Johannesburg - It is possible that journalists may be criminally charged for their reporting about Oscar Pistorius.
The media became the focus on Tuesday as Pistorius appeared before the Pretoria Magistrate’s Court. Journalists got a dressing-down from acting chief magistrate Daniel Thulare, who asked State advocate Andrea Johnson and the National Prosecuting Authority to look into whether the media’s conduct amounted to scandalous conduct towards courts or contempt.
Thulare said there appeared to be a “trial by media houses of Mr Pistorius”.
The magistrate did not name which reports he was referring to, but there was speculation that the publication of crime scene photos showing the bloody bathroom in which Reeva Steenkamp was shot may have upset the magistrate.
Last Friday, an image purportedly showing the scene where Steenkamp was shot dead was posted on the SkyNews website.
The photograph shows blood on a toilet seat and a pool of blood on the floor. Bullet holes in the bathroom door are marked with tape.
Media law and ethics lecturer at Rhodes University Strato Copteros said that if the State did decide to act against the media, it would probably use a law called Scandalising the Court.
He said it was unlikely the sub judice rule would be used if the State decided to prosecute the media. This was because that law referred to the publication of anything that would materially affect the course of justice.
It was unlikely the publication of any photos about the case would affect the course of justice because South Africa does no longer have a jury system.
Scandalising the Court, however, was a law recognised by the Constitutional Court, Copteros said. It covers any offence that may destroy public confidence in the judiciary.
The lecturer said a recent case was The State vs Mamabolo, in which it was found that an official in the Department of Correctional Services, who had criticised the court in a newspaper, was guilty of scandalising the court.
In Swaziland, an editor was recently fined R400 000 after being found guilty of the same crime.
Copteros said Thulare was definitely trying to send a signal to the media to act ethically.
“The founding principle of journalism is ‘do no harm’. The publication of crime scene pictures was distasteful, in my opinion,” he said.
However, professor of journalism at Wits University, Anton Harber, believed the media’s reporting of the Pistorius matter was more an ethical than a legal one.
Harber said: “Publishing those gory pictures would be disturbing to the families.
“There is no law that says pictures can’t be published; the law says you can’t do things that have the potential to sway the decision of the court.
“If it is about speaking to family members who are potential witnesses, that is not a problem because interviewing families is a standard media practice.
“The only thing I can see apply here is the sub judice rule and, if that is the case, the magistrate will have to revisit the recent Constitutional Court judgment which made it clear that it was extremely difficult to break that rule.”
In the Daily Maverick, constitutional expert Pierre de Vos said the reaction from the public regarding the crime scene images came from a racist viewpoint.
Nobody had complained about the privacy and dignity of the 34 slain miners when pictures of the Marikana massacre were published.
“Because the miners killed on that day were black and working class, and in no way famous, few people stopped to think about the human implications of publishing these images.
“After all, in our racist society, black bodies and the blood of black people are seldom valued as highly as white bodies and the blood of white people,” De Vos said.
He could see nothing illegal about the publication of the images.
“Of course, in terms of the common law, the media is prohibited from publishing information that would prejudice the fairness of any future criminal trial.
“This rule is generally referred to as the sub judice rule. But in the constitutional era, this rule has been completely watered down to the point close to extinction,” De Vos added.
His case was postponed to August 19 – the birthday of Steenkamp, the woman he is accused of murdering.
The Star