After the broadcasting of the Oscar trial, some balance is needed, writes Mahlodi Sam Muofhe

JUDGE Thokozile Masipa will soon pronounce her verdict on a trial that has gripped the country since the events that took place on Valentine's Day last year at the home of Oscar Pistorius.

The shooting, which claimed the life of a young lawyer, Reeva Steenkamp, has been a talking point among South Africans.

The heads of argument have been argued by the state and the defence.

Pistorius's fate now lies in the hands of Masipa, so there is no tampering or intervening one way or the other with the court processes that can prejudice the outcome of the case or lay the basis for those who might want to argue that Pistorius received an unfair trial because, among other things, broadcasting the case live and the general public's views and comments on the case could be advanced as one of those contributing factors.

The transformative impact of our constitution, with its entrenched Bill of Rights, is enjoyed by all of us today without exception.

Through our constitution and in the public interest, the court was persuaded by the media that it was in the public interest to broadcast live the case.

The court weighed the submission by the media and justly ordered that it was indeed in the public interest to broadcast the case live.

One could argue that there have been some positives in the live broadcast.

For one, people probably now broadly comprehend the workings of the construction of our criminal justice system.

Through this public trial, the public had its right of access to information held by the state upheld.

Students in criminal law, criminal procedure and the law of evidence also got to understand these complex modules.

Students of law are probably battling to fathom how boldly - under cross-examination by state prosecutor Gerrie Nel - Pistorius under oath said that his defence team prepared his bail application affidavit themselves and brought it to him at the police station where he was being held, just for him to append his signature on an affidavit which, in terms of the law, ought to have been deposed by Pistorius himself.

Pistorius's version of how his affidavit was done was never clarified by his defence team during his re-examination, which means in reality that his version is correct. If it is, issues of professional legal ethics were violated by his legal defence team.

On the other hand, if there is a general understanding that Pistorius was less than frank in his testimony, he cannot be deemed to have been a reliable witness.

By his own admission, he was, more than anything else, fighting for his life.

However, now that the crux of the trial is in reality behind us, can we as South Africans honestly still hold the view that criminal cases should, in the public interest, be broadcast live?

Have we fully considered what other interests might be compromised if the public's interest gains momentum in our criminal justice system?

I am of the view that should we go on the public interest trajectory, the interest of justice is likely to be severely compromised, with the likely consequences of getting many criminal cases declared to have been run unfairly, to the detriment of the accused.

In this particular case, for example, the defence hinted that some of the potential defence witnesses flatly refused to co-operate because they didn't want their faces beamed on TV or their voices broadcast on radio.

Though this reason seems weak, in that those witnesses could have testified in camera (a common phenomenon in our criminal justice system), this is an important factor.

It demonstrates that broadcasting criminal cases live, much as it might be in the public interest, might seriously prejudice the interest of justice.

Witnesses, either for the state or the defence, should not be privy to what other witnesses have testified before they themselves testify.

We would be less than sincere as a society if we are to believe that the witnesses in the Pistorius case never watched the broadcast of the case before testifying, as some of them seemed to suggest.

In fact, Tom "Wollie" Wolmarans, an expert witness for the defence, conceded under cross-examination that he took fellow defence expert witness Roger Dixon out for dinner before he (Wolmarans) had testified.

Their interaction was clearly in conflict with the law.

Before being witnesses, they are members of the public who could not be barred by anyone from watching the rebroadcast of the trial in the evenings in the comfort of their homes.

Enforcing this ban on witnesses watching the trial was in any event simply not going to be possible.

In some instances, some of the witnesses, under cross-examination by the state, conceded that they were only approached to testify for the defence after Pistorius's evidence-in-chief, cross-examination and re-examination.

These witnesses were, like the rest of us, glued to their TV sets, following the trial with interest, before being called up to testify.

Given that they were defence witnesses, there was no way they could have known up front that they would at some point be called to testify.

Given the argument outlined above, can we then honestly argue that the public interest trumps the interest of justice?

Courts should, in future, aim to balance the objectives of the two, so that the ordinary South African, and indeed the accused, can be sure that justice has been served.

The author is an advocate and writes in his personal capacity.