Publication: Cape Times Issued: Date: 2004-10-12 Reporter: Estelle Ellis

Shaik Trial Hit by TV Battle



Cape Times

Date 2004-10-12


Estelle Ellis

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Durban - A fair trial and not a conviction is the priority for the leader of the prosecution, advocate Billy Downer SC, in the trial of Durban businessman Schabir Shaik.

Downer explained this in an affidavit filed in opposition to an application by broadcaster to televise Shaik's trial.

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

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

Gilbert Marcus SC, who argued the matter for, relied on two cases previously decided by full benches of the Cape High Court and the Pretoria High Court. In 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 that'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 printed media was not enough. "They are not allowed to use the tools of their trade."

He also said that there are "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," he said.

Marcus said there was another line of argument, that the footage can potentially be abused. "That is a risk inherent in all reporting," he said.

Another argument, Marcus said, was that criminal procedure does 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(s) of television cameras in court are overstated," he argued.

Marcus said there were three reasons why the trial must be broadcast. The first was that it would enhance the notion of 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, said: "The case already has political overtones. On television it will be of even more concern."

He said some of the witnesses in the Shaik trial were already showing great reluctance about giving evidence - a problem that could be worsened by televising the trial.

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

Penzhorn said that taking a decision about whether the testimony of every witness should or should not be would also not work. "Broadcasting the trial might cause irreparable harm," he said.

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

Singh further argued that for the purposes of taking a decision on's application, it should not matter that it is 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 concessions, especially during cross-examination.

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 made a brief appearance at court. He represented French arms company Thint. The charges against Thint were dropped, as Downer explained, "in accordance with an agreement".

But, Downer said, the number of accused will remain at 11. He was 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 Mr Justice Squires.

With acknowledgements to Estelle Ellis and the Cape Times.