The judge presiding over the R320m corruption trial of former eThekwini mayor Zandile Gumede and 21 others was wrong to impose a blanket ban on broadcasting the trial, three judges have ruled.
The judges, who heard an appeal against judge Sharmaine Balton’s 2023 ruling, which affected reporting and televising the evidence of a “thread” of witnesses, all former or present municipal employees, said Balton had overstepped the mark.
They have rescinded the order, directing any future application by the state to vary an order made at the start of the trial, the proceedings could be televised live, must be brought on affidavit, on a witness-by-witness basis, supported by sworn objections, after hearing all affected parties, with consideration of less restrictive means before any restriction on broadcasting.
The trial is set to resume in November and continue into December.
But already, reporting on the evidence of several witnesses has been curtailed by Balton’s ruling in which she not only banned television cameras, but the public from attending the trial, and journalists from taking cellphones, laptops or any recording devices - the tools of their trade — into the courtroom.
This because of a shooting at the home of one of the witnesses and reports others were too scared to testify.
Since then very few journalists have been attending the ongoing, lengthy proceedings.
In October 2023, e-Sat Pty Ltd and e.tv filed an application, with the support of the National Editors Forum, to set aside the ruling.
Advocate Max Du Plessis argued there were less restrictive means to protect the witnesses — and the media houses had not been allowed to state their case before the ruling.
However, Balton dismissed that application — and an application for leave to appeal — with costs.
The broadcasters approached the Supreme Court of Appeal, which directed the appeal be heard by a full bench of the KwaZulu-Natal High Court.
In the ruling, handed down on Friday, judge Thokozile Masipa, writing for the court, said in spite of protestations by the state, the applicants clearly had standing to bring the application as they were directly affected by the first order, which was then varied without their consent.
Second, Masipa said, they were acting in the public interest, to ensure transparency in the trial of a high-profile public figure.
The state, the judge said, had also argued that the matter was “moot” because, by the time the appeal was argued and decided, that thread of evidence was most likely completed.
However, she said, the legality of restrictions on media coverage in criminal trials was a “recurring issue of constitutional importance”.
In argument, the broadcaster said Balton had erred in holding the ruling did not infringe on open justice and freedom of expression, she had been wrong in finding there was a potential threat to witnesses by admitting hearsay evidence and she had not applied the audi alteram partem rule (let the other side be heard).
Masipa said the Constitutional Court had consistently emphasised that openness is the default because television coverage brought the reality of the courtroom into homes and workplaces of millions of people who would otherwise be unable to attend.
She said the ruling imposed the most restrictive form of limitation, a complete blackout of an entire threat, without sworn evidence linking broadcasting to risk.
The broadcaster’s proposed compromise — that witnesses who objected to being televised could depose to an affidavit and each could be decided on its merits — was not considered.
Balton, she said, had misapprehended the nature of their constitutional right and the ruling unjustifiable infringed open justice and freedom of expression.
Turning to the issue of the threats to witnesses, Masipa said the state had argued their fears were genuine. But, this evidence was “hearsay” and the court was not entitled to rely on it.
Masipa cited the SCA ruling in the Henri van Breda trial where he faced charges of murdering his parents and brother and attempting to murder his sister, which set a standard that “openness is the rule, departure the exception and the exception must be individually motivated”.
She said the ruling was not consistent with this.
Masipa upheld the appeal, rescinded the order, and ordered the state to pay the broadcaster’s costs.
The state alleges Gumede and others manipulated the award of Durban Solid Waste contract to four companies to promote radical economic transformation and to give kickbacks to a “patronage network” which included community based contractors (CBCs), business forums and the MKVA who were aligned to the RET faction in the ANC.
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