Publication: Business Day Date: 2004-10-18 Reporter: Tim Cohen

Shaik Judge's TV Ruling Favours Cold Facts over Defining Images



Business Day

Date 2004-10-18


Tim Cohen

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Judge Hillary Squires this week declined a request to make South African legal history by allowing the trial of Durban businessman Schabir Shaik to be televised live. He also declined the alternative claim by e .tv, that it should be allowed to film the events and produce a daily edited summary.

In the face of opposition to the idea from both the defence and the prosecution, the logistical problems of a small court room and the myriad legal issues involved, it is hard to take issue with his decision.

Yet I wonder what the judge's response to the application would have been had the prosecution and defence not opposed the application, and, furthermore, I can't help wondering whether the prosecution and the defence were wrong to oppose it.

The court is obliged to decide the case according to legal and constitutional provisions, including the constitutional provisions in favour of an open society, the right to privacy and the right to a fair trial. This is all well and good, of course.

But, looking at the issue from a social rather than a legal perspective, it seems obvious that at least one of the underlying issues is the clash of cultures between journalism and law.

In my experience, lawyers and journalists often get along famously, but still tend to be wary and even critical sometimes of each other's mindset. From the loose and freewheeling perspective of journalists, lawyers can seem rather stiff and formal. Lawyers tend to take very seriously their responsibility to suspend judgment until the facts are in , whereas journalists, who always have a deadline in mind, are happy to go with the facts they have at the time. In truth, I rather think journalists suspect the facts are what you make of them anyway.

I imagine lawyers are horrified by journalists' tendency to make snap judgments, whereas journalists tend to think that lawyers' willing suspension of disbelief (or of belief) is rather quaint, but slightly otherworldly. The rule-based culture of lawyers fits poorly with the permissive mindset of journalists.

Consequently, in this case, the legal arguments around the constitutional issues seemed to me to float around the issue rather than confront it head-on. From a popular perspective, if the case were to be televised live, it could well go nuclear.

It is hard for a newspaper reporter to admit this, but even the most sensational press reporting struggles to compete with the gripping immediacy and absorbing intimacy of live television. Live television coverage can be enormously tedious, but when it is powerful, it is overwhelming.

Part of the reason is that press reporting, or press-like reporting on television or radio, is a compacted, digested format. In many ways this is its biggest advantage. The time an event takes to happen is irrelevant from the perspective of a newspaper reporter. The sequence of events, that might have taken place even over years, is compacted into highlights that might take mere minutes to describe. It is a sporadic, rather than a sequential, format.

The advantage is the convenience of brevity and of a digested, rational presentation of the news. But what is often lost in this process is the human feel and drama, which is one of the reasons newspapers tend to supplement their presentation with pictures and graphics.

The issue of the human drama did come up in the case, with the judge mentioning the problem of how an "inadvertent folly" would be replayed time after time, and how this could send out a totally false impression.

He was endorsing an argument raised on behalf of the Scorpions by Guido Penzhorn, who pointed out that the image of former South African cricket captain Hansie Cronje weeping on television had been the abiding image of the match-fixing inquiry. Cronje had given days of evidence in a composed state, but it was the image of him crying that was repeated over and over again, and the one that flew around the world.

In the clinical world of the judicial empiricist, the unfairness of this selective edit is clearly a horrible thought. But if you think about it, that image was a more exact representation of the essence of the hearing than days of boring evidence. Cronje's tears were not just a powerful human response, they were also an act of contrition and simultaneously an acknowledgement of responsibility, and even guilt. That moment might have been isolated and embarrassing, but it was perfectly emblematic.

By opposing the application, the prosecution and defence in the Shaik case are taking the safe, conservative road. What they risk is that the full force of the evidence will not be felt or, alternatively, that the full force of Shaik's innocence will emerge in only a muted way.

Cohen is editor at large.

With acknowledgements to Tim Cohen and Business Day.