Freedom of expression guarantees the right to free and independent media as well as the right for the public to receive information.
Some of our elected officials incorrectly wield the sub judice rule as a protective barrier to avoid responding to questions that relate to matters before a court involving them.
But every time the rule is invoked, there is a clash of two fundamental rights: the right to freedom of expression and the accused’s right to a fair trial.
Briefly, the rule means that when a particular issue is being heard by a court, it cannot be discussed publicly in a manner that could potentially influence the final decision. Breaching this rule may result in being criminally charged for contempt, sanctioned by either a fine or imprisonment.
It is my submission that decisions handed down from the bench are not easily susceptible to the influence of public statements and media, regardless of the profile and complexities of the case.
The constitutional court in South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku held that there is a rebuttable presumption that judges possess “intellectual discipline, capable of applying their minds to the multiplicity of cases which will seize them during their term of office, without importing their views or attempting to achieve ends justified in feebleness by their personal opinions”.
This dictum, in and of itself, renders the rule obsolete. Therefore, concerns about undue influence on court proceedings arising from public discussions on the merits of an ongoing legal matter, even by the litigants themselves, should be thus allayed.
A distinction should be drawn between the following two scenarios. First, when parliament or a journalist directs a question at an elected official about an active legal case where they are implicated versus the second, when the implicated official or the media make statements that aim to or could potentially influence the outcome of a court judgment.
In the latter scenario, the sub judice rule comes into effect, whereas in the former, it does not. This is in the spirit of upholding the principles of accountability, transparency and openness that are the foundation of our democracy. It also serves to protect the constitutional mandate of the media to inform the public and the public’s fundamental right to access and consume information. In the former scenario, open dialogue is not only acceptable but encouraged. These two circumstances should not be conflated as one.
The rule can be traced back to 1742 when Lord Chief Justice Hardwicke identified three types of criminal contempt of court: scandalising the court, sub judice rule and contempt directed at abusing parties in ongoing legal proceedings.
Hardwicke explained sub judice as actions that could “prejudice mankind” by manipulating public opinion against the parties involved in a case before a final judgment is handed down. It is perplexing how the modern interpretation of the rule has deviated so significantly from its initial intent and is instead today construed as a punitive measure that seemingly targets actions that obstruct the administration of justice by prejudicing the court, and serves as a means to prosecute authors of publications that could potentially influence the minds of the jury and judicial officers.
This contemporary interpretation of the rule has led to it being viewed from two perspectives: the diachronic and the synchronic. From the diachronic perspective, the rule was originally intended to safeguard the reputation of the court and prevent public prejudice against the litigants in an ongoing case before a judgment is issued.
But its focus has now shifted to emphasise the promotion of fair judicial processes and the prevention of acts that obstruct justice or undermine the proper administration of justice. From the synchronic perspective, the rule has created a new challenge of competing interests — the right to freedom of expression and the accused’s right to a fair trial.
This tension between the rights tips disproportionately in favour of the latter, and implies a hierarchical structure of rights in the South African Constitution. All fundamental rights enshrined in the Bill of Rights enjoy equal value and protection.
Freedom of expression guarantees the right to free and independent media as well as the right for the public to receive information. Former chief justice Mogoeng Mogoeng aptly described this right in Economic Freedom Fighters and Another v Minister of Justice and Correctional Services as “the lifeblood of a genuine constitutional democracy”, whose characterisation underscores the importance of maintaining a vibrant democracy. The constitutional court in Qwelane v South African Human Rights Commission and Another
identified four values that shape the very essence of this right: “(a) the pursuit of truth; (b) facilitation of the proper functioning of democracy; (c) the promotion of individual autonomy and self-fulfilment; and (d) the encouragement of tolerance”. Courts have also recognised that a progressive and robust press can encourage individuals to move from the margins of society to become active contributors to public affairs.
Section 7 of the Constitution enjoins the state to protect all rights and take the necessary steps to ensure their realisation, all the while refraining from unduly interfering with these rights.
Where interference occurs, the state must justify its actions by strictly adhering to the limitation clauses under section 36. Put differently, where two or more fundamental rights are in conflict — freedom of expression and its corollary rights, vis-à-vis fair trial rights — they must be reconciled. The process of reconciling competing rights does not involve weighing their level of importance and picking the more valuable one while relegating the other to obscurity. Instead, the proper approach is to limit one right to the extent that is necessary to accommodate the exercise of the other according to the standard set in section 36.
The landmark decision of the supreme court of appeal (SCA) in Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) brought about a test, known as the “real risk test”, to determine whether a publication should be prohibited when the matter it covers is pending before a court.
The case involved a dispute over broadcasting a documentary about an ongoing murder trial of Jordan-Leigh Norton. After the arrest of suspects in connection with the murder, Midi Television decided to publish the documentary. Upon learning of the pending broadcast, the Director of Public Prosecutions, apprehensive of possible prejudice to the pending trial, requested to view it before it was televised.
Midi Television declined the request. An urgent application was promptly lodged to interdict the broadcast of the documentary, which was granted, and Midi Television subsequently took the matter on appeal to the SCA. Before the court were two competing fundamental rights, the right to freedom of expression and the accused’s right to a fair trial, and how these rights could be reconciled.
The SCA held that “the constitutional promise of a free press, like other constitutional promises, is not absolute” and, in instances where rights conflict, it is the responsibility of the courts to reconcile the tension “against the standard set by section 36 of the Constitution”.
It is important to emphasise that although contempt of court was the matter to be determined, the SCA did not extend the new test for contempt to the sub judice rule, nor did it explicitly mention it or make any determination regarding its current application.
The real risk test, established by SCA consists of the following requirements that must be satisfied by any party seeking to restrict a publication or any individual from commenting on a matter that is under judicial consideration: a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice, substantial prejudice if it occurs, and a real risk that the prejudice will occur.
