Right vs Rights
Judge Hillary Squires summed up a complex issue rather well in his judgement on e.tv's application to be allowed to televise the Schabir Shaik corruption an fraud trial : "The decision is which right should defer to the other," he said, complicated by the fact that the choice is not between right and wrong, but between right and right."
Whether SA should allow live coverage of trials does indeed come down to the rights of the people versus the rights of the accused and witnesses who are called to testify.
Squires ruled against e.tv in this instance, and correctly so. But is by no means a simple issue of law, and it is good that the court made clear that the public's right to information must be taken seriously.
It is just that, in these circumstances, allowing people to enjoy those rights without limitation might jeopardise the right of the accused to a fair trial, and that has to take precedence.
Counsel for e.tv argued that section 16 of the constitution guaranteed the broadcaster's freedom of expression, including the right to receive and impart information. It also maintained that televising proceedings was a natural extension of the legal principle requiring that trials be held in open court. What better way to honour the old maxim that justice not only be done, but also be seen to be done, than by beaming, live pictures of a trial into people's homes?
Counsel for Shaik and the state countered that televising the trial would infringe on the accused's right to a fair trial, which seems a rather feeble argument until you take into account that at least two reluctant, and for now anonymous, witnesses are scheduled to be called to give evidence against Shaik.
It is a reasonable assumption that the presence of television cameras could intimidate some witnesses. As Squires pointed out, allowing coverage might also undermine an appeal court decision which held that individuals' right to privacy includes the right to decide under what circumstances private thoughts, statements, reactions and idiosyncrasies should be made public. That right is already clearly restricted when witnesses are subpoenaed to testify, and the live broadcasts of the King and Hefer commissions of inquiry showed that knowing they are being televised contributes markedly to witnesses' discomfort on the stand.
Finally, we wouldn't be a business publication if we failed to point out that, as entertaining as live coverage of political trials may be, it does nothing for productivity levels.
With acknowledgement to the Business Day.