Sub judice is used most frequently to refer to contempt of court a crime against the dignity and respect due to the authorities that administer justice. For comment and public debate not to constitute contempt, it must be reasonable, bona fide, moderate and made in the interest of the better administration of justice. Simply stated, the media must take care not to publish material that implies disrespect of the courts.
Our courts have held that the test to be applied in determining whether or not comment constitutes contempt is whether the statement published in the media tends to prejudice or interfere with the administration of justice in pending proceedings. One has to look at the possible effect of a particular statement by the media on the mind of a member of a jury (were a jury to decide the matter). The rule makes sense in a context where the people adjudicating are lay people statements made outside the court may easily influence such people. However, even though in South Africa a jury does not judge matters, the rule still applies.
The essence of the rule is to try to prevent commentary by the media in a manner that is likely to influence the outcome of a matter. Our courts have held that publication is contemptuous if it is likely to interfere with the proper adducing of evidence in legal proceedings, either by discouraging witnesses from testifying or by influencing their testimony. For example, publication that speculated on the detrimental consequences of a report of a commission of enquiry (not yet placed before the court) was held to have had an influence on the proceeding of a trial and was therefore held to be in contempt. So the media must be wary of publishing commentary or statements that could influence the courts in a particular decision, or that could have the effect of a witness giving or withholding certain evidence.
To accurately report the bare facts of a crime or of a matter before the court or even matters being investigated would usually not amount to contempt of court. Similarly, to report those extrinsic facts to which any eyewitness could bear testimony should not be found to be illegal. However, to report on alleged facts that depend on the testimony of a particular person and that may or may not be true could be found to be prejudicial to proceedings.
What ultimately determines whether or not there has been contempt is whether the reporting is likely to interfere with a fair trial. The media must take care to avoid reporting on pending proceedings in a way that prejudges the issues. For example, the media should avoid publications that impute that the accused or a named suspect is guilty of a crime.
But there is often an overriding public interest, implying that the voice of the media cannot be silenced simply because the matter is the subject of legal proceedings. Our courts have taken the view that the legitimacy of publishing information about pending court proceedings may depend on balancing the public interest, the nature of the information and the prejudice, if any, that the publication may cause.
There is often an overriding public interest, implying that the voice of the media cannot be silenced simply because the matter is the subject of legal proceedings.
It is also important to understand the meaning of ‘pending’ proceedings. It is generally accepted that proceedings are pending until all appeal hearings are completed and the time within which any appeal may be noted has expired. In practice, the danger of contempt proceedings at the appeal stage is reduced.