By Dario Milo and Stuart Scott

Tomorrow, Judge Thokozile Masipa will decide what sentence Oscar Pistorius will be given in respect of his conviction for culpable homicide. Judge Masipa’s judgment in respect of the conviction, handed down last month, led to a sea of divided opinion.

First, there was diversion amongst legal experts. Professor Stephen Tuson from the University of Witwatersrand, on the one hand, was quoted as stating “[w]e have many judgments which essentially say: ‘If you point a firearm at someone and shoot, then you intend to kill them’“.  This suggests that Oscar should have been found guilty of murder on the basis of dolus eventualis.

On the other hand, Professor Jonathan Burchell, the author of one of the leading texts on criminal law, opined that the ultimate conclusion Judge Masipa reached – that dolus eventualis had not been shown because of Oscar’s mistake as to whether he was acting lawfully – was correct.

The judgment also resulted in markedly-divided opinion amongst members of the public. As Zapiro succinctly captured in his cartoon after the judgment, everyone is now a criminal law expert.

In our view the kind of rigorous debate which ensued was largely due to the unique access that legal experts (who were not involved in the trial) and the public at large were granted by virtue of the live broadcast.  It presented an opportunity to follow each and every aspect of the trial as it unfolded, and to evaluate each piece of evidence that was introduced as if they were sitting in the courtroom.  In our view, this level of openness has been positive and has facilitated a better understanding of the criminal justice system in South Africa and why Judge Masipa decided the case in the way that she did.

But for us media lawyers there was another talking point, which relates to a few extraneous comments in Judge Masipa’s judgment about the impact of media publicity on the evidence led in the trial.  This has led to some journalists making the incorrect claim that Judge Masipa found that the broadcast of Pistorius’s trial compromised his fair trial rights, and that she expressed herself to be against the live TV broadcast of the trial.

 Let’s begin with what Judge Masipa actually said in her judgment (you’ll find it at page 3296 of the judgment):

 I continue to explain why most witnesses got their facts wrong. The fact that this case attracted much media attention, especially soon after the incident and the fact that it became a topic in many homes, also did not assist. Almost every witness who was asked under cross-examination if he or she had followed the news relating to the events of 14 February 2013 or the bail proceedings or the trial proceedings, responded positively.” (Emphasis added.)

She also stated (ibid): “I am of the view that the probability is that some witnesses failed to separate what they knew personally, from what they had heard from other people or what they had gathered from the media.” (Emphasis added.)

What Judge Masipa was therefore alive to was the fact that the reliability of the witnesses’ testimony – especially the neighbours called by the state and the defence – had to be approached knowing that they may have followed the trial in the media. This is a far cry from Judge Masipa finding that the media publicity led to Oscar not receiving a fair trial. Indeed such a conclusion would have been strange, since Judge Masipa cleared Oscar of the charge of murder and found him guilty of culpable homicide – a verdict he accepts, as was confirmed in the sentencing proceedings.

The next point is that Judge Masipa didn’t at any point single out the live television coverage of the trial in her judgment. Her comments about media publicity expressly included the publicity given to Reeva Steenkamp’s death on Valentine’s Day last year, as well as the publicity in relation to the bail hearing – long before the trial was broadcast live this year. So her comments about the witnesses following the case in the media cannot be read as expressing any view as to the live TV broadcast.

In any event, as we argued in the court application (see our earlier blog here), it cannot be a sufficient basis for objection to the television broadcast that a witness who has not yet given evidence could be pre-cognised via the live broadcast as to what another witness has said. That is so because the reality of court reporting in the age of instant media is that such a witness is already pre-cognised via print media, social media, radio and television news broadcasts, and even accounts from people in the courtroom, as to what other witnesses have said.

But there is a more significant point that entirely eradicates any suggestion that the broadcast rendered the trial unfair, and this is paragraph 8 of the order in the MultiChoice and Primedia case. Judge President Mlambo included in his order the following:

Notwithstanding the [rest of the order], the presiding judge [Judge Masipa] shall retain a discretion to direct that, in the event that it becomes apparent that the presence of the cameras or the recording and/or transmitting and/or broadcasting is impeding a particular witness’s right to privacy, dignity and/or the accused’s right to a fair trial, MultiChoice and Primedia … will be directed to cease recording and/or transmitting and/or broadcasting … the testimony.”

Put differently, Judge Masipa retained the discretion to pull the plug (on broadcasting) during the trial at any point – and she never exercised this discretion. Perhaps more significantly, Barry Roux SC never made a single application to the court for the recording to be stopped on the basis that it was impeding the accused’s or any of his witnesses’ right to a fair trial or his privacy. Indeed, two of his experts, Wollie Wolmarans and Roger Dixon, agreed to a live TV broadcast of their evidence, even though the Mlambo order only compelled a live audio broadcast of Oscar’s witnesses’ evidence.

The only application that was made during the trial was initiated by the State not to broadcast live the evidence of the state’s forensic pathologist, Professor Saayman, on the ground that the evidence would contain graphic details of the injuries Reeva sustained.

In that context, the inference is irresistible that the live broadcast had no material impact at all on any witness or the accused. And the same must be attributed to Oscar’s legal team. Thus the comment made by Roux SC at the close of the defence case – that some witnesses were reluctant to testify because of the live broadcast – cannot be taken seriously, because Roux SC could always have applied on good cause shown for these witnesses’ evidence not to be broadcast live. He did not do so.

The allegation that Oscar may not have received a fair trial because of the media was also alluded to by the defence in an extraordinary attack on the media in their heads of argument on sentencing. The argument made was that some members of the media had branded Oscar a premeditated murderer for the last 18 months (examples were then cited of: reports of the possibility that the cricket bat had been used as a weapon by Oscar; reports about steroids and “roid rage”; reports about an argument about Reeva’s former boyfriend, the rugby player Francois Hougaard; and Jani Allan’s bizarre claim that Oscar had been going for acting lessons in preparation for the trial). The defence went on to argue that the fact that Oscar had to have his emotions broadcast live via audio around the world “resulted in his privacy and self-respect being shattered in the process“. The conclusion reached by the defence is this (at para 73):

It is our respectful submission that never in history before has any accused been denigrated, humiliated and ridiculed on false and irresponsible allegations, to the extent that the actual punishment for the crime would do little to alleviate the ill effects caused by the uninformed in their strive to sensation. It is in this regard that the Accused has become a victim.”

 Judge Masipa effectively ruled in the sentencing proceedings that she would not be taking into account the argument of the defence concerning the media. And rightly so. To the extent that any of the media reported unreasonably, Oscar has a claim against them for defamation. But adverse media publicity cannot affect the fairness of a trial, where judges and assessors are trained only to decide a case on the evidence before them. And the outcome of the Oscar case itself proves this point – if any media branded Oscar as a premeditated murderer, this clearly did not influence Judge Masipa and her assessors, because the judgment vindicates Oscar.

From the perspective of the live broadcast, we are encouraged by Gerrie Nel’s statement in response to this attack on the media in the sentencing argument. Nel stated:

It is not only a fact but a principle that we will defend, that court proceedings should be transparent and open to the public. For the accused to blame the recording of the proceedings for his poor performance in court is akin to saying it is better to be a bad witness in secret. Nobody should know.”

Nel’s sentiments have also been echoed by the President of the UK Supreme Court, Lord Neuberger, who recently gave a speech on open justice in which he celebrated the concept of televising courts and noted that he found the filming of the Oscar Pistorius trial “impressive”.

* This was the catchy headline which appeared in The Citizen on 26 February 2014 (after Judge Mlambo handed down judgment permitting the live broadcast of the trial on 25 February 2014).