THE LEGAL PROCESS

HOW DO THESE LIMITATIONS

RESTRICT THE MEDIA? Important to have an understanding of the legal process in general…

Introduction to the Legal Process Freedom of expression is a fundamental right BUT all

rights are subject to 2 limitations: 1. The exercise of that right should not infringe on the rights of others; and 2. The right may not be exercised in a way which is prohibited by criminal law

1. Reporting Usually victims formally report a crime (police can also act on own initiative) Victim/ witness gives a statement (affidavit or sworn statement) Police open a docket which gets a case number and evidence is then collected

2. Investigation The police identify possible suspects and interview/ detain them On arrest a person is read their rights (including the right to remain silent and to legal representation) At this stage of the investigation the media is not allowed to identify a suspect

3. Opening a Case After enough evidence has been collected (when the police believe they have built a solid case) the evidence is sent to the prosecutor The prosecutor evaluates the evidence and if they believe there is a case, prosecution begins If the prosecutor has any doubts regarding the case it is referred to the Attorney- General who then decides

4. Charging After it has been decided that there is a case, the suspect can be charged The suspect is given the chance to plead (guilty/not guilty)

The media is now allowed to identify the suspect

At this stage the suspect is called the accused and not the criminal

[S35(2) of the Constitution – every person has the right “to be presumed innocent, to remain silent and to not testify during the proceedings”]

After the accused has been charged they may apply for bail A judge decides if bail will be granted and under what conditions The police ensure that witnesses will testify during the trial (summonsed/ subpoenaed)

5. Trial Trials start at a set date and during the trial evidence is presented by both the defence and the prosecution

Witnesses are examined and cross- examined

Remember there is a difference between civil and criminal matters

Burden of proof // Standard of proof - Burden of proof – “the obligation of a party to persuade the court by the end of the case of the truth of certain propositions The party who alleges must prove the case (thus bears the onus/ burden of proof) - Standard of proof – degree or amount of evidence required to discharge or life the onus (how much must be proved?) Civil case: “balance of probabilities” Criminal: “beyond a reasonable doubt”

6. Judgement There is no jury system in SA and judges decide the case (sometimes get help from expert lay assessors)

Accused may be found guilty – sentenced Not guilty – acquitted (case is dismissed)

If a crime cannot be proven the court may also rule that there is “no case to answer”

A case can also be dismissed due to insufficient evidence (does not mean the person is guilty/ not guilty)

The media may now no longer treat a person as a suspect

A convicted person may appeal

Crime Crime reporting could be very difficult Victims of the following crimes should not be named: •Raped •Indecently assaulted or •Fallen prey to a blackmailer

Publishing a rape victims name may constitute an invasion of privacy

It may be seen as defamation to publish the name of an accused (not even if using “allegedly”) Eg. “Mr Mark Short has been arrested for allegedly raping a teenage girl “– “a suspect has been arrested for the alleged rape of a teenage girl” The press however does not always abide by this law…

[cannot publish names until the accused has pled – S154 of the Crim Proc Act]

SELF STUDY!!! Read p. 59 and 60 of the MM

Maroela rape case

Baby Tshepang rape case

See also additional reading on http://medialaw.weebly.com

Since every person has the right to be assumed innocent until proven guilty, that person will be able to sue for defamation after they are acquitted if their photo is published during their trial (also broadcasting visuals)

Editors must thus be very careful of what they put out there

SELF STUDY!!! Read page 61 of the MM

Walleed Suliman payment

See additional reading on Media Law site

When Should You Name the Accused? SA media often breach the law by naming a suspect before they plead It may in cases be better to not publish the names of persons suspected of committing a crime until the facts and circumstances are clearer… But happens when a SA citizen is charged in an overseas court?

SELF STUDY: Read p.61 of the MM and article on website

Salomé Isaacs / judge Siraj Desai rape story

Contempt of Court In the past any media criticism of the court was punishable by contempt of court

= unlawful and intentional violation of the dignity, repute or authority of a judicial body or interference in the administration of justice in a matter pending before such a body

Journos could be held in contempt if they disregard a judge’s instructions on reporting a case (BoR makes it easy for journos to then argue it is in the public interest

S v Van Niekerk

VN commented on a terrorism trial and make undue comments about evidence

Held in contempt

S v Harber Test for contempt= does the conduct (of the journo) interfere with pending proceedings?

- - -

Tennant v Bisset

A party to a church dispute published a pamphlet on the merits of the case and accused the other party of illegal and immoral conduct

Held in contempt of court

S v Mamabolo

A DCS spokes man commented on a judge’s decision to grant ET bail by saying that it was woring since ET was already serving a sentence imposed by another court

Taken to CC where Kriegler J said freedom of expression had changed the meaning of contempt and that it is only committed when a media comment undermines the moral authority of the judicial process and each case must be judged on its own merits

Sub Judice Rule = rules dealing the coverage of a case which is still on-going Aim of rule – to ensure that the outcome of a trial is not influenced (protects an accused who should be presumed innocent until proven guilty)

The media break this rule in certain ways: 1. A newspaper can pronounce the accused’s guilt before the court hands down a

conviction 2. Attack the credibility of a witness 3. Evidence can be published before it is presented in court 4. Facts that the judge should not be aware of could be published Ignoring this rule may prejudice a trial and the journo could be held in contempt

SELF STUDY: p.64 of the MM and Additional reading on the website

(how this rule is disregarded)

October 2004 Donovan Moodley confession in YOU magazine

Shabir Shaik “trial by media

1960 publications of David Pratt’s attempted assassination of Dr HF

Verwoerd and the 1966 publication of the name of Minitri Tsafendas, the

assassin who did kill Verwoerd

Other Restrictions

In general all court proceedings are open to the public (any person older than 18 is free to attend a trial) The right of the media to report on the proceedings is an extension of this

Some cases may however be held in camera (S153 and 154 CPA) – details of the proceedings are kept secret and are not published without the permission of the court Why: 1. Security reasons 2. Witness protection 3. To respect the privacy of victims or witnesses in cases of extortion of

indecency 4. Where the accused/ victim/ witness is a minor (keep in mind S28 of the

Constitution) SELF STUDY p.66 of the MM

National Press Club - South African Broadcasting Corporation Limited v

National Director of Prosecution and others 2007 (1) SA 523 (CC)

ICE TASK For: 26 February 2013

Making use of Newspaper (online or print) articles of the Oscar Pistorius trail,

identify words or concepts which have been dealt with in the course of this Unit and

create a crossword puzzle at http://www.crosswordpuzzlegames.com/create.html

Email it to me along with the clues to

describe the words in the puzzle. (Use between 14 and 20 words or concepts)

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