Publication: The Star Issued: Date: 2004-10-12 Reporter: Estelle Ellis

Lights, Camera... Shaik Trial Delayed



The Star

Date 2004-10-12


Estelle Ellis

Web Link


A fair trial and not a conviction is the priority for the leader of the prosecution in the trial of Schabir Shaik.

Advocate Billy Downer SC explained this in an affidavit filed in opposition to an application by broadcaster to televise Durban businessman Shaik's trial.

The hearing of Shaik's trial on charges of corruption and fraud started at 10am on Monday, but stood down after a few minutes to allow Mr Justice Hillary Squires to first decide on the application. It is expected that the trial will get under way on Wednesday.

Television broadcaster has asked the court to allow it either to broadcast the proceedings live or to flight a 30-minute edited version of the trial at night.

On Monday morning, Gilbert Marcus SC, who argued the matter for, indicated that the public broadcaster, the SABC, wished to join the application, but after objections from the lead counsel of the other teams, Judge Squires instructed him to "leave the SABC application out of it".

Marcus relied on two cases previously decided by full benches of the Cape and Pretoria high courts.

In the one case, Judge Edwin King's ban on the broadcast of the commission into cricket corruption was ruled unconstitutional. In the other, an application by the SABC to broadcast proceedings before the Joint Investigation Team investigating allegations of corruption into the arms deal was dismissed.

"Between them, these two cases set out the precedents," Marcus said.

He said's case was neither about the "unfettered broadcast" of the trial nor about the disruption of proceedings.

"It is fundamentally about giving meaning to the phrase that criminal proceedings shall take place in open court."

He said that allowing television reporters to attend the trial with their colleagues from the print media was not enough.

"They are not allowed to use the tools of their trade," said Marcus, adding that there were some opposing arguments.

"There are the arguments about the effect cameras would have on witnesses and lawyers. These can easily be disposed of. They can justify the exclusion of cameras but not an outright ban."

Marcus further explained that there was a second line of argument that the footage could be abused. "That is a risk inherent in all reporting," he said.

Another argument, Marcus said, was that criminal procedure did not allow for one witness to hear the evidence of another witness, if that might result in the "tailoring of evidence".

But, he said, that was a risk with all forms of media. "The danger of television cameras in court are overstated," Marcus argued.

He said there were three reasons why the trial must be broadcast. The first was that it would enhance the notion of having an open court.

The second was that it would serve as a source of information to the illiterate and the wider audiences reached by the electronic media. The third was that it would "enhance the status and credibility of the process".

All three, Marcus said, were of pivotal importance in Shaik's trial.

"Without over-dramatising, this trial is about the governance of this country," he said.

Advocate Guido Penzhorn SC, who argued the matter for the National Prosecuting Authority, pointed out that some of the witnesses in the Shaik trial were already showing great reluctance about giving evidence - a problem that could be made worse by televising the trial.

"The case already has political overtones. On television, it will be of even more concern," he said.

Penzhorn further argued that the witnesses had a right to privacy, which would be infringed by televising their evidence.

He said that taking a decision about whether the testimony of every witness should or should not be televised would also not work as they might suffer the trauma of their objection against having their evidence broadcast being overruled.

"Broadcasting the trial might cause irreparable harm," he said.

Nirmal Singh SC, for Shaik and the Nkobi group of companies, said the decision to allow the trial to be broadcast could not be made by a court. "A policy must be developed on whether to allow it or not," he said.

He also argued that for the purposes of deciding on's application, it shouldn't matter that it was a case "of high public interest". "The existence of public interest operates differently... Justice must be seen to be done."

He added that the right to freedom of expression should not prevail over the right to a fair trial.

Singh explained that Shaik had a right to ensure that the evidence given by witnesses was not affected by television, as this might inhibit them from making confessions.

He quoted from a German judgment on the issue which stated that the presence of television cameras "might transgress the dignity and ability of an accused to concentrate".

Singh further said that if the court allowed the broadcasting of the trial, Judge Squires should be mindful that there were no developed guidelines about this.

In reply to these arguments, Marcus said the judge could regulate the broadcast of a trial in his court.

"What goes on in the courts is a matter for the courts," he said.

Kessie Naidu SC, representing French arms company Thint, made a brief appearance.

The charges against Thint were dropped, as Downer explained, "in accordance with an agreement". But, Downer said, the number of accused would remain at 11.

He is expected to apply to the court to add another of Shaik's investment companies to the list of accused tomorrow.

Shaik's bail was extended to the end of the trial by order of Judge Squires.

With acknowledgements to Estelle Ellis and The Star.