Don’t hide behind (non-existent) sub judice rule

One of the most irritating phenomena of our political life is the manner in which politicians wrongly invoke the so called sub judice rule to avoid accountability. Because they do not want to answer difficult questions or deal with politically awkward issues, such politicians invoke a rule that only exists in their imagination.

Is it possible that such politicians do not know that the rule has been substantially changed by the Supreme Court of Appeal (SCA) to bring it in line with the values and norms enshrined in our democratic Constitution? Or are they cynically invoking a non-existent rule knowing full well that the rule does not exist in the form that they pretend that it does?

The latest culprit is the Minister of Police, who invoked the rule in response to the Human Rights Commission’s (HRC) findings and remedial order in the case of Mr Chumani Maxwele, the jogger who is alleged to have given President Zuma’s motorcade the middle finger. The HRC found that the Special Protection Unit had violated several of Mr Maxwele’s rights and called on the Minister, on behalf of the members involved, to apologise to Mr Maxwele and to take steps to ensure that the SAPS acts in terms of the Constitution and the Law.

Reacting to the HRC’s findings, the Minister’s spokesman claimed that because Mr Maxwele had instituted civil proceedings against the SAPS the sub judice rule applied. The SAPS had accordingly refused to participate in the investigation and would not abide by the HRC’s ruling.

Now, it is an established rule of the common law that the proper administration of justice may not be prejudiced or interfered with and that to do so constitutes the offence of contempt of court. As the SCA has found, the sub judice rule is important as the integrity of the judicial process is an essential component of the rule of law. If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms are also compromised.

The crime of contempt of court thus includes contempt ex facie curiae (out of court) and this entails, first, cases where publication of an opinion will violate the dignity, repute or authority of the court (either by criticizing or insulting a particular judicial officer or the judicial system as a whole) and, second, statements which prejudice the administration of justice in pending proceedings. It is this latter aspect that has become known as the sub judice rule.

But in the Midi Television case the SCA stated that the broad scope of this rule which was in force in the pre-democratic era has been severely curtailed by the Constitution. In that case, 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:

[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. Applying the ordinary principles that come into play when a final interdict is sought, if a risk of that kind is clearly established, and it cannot be prevented from occurring by other means, a ban on publication that is confined in scope and in content and in duration to what is necessary to avoid the risk might be considered.

If one applies these basic principles to the case at hand, it must be clear that the sub judice rule is not applicable here. The Minister would have to convince us that there would be a demonstrable and substantial prejudice to the administration of justice if he apologised to Mr Maxwele as requested by the HRC. He will further have to show that it would not be in the interest of society as a whole to obey the request of a Chapter 9 body because the risk to the administration of justice would far outweigh the harm done to the credibility and the dignity of the Chapter 9 institution.

This will obviously be impossible to show. Given the fact that section 181 of the Constitution states that other organs of state – including ministers – through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions, I cannot think of an example where the Minister would be allowed by the sub judice rule to ignore the HRC and to refuse to institute the remedial action proposed by it in a certain case.

Besides, how the minister could possibly argue that complying with the findings of the HRC – which dealt with the violation of Mr Maxwele’s constitutionally guaranteed rights to human dignity, to freedom and security of the person, to privacy, to freedom of expression and peaceful/unarmed demonstration – could possibly influence the parallel civil proceedings – which deals with a civil claim against the Police – is hard to fathom.

The HRC has already published a finding in which it concluded that Mr Maxwele’s rights have been infringed. Nothing the Minister can do or say will change that. A court dealing with the civil claim of Mr Maxwele will not be swayed by the finding of the HRC as it will have to hear the evidence presented to it and make its own finding on whether damages should be paid.

The fact that the HRC has found that Mr Maxwele’s rights have been infringed can also not be tendered in the civil case as proof that Mr Maxwele is entitled to be compensated financially as a result of any damages suffered. The two issues are therefore entirely different enquiries, and no substantial prejudice to the civil trial can possibly arise through the correct exercise of its rights jurisdiction by the Human Rights Commission.

Surely the Minister and his advisors know this. Can one therefore assume that they are hiding behind the sub judice rule to avoid complying with a finding of the HRC because the President and his seemingly lawless bodyguards were involved in this case? Is the Minister scared of President Zuma and his bodyguards or is he just ill-informed?

In any case, as the law stands now, the sub judice rule will almost never be applicable. Where anyone invoke 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; or is looking for an excuse to justify a constitutional breach of a duty to show respect for other constitutional institutions like the HRC or the Public Protector.

(Also see statement by Adv Nikki de Havilland, Centre for Constitutional Rights)

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