Constitutional Hill

February 18th, 2013:

Oscar Pistorius: why media reporting is not infringing on sub judice rule

Shocking allegations, suggesting that Oscar Pistorius murdered Reeva Steenkamp in cold blood in a fit of rage, was published in City Press yesterday. The publication of these allegations (which one assumes emanated from somewhere inside the SAPS) illustrates that the so called sub judice rule is no longer in existence in its original guise in South Africa. It also illustrates that in the court of public opinion the notion of “innocent until proven guilty” (as well as appeals to the sub judice rule) are often used by those blindly and loyally supporting a criminal accused (regardless the alleged facts) to try and avoid admitting that their guy might very well be a criminal. These two issues are intimately related with one another.

In a criminal justice system in which criminal trials are heard by a jury of ordinary citizens, relatively strict rules are often in place to regulate reporting on criminal cases. Where incriminating allegations against an accused flood the media before the start of a trial, the minds of potential jury members might be contaminated as they might form a strong opinion about the guilt or innocence of the accused – long before the state begins to present the evidence against that accused in court.

The sub judice rule is often used for the purpose of regulating reporting on criminal cases before the courts to prevent this from happening. Where the proper administration of justice may be prejudiced or interfered with, this would constitute a breach of the sub judice rule and a person guilty of such interference could be found guilty of the offence of contempt of court.

This principle also operates in a constitutional democracy, as the right to a fair trial will be infringed if presiding officers prejudge issues that are under judicial consideration, or if improper pressure is brought to bear on witnesses or judicial officers involved in a criminal trial. The right to a fair trial must, however, be balanced against the right to freedom of expression. This balance will be struck differently in a country with a jury system than in a country with a system like ours where judges or magistrates hear criminal cases without the assistance of a jury.

Taking into account the constitutional guarantee to freedom of expression as well as the fact that the jury system was entirely abolished in South Africa in 1969, the Supreme Court of Appeal (SCA) in effect gutted the sub judice rule in 2007 in the case of Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape). In that judgment the SCA confirmed that the broad scope of this rule which was in force in the pre-democratic era has been severely curtailed by the Constitution. In the context of pre-publication censorship imposed on the media in relation to reporting of criminal cases, Nugent JA, writing for a full bench of five judges, summarised the new position as follows:

[A] 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.

This test must be applied in the light of the principle set out in President of the Republic of South Africa and Others v South African Rugby Football Union and Others, which affirmed that judicial officers will be presumed to be impartial in adjudicating disputes. In this case, in which the late Louis Luyt asked several judges of the Constitutional Court to recuse themselves from the hearing because of an apprehension that they would be biased against him, the Constitutional Court argued that this presumption “is based on the recognition that legal training and experience prepare judges for the often difficult task of fairly determining where the truth may lie in a welter of contradictory evidence”. Unlike jurors, judges will not easily be swayed by gossip or even by serious and credible allegations about an accused in a criminal case published in the media.

This means that publications of allegations about a criminal case will almost never be thought to pose a “real risk of prejudice” to an accused. Of course, if a newspaper rushes into publication with incriminating allegations about a criminal trial and this information turns out to be untrue, the acquitted person could always sue the newspaper for defamation. But that is a separate matter to the question of whether the accused would be able to receive a fair trial.

Ordinary citizens are thought to be far more likely to jump to conclusions than trained judges. We often make judgements about the guilt or innocence of an accused long before the criminal trial has been concluded, often based partly on media reporting and partly on our own emotional and ideological commitments. Who among us have not assumed that those charged with the brutal rape and murder of Anene Booysen are guilty of the crimes they are being prosecuted for? Some called the accused in that case “monsters” involved in a horrible crime. (I suspect some of the same people who thought or said such things are referring to the killing of Reeva Steenkamp as a “tragic event” and are rather sympathetic to Oscar Pistorius, either because he is famous,  because he is white, because he is rich, or because he is a man with a gun.)

Similarly, even in the face of serious and credible allegations published in the media that a politician was guilty of fraud or corruption, some would continue to support that politician (invoking the mantra of “innocent until proven guilty”), because of emotional and ideological reasons which have nothing to do with the credibility of the allegations published in the media. ANC members will often pretend allegations against an ANC leader was never made, while DA members will try and argue that the allegations made against one of their own were cooked up by the ANC. The opposite is also true: a staunch DA or ANC member will often assume that a leader from the opposite party is guilty of corruption on the basis of the flimsiest of allegations.

The fact is that in an open and democratic society (one that is deeply divided by our past but in which a free press is flourishing), it is inevitable that citizens will make assumptions about the guilt or innocence of an accused and that such assumptions will often have just as much to do with the credibility of the allegations published in the media than with the prejudices and emotional and ideological commitments of the individual citizens.

One can try and moderate these impulses by warning citizens that a person has not actually been convicted and by pointing out that facts often emerge at a trial that cast a different light on the allegations reported in the media, but that is not going to stop people taking sides and making assumptions about the guilt or innocence of an accused. It also does not absolve us of our responsibility to make (tentative) moral judgments about people based on all the available evidence. To hold otherwise is to require us to abdicate our responsibility as thinking citizens.

That is why I am thankful we do not have a jury system in South Africa. While I would normally trust judges to keep an open mind and to focus on facts actually proven by the state, I would not trust a jury of South African men and women to make decisions based on the facts instead of their own emotions and prejudices.