2 The South African Constitution and open justice

The principle of open justice is an incident of the values of openness, accountability and the rule of law, as well as a core part of the notion of a participatory democracy. All these are foundational values entrenched in the South African Constitution. Its preamble contemplates ‘a democratic and open society in which government is based on the will of the people’ and the text requires that our democracy shall ensure accountability, responsiveness and openness.Footnote ⁵ The public is entitled to have access to the courts and to obtain information pertaining to them.Footnote ⁶

In traditional African culture, the shade of a tree was the place where disputes of society were mediated and resolved. It was on this soil that the community would meet for a ‘lekgotla’. There was room for all to have their say. Everybody was an active participant in the process. This is how justice was done: in the open, collaboratively and with an element of peer review. That was the age-old concept of open justice under a tree.

The aesthetics of the Constitutional Court building are a daily gentle reminder of this promise. The overarching theme of the court building as represented in the Constitutional Court's logo is justice under a tree. As former Justice Sachs described it: ‘[t]he tree protects the people, and they look after the tree.’Footnote ⁷ This is symbolic of the synergy between the law and the people. It gives the court an organic ambience – a space where you feel welcome to see justice in motion. Courts play a vital role to solve conflicts in all spheres of life. This is what the Constitution promises us.

There are innumerable quotes, many of which evoke powerful imagery, about the ills suffered by a society that does not promote open justice. It does, after all, form part of the bedrock principles of a functioning democracy, and helps to quench the people's ‘fundamental, natural yearning to see justice done’.Footnote ⁸ The crispest and truest of these quotes is that ‘[d]emocracies die behind closed doors’.Footnote ⁹ The principle of open justice is one that strikes at the very heart of what South Africa has been, and is still, trying to achieve in the post-apartheid era. We acknowledge a difficult truth: trust in government institutions in our country is hard-earned. If we do not subject ourselves to the greatest of scrutiny, how can we hope to persuade the public to recommence, or perhaps commence for the first time, that which was lost for so long: faith in the social contract. We can only move forward as a country when we voluntarily, if not happily, sacrifice certain liberties in return for the good that can be achieved in a representative democracy: uniform laws that apply to all, a social welfare system that protects the most vulnerable among us and institutional redress when our rights are compromised. Indeed, transparency of the judicial process is so fundamental to developing public trust: ‘all other checks are insufficient [and] of small account. Recordation, appeal, [and] other institutions operate as [mere] cloaks [rather] than checks; as cloaks in reality, as checks only in appearance’ (Bentham, Reference Bentham1827, p. 524).

The arguments in favour of open justice are discussed widely, but are perhaps best summarised in the following observation:

Of course, open justice is not a novel concept in South Africa, miraculously discovered in our lifespan as a constitutional democracy. The foundational nature of a public trial has been recognised since as far back as 1813.Footnote ¹¹ And, globally, the roots of the public trial have been ‘traced back beyond reliable historical records’,Footnote ¹² with the notion being incorporated into almost every international human rights instrument.Footnote ¹³

But what did happen recently, in 1994, was that the new Constitution came into force – a new South Africa was born. The old South Africa, tyrannical and unjust, was now impotent in its reign, while the new South Africa was full of hope and unconstrained potential. For open justice alone, the Constitution guarantees the freedom of the press, the freedom of the media and the right of the public to receive and discuss information and ideas.Footnote ¹⁴ It provides, in Article 34, ‘a right to have any dispute that can be resolved by the application of law to be decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’. Article 35 contains provisions relating to access to courts and a fair trial for those arrested and accused of criminal offences.Footnote ¹⁵ The Constitutional Court itself is architecturally designed to both ensure, and represent, open justice. For example, the courtroom includes windows that open onto the street and a dedicated media box. The tree logo of the court and the artwork of clouds on the walls of the courtroom together are a constant reminder to those in the courtroom of the demands of doing justice under a tree. Consider this in comparison to the past, the old South Africa, with rampant practices of incommunicado detention, without any prospect of a proper trial. The old Terrorism ActFootnote ¹⁶ permitted a senior police officer to decide that a person should be detained without trial for up to sixty days, without any right to communicate with the outside world. While the act had the appearance of being ‘designed to combat terrorism [it in fact] itself became an instrument of terror’ (Dugard, Reference Dugard1978, p. 136).

