South Africa: SCA Issues Important Judgment On Video Recordings During Van Breda Trial

Last Updated: 11 July 2017
Article by Willem Van Der Colff

Most Read Contributor in South Africa, October 2017

The trial of murder-accused Henri van Breda has attracted widespread media attention in recent months. Now, the Supreme Court of Appeal ("SCA") has delivered an important judgment linked to the case regarding the media's right to broadcast aspects of court proceedings – not only in the Van Breda case, but in other cases too.

The SCA's judgment, delivered on 21 June 2017, highlights the tension between the constitutional rights to freedom of expression and to a fair trial, and the need to harmonise these as far as possible. The judgment should be of interest not only to those accused of crimes, but also to those who may be called to provide witness testimony in criminal cases and, potentially, civil trials.

Shortly before the Van Breda trial started in the High Court, Media24 brought an urgent application requesting permission to video-record and broadcast the trial, as well as to take photographs and video footage in the courtroom before and after proceedings each day. The presiding judge, Judge Desai, granted an order agreeing to this request, subject to certain conditions.

Van Breda and the National Director of Public Prosecutions appealed to the SCA, which granted them leave to appeal. In its decision, the SCA overturned the part of Judge Desai's order that permitted the recording and broadcast of the trial, and sent the matter back to the High Court to reconsider the request in light of the principles the SCA set out in its judgment.

What the judgment means for other court cases

The SCA's judgment sets a ground-breaking precedent for similar cases in future.

At the outset, the SCA acknowledged that the media and courts are "locked in a mutual, if sometimes uncomfortable embrace" (quoting Canadian Chief Justice Beverley McLachlin PC). At the centre of this were the two constitutional rights that are at loggerheads, namely:

  • the right to freedom of expression; and
  • the right of an accused person to a fair trial.

The right to freedom of expression, the court noted, includes the right to receive, impart and disseminate information or ideas. The court also highlighted the media's role in facilitating and guaranteeing this right for the public, and recognised that the majority of South Africans rely heavily on radio and television for news and information, and noted the important role of social media and the internet in this regard, outside traditional news outlets such as newspapers and radio.

Central to this right is the "open justice" principle, which is often expressed by the maxim that "justice should not only be done, but should manifestly and undoubtedly be seen to be done."

On the other hand is the right to a fair trial. The SCA considered one of the "most persuasive" objections to broadcasting criminal trials – the effect that the cameras may have on witnesses, including the risk that witnesses may tailor their evidence after viewing the testimony of other witnesses.

The court criticised the inflexible approach taken by the National Director of Public Prosecutions, which had asked for a complete ban on broadcasting not only the Van Breda trial, but all future criminal proceedings.

The court noted that, other than in limited exceptional circumstances, it is customary for courts to be open to the public and that allowing the broadcast of criminal matters expands the open court principle. However, the right to a public hearing does not automatically mean that all trials can be broadcast live on all occasions. The judge or magistrate hearing a particular matter can limit the nature and scope of broadcast to ensure the fairness of proceedings, provided this is in line with the Constitution.

The SCA also cautioned that although the arguments in favour of allowing cameras in the courtroom were compelling, "South Africa is very much at the experimental stage of examining the possibilities brought about by new and improved media technology" and that the various competing interests need to be carefully balanced.

Going forward

Henceforth, the media should apply to the trial court for permission to broadcast on a case-by-case basis. The SCA considered that it would be "undesirable" for it to lay down rigid rules. Rather, each particular judge or magistrate must exercise its discretion after considering the circumstances of each case and balancing the risk of allowing cameras into the courtroom against the jeopardy of an unfair trial for either the accused or the complainant. A court may, for example, prohibit the broadcast of part of the proceedings or permit only audio broadcasting of proceedings.

Insofar as legal representatives are concerned, "[t]he default position has to be that there can be no objection in principle to the media recording and broadcasting counsel's address and all rulings and judgments ... delivered in open court," the court held.

Witnesses may object to coverage of their testimony, by providing reasons for the objection and the effects he or she believes the coverage would have on his or her testimony. This individualised approach recognises that there may be a distinction between expert, professional (such as police officers) and lay witnesses, and would also forestall spurious objections. Absent a cogent objection, the ruling allows for the filming or televising of all non-objecting witnesses.

It is important to note that the courts will not restrict the nature and scope of the broadcast unless there is a real risk that it will result in demonstrable prejudice. Objections regarding prejudice may be raised by witnesses, the State and/or the accused. An important consideration is whether broadcasting proceedings will deter witnesses from testifying. However, mere conjecture or speculation that prejudice might occur will not be enough.

The SCA did not set out a detailed procedure for trial courts to follow in this regard and, at this stage, it is uncertain whether this will happen via a formal application or an informal arrangement when a witness enters the witness box. This will, in all likelihood, be developed by the courts in day-to-day proceedings.

We predict that this judgment will not only pave the way for the broadcast of many more high-profile criminal matters, but it will likely pave the way for the broadcast of civil trials too. For witnesses, this means that they will have to be prepared, not only in terms of what their evidence will be, but also in terms of how it will potentially be presented. It seems that the uncomfortable embrace in which the media and the courts are locked is set not only to continue, but the public is likely to be treated to a glut of sensational courtroom trials over the next few years.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.