Transparent justice strengthens fair trials – expert

The right to a fair trial is one of the most fundamental protections in South Africa’s constitution. Yet an often overlooked part of that right is that justice must be visible, says Durban attorney Mark Tomlinson.

Tomlinson said the constitution not only guarantees that accused persons are treated fairly inside the courtroom, it also requires that trials are conducted in public so that justice is transparent and open to scrutiny.

“The constitution’s right to a fair trial includes the right to a public trial for transparency purposes,” he said.

Public trials essential for accountability, transparency

“So that element of the trial being in public and the public having access, whether through attendance or through the media, is a key foundation of a fair trial.”

This principle, he said, works alongside another constitutional protection – freedom of the media.

ALSO READ: Danish Supreme Court case opens on arms sales to Israel

While rights sometimes conflict and must be balanced, Tomlinson said media reporting plays a critical role in ensuring accountability in the justice system.

He said that in many cases, public attention can help expose failures or accelerate investigations. Tomlinson noted the high-profile escape and re-arrest of Thabo Bester as an example of how public participation and media exposure can influence outcomes.

“It’s my view that he would probably never have been rearrested if it wasn’t for a video taken by a member of the public that ended up on social media,” Tomlinson said.

Media, citizens play vital role

Investigative journalism has also played a similar role over the years. News organisations like The Citizen and programmes such as Carte Blanche have often exposed issues that later prompted action from authorities.

“Shortly after certain stories have appeared or programmes have aired, the department of justice or the police have taken steps because information was placed in the public space,” he said.

ALSO READ: Ramaphosa extends Madlanga commission deadline by five months

The rise of smartphones and social media has dramatically expanded the public’s role in the justice ecosystem.

With millions of people now carrying cameras and recording devices in their pockets, the amount of information circulating about criminal matters has grown rapidly.

Rather than undermining justice, Tomlinson said this increased visibility can strengthen it.

Increased visibility

“Everyone has a cellphone and everyone has a video recorder. We have masses of social media and information around cases. This can be a very good thing for transparency and right to a fair trial.”

A common misconception, he added, is that media coverage automatically threatens a trial because of the sub judice rule.

ALSO READ: World Economic Forum CEO Brende resigns after Epstein links revealed

While this argument is frequently raised by parties who refuse to comment on ongoing matters, recent court decisions have clarified the legal position.

He said that a ruling by the Supreme Court of Appeal of South Africa in the landmark Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) significantly raised the threshold for restricting media reporting.

“There has to be a real risk that will cause demonstrable and substantial prejudice,” Tomlinson said. “The bar has been set so high that the sub judice rule is almost kicked out of play.”

US jury system

Part of the reason for this, said Tomlinson, is the difference between South Africa and countries such as the United States is the absence of a jury system.

In SA, criminal cases are decided by trained magistrates and judges rather than juries made up of members of the public.

ALSO READ: Ramaphosa wants ‘full picture’ before deciding Mchunu’s fate

“The idea that the media will influence the outcome of a case comes largely from American television,” Tomlinson said. “In SA, we have experienced judges and magistrates who decide these matters, so the risk of media influence is basically null and void.”

Tomlinson said that justice functions best when it is open to scrutiny.

“Journalists, private investigators and the public can all play a role in ensuring transparency,” he said. “Transparency is essential if the right to a fair trial is going to mean something.”