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- Reporters have been fighting an uphill battle to get electronic devices such as recording equipment into the Zandile Gumede trial after a court order imposed restrictions.
- Lawyers representing broadcasters used precedents in the 2017 Henri van Breda case to argue for the media.
- Reporters have had their phones, laptops and other devices banned in court, with Judge Sharmaine Balton only allowing them to take notes.
Media lawyers arguing for cameras and other equipment to be allowed back into the Zandile Gumede corruption trial used a number of precedents from the 2017 Hendri van Breda case.
In the Gumede case, Judge Sharmaine Balton made the decision to impose a blanket ban on the media for the present string of witnesses, many of whom are eThekwini Municipality officials.
On 28 July, in a letter to her registrar, Balton said after discussions with both counsels she would not allow filming or photographs in her courtroom.
She spoke to lawyers on 27 July, and they agreed that cameras and television recordings would not be allowed in court during the proceedings.
Since then, reporters have also been banned from taking their cellphones and laptops into the courtroom. Instead, devices are left in envelopes which are stored in a box.
Gumede's case, which is being heard in the KwaZulu-Natal High Court in Durban, emanates from her brief stint as mayor of eThekwini around 2017.
She remains a public official in the KwaZulu-Natal legislature. She is a long-time ANC politician and is expected to play an important role for the ANC in the 2024 elections due to her loyal support in many parts of Durban.
Her case, together with 21 other accused, involves R320 million of public funds syphoned out of the Durban Solid Waste (DSW) unit in the eThekwini Municipality.
Parallels between media issues in Gumede and Van Breda matters
On Thursday, Max du Plessis SC, representing broadcasters used several precedents from Media24’s 2017 court battle with Van Breda in the Supreme Court of Appeal, to draw parallels on Balton’s blanket ban.
Van Breda was convicted of murdering his father, mother and brother with an axe in 2015, and sentenced to life in prison.
In court papers, Du Plessis for the media, said that the Van Breda matter was the most "recent authority on freedom of the press and the principles of open justice and electronic media’s role in meaningful public access to court proceedings".
He quoted the case extensively saying it highlighted the principle of open justice.
In the Van Breda SCA judgment, it states: "…justice should not only be done but should be manifestly and undoubtedly be seen to be done… The principle of open justice is one which strikes at the very heart of what SA has been, and is still, trying to achieve in the post-apartheid era."
READ | Zandile Gumede trial: Media ban on video, cellphones and laptops thrust into central focus
Du Plessis used this excerpt to argue his position of open justice for the Gumede matter.
"Open justice is now accepted as being the default position. This means the doors of the court are, as a default position, to be made open to audio-visual broadcasting," he said.
Du Plessis quoted paragraphs in the Van Breda matter that stated it was the duty of the trial court to examine each application with care, and balance degrees of risk in allowing cameras into the courtroom.
He further leaned on the Van Breda matter in explaining the need to prove threats to witnesses.
He said parties defending media restrictions bore the burden of justifying that restrictions have a rational relationship to the protection of witnesses.
In Gumede, Du Plessis said the state is unable to defend the restriction. He said Balton’s court order was granted on the basis of hearsay assertions from the state.
He said there was no written application and no evidence in the form of statements under oath.
So far, there has only been one alleged threat against a witness.
An eThekwini employee who was set to testify claimed their home was shot at.
Police are investigating the matter, while political parties have condemned the incident.
Du Plessis said there was no evidence a shooting took place, or that it was linked to the trial or media reporting of the matter.
"It was based on speculation about the reasons for the shooting and who it impacted. Even if there was evidence of a threat, alternatives should have been sought."
The hearing for the media to be allowed to use video, audio and other electronic tools is expected to be heard on 19 October.
The trial itself resumes again on Monday.
