Lack of media protocol for virtual court matters troubling

We forget too easily about the worst aspects of apartheid, that black people were second-class citizens, that overt racism thrived, that the state existed for the benefit of a minority.

Occasionally, we’re jolted into remembering.

Such a reminder of the contribution of the courts under apartheid to people’s oppression came amid the struggle during the Covid-19 pandemic to ensure that Eastern Cape high court judges and officials in the democratic era pay more than lip service to the public’s interest in, and right to information about court proceedings, and the media’s right to inform the public on the workings of the court.

Deceased former chief justice Pius Langa once acknowledged the historical antagonism between journalists and court functionaries, but argued the media constituted a forum through which the courts “can assess their effectiveness”; the courts must see to it that justice is done, the media have the power to determine whether justice is seen to be done.

One wonders to what extent attitudes towards the media are rooted in the legal — or even the political — philosophy of those who preside in the high court.

In July, the Daily Dispatch and The Herald wrote to Eastern Cape judge president Selby Mbenenge and his deputy judges president in the Mthatha and Port Elizabeth high courts, respectively Zamani Nhlangulela and Dawid van Zyl, to raise the need for a protocol on media access to the high court during the state of national disaster.

Simultaneously, media law specialist Dario Milo of Webber Wentzel Attorneys, for the amaBhungane Centre for Investigative Journalism, submitted a scrupulously argued set of draft directives for consideration by the judge president.

amaBhungane had already succeeded in securing the issuing of a directive in Gauteng by judge president Dunstan Mlambo.

In reality, few citizens can attend and scrutinise judicial proceedings. Most people learn about what has occurred in court through the audio, visual and written reports presented by the media.

Court work has been severely disrupted during the Covid-19 pandemic, in part due to the age seniority of our judges and, understandably, their susceptibility to infection.

But there has been minimal consideration for limiting the disadvantageous impact on the public of provisions to curb the spread of the coronavirus.

We believed an initiative which would promote public knowledge of the work of the courts, that would support the rule of law and deepen democratic values, would find favour with the Eastern Cape judge president and judges.

After all, current chief justice Mogoeng Mogoeng has said court officials are accountable to the people of SA.

Journalists would like to think that we are also being true to what legal philosopher Jeremy Bentham said almost 200 years ago, that “where there is no publicity there is no justice”, that publicity “keeps the judge himself [and we may say herself], while trying, under trial”.

In a 2010 case that traversed terrorism, state secrecy, international co-operation, torture and the interests of the media, the chief justice of England and Wales, Lord Igor Judge affirmed the public’s right “to enter any court to see ... a tribunal conscientiously doing ... justice according to law. For that reason, every judge sitting in judgment is on trial. So it should be.

“Without the commitment of an independent media the operation of the principle of open justice would be irremediably diminished.”

Our own Supreme Court of Appeal reflected on this reality when it held that open justice means more than merely keeping the courtroom doors open; proceedings must be “meaningfully accessible” to any member of the public who wishes to be “timeously and accurately apprised of such proceedings”.

And, Bob Satchwell, when he was executive director of the British Society of Editors, argued that a commitment to public and media access to court hearings must coexist with a prescript that nothing be done to discourage the publication of accurate and fair reports of court proceedings to the wider public.

A media protocol as we have proposed is found in many jurisdictions around the world, but our approach has not been prescriptive. Instead, we hoped for an ongoing engagement with the judges.

We suggested standardised media access to live and virtual hearings across the Eastern Cape, that court rolls be published regularly containing basic information about cases, the parties and their legal representatives, and whether hearings would be live or virtual.

Milo noted lack of detail in JP directives in May on how members of the media may access virtual court proceedings. Where written submissions are presented to court, these should be made available to the media.

Sadly, we were wrong in our anticipation of Mbenenge’s positive response. Eschewing a substantive rejoinder, he left a response to a government apparatchik trained in the state’s communications playbook judiciary national spokesperson Nathi Mncube.

Mncube intoned there was “no immediate need” for new court directives on access as previous ones “pertinently addressed” reporting on the courts.

His promise that court rolls would be published regularly on Twitter or the judiciary website is meaningless.

Rolls are published infrequently and on a whim, lacking the most basic information for timeous notice to galvanise public or media awareness, and certainly do not facilitate access to virtual proceedings. Importantly, urgent matters and cases which for any reason are heard in closed hearings or in chambers are never announced to the public.

Any success in accessing information about the courts is due to conscientious lawyers and a few presiding officers or clerks. Most other functionaries treat the media with a barely disguised and unjustifiable disdain.

Mbenenge’s response to a considered effort to promote reporting on the courts does little to assuage a worrying suspicion of an insidious clampdown on information.

One wonders what it is that instils such fear of publicity in  those on the bench.

Where does their antipathy for the media’s right to inform the public spring from?

Which progressive jurist with a practice history of acting on behalf of the powerless and downtrodden, with nothing to hide, and guided by a singular commitment to constitutional values, would find reprehensible the notion of increased exposure of the workings of the courts?

The effect of an exclusionary “cordon sanitaire” thrown around the high courts in this province has been sharply exposed during Covid-19.

Sadly, it appears to be less about preventing a disease from infiltrating and destroying, and more about keeping out members of the public who wish to follow proceedings, and the media who desire to inform them. — DispatchLIVE