The decision of the High Court in the Oscar Pistorius trial (“the trial”) to prohibit the live broadcasting of the testimony of the forensic pathologist (“the post-mortem testimony”) reverses the prior judgment in favour of broadcasting the case, which imposed limited restrictions around witnesses’ right to privacy.
The unprecedented application by the State, with the support of the defence, was founded on the objection by Professor Gert Saayman against the live broadcasting of his testimony on the grounds that:
He is bound by ethical rules that guide the profession and statutory limitations in terms of the Health Professions Act, that he must do no harm, always try to do good, and respect the autonomy of the patient (do what the patient would have wanted).
The personal nature of findings made at an autopsy and graphic nature of injuries have the potential to compromise the dignity of the deceased.
Public and contemporaneous streaming of this nature may therefore impinge upon rights of deceased relatives and friends.
Live broadcasting would go against good morals of society to make such information available unedited where children or other vulnerable persons may access it.
Counsel for the broadcast media, Advocate Ferreira argued that this is a ground breaking case in so far as the issue of media access goes and the principles established herein will guide courts in future. He noted the unprecedented levels of media interest in the trial as well as the legitimate concerns regarding some of the content in testimony and the media’s duty not to sensationalise this. He then presented a proposal that the broadcast media would not broadcast Professor Saayman’s testimony but that it be allowed to record the evidence and prepare an attenuated package and make it available to the prosecution and the defence, whereon their objections will be taken into account prior to broadcasting.
Advocate Oldwage emphasised the dignity of the deceased and her family. He also presented the challenges around who would sanction the final broadcast and, furthermore, the policing of compliance with the prosecution or defence’s objections to the edited summary for broadcast. He averred that no meaningful solution can be found at present regarding broadcast media and therefore a blanket prohibition on broadcast of this testimony be imposed. He also raised issues with electronic and print media, and ion particular called for a ban on tweeting this evidence.
Advocate Nel also argued against live broadcast and echoed concerns of the practical implementation of the compromise suggested by the broadcast media. The State would agree with an order allowing the compilation of the edited package for delayed broadcast with the caveat that it can only be broadcast if all the parties agree on the content thereof. He also presented concerns with direct quotes on twitter and in the print media. The State therefore sought a blanket prohibition on all direct reporting or quotes of Professor Saayman’s testimony but allowing paraphrasing and other indirect forms of reporting.
The question that the court had to answer is whether the publication of the post mortem testimony (or parts thereof) will infringe upon the rights of the deceased and her family. If so, then those rights had to be balanced against the right to freedom of expression and the principle of open justice as upheld in the media access decision.
Judge Masipa issued a provisional ruling that no live broadcasts and tweeting of the testimony of the forensic pathologist would be allowed. The court’s final order allowed the compilation of an attenuated package of the testimony by the broadcast media for delayed broadcast. This package must be shown to the Court as well as the State and the Defence for their approval before it is broadcast. The Court also reversed its provisional prohibition on blogging and tweeting of the testimony.
The Media Access Decision
In MultiChoice (Pty) Ltd and Others v The National Prosecuting Authority and Oscar Leonard Pistorius (“the media access decision”), having weighed the competing constitutional rights, the High Court allowed the proceedings in the Oscar Trial to be subject to audio, audio-visual and photographic coverage. Audio coverage (“radio broadcasting”) was permitted for the entire duration of trial. Audio-visual coverage (“television broadcasting”) and still photography was limited to the State’s witnesses and prohibited for Oscar Pistorius and any defence witnesses. This well-reasoned, landmark decision set the stage for South Africans to obtain direct access not only to the finer details of this particular case but also to the full workings of the criminal justice system.
In an effort to avoid being too prescriptive, the media access decision included the provisos that –
Any witness whose testimony is to be broadcast in an audio-visual form (television broadcasting) may place any reasonable conditions on his or her consent thereto and any objections to the audiovisual recording or still photography of their testimony must be in writing and the presiding officer will have the final ruling on the objection.
The presiding officer has the discretion to direct the media to cease recording or broadcasting should it become clear that the recording or broadcasting is impeding a witness’ right to privacy and dignity or Oscar Pistorius’ right to a fair trial.
Unlike the other witnesses who have objected to the televising of their images on the grounds that they are asserting their personal right to privacy, Professor Saayman objected to have his testimony broadcast for reasons that were not envisaged by the media access decision. Our research reveals that there aren’t any clear statutory or ethical obligations preventing pathologists from being broadcast live whilst giving testimony regarding the results of a post mortem in court, howsoever gruesome that may be. Therefore, the only valid reasons advanced for the request to block the broadcast of Professor Saayman’s testimony are the rights of the deceased (and to some extent of her family) to privacy and human dignity. These reasons do not trigger the Judge’s discretion as granted in the media access decision. That discretion only extends to situations where the broadcasting will violate the witness’ right to privacy and dignity, or of Oscar Pistorius’ right to a fair trial.
The media access decision took into account all the relevant competing rights and considered it imperative that the public have ongoing access to the trial. Once one accepts that the Judge’s discretion is limited in this way, the only recourse left to the court is to abide by the order granted in the media access decision, which leans towards allowing live radio and/or television broadcasts subject to reasonable restrictions on the television broadcasts.
The public interest and widespread social discussion of this case has spawned greater societal introspection into the efficacy of the criminal justice system as well as the scourge of crime and spousal violence. In our view, although the court eventually allowed the blogging, tweeting and delayed broadcast of the post mortem testimony, the court erroneously prohibited the live broadcasting of the post mortem testimony. This attempt at judicial sanitisation is unnecessary because the South African public has been treated to gory details in similarly gruesome cases. Furthermore, the implementation of this decision may yet prove to be impractical considering that there has to be consent by the State and Defence before broadcast.