On 6 August 2016, the legal research group of the ruling party, the African National Congress, held a workshop on the Protection of State Information Bill (also known in many quarters as the “Secrecy Bill”). I was asked to speak at the workshop. I am optimistic that the criticisms of the Bill will be brought to the attention of the President (as promised by Minister Jeff Radebe). The outcome of the last workshop on free speech issues which I spoke at last year was the ANC’s support for the repeal of criminal defamation – see my blog here: http://blogs.webberwentzel.com/2015/10/the-timely-demise-of-criminal-defamation-law/. So there may be some cause to be optimistic. In any event, this was my speech:
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.
You can read the Webber Wentzel Media Newsletter here.
- EUROPEAN COURT OF HUMAN RIGHTS HINDERS FREEDOM OF EXPRESSION
- WILL THE AFRICAN COURT PUT AN END TO CRIMINAL DEFAMATION?
- THE PROTECTION OF PERSONAL INFORMATION ACT, 2013: TIME TO GET YOUR HOUSE IN ORDER
- ZAPIRO SUCCESSFUL AT THE PRESS OMBUDSMAN
- ACTING FOR CARTE BLANCHE, MULTICHOICE AND PRIMEDIA IN LANDMARK CASE TO BROADCAST THE CRIMINAL TRIAL OF OSCAR PISTORIUS
- ACTING FOR DSTV MEDIA SALES IN AN ACTION BROUGHT BY SOLIDARITY TO COMPEL THE BROADCAST OF AN ADVERTISEMENT
- REPRESENTING THE SUNDAY WORLD IN AN APPEAL AGAINST THE PRESS OMBUDSMAN’S CHILD PORNOGRAPHY DECISION
- VICTORY IN APPLICATION FOR ACCESS TO INFORMATION RELATING TO NKANDLA
- REPRESENTING CARTE BLANCHE TO GAIN ACCESS TO HEALTH PROFESSIONS COUNCIL HEARING