There is also no shortage of comments about open justice from judges in the last twenty years, particularly when it butts heads with the right to a fair trial. In 2006, for example, the Constitutional Court was asked to decide whether it was acceptable for the Supreme Court of Appeal to restrict the media to purely visual recordings, with no audio.Footnote ¹⁷ The matter was brought before us on an urgent basis, and almost exclusively because of that, and the desire not to rush such an important decision, most of the judges refused to allow the media to audio-record the proceedings. The now-retired Justice Albie Sachs said that he only refused the media's request in order to ‘await the establishing of appropriately negotiated procedures for guaranteeing accurate, balanced and fair reporting’.Footnote ¹⁸ My dissenting minority judgment held fast that media ought to be allowed audio-video recording as no harm would ensue from recording and broadcasting argument of counsel before an appellate court.

The principle of open justice is, after all, a core part of the notion of participatory democracy. This is plain from our Constitution that begins with the very words ‘democratic and open society’.Footnote ¹⁹ It is not a principle that should be confined in haste. The public now rely on the public and social media to inform them. We do not want a system in which the judicial system is ‘shrouded in mystique and protected at all times from the prying eye of the camera or the invasive ear of the microphone’.Footnote ²⁰ We want a system in which the public trusts that the judiciary is acting according to the ‘time-honoured standards of independence, integrity, impartiality and fairness’.Footnote ²¹ For that to happen, we must, as far as reasonably practicable, create means for the media to access, observe and report on the administration of justice.Footnote ²² This right extends not only to the media having the facility to enter the courtroom, but also to having access to court papers and written arguments in hard copy or online.

3 Multi-choice: enabling society a first-hand look in the courtroom

This brings me to the watershed decision of Judge President Mlambo on how to strike a balance between openness and justice. The Oscar Pistorius trial posed trenchant questions about the real-life meaning of open justice. In September 2014, Mr Pistorius was found guilty of culpable homicide and a firearm offence,Footnote ²³ and sentenced to a maximum of five years’ imprisonment.Footnote ²⁴ That conviction has since been replaced on appeal by a verdict of guilty of murder. After a number of appeals, in November 2017, he was finally sentenced by the Supreme Court of Appeals of South Africa to a period of imprisonment of thirteen years and five months.Footnote ²⁵

The Oscar Pistorius trial proceedings attracted much media attention. International journalists flocked into South Africa in droves. Our newspapers, our televisions, our radios, even our Facebook feeds were flooded with information. An entire twenty-four-hour television channel was created with the sole purpose of televising, and then discussing, the proceedings. The coverage was so extensive that one would have needed to sever all contact with the human world not to hear about the trial. All of this was made possible because, before the trial even began, Judge Mlambo did what no South African court had before dared to do: media organisations were given permission to broadcast, live and in full Technicolor, a criminal trial.

In reaching that decision, the judge recognised that, when two constitutional rights butt heads, such as the right to freedom of expression and the right to a fair trial, it is not a matter of determining which right is more deserving so that courts may declare a victor and jettison the loser.Footnote ²⁶ No, the true path is far more complex, and involves a balancing exercise to reconcile the two.Footnote ²⁷ The media in that case, unsurprisingly, argued that ‘[f]reedom of expression lies at the heart of a democracy’Footnote ²⁸ and urged the court to ‘exercise its inherent power to regulate its own’Footnote ²⁹ processes in order to permit the broadcasting of ‘the entire criminal proceedings’Footnote ³⁰ against Mr Pistorius. Mr Pistorius, on the other hand, contended that he, his counsel and his witnesses would be inhibited by the ‘mere knowledge of the presence of audio visual equipment, especially cameras’Footnote ³¹ and that media coverage as sought would ‘enable witnesses … to fabricate and adapt their evidence based on their knowledge of what other witnesses have testified’.Footnote ³²

