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Durban - Media and constitutional law experts are not fazed by the media’s coverage of the Oscar Pistorius case and do not believe that media houses have overstepped the legal boundaries.
This is in the light of the acting chief magistrate, Daniel Thulare’s comments on Tuesday of a “trial by media” alluding to photographs of murder accused Pistorius’s bloodied bathroom that were leaked to Sky News just days before his court appearance.
There has been an international media frenzy since February 14 when Pistorius’s girlfriend, Reeva Steen-kamp, was shot dead through a bathroom door.
Commenting on the media coverage, Professor Karthy Govender, of the School of Law at the University of KwaZulu-Natal, said it would have no impact on the judge covering the murder trial as a judge would make a decision based on the evidence led in court.
On Tuesday, the presiding magistrate in the Pretoria Magistrate’s Court had said he wondered if the “trial by media” was in keeping with not so much the letter of the constitution, but its spirit and the guarantee it holds that all accused persons are considered innocent before proven guilty.
According to the Mail and Guardian’s website, Thulare suggested that the National Prosecuting Authority investigate the possibility that media houses may be in contempt of court.
Dario Milo and Avani Singh, of Webber Wentzel Attorneys, had written for the Sunday Independent in February and said the media frenzy surrounding the criminal proceedings against Pistorius was unprecedented in South Africa. They said broadcast, print and social media carried details and much speculation about the case from the nature of the relationship between Pistorius and Steenkamp to the killing and the motive.
Before Pistorius’s bail hearing, there were allegations published of Steenkamp’s skull being bludgeoned with a bat, fierce arguments between the couple and a pattern of abuse.
More recently, Sky News published photographs of the bloody crime scene, and on Monday night, Channel Five, in the UK, broadcast an interview with Steenkamp’s mother, June, who said her daughter was afraid during a fight with Pistorius while he was driving.
In this month’s Vanity Fair magazine, there is an interview published with the former investigating officer in the case, Detective Hilton Botha, who said it was an “open and closed case” that Pistorius shot Steenkamp.
Milo and Singh explained that a breach of the sub judice rule could result in a charge of contempt of court and a criminal conviction. On Wednesday, Milo said the rule is that nothing can be published that will pose a real and substantial risk of prejudice to the administration of justice. “I have not seen or read any publicity that in my view breaches this rule,” he said.
Milo and Singh had questioned whether this rule still applies in the South African context because of a Supreme Court of Appeal decision that changed the way this rule applies.
Both found that although the media has “been replete with sensational allegations” about what happened on February 14, they felt that none of the reporting had crossed the line.
Pierre de Vos, of the University of Cape Town’s School of Law, who also writes a blog called Constitutionally Speaking, said in the constitutional era this rule had been “completely watered down to the point of (being) close to extinction”.
He, too, felt the media had not legally crossed the line. “A well-trained judge would not be biased by these media reports,” he said. He did have issue though with the media publishing speculation instead of fact.
Govender felt the more important issue the court needs to address is where the leaked photographs came from and who authorised that this information be given to Sky News.
“The leak must be identified because it might undermine the prosecution’s case,” Govender said.