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The South Africa Johannesburg high court on Friday rejected urgent bids by Thabo Bester and Nandipha Magudumana to interdict the airing of Showmax’s Tracking Thabo Bester — due to stream later on Friday.
Both said the broadcasting of the docuseries would affect the fairness of their criminal trial. Judge Stuart Wilson gave his judgment directly after the case had been argued, saying he could do so because Bester and Magudumana’s case required him only to apply a 2007 judgment of the Supreme Court of Appeal that dealt with a bid to gag a documentary about the infamous murder of Baby Jordan.
Wilson said that judgment balanced the right to freedom of expression with the risk of prejudice to trial and the right to a fair trial. In it, Justice Robert Nugent said before a ban on publication will be considered there must be “a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice”.
If that prejudice arises, it must be substantial and there must be a real risk that the prejudice will occur, said Wilson. In addition, Nugent had said “mere conjecture or speculation that prejudice might occur will not be enough,” said Wilson. But here, Magudumana and Bester had not shown more than conjecture and speculation , he said.
Magudumana and Bester referred to the fact that Nkosinathi Sekeleni had been interviewed for the docuseries but his name had been listed as a potential witness on the indictment for Magudumana’s criminal trial.
“The suggestion is there is something about broadcasting that may prejudice the applicants’ rights or otherwise impair the administration of justice,” said Wilson.
He questioned their counsel closely to identify what that prejudice might be. But while they did not concede that there would not be prejudice, “they could not answer”.
Instead, what he had gleaned from their court papers was a “generalised anxiety that a documentary is about to broadcast that will talk about them and that will in some way affect their interests”.
Whether a court should sympathise with them, when put in that position, was “not the issue before me”, said Wilson.
“The issue before me is whether … the applicants have shown more than conjecture or speculation that prejudice will occur when they come to trial. And it is my conclusion that it has not been shown,” he said.
“The applications therefore … must fail,” he said. (Source: TimesLIVE)
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