The court began by explaining that the question is not whether the media, be they electronic, broadcast or print, should be allowed to cover court proceedings, but ‘how guarantees can be put in place to ensure the public is indeed well informed about how the courts function’.Footnote ³³ The learned judge did not look favourably upon the potential situation in which only the ‘small segment of the community … [with] access to tools such as Twitter [are] … able to be kept informed’,Footnote ³⁴ particularly when ‘[our] democracy is still somewhat young and [there are still negative] perceptions that continue to persist in the larger section of South African society’.Footnote ³⁵ But the court did concede the valid concerns of broadcasting visual images of Mr Pistorius and his witnesses, such that they may be ‘disabled … in giving [their] evidence’.Footnote ³⁶ So the learned judge concluded that the audio of those witnesses could be broadcast, but no visual imagery. Ironically, this was the exact opposite of what was permissible in Shaik, in which visual imagery was permitted, but no audio. And so it was that Judge Mlambo struck a compromise, which he believed achieved open justice without improperly impinging on the fairness of the trial.

It was only four months later in the trial against Radovan KrejčířFootnote ³⁷ that we saw a similar order made, permitting media coverage of another trial. And already there was improved media freedom. In the Pistorius trial, the media was required to have their cameras installed seventy-two hours before the trial was set to begin, and those were to be controlled in a nearby room, with no cameramen permitted in the courtroom.Footnote ³⁸ But, in Krejčíř, two cameras were allowed to be controlled by cameramen in the courtroom itself, so long as they did not move around the court while it was in session.Footnote ³⁹ Next, we must ask ourselves: should court orders be limited to discussing only cameras and microphones in the courtroom? Or should we begin to address intentionally the question of whether those in the gallery, including the media, should also be allowed to use their smartphones and laptops? If so, to what extent? Should live streaming be permitted, straight from the courtroom?

4 Technology in the courtroom

The question of technology in courts is a two-pronged question: what technology should the court itself use, and what technology should the court allow others to use? In response to the first question, we are making strides on that front. As I just said, we now have a Twitter account. We are also investigating the possibility of evolving into a completely paperless court. We are truly proud of the strides our Constitutional Court has taken to become substantially digital. It is compulsory for litigants to file court records in digital form alongside hard copies. All case records, pleadings, written argument, court judgments and orders are digital and may be accessed by the public from our website within minutes of their being issued. Parties, their lawyers and the public can track our case management online. In fact, our website is visited extensively and has thousands of hits from all over the world week after week. This has helped courts of other countries to draw from our judicial experience and their citizens to formulate their constitutional claims.

As to the second question of what technology people should be allowed to use in court, that was the question the learned Judge Masipa had to grapple with in the course of the Pistorius trial. Before one of the witnesses gave evidence, the judge prohibited reporters from tweeting or blogging about that witness's evidence. But then, only a day later, before that witness even gave evidence, the trial judge changed her mind and allowed all non-participants in court to tweet and blog to their heart's content.Footnote ⁴⁰

A similar carte blanche approach has been taken in the UK for several years now. In December 2010, the judge hearing the bail proceedings against Wikileaks founder Julian Assange permitted reporters to tweet in the courtroom.Footnote ⁴¹ A year later, the UK Supreme Court issued a formal direction permitting ‘live text-based communications’ such as e-mail and social media (including Twitter) in the courtroom, in order to better promote open justice.Footnote ⁴² Journalists were urged to ‘Twitter as much as you wish’.Footnote ⁴³ Now my law clerks tell me that it would have been more accurate to say ‘Tweet as much as you wish’, but the message remains clear: delayed information is as good as denied information. There is no reason not to, as a default position, permit live tweeting and whatever else from the courtroom. There is no logic in asking the media to step outside of the courtroom to press ‘send’.

And, as for letting TV cameras into the courtroom, in the Constitutional Court, media houses do not need special permission to televise our proceedings live or delayed. One must, however, be careful here. There is a big difference between appellate proceedings where only seasoned advocates appear before appeal courts and trial proceedings where live testimony is heard from witnesses. It is indeed arguable that unmitigated publicity, particularly in relation to lay witnesses, may undermine the fairness of a trial. The search for the truth may fall victim to the ‘you are on camera’ syndrome. Having warned as I have, in most cases, live camera footage will be more accurate than a reporter's after-the-fact summary. Whatever account they give after they leave the courtroom will inevitably be a second-hand account, their interpretation bleeding into their report. More so, mischievously selected sound bites may indeed undermine accuracy and the important context within which the words were uttered.

