The trial of Durban businessman Schabir Shaik opened yesterday with the prosecution and the defence ironically on the same side, both arguing against the proceedings being televised.

The camaraderie on this point between the two sides, albeit for different reasons, was the first and probably the last time the two sides agree on anything in a case that many observers agree could shape the future political alignments in SA.

The application to televise the events, brought by e.tv and the South African Broadcasting Corporation, is in one sense an attempt to secure a licence to permit mass gawking, but it raises important constitutional issues, which were thoroughly argued in the court yesterday.

It would also be precedent- setting as no full criminal case has taken place in front of television cameras in SA.

The court was led through many international examples where events were televised and where they were not, including the trial of US terrorist Timothy McVeigh where television cameras were excluded.

It was also led though the many constitutional issues, rights of open court, rights to free speech, and rights to privacy.

Perhaps because of the peculiarity of the application both in SA and around the world, e.tv legal representative Gilbert Marcus argued in favour of a " nuanced approach", and started by conceding that he was not arguing in favour of a general constitutional right by television stations to record criminal trials.

He invited Judge Hillary Squires to exercise his discretion in favour of television coverage in the case.

Marcus also argued that if judge Squires did not favour a live broadcast of the case, e.tv should have the right to film the events and present an edited version at the end of day.

He said the arguments against televised court cases fell into three broad categories; objections to the way the presence of television cameras would affect witnesses; the related question of the misrepresentation of the facts; and procedural issues of whether the evidence of witnesses would be affected by seeing the testimony of previous witnesses .

But in general these problems were as applicable to ordinary journalism, and they had to be weighed against the factors in favour, including the importance of the case and that the only access to news for a large proportion of South Africans was through radio and television.

Arguing for the state, Guido Penzhorn said the state had found it difficult to convince witnesses to testify in the first place, and this would be intensified if cameras were present.

Nirmal Singh, appearing for Shaik, argued that although there was a right to open court, the issues were "so heavily laden with policy issues" that it was more appropriate for the legislature or the South African Law Society to deal with the issues involved.

With acknowledgements to Tim Cohen and the Business Day.