Sub Judice an Oppressive Relic
Business Day, Opinion & Analysis
Contempt of Court
The brouhaha surrounding the trial of Schabir Shaik and that of Leigh Matthew s' alleged murderer, has once again thrust the much- invoked sub-judice rule into the spotlight. It has been disconcerting to note many media and legal commentators trumpeting this obsolete legal principle.
To a large degree their reaction has been influenced by the tragic nature and understandable emotion surrounding the death of Leigh Matthews. However, the uncritical acceptance of the sub judice rule is an unfortunate inheritance from the pre-1994 era when, as unfortunately also today, it was invoked as a cover to stifle freedom of speech.
The words, from the Latin phrase adhuc sub iudice lis est, mean "the matter is still under consideration". As a common-law crime regarded as contempt of court, the application and definition of the sub-judice rule is stated in our jurisprudence as "whether the statement or document in issue tends to prejudice or interfere with the administration of justice in a pending proceeding" (S vs Van Niekerk 1972 (3) SA 711 (A)).
The vagueness and breadth of this definition has created a near mystical uncertainty that has enabled law breakers, officials and politicians to avoid criticism and public debate by hiding behind the smokescreen of the rule.
This test is totally out of step with developments in Anglo-American law. In Britain, where the rule originated, the Contempt of Court Act 1981 was introduced in terms of which public comments are only contentious if they create "a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced". The British courts have thus ruled that there must be a "real risk, as opposed to a remote possibility, of prejudice in order to amount to contempt of court".
The supreme court in the US has consistently used the "clear and present danger" standard to determine the constitutionality of contempt citations.
Applying this test, the courts ruled that before the state could abridge freedom of expression, the danger of prejudice to the pending adjudication would have to be "extremely serious and the degree of imminence extremely high" (Bridges vs California 314 US 252 (1941)).
From inception, the sub-judice rule was applied with the intention to isolate a jury from communications that could expose its members to improper influences while the trial was pending. This justification is no longer applicable in SA where trial by jury was abolished in 1969.
But recent debates have put forward a number of justifications for the rule that should be scrutinised the motivation for keeping the rule is invariably to avoid the scrutiny of public debate.
Despite the abolition of the jury system, supporters of the sub-judice rule believe the judiciary may still be influenced by what they hear or read in the press. Such thinking mirrors the kind of mistrust of judges that has recently been addressed by the judge-president of the Cape High Court, Judge John Hlope, and should therefore be dismissed.
Rather we should follow the more realistic view of the British judge, Lord Parker CJ, as stated in R vs Duffy: "A judge is in a very different position to a juryman. Although in no sense superhuman, he has by his training no difficulty in putting out of his mind matters which are not evidence in the case."
A further rationalisation of the rule, supported by an appeal court, is that it ensures that "prospective witnesses" are not discouraged from coming forward and presenting evidence. Since witnesses who have been identified can be subpoenaed and compelled to appear before the court, "prospective witnesses" can only mean those who have not yet been identified by investigators of a matter and are considering presenting evidence to the court. The inquiry in this regard is inherently speculative, and if the much published cross-examination of the witnesses of the Schabir Shaik matter is considered, it is more likely that prospective witnesses will be loath to come forward once they have read what they will have to endure rather than by reading comments or citations before the trial.
A further justification for the application of the rule is that public comment might have an effect on a witness's evidence and thus affect the witness's ability to give an impartial account of the evidence. Given the comprehensive reporting of events in court by the media at the end of each court day, every witness still to give evidence would invariably be influenced by such reporting.
Trying to justify the sub-judice rule for this reason only postpones the time at which a witness may be influenced, and cannot prevent a witness from being influenced. All witnesses in the Shaik trial, for instance, will know exactly what was said by all the other previous witnesses.
Proponents of the rule justify its application as preventing so-called trial by media. They argue that if the media is allowed to usurp the function of the courts and judge the issues to be tried, this will lead the public to believe that it is easy to find the truth and will lead to disrespect for the process of the law.
This argument misses the point in that the sub-judice rule prohibits statements that tend to interfere with the administration of justice in pending proceedings. Comments that cause public disrespect for the application of justice are irrelevant and have no bearing on the impartiality of active proceedings.
The emotional outcry that followed the publication by You magazine of statements allegedly made by the accused in the Leigh Matthews matter to a cellmate was thus totally unfounded as it can in no way prejudice the accused and thus lead to his acquittal.
The history of SA has taught us the painful lesson that freedom of speech and thought are to be tampered with only in extreme circumstances, and are thus protected by our constitution. Our constitution also protects an individual's right to a fair trial in judicial proceedings.
To apply the strict and exclusively South African version of the sub-judice rule will create an imbalance between freedom of the press and an individual's right to a fair trial, leaving the door open to some of the ghosts of the past.
Public figures will be allowed to hide behind the rule to avoid the scrutiny of public debate. It is high time that the sub-judice rule was tested by our courts.
However, given the parties involved and the nature of the crime, the Leigh Matthews matter might not be the most desirable matter to serve as a test case.
Our courts must bring us into line with international jurisprudence and rid us of one of the remnants of the bad jurisprudence we inherited from the parochial and oppressive pre-1994 era. It's simply a matter of time, but let's hope it's sooner rather than later.
Theron is a media lawyer at law firm Jan S de Villiers. He represents Media24, the publisher of You magazine*.
With acknowledgements to Johan Theron and the Business Day.
* maybe not the most independent of parties at present
But certainly, the present haphazard interpretation and application of the sub judice principle has to go.