5 Challenges for open justice

Setting aside, for a moment, our celebrations of the progress we have made in encouraging greater transparency in court processes, it is important to remember that open justice is not, and has never been, absolute.Footnote ⁴⁴ As I mentioned earlier, there are competing objectives, which must be reconciled. There are challenges, which must be tackled. Witness testimony might be altered if they see other witnesses testify. Witnesses might be intimidated by the presence of cameras. The last remnants of the sub judice rule may still prevent people from speaking outside of court while proceedings are still afoot. There is also a fear that the media might manipulate audio-visual recordings out of context and mislead the public perception,Footnote ⁴⁵ or, as just mentioned, that any summarised version of a case will be a second-hand account, susceptible to inaccuracies and interpretive ‘spin’.Footnote ⁴⁶

6 Media presence: effect on witnesses

The first challenge for open justice is the effect of media presence on witnesses. We must diligently guard against the possibility that witnesses might change their testimony. This might be a simple matter of their memory of events being subconsciously changed by what they see and hear in the media. In the Pistorius trial itself, witnesses all but confessed to being glued to their televisions.Footnote ⁴⁷ I am by no means saying that this affected their testimony. The concern, rather, is that we cannot safely say that it did not affect their testimony. There is also the prospect of witnesses consciously changing their tune in response to media presence. The media's presence subjects witnesses to potential intimidation, both from others and from within themselves. Public speaking is, after all, feared by some more than death.

But these concerns are not enough to warrant closing the courtroom doors to reporters and cameras. To prevent the possibility of witness intimidation, we would quite literally need to bar everyone from the courtroom except the litigants in every trial and subject them to stringent gag orders. Open justice demands quite the opposite.

There are myriad measures available to protect witnesses. These range from anonymity orders to protect vulnerable witnesses’ identitiesFootnote ⁴⁸ and allowing witnesses to testify through intermediariesFootnote ⁴⁹ or with the help of a support person,Footnote ⁵⁰ to closing the courtroom so that only certain people are present,Footnote ⁵¹ or even allowing witnesses to testify from a remote location via closed-circuit television.Footnote ⁵² Other measures might include suppression orders such as that ordered in Multichoice when Judge Mlambo prohibited the media from photographing or broadcasting the testimony of Mr Pistorius or his witnesses,Footnote ⁵³ or even, as the US has started experimenting with, allowing witnesses to wear disguises in court.Footnote ⁵⁴

7 Sub judice rule: dead as the dodo?

In order to address the potential pitfalls of media presence in the courtroom, justice systems around the world have done what lawyers do best: they have created exceptions to a rule, the rule here being open justice. But not all of these operate in South Africa.

What may still operate in South Africa, though, is the principle of sub judice, which literally translates as ‘under judgment’. It refers to a prohibition on publicly discussing what happens in a case until the case is finalised. In America, the rule manifests itself in the lawyers’ ethical rules, prohibiting them from making statements outside of court that will be publicly broadcast and might affect the outcome of the proceedings.Footnote ⁵⁵ But how, you might ask, can a statement outside of court affect the outcome of a case in South Africa, where we have no jury system?Footnote ⁵⁶ The answer must surely be that it rarely could, and that the sub judice rule, and its relevance in South Africa, is, at the very least, on the verge of extinction.

The pedigree of the rule has yet to reach the Constitutional Court, but the Supreme Court of Appeal in 2007, in a case that did not even use the word sub judice, significantly narrowed the scope of the rule.Footnote ⁵⁷ After a crime of horrific proportions, which I needn't detail here, the media and public's attention was grabbed. A documentary was made, and the Director of Public Prosecutions sought an order prohibiting its broadcast before the trial on the basis that it would hinder the integrity of the administration of justice.Footnote ⁵⁸ First, the documentary might demonstrate inconsistencies in witness testimony that could be used to discredit them at trial. Second, witness safety may be compromised if their identities were released to the public. The court hearing the matter considered these pitfalls to be, at best, conjectural. If there were discrepancies, all the better that the light be shone upon them, earlier rather than later. And the witnesses’ identities were already public knowledge. The court therefore followed authorities from England,Footnote ⁵⁹ CanadaFootnote ⁶⁰ and AustraliaFootnote ⁶¹ and concluded that