The existence of prejudice must be substantiated with concrete evidence, according to the SCA, because “mere speculation or conjecture” is insufficient. It is quite clear from the SCA that the real risk test places a substantial burden on any individual who wishes to ban a publication and thus curtail freedom of expression. I thus argue that if this test were to be applied as the standard for sub judice rule, it would become exceptionally challenging for politicians to exploit the rule for the sole reason of avoiding answering difficult questions.
To demonstrate how politicians have abused the sub judice rule to evade media scrutiny, parliamentary oversight, and public criticism, I will briefly highlight three cases that I examined in-depth.
Rules of the National Assembly
Rule 89, titled “Matters of Sub Judice”, expressly states that “no member may reflect upon the merits of any matter on which a judicial decision in a court of law is pending”.
This rule does not only contravene the true spirit of the sub judice rule as articulated above, it also obstructs open debates in parliament, and notably violates the Constitution. In Democratic Alliance v Public Protector of South Africa, the former public protector sought to rely on Rule 89 to stop the Section 194 Committee from continuing its inquiry into her fitness to hold office because this would inherently mean the committee deliberating on “the merits of her rescission application and of her application in the high court to stop the inquiry and set aside her suspension”.
The constitutional court, correctly, rejected this argument and held that if the sub judice rule were to be applied in this fashion this would restrict the National Assembly’s obligation to hold her accountable. Put differently, if the rule was used in that way, any person subject to proceedings similar to the section 194 inquiry would escape such proceedings by simply launching litigation against the process. It is unfortunate that the constitutional court in that matter did not rule on the constitutionality of Rule 89 or its interpretation, because it is deeply flawed in its construction and leads to absurdity. Parliamentary rules must foster open and rigorous debate and demand full accountability, rather than stifle debates.
Omar al-Bashir’s escape
In 2015, the president of Sudan, Omar al-Bashir, was in South Africa to attend the African Union summit, at a time when there were serious charges against him and the International Criminal Court had issued a warrant for his arrest.
South Africa was legally obliged to execute the warrant and arrest Bashir. Instead, our government ignored both its statutory obligations as well as a court order directing it to prevent Bashir from leaving the country. Soon thereafter, Cyril Ramaphosa, then deputy president, appeared before the National Council of Provinces (NCOP) to answer oral questions.
MP Jacques Julius asked Ramaphosa two questions: why the government allowed Bashir to leave the country despite the legal obligation to arrest him; and how the government planned to hold those responsible for defying the court order. Before Ramaphosa could respond, the chairperson of the NCOP unilaterally declared that the subject matter of question was sub judice and ruled that no further questions concerning this matter would be entertained.
This is a classic example of the abuse of power to shield the government from accountability. If you consider the Midi Television test, it is evident that the chairperson had no legal basis for preventing the deputy president from fully accounting to parliament on the Bashir matter, because there was no clear demonstrable relationship between Ramaphosa’s answer and the prejudice that such a response might cause to the administration of justice concerning the pending case. There also was no real risk of such prejudice actually occurring. As it stands today, the matter has long been adjudicated and concluded by the high court, but the questions to Ramaphosa remain unanswered.
Signal jamming in the National Assembly
This incident of signal jamming stands out as one of the moments that set back our democracy. During the State of the Nation address (Sona) held on 12 February 2015, the Economic Freedom Fighters (EFF) voiced their displeasure at then President Jacob Zuma addressing the joint sitting of parliament.
What followed can only be described as a suppression and flagrant violation of the fundamental right to freedom of expression of all South Africans. Shortly after Sona began, visuals were turned to the face of the speaker to deliberately avoid showing the scuffle that erupted between EFF MPs and security officials. Adding to the gravity of the situation, the State Security Agency employed a signal jamming device without the authorisation nor knowledge of the speaker.
This egregious act disrupted the proceeding of parliament, violated section 16 of the Constitution and other related rights by preventing the media and everyone inside the precinct from reporting on the events to the public and the public, who usually tune into Sona on their television screens, could not witness the events unfold in real time.
In her submission to the SCA, the speaker stated that she had no knowledge of any intention to use a jamming device nor was she aware that such a device was in the parliamentary building. The SCA found that the unauthorised use of the signal jammer during Sona was unlawful, and there were no justifiable reasons to impede the flow of parliamentary proceedings to the public.
After Sona, Ramaphosa appeared before the National Assembly to answer questions on various matters. The then leader of the Democratic Alliance, Mmusi Maimane, asked Ramaphosa two questions: first, when did he become aware of the intention to use a signal jammer at Sona, and second, whether Ramaphosa could assure the nation that parliament would never again use such extraordinary security measure.
In his response, Ramaphosa stated that he could not answer the questions because the matter would be soon heard in the high court. Put differently, Ramaphosa skilfully wielded the sub judice rule to sidestep Maimane’s questions — pulling a get-out-of-jail-free card from his sleeve. But, at the time of his response, no court was presiding over the matter. The speaker had a duty to compel the deputy president to answer the questions without reservation because the matter was not sub judice, even in terms of the flawed construction of the rule in Rule 89 of the National Assembly.
There is no denying that the current use and rendition of the rule arbitrarily suppresses the right to freedom of expression and access to information in favour of protecting fair trial rights. It also encroaches on the principles of openness, transparency and accountability. This creates an absurd notion that mere discussions on the merits of an active case have the potential to obstruct justice. Codifying the rule, as done in countries such as the United Kingdom, will serve as a safeguard against its blatant misuse and align it with the Constitution.
Sello Ivan Phahle is a legal scholar and adviser. The title of his report for his Master of Laws is: The Sub Judice Rule in South Africa: A Tool For Justice or a Shield For the Powerful?