Government officials cannot hide behind the sub judice rule

Politicians and government officials cannot use the sub judice rule to hide from difficult questions. Image generated by DALL-E (public domain)

The sub justice rule is often used by politicians as a legal justification for refusing to answer difficult questions, in parliament and in public. It has also been invoked by individuals and by Parliament (increasingly frequently) to block or stifle debate on important issues.

But what does the rule really say? In this article, we explain what the sub judice rule says and when the rule will apply.

What is the sub judice rule?

Sub judice roughly translates to “before a court” or “under a judge.”

Broadly, the rule states that, under certain conditions, publishing a statement or information regarding pending or pending legal proceedings may be unlawful. When someone breaks the rule, an editor for example, they can technically be sued for contempt of court.

It is not clear whether it is necessary to show whether the rule was violated intentionally or not; for example, whether an editor who fails to take appropriate steps to ensure that an article does not violate the sub judice rule may or may not be sued for contempt of court.

The sub judice rule applies only to “ongoing” and “pending” legal proceedings. This means that the rule does not apply to legal proceedings finalized when a final judgment has been rendered and all remedies have been exhausted. Likewise, it does not apply to cases that have not commenced, such as where a person has been investigated but has not been arrested or charged, or where court documents do not have not yet been filed.

There does not appear to have been any instances of anyone being prosecuted for breaching the sub judice rule in recent years.

The basic idea behind the rule is that statements or opinions about ongoing legal proceedings could influence a judge to decide a case in a particular way or lead to a “trial by media”.

But this argument is not so persuasive in South Africa, as judges are generally unlikely to decide cases based on the publicity of a case. This only makes sense in a country with a jury system, such as the United States, where laypersons are more likely to be swayed by publicity about a case. Furthermore, it is generally accepted that judges in any high-profile case cannot be expected to be completely immune to what they may read in the newspapers or hear on the radio.

apartheid rule

Imposing restrictions on the ability of the media or the public to discuss current or pending cases could undermine their constitutional right to freedom of expression, information and ideas.

This happened during apartheid, where the courts strictly applied the rule of sub judice. Under the strict test applicable at the time, the sub judice rule would be violated when a publication or statement “might” have influenced the outcome of a case.

This strict test has often led to abuse. For example, Barend van Niekerk, a law professor from Wits, was found in contempt of court for breaking the sub judice rule after he publicly said judges should ignore evidence that could have been obtained through torture. in an ongoing political trial under the Terrorism Act.

The new test

Fortunately, the Supreme Court of Appeals created a new test for sub judice in 2007, which is much more lenient and more consistent with the right to free speech.

The new test indicates that the sub judice rule will only be violated where the publication of information or statements about a pending or pending case creates a “real risk” that “demonstrable and substantial” harm will be caused to the administration of justice. Even where this can be shown, the sub judice rule will not necessarily have been violated. Indeed, it must also be demonstrated that the harm that the publication of the information has caused to the administration of justice is greater than the harm that would be caused by limiting the free flow of information and ideas.

In the same case, the Supreme Court of Appeal also clarified that conjecture or speculation about potential harm is not sufficient. Appropriate and reliable evidence must be provided before a court will accept that the publication of information or statements about a legal matter has created a real and substantial risk to the administration of justice.

In practice, this new test for sub judice means that very few news releases or statements violate the sub judice rule.

However, there are limited and specific circumstances in which statements or disclosure of information regarding pending or pending legal proceedings could violate the rule.

For example, the sub judice rule may be more likely to be breached where innocent third parties could be endangered. For example, publishing the identity of witnesses in a criminal case could endanger their lives or put them at risk of being intimidated.

But the new sub judice test also makes it clear that politicians cannot refuse to answer tough questions just because the questions may relate to ongoing legal proceedings. Indeed, the sub judice rule does not prohibit or prevent discussion of court proceedings.

For the sub judice to apply, the politicians would have to demonstrate that their answer would create a “real risk” that “demonstrable and substantial harm” would be caused to the administration of justice if they answered the question. In the vast majority of cases, politicians are unlikely to be able to demonstrate this.

In other words, answering a question about pending or ongoing legal proceedings will not violate the sub judice rule, and the rule should not be invoked simply to avoid answering an awkward or difficult question.

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