Publication: Business Day Date: 2004-10-19 Reporter: Sanchia Temkin Reporter: Sapa

Shaik Judge in Call for Respect for Sub Judice



Business Day

Date 2004-10-19


Sanchia Temkin, Sapa

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Judge Hillary Squires, the judge in the Schabir Shaik corruption trial, asked the media yesterday not to publish evidence that had not yet been placed before the court as a row raged between the media and police about the sub judice rule.

Media law experts said the rules of court were violated with the publishing of a "confession" by Leigh Matthews's alleged killer.

But it remains to be seen whether prosecutions will follow mounting complaints about the court evidence that appears in newspapers.

Last week You magazine published an article detailing how Donovan Moodley allegedly confessed to cellmate Johnny du Preez how he kidnapped and murdered Matthews three months ago.

The publication of the confession, which was supposed to be used as evidence in court, could have an influence on the outcome of the trial, say lawyers.

The magazine paid Du Preez.

Johannesburg police were consulting prosecutors on possibly bringing charges against its editor.

At the Shaik trial in the Durban High Court yesterday, prosecutor Billy Downer accused the media of sensationalist reporting, citing an article in the Sunday Tribune containing verbatim details of a KPMG forensic report on Shaik and his companies.

Downer told the court that the forensic report was confidential and its publication "tends to contravene the subjudice rule".

He said that it was not right for details of the report to have been leaked to the press, and if they were leaked they should not have been published.

Squires said the media should heed Downer's request, and refrain from disclosing evidence.

Pippa Reyburn, a director at corporate law advisers Edward Nathan, said it was contempt of court to publish information regarding a pending court case, that might prejudice the outcome.

Media reports designed to inform the public, raise awareness or to give reasoned comment on the conduct of court proceedings would not amount to a violation of the rule, Reyburn said.

"On the other hand, the publication of information about previous convictions, or out-of-court confessions, that might be inadmissible in court, is likely to be improper and tend to prejudice the outcome," she explained.

Mark Rosin, a media lawyer at Rosin, Wright & Rosengarten, said that the subjudice rule prevented publication of information that could influence the outcome of a court case. If the media transgressed it they could be prosecuted.

The media could not publish evidence that witnesses intended giving to the court. "This would constitute contempt of court," Rosin said.

Rosin said the rationale for the rule had been strongly influenced by English law. South African commentators said it made more sense where there were jury trials and less sense in SA where there was only a judge who could be influenced, Rosin said.

Eric van den Berg, a partner at Bell Dewar & Hall, said some aspects of the sub judice rule were unconstitutional. However, there was a need for such a rule in SA, he said.

With acknowledgements to Sanchia Temkin, Sapa and the Business Day.