The trial of Oscar Pistorius is providing fascination, horror and suspense in varying measures. In a first for South Africa, the televised trial has given journalists, lawyers and other followers across the world the opportunity to catch a glimpse of an extraordinary event for the country’s justice system.
The British public and practitioners familiar with the rules and procedures of UK courts have been given an insight into something very different to what they are used to at home. The fame of the defendant and the exceptionally open nature of the trial have led to unconstrained commentary on the case which is an unusual feature of South African justice.
Observers of the UK courts should be aware that although there are similarities between South African law and English law, there are also significant differences. Importantly, commentary on legal proceedings in the UK is often restricted in these types of cases, carrying a risk of potential prosecution for violators.
Legal Proceedings in South Africa
The South African justice system combines elements of various legal systems including English common law, Roman-Dutch civil law and customary laws that were used by indigenous tribes.
Oscar Pistorius’ criminal trial is following a similar approach to minor English criminal cases whereby the trial is heard by three magistrates, one of whom acts as the chairperson. In the Pistorius case there is a judge, Thokozile Masipa, who has appointed two assessors to help with the verdict.
The real difference with English law in this case is that a charge as serious as murder would be trialled in the Crown Court before a judge and jury.
Commentary on the Oscar Pistorius Trial
Limitations have been placed on the recording of Pistorius’ testimony and that of defence witnesses and prosecution witnesses who choose not to give consent; these will not therefore be filmed. However, prosecution and defence opening statements and closing arguments, police evidence and experts' testimony is being broadcast on TV.
The level of detail that has been made readily available through televising the proceedings has led to some unusual commentary in both the mainstream media and across social networks such as Twitter, from:
"He should have held his head together on the night he lost control and shot Reeva!"
"If you were going to the bathroom in the night would you lock the door?"
British observers should note that this type of commentary could easily land Twitter users in trouble if it referred to a similar case being tried here in the UK.
Be Careful with Your Commentary
The general rule under English law is that administration of justice must be done in public in the interest of open justice and freedom of expression. However, some cases are subject to automatic reporting restrictions, particularly sexual offences, while others have discretionary restrictions placed upon them by the court.
Reporting restrictions are imposed to protect the integrity of the legal process in active proceedings. A high-profile murder case in the UK would be subject to automatic restrictions in early hearings and would be likely to attract discretionary restrictions during the trial to prevent publication of material that might prejudice the trial. The main aim of such restrictions would be to prevent the risk of jurors being influenced by media commentary.
Evidently, in the Pistorius trial there is no jury to be influenced.