The Oscar Trial and the curious case of the media orders

by Dario Milo and Stuart Scott

In an article we wrote for Sunday Times last week we briefly touched on three orders relating to the media that we submit were incorrectly made by Judge Masipa during the Oscar Pistorius trial (for more detail on the first two orders see the earlier post on broadcasting the Oscar trial).

The third order in question related to the banning of any further publication of the exhibits marked “PPP” and “QQQ” (essentially the psychiatric and psychological reports compiled while Oscar was at Weskoppies Psychiatric Hospital), which went beyond the official findings that were read into the record during proceedings.

Judge Masipa swiftly granted the order and set 15h05, last Wednesday, as the crucial deadline for legality: anything published in relation to the reports before this time was something she said she could do nothing about.  But anything published after 15h05 would constitute contempt of court.

As we have already noted there were two significant problems with this order.

First, there was no notice given of the application and therefore the media did not have any opportunity to respond to it.  The second problem with the order of Wednesday 2 July was that it was impractical because much of the contraband was already in the public domain.  Indeed, some of the information was even made available to journalists at court.

Happily, Judge Masipa amended her order to permit publication of redacted portions of the reports.  This order was granted in accordance with an agreement reached between attorneys representing some members of the media and the defence.  Thus, as she did with the order banning live tweeting of Professor Saayman’s evidence, Judge Masipa has demonstrated that she is prepared to amend orders after she has received further representations and information.  This is to be welcomed, although we respectfully suggest that the better approach is for parties wishing to restrict the principle of open justice – in this instance Oscar – to give notice to the media so that the judge can hear interested parties’ submissions from the outset.

The order was only formally made in court on Monday 7 July 2014, but Judge Masipa noted that the order had retrospective effect from Friday 4 July 2014 (in other words, the order took effect from that date).

However, the principle of open justice was again tested when Judge Masipa made an order today (8 July 2014) that the contents of the heads of argument for the state and the defence may not be published before closing argument commences in court on 7 August 2014. Judge Masipa held that publishing the contents of such documents before this would amount to a disservice of justice and would essentially be an act of theft.

Once again this order seems at odds with the general principle that the public should be given access to underlying court documents unless there are good grounds to restrict access.  And there is a good argument that the Constitutional Court’s decision in the Masetlha case offers support for the proposition that the media and the public ought to have access to court documents as soon as they are filed.  But once again these arguments could not be presented to Judge Masipa because the media were not given any notice of the application.

One of the key lessons learned in this extraordinary trial has been the need for engagement between the NPA, the accused, the judiciary and the media, so that the constitutional value of openness is respected.