Tavern massacre: MEC revealing existence of video footage ‘stupid, premature’

Gauteng MEC community safety Faith Mazibuko’s move to reveal that police have obtained video footage of the Mdlalose Tavern massacre in Nomzamo, Orlando East, Johannesburg, was not only premature but stupid, according to criminal law experts.

Mazibuko told eNCA this week that “not everyone is sleeping”, suggesting that the video of the five masked gunmen who mowed down 16 patrons in the senseless tavern massacre last weekend was shot by someone in the vicinity of the tarven.

University of Pretoria criminal law expert Dr Llewelyn Curlewis asked: “…why disclose your evidence even before a court allowed it? Sounds like a stupid, premature move to me.”

On the implications of the video, he explained that there are very strict rules of evidence to adhere to before video evidence will be admissible in a court of law.

Curlewis said the evidence must be “relevant”, the origin of the recording as well as the contents thereof has to be identified, and the court must be satisfied that it is the original untampered version.

In other words, evidence of the authenticity and originality of the material is of paramount importance to its worth.

Criminal law expert James Grant said it did not take an expert to know that it was unwise for Mazibuko to reveal the existence of the footage.

“…depending on the circumstances, it might not be wise to disclose that one has video footage of an incident. Unquestionably that can send the offenders scattering,” he said.

Admissibility

Grant said to be admissible in court, the footage must be “original” and authentic, saying this means that if it is copied again and again, it loses its “originality’.

“Nevertheless, what the courts are ultimately concerned with is authenticity. Does the video show what it purports to show? This is where the person who took the video becomes relevant. [They] must be able to say: what you see in the video is what happened. That it is a true reflection of the real events. Yes, the person who took the video will have to testify as to the video’s authenticity,” Grant added.

University of Free State Public Law Lecturer Advocate Inez Bezuidenhout said the courts were not uniformly applying the rules of evidence to video evidence, with some courts regarding video evidence as documentary evidence, while others consider this type of evidence as real evidence.

She explained that the classification influences the admissibility requirements of the specific type of evidence and that when the court has to watch the video to interpret the content, then one can argue that it forms part of what can be regarded as documentary evidence.

“Documentary evidence has to be authenticated by a competent witness. It should also be remembered that the truth, or otherwise, of the content of the video does not affect the admissibility of the video as evidence. The video can be admitted as evidence, but ultimately the court will have to decide what the probative value of the evidence is (the extent to which the court will rely on the evidence) once it has heard all the evidence presented,” Bezuidenhout said.

Whoever shot the video will have to take the witness stand as it will be necessary to lead evidence in court by way of witness testimony regarding the admissibility of the evidence.

She said the issue of the authenticity of the evidence will be addressed by means of presenting oral evidence and to show the relevance of the evidence.

“The court will only evaluate the probative value of the evidence after all the evidence has been presented in the case,” Bezuidenhout said.

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