Abstract
As a lawyer, it is a privilege to contribute to this Festschrift in honour of Professor Doctor Johan Buitendag. His entire career has been a quest for the truth. In the process, he has fearlessly rejected political agendas based on the Bible, and has inspired countless students in their quest to serve God in a practical and humane manner. His published research as well as the output of his doctoral students, both present and past, bear witness to a life dedicated to the search for knowledge in the service of God. He has also assisted substantially in placing South African theological research on the international map. In a sense, this article which deals with the protection of the right to a fair trial of an accused, also acknowledges Johan Buitendag’s quest for justice for all South Africans, whatever their creed, gender, race or standing. The subject of my article demonstrates my own quest to promote the constitutional right of an accused to a fair trial, a right that should not be subject to inordinate pressure by the media, and which gives priority to the right of an accused to be presumed innocent: an accused who may frequently suffer loneliness and a sense of rejection. Related to that it is, of course, always important to bear in mind that freedom of expression is at the heart of our democracy. A balance has, accordingly, to be struck between the competing rights.
Highlights
South African criminal law prohibits the publication of some statements which relate to pending litigation
The subject of my article demonstrates my own quest to promote the constitutional right of an accused to a fair trial, a right that should not be subject to inordinate pressure by the media, and which gives priority to the right of an accused to be presumed innocent: an accused who may frequently suffer loneliness and a sense of rejection
The front page heading in the Sunday Times of 13 April 2014, published during cross-examination of Oscar Pistorius (‘Oscar is lying’) would most probably, in pre-constitutional times, have led to prosecutors seriously considering whether to lay a charge of contempt of court, based on an infringement of the sub judice rule
Summary
Note: Chair, Broadcasting Complaints Commission of South Africa (1993−); Emeritus Professor of Law, University of Pretoria; Deputy Dean of the Faculty of Law, University of Pretoria (1984−1996); Chair, Publications Appeal Board of South Africa (1980−1990); Chair, Press Council of SA (1991−1997); Chair, Ministerial Task Group Films and Publications Control (1994−1996); Fellow of the Alexander von Humboldt Stiftung, Germany (1974−); Acting Judge 2003−2009 for 12 court terms; Executive Councillor, Independent Communications Authority of South Africa (2006−2010); Member, Press Freedom Commission (2011−2012), chaired by retired Chief Justice Langa. The subject of my article demonstrates my own quest to promote the constitutional right of an accused to a fair trial, a right that should not be subject to inordinate pressure by the media, and which gives priority to the right of an accused to be presumed innocent: an accused who may frequently suffer loneliness and a sense of rejection. Related to that it is, always important to bear in mind that freedom of expression is at the heart of our democracy. A balance has, to be struck between the competing rights
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