Modimolle: Social media ruling analysed

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By Jenni Evans

 

Johannesburg - The justice department has commended a ruling that social media may not be used during Ina Bonette's testimony and cross-examination in the High Court in Pretoria.

“We are encouraged by the stance adopted by the presiding officer as it entrenches our strong view that witnesses in sexual violence cases need to be protected from secondary trauma,” justice spokesman Mthunzi Mhaga said on Thursday.

This followed Acting Judge Bert Bam's order on Tuesday which set the conditions for Bonette's in camera testimony during the trial of her husband Johan Kotze and his co-accused Andries Sithole, Pieta Mohlane and Frans Mphaka.

They are accused of murdering her son Conrad, and kidnapping, repeatedly raping, assaulting and attempting to murder her on January 3.

When testimony is held in camera, access to the courtroom is restricted.

Courts usually order these conditions if a minor is involved, or if there has been sexual violence.

Bonette consented to being photographed and interviewed in articles in You, Beeld and Huisgenoot, so her name has been published.

Bam's conditions limited the number of supporters she may have with her in the court, and the number of journalists who may be present.

The order, in terms of sections 153 (3A) and 154(2) of the Criminal Procedure Act (CPA), specified the closest distance that photographers and reporters could be to her.

It also stipulated that no social network reports in connection with what is testified in court, either from inside the court, or elsewhere, may be sent until the end of her testimony. This includes her cross-examination.

Eye Witness News' Editor-in-Chief Katy Katopodis said: “We certainly wouldn't want to go against that ruling in any way.”

Since the order, their reporter had tweeted generic information, such as whether the court had broken for lunch, whether the case had resumed, and some observations outside the court.

“Certainly, none about the testimony, or the content,” she said.

The content itself had been so graphic and gruesome that the order in this particular case seemed to make sense, she said.

However, because it was precedent-setting in South Africa, the issue had to be properly debated.

Mhaga said social media was a relatively new phenomenon, hence no specific legislation governed how it could be used to give updates on court proceedings.

The courts currently used section 153 of the CPA to protect witnesses and any information or evidence, the publication of which could undermine the proper administration of justice.

Rosalind Davey, a lawyer at Bowman Gilfillan with a knowledge of social media issues, said courts in the United States and the United Kingdom were also grappling with this.

News reports there showed that tweeting had been variously allowed only by accredited journalists and lawyers.

Orders had been handed down limiting tweeting in US courts on the grounds that jurors might be influenced.

In the UK, the lord chief justice was worried that witnesses in criminal trials could know was happening in court, and be coached before giving evidence.

Davey said: “The judge retains the discretion to prevent it.”

She said that in Bonette's case, the judge was probably weighing up the right to freedom of speech versus Bonette's privacy and dignity rights.

She said the use of pseudonyms could make policing such orders difficult, but in the US, courts had ordered service providers to release information on account holders.

She said in South Africa, information posted on social media, such as Facebook, had already become part of the discovery process that preceded a court case.

“If evidence on social media is relevant to a case it is discoverable,” she said, referring to the collection and preparation of documents and evidence to support a case.

Raymond Louw, of the Freedom of Expression Institute, said it was important to note that Bam's order was not a total ban.

“It only limits the time period when social media may be used in court,” he said.

That the media was allowed into the court to report on the proceedings meant that freedom of the Press was not interfered with.

He said tweeting during such a case could be considered as providing only a portion of the evidence, without the balance and fairness that would go into a fuller news report.

“It goes straight from the tweeter and onto the screen,” said Louw.

The issue required greater clarity, and a discussion between judges and the press on how to deal with it, said Louw.

The last discussion on terms of coverage was ahead of the Farlam Commission of Inquiry into the shootings at Marikana.

Violating an order relating to coverage of a case could lead to a contempt charge, according to “Reporting the Courts, A handbook for South African journalists”.

A person found guilty of contempt could be fined or imprisoned, depending on the presiding officer. - Sapa

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