“…there is no place at all for the sub-judice rule in modern South African Law. The rule emanated from the days of trial by jury where jurors could be influenced by press speculation about the guilt or innocence of defendants. The rule is far too widely applied with the most bizarre consequences.” — James Selfe MP
Cllr Warren Burne and I collaborated on the Notice of Motion below with the intention of ensuring councillors and officials in eThekwini do not use the sub-judice rule to hide information. For this the reason the NoM itself is fairly innocuous and entirely objective such that little no opportunity is created for debate.
Unfortunately, at the 5 September eThekwini council meeting the ANC rejected this motion citing spurious and factually incorrect reasons, while at the same time agreeing and suggesting it should be workshopped with councillors and officials.
Below the notice of motion is a synopsis of the legal position of the sub judice rule in South Africa.
The Speaker – eThekwini Council
Councillor Logie Naidoo
21 August 2011
Dear Mr Speaker
NOTICE OF MOTION IN TERMS OF SECTION 13 OF THE RULES OF ORDER
This council noting:
1. The Constitution and other legislation require that public administration must be exercised with a high standard of ethics, accountability and transparency.
2. The sub judice-rule applies only where court proceedings have already commenced and not to matters still under investigation.
3. The application of the sub judice-rule has been severely narrowed since the 2007 Supreme Court of Appeal decision in the Midi Television-case.
Hereby resolves that:
The Head: Legal Services be hereby mandated to comprehensively brief all senior officials, the chairs of all committees, formal structures and forums of the municipality on the scope and effect of the sub judice-rule in the interests of transparent and accountable governance.
CLLR WB CHAPMAN
CLLR WJ BURNE
THE SUB-JUDICE RULE
A SYNOPSIS OF ITS LIMITED SCOPE AND APPLICABILITY
BY CLLR WJ BURNE
1. The issue goes to the heart of our oversight role as public representatives.
2. We cannot exercise that role if reports, data and information are withheld. One of the tricks used to hide such reports, data and information is the abuse of the sub-judice rule.
3. Before dealing with what the sub judice rule is, and where it applies, we must clarify what it is not.
a. It is NOT a shield behind which to hide reports, data and information.
b. It is NOT a carpet under which to sweep reports, data and information.
4. The sub judice rule is a longstanding tenet of our Common Law (and the Common Law of most other democracies) which is part of the law relating to contempt of court. The purpose of the sub judice rule is to prevent interference in the administration of justice in a matter pending before a count.
5. I stress those words – “pending… before…a court.”
6. It applies to matters in a criminal court or in a civil court.
7. The sub judice rule does not apply where a matter is under investigation. It only applies when the court processes have commenced.
8. Criminal proceedings are commenced by arrest, summons or a warning to appear. Civil proceedings commence when a summons is issued or an application is launched.
9. The sub judice rule is said to protect judicial officers and witnesses from being influenced (or being perceived to be influenced) by statements that appear in the media. In those countries which have a jury system, there is a greater danger of the members of the jury being influenced by statements in the media. In the case of our judicial system, the legal training and experience of our judges and magistrates makes it less likely that they will be influenced by the media reports relating to events taking place outside their courts.
10. The scope and effect of the sub judice rule was considered in detail by our Supreme Court of Appeal in the matter of :
MIDI TELEVISION (PTY) LTD v DPP 2007(1) SA 56 (SCA)
[See at the end of this synopsis for the extract of the judgement where the test is set out.]
11. The court established a test as to when and where the sub judice rule applies. In doing so, it adopted the test used in England, Australia and Canada.
12. Simply put, the test is this:
Publication of information or the distribution of a report, or discussion in a committee can be withheld only if the publication, distribution or discussion will give rise to a real risk that demonstrable and substantial prejudice to the administration of justice will occur.
13. And even if this high threshold test is met, that is still not enough to restrain publication of a report or discussion in a committee. The person seeking to invoke the rule must be able to satisfy a court that that the ban is necessary and proportionate to prevent the prejudice from occurring.
14. This test is much more stringent than it used to be in the pre-democracy era. In this regard, the judge in the Midi TV case said: “To the extent that the pre-constitutional decisions of this court … might suggest otherwise I do not think they are consistent with what is to be expected in contemporary democracies”.
15. So, the Midi Television case was a fundamental change in the law relating to the sub judice rule. The new test requires that a real risk of substantial harm be demonstrated.
16. What does this mean in practice?
17. Firstly, no municipal official or a chair of a committee can say: “We can’t discuss such-and-such issue because it is under investigation” Or, “…because it might to go to court.”
18. Secondly, even if court proceedings are pending, further enquiry is necessary to determine whether the rule applies.
19. Thirdly, the person seeking to withhold information or to suppress free discussion, cannot simply rely on speculative harm to justify withholding information or preventing discussion.
20. So, if confronted with an official who is refusing to release a report, or a chair who refuses to permit discussion on a matter, proceed as follows:
21. Ask that person to specify what court proceedings will be affected by the release of the report or the discussion in committee. If the refusal is made in a meeting, ask that the refusal and the reason for the refusal are recorded in the minutes of the meeting. If the refusal is made outside a meeting, make a note of the request and the refusal. Include in your note the date and time of the incident and the name of the official.
22. If court proceedings have commenced and are still continuing, then ask the official or the chair to specify on what basis he or she believes that the publication or discussion will (not “might” – the “real risk” part of the test) influence the outcome of those court proceedings. Again, have the answer recorded in the minutes, or make a note of the answer given.
23. Even if the official or chair can advance a credible belief that the court case will be interfered with, weigh up whether the interference will be substantial. If you believe that it won’t be substantial, tell the official or chair accordingly. If in committee, ask for your response to be recorded in the minutes. If not in committee, add that detail to your notes.
24. Finally, if the official or the Chair can satisfy you that there will be interference in an pending court case, and that the interference in the court case will be substantial, ask the official or chair to specify why he or she believes that a court will be satisfied that the disadvantage of curtailing the free flow of information outweighs the advantages of the free flow of information in a democracy. Again, have the answer recorded in the minutes, or add it to your notes.
25. This process will not guarantee you access to the required information, nor the opportunity to discuss the issue in committee, but it should discourage officials and chairs from abusing the sub judice rule.
26. The following comments from a well known and respected commentator on matters of constitutional law, Pierre De Vos, are instructive. In a recent item on the blog site “CONSTITUTIONALLY SPEAKING” in July 2011, he wrote:
In any case, as the law stands now, the sub judice rule will almost never be applicable. Where anyone invokes this rule, they are doing so either because they are ill-informed about the law or because they are using the rule to avoid accountability. Whenever a politician invokes the sub judice rule, I for one will assume that the politician is admitting guilt or other wrongdoing, but is trying to hide from scrutiny and accountability for his or her actions.
So next time you read that a politician has invoked this rule, please do not believe for one second that the rule is applicable. It will not be applicable. Assume instead that the politician is ducking and diving because he or she is scared; or is trying to avoid being caught out in a lie.
MIDI TELEVISION (PTY) LTD v DPP 2007(1) SA 56 (SCA)
Dealing with the sub judice rule in the context of pre-publication censorship, Nugent JA, writing for a full bench of five judges, summarised the new position as follows:
Publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information.