Quote of the week

Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.

Justice Albie Sachs
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
13 February 2008

Pinocchio’s office wrongly uses sub judice rule (again)

Some readers of this Blog were rather upset when I referred to President Pinocchio after the President had claimed that he did not act against National Police Commissioner Jackie Selebi because no one had brought any information of wrongdoing to his attention.

I am of course the last person in the world who would ever say, “I told you so”, but the affidavit of Acting Director of Public Prosecutions, Mokotedi Mpshe, in which he states that Vusi Pikoli met with the Minister of Justice and with President Mbeki on 10 occasions to inform them of the Jackie Selebi matter seems to suggest that the President was indeed rather economic with the truth. And I told you so.

Asked for comment on this obvious contradiction between the version peddled by our President and that given under oath by the Head of the NPA, the Presidential spokesperson, Mukoni Ratshitanga, said that because the matter was before the court he could not respond, citing the sub judice rule.

If patriotism is the last refuge of scoundrels, then the Mukoni Ratshitanga, said that because the matter was before the court he could not respond, citing the sub judice rule rule is the last refuge of lying politicians. Unfortunately this is not a valid legal excuse as the sub judice rule (at least as it is understood by politicians who find themselves in a spot of bother) was effectively abolished by the Supreme Court of Appeal last year.

The sub judice rule was supposed to prevent people from commenting on a case where such comments would prejudice the outcome of the case in any way. But in Midi Television v Director of Public Prosecutions, Justice Nugent, writing for the full bench, emphasized the importance of freedom of expression for our democracy and developed a very strict test to decide when the exercise of press freedom could be restricted to protect another right or interest.

Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause 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 the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.

In making that evaluation the court will not only consider the interests of the newspaper but, more important, the interests of every individual in having access to information. The interest of the public to know would be even more important where the state is trying to stop the publication of embarrassing information and where they would not be able to show that the publication would infringe any of the other rights in the Constitution.

The Presidential spoeksperson reliance on the sub judice rule is therefore completely misplaced and has no standing in law. This is because we have a very real interest in knowing whether the President has lied to the nation while it is difficult to see what demonstrable and substantial prejudice could arise to any party to the case, by a statement from the Presidency either confirming or denying the facts as stated by Mpshe.

Of course, demonstrable and substantial prejudice would occur – but not to any parties before the court, but to the President and his credibility. But in law that would be utterly irrelevant. The sub judice rule therefore is used here to evade political responsibility and accountability for a bare faced lie told by the President (and repeated by him) to get himself out of a tight spot.

The reliance on this rules really only confirms that the President dare not comment because he has been caught out in a lie and confirms, further, the rule of thumb that when a politician seeks to rely on this rule he or she is merely trying to avoid embarrassment and harm to him or herself.

Journalists should be made aware of this so that they can challenge spokespersons who rely on a non-existent rule to evade difficult questions that – if answered truthfully – would embarrass their bosses.

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