarial manner, where the parties square up in court adopting diametrically opposed positions, each hoping to persuade the judge to adopt their approach. This was not least because the case for full TV access to a criminal trial is not an easy one – unlike appeals and applications, where no live testimony is in issue, a criminal trial involves oral evidence. And such precedents as exist in relation to broadcasting criminal trials are not entirely favourable.

We thus preferred an approach inspired by Justice Albie Sachs writing in South African Broadcasting Corporation Ltd v National Director of Public Prosecutions and others (where a majority of the Constitutional Court refused to interfere with the discretion exercised by the Supreme Court of Appeal that the SABC could not broadcast the appeal by Schabir Shaik of his conviction for fraud and corruption):

“Clear guidelines need to be established in advance so as to provide a principled and functionally operational basis for the granting or refusal of access to the electronic media. They should also deal with whether access should be made subject to any particular conditions. As I see it, such guidelines could well give to courts a certain margin of appreciation in terms of the application of these guidelines on a case-by-case basis. Pre-established and principled guidelines, subject to periodic review, would assist broadcasters in their planning. They would also substantially relieve the courts of the duty to make invidious judgments concerning their own capacities and responsibilities in particular cases.”

And so we engaged the parties on both sides – the National Prosecuting Authority, as well as Oscar’s legal team. We sought to persuade the parties that a compromised approach, permitting audio of the trial and some television, was preferable to a blanket ban on broadcast access. It was no easy task – not least because both the NPA and Oscar had vigorously opposed in affidavits an earlier application to televise the trial which had already been filed by e.TV.

Our engagements with the NPA produced an agreement that the NPA would not oppose an order allowing audio of the entire trial, and television of opening and closing arguments, judgment, interlocutory applications, the evidence of any expert witness, the evidence of police or former police witnesses, and the evidence of any other witness who consented. Part of this agreement was that Multichoice would film the proceedings using three small remote-controlled cameras which would not require a crew. You can read the agreement with the NPA here.

Unfortunately, we could not persuade Oscar’s team that any audio or television – save audio of opening and closing arguments – should be allowed. So the order which my clients sought from Mlambo JP was one in the terms we had agreed with the NPA.

The application for the order was argued on 19 February 2014. Frank Snyckers SC represented my clients, Steven Budlender, e.TV, and Nick Ferreira the print media (who were seeking permission to take still photos of argument, judgment and of experts, police witnesses and any witness who didn’t object). Barry Roux SC represented Oscar, arguing that the mere presence of the cameras would inhibit Oscar’s witnesses and himself in giving evidence, and thus undermine his right to a fair trial.

Just three court days later, and less than a week before the criminal trial was due to begin, Mlambo JP handed down his ruling. The court recognised that the case raised a conflict between the right to a fair trial, on the one hand, and the right to freedom of expression and the media and the principle of open justice, on the other.

Mlambo JP held that what was required in the exercise of the court’s inherent power to regulate its own processes (as guaranteed by section 173 of the Constitution) was to balance these competing rights. While the judge accepted Oscar’s objections to him and his witnesses being televised, he was persuaded that audio and some television access would permit more members of the community to participate in the trial (not only those with access to “tools such as Twitter”), and would also mean that the public would not be reliant on second-hand, summarised accounts of the trial.

Mlambo JP summarised his reasoning in this paragraph:

“My view is that it is in the public interest that, within allowable limits, the goings on during the trial be covered as I have come to decide to ensure that a greater number of persons in the community who have an interest in the matter but who are unable to attend these proceedings due to geographical constrains to name just one, are able to follow the proceedings wherever they may be. Moreover, in a country like ours where democracy is still somewhat young and the 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.”

As a result, Mlambo JP allowed the full audio of the trial to be broadcast, as well as television of the opening and closing arguments, interlocutory arguments, the judgment, as well as the expert witnesses of the state, police witnesses, and any state witnesses who do not object. The only substantive difference between this order and that agreed to with the NPA (see above) is that the court order excludes Oscar and his witnesses from the television regime.

We are about to begin the fifth week of the trial. We have seen live televised testimony of all the state’s police and expert witnesses – including Col Johannes Vermeulen, Col Schoombie van Rensburg, Captain Christiaan Mangena, and Captain Francois Moller. The only exception was the state pathologist, Professor Gert Saayman, who objected to the live broadcast of his evidence on the basis that it would harm the dignity of the deceased and her family (in his case, the court permitted, if the parties consent, a delayed broadcast of a summary of his evidence). Most of the lay witnesses of the state have not consented to being televised: the neighbours Michelle Burger, Charl Johnson, Estelle van der Merwe, Johan Stipp, Annette Stipp; Oscar’s and Reeva’s friend Darren Fresco and Oscar’s former girlfriend Samantha Taylor. But some lay state witnesses have agreed to be televised – Pieter Baba, the security guard on duty at Oscar’s complex, and boxer Kevin Lerena.

There were also two rather odd media developments that occurred during the trial. Following the display while she was testifying of a file footage photograph of Michelle Burger by eNCA (an action not against Mlambo JP’s court order but accepted by eNCA as being against the spirit of the court order), the presiding judge, Judge Thokozile Masipa, ruled that no photographs of state witnesses who object to being televised may be published – either until the end of their evidence (if they are public figures) or until the end of the trial (if they are private figures). See my diagrammatical summary of the ruling here. This ruling departs from the usual, time-honoured rule that there is no bar at all on publishing photographs of witnesses in trials. But this may have been the price that had to be paid in this extraordinary trial for the unprecedented broadcast and photographic access that the media have been given during the trial itself.

The second odd development – happily short-lived – was Judge Masipa’s ruling that no live tweeting of prof Saayman’s evidence could take place, a ruling she reversed the following morning. Her reversal essentially recognises that live tweeting has taken pride of place in modern court reporting.

As for Mlambo JP’s judgment, it is now a leading precedent for broadcast access to criminal trials around the world.