Public interest versus the interest of justice

November 1st, 2014

By Mahlodi Sam Muofhe

Judge Thokozile Masipa has pronounced her sentencing in a trial that has gripped the country since the events which took place on Valentine’s Day in 2013, at the home of Olympic runner Oscar Pistorius. The shooting, which claimed the life of law graduate Reeva Steenkamp, has been a talking point among South Africans in general.

There has been arguments by both the state and the defence. Oscar Pistorius’ fate lies entirely in the hands of Judge Masipa. There is no tempering or intervening – one way or the other – with the court processes, which can in any way prejudice the outcome of the case or lay the basis for those who may want to argue that Oscar received an unfair trial because, among other things, broadcasting the case live and the general public’s views and comments on the case could be advanced as one of those contributing factors.

The transformative impact of our Constitution with its entrenched Bill of Rights is felt and possibly enjoyed by all of us today without exception. Through our Constitution and in the public interest, the court was persuaded by the media by way of an application, the basis of which was that it was in the public interest to broadcast the case live. The court obviously weighed the submission made by the media and justly ordered that it was indeed in the public interest to broadcast the case.

One could argue that there have been some positives in the live broadcast. For example, the public probably now broadly comprehends the workings of the construction of our criminal justice system. Through this public trial, the public had its right of access to information upheld by the state. Students of criminal law, criminal procedure and the law of evidence, to a limited but perhaps confusing extent, also got to understand these complex modules. Students of law are probably battling to fathom how under cross-examination by the state prosecutor, Gerrie Nel, Pistorius said that his defence team prepared his bail application affidavit themselves and then brought it to him at the police station he was held in, just for him to append his signature on an affidavit which, in terms of the law, ought to have been deposed to by Pistorius himself. Pistorius’ version of how his affidavit was done was never clarified by his defence team during his re-examination, which means in reality that his version is correct and if it is, issues of professional legal ethics were violated by Pistorius’ legal team. Unless there is a general understanding that Pistorius was less than frank in his testimony, in which case then, he cannot be deemed to be a reliable witness as he was by his own admission ‘fighting for his life’.

However, now that the crux of the trial is – in reality – behind us, can we as South Africans honestly still hold a view that criminal cases should, in the public interest, be broadcast live? Have we fully considered what other interests may be compromised if the public’s interest gains momentum in our criminal justice system? I am of the view that should we go on the public interest trajectory, the interest of justice is likely to be severely compromised, with the likely consequences of getting many criminal cases declared to have been run unfairly, to the detriment of the accused persons.

In this particular case, for example, the defence’s legal team hinted that some of the potential defence witnesses flatly refused to co-operate with them because they did not want their faces beamed on television, nor their voices broadcasted on radio. Though this reason seems weak in that those witnesses could have testified in camera, a common phenomenon in our criminal justice system, this is an important factor. It demonstrates that live broadcasting of criminal cases, as much as it may be in the public interest and the interest of justice, may be seriously prejudiced. Witnesses from both sides of the divide, namely, the state’s witnesses and the defence’s witnesses alike, should not be privy to what other witnesses who would have already testified before the court would have said in their testimonies before they themselves testify. We would be less than sincere as a society if we are to believe that the witnesses in the Pistorius case never watched the broadcast of the case before testifying, as some of them seemed to suggest. In fact, Tom Wolmarans, a defence expert witness conceded under cross-examination that he took Roger Dixon out for dinner when Dixon, another defence expert witness, was still under oath or if he had finished testifying, Wolmarans himself at that time of their dinner had not yet testified. Their interaction was clearly in conflict with the law.

Before being witnesses, they are members of the public who could not be barred by anyone from watching the re-broadcast of the trial in the evenings in the comfort of their homes. Enforcing this ban on witnesses watching the trial was in any event simply not going to be possible. In some instances, some of the witnesses, under cross-examination by the state, conceded that they were only approached to testify for the defence after Pistorius’ evidence-in-chief, cross-examination and re-examination. These witnesses were, like the rest of us, glued to their television sets following the trial with interest before being called up to testify. Given that they were the defence’s witnesses, there was no way in which they could have known upfront that they would at some point be called to testify.

Given the argument outlined above, can we then honestly argue that public interest trumps the interest of justice? Courts should in future aim to balance the objectives of the two, so that the ordinary South African, and indeed the accused, can be sure that justice has indeed been served.

  • Oscar Pistorius was sentenced to five years in prison for culpable homicide at the time De Rebus went to print.

Mahlodi Sam Muofhe LLB (Unisa) is an advocate and special adviser to the Minister in the Department of Mineral Resources in Johannesburg.

This article was first published in De Rebus in 2014 (Nov) DR 52.

De Rebus