As you can see, in that decision, the sub judice rule has been whittled down considerably. About that I say nothing now. Let it be enough to observe that the social and other media blasts and immediacy make the sub judice rule nearly impossible to hold and to keep, for better or for worse. What is more, it will be near impossible for the courts to police the rule. And, as you know, what the courts cannot police cannot be enforced.

8 The media's highest obligation: accuracy

Finally, perhaps the greatest challenge to open justice, as much as it is also its greatest strength, is the role of the media in reporting on the judicial function. We, the people and the Constitution, have not afforded the media freedom of the press as a privilege to enjoy. Public media is entrusted with a sacred duty – one that, if not properly carried out, could eviscerate our democratic project. Public media are charged with the role of being a conduit – as they inform, educate and entertain. Their agency role of the public media is by now well embedded to the extent that the public, as consumers of news, feed off their reportage.

Open justice is all for nought if the media do not accurately convey what happens in the courtroom. Mistakes have been made. Even in the Pistorius trial itself, some analysts incorrectly cited the provisions of section 77 of the Criminal Procedure ActFootnote ⁶³ as applying, suggesting that a question had been raised about whether Mr Pistorius could understand the proceedings. It was actually sections 78 and 79 that were brought into question and whether some mental illness or mental defect impacted his criminal responsibility.Footnote ⁶⁴ Other mistakes have been of a more trivial nature, but are nonetheless important not to make. For example, two separate media outlets recently got names of some justices of the Constitutional Court wrong when reporting on a judgmentFootnote ⁶⁵ last year.Footnote ⁶⁶ We are by no means a flock of prideful egos, but we would prefer the media got our names right. It is fair to ask that, in carrying out their responsibilities, the media worship at the altar of factual accuracy.

In addition to ensuring mistakes are not made, the media must also be careful not to sensationalise cases and turn them into media circuses. For example, on 16 January 2012, a headline appeared in the Pretoria News that read ‘Judge okays child sex’: a very misleading headline, to say the least.Footnote ⁶⁷ We cannot condone a situation in which a witch-hunt or jarring sensationalism is traipsing around in the guise of open justice.

9 Media coverage of court proceedings since the speech

The trend of letting cameras into courtrooms has increased in trial and appellate courts.Footnote ⁶⁸ Bail proceedingsFootnote ⁶⁹ and murder trialsFootnote ⁷⁰ have been streamed live from courtrooms to televisions, computers and smartphones. So too was the state's appeal against the culpable-homicide conviction of Oscar Pistorius.Footnote ⁷¹ Live television coverage was also provided of an appeal against a High Court decision about South Africa's obligations under international law to arrest and surrender to the International Criminal Court the President of Sudan.Footnote ⁷² The media have also shown up, cameras and microphones in tow, at the Constitutional Court. This was for the hearing and later the judgment hand-down of a matter concerning the legal status of the powers of the Public Protector and whether the president of the republic was bound by remedial action taken by her that would see him paying back into the public purse some of the costs of non-security renovations at his private residence.Footnote ⁷³

Exceptional care had to be exercised by the media in covering a case involving the kidnapping of a new-born baby who was reunited with her biological family almost two decades later.Footnote ⁷⁴ She had recently found out that the person she considered her mother was not her biological mother, but rather her kidnapper. Media houses had to strike a sensitive balance between respecting the interests of a vulnerable young woman and telling the public about the goings-on of a case that generated heavy reaction. This time, and with good reason, the proceedings were not televised. Film reels rolled again during court proceedings initiated by Ms Winnie Mandela to contest the will of the late President Nelson Mandela.Footnote ⁷⁵ These are just a handful of examples that demonstrate the development of the principle of open justice through camera lenses in just under a year after this speech was first delivered. And it all started with that cutting-edge decision in Multichoice.Footnote ⁷⁶