The sub judice rule and the Oscar Pistorius case: Will the crime of contempt of court ex facie curiae become abrogated by disuse?

July 1st, 2014
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By Brenda Wardle

Inextricably intertwined with the very fashionable concept of open justice is the question of whether contempt of court, ex facie curiae, shall now become abrogated by disuse. It has, after all, been held (by the Constitutional Court no less), that freedom of expression presupposes the right by the public to evaluate and criticise our justice system and our courts.

In the judgment by Mlambo J in the case of Multichoice (Pty) Ltd and Others v National Prosecuting Authority and Another; In Re: S v Pistorius and Another Related Matter [2014] 2 All SA 446 (GP) the court specifically held the following:

‘[I]t has come to my attention that there are media houses that intend to establish 24 hour channels dedicated to the trial only and that panels of legal experts and retired judges may be assembled to discuss and analyse the proceedings as they unfold. Because of these intentions, it behoves me to reiterate that there is only one court that will have the duty to analyse and pass judgment in this matter. The so-called trial by media inclinations cannot be in the interest of justice as required in this matter and have the potential to seriously undermine the court proceedings that will soon start as well as the administration of justice in general.’

However, despite the paragraph cited above, the discussions around the Pistorius trial including the merits, have been occurring across the globe and locally. I must admit, that I too have given my opinion in South Africa, the United Kingdom (UK) and the United States (US), to mention but a few countries. Regrettably however, there are instances where analysts have gotten it wrong; for example, in their criticism of Judge Masipa in relation to the referral of Mr Pistorius for psychiatric evaluation and the ‘out-patient’ recommendation of the judge. Some analysts have even incorrectly cited the provisions of s 77 of the Criminal Procedure Act 51 of 1977 as finding applicability when in fact it is ss 78 and 79 that are applicable.

The sub judice rule

This brings us to that somewhat elusive, if not evasive rule of law, known as the sub judice rule. The sub judice rule emanates from the Latin phrase for ‘under judgment’ or more simply put ‘under consideration’. In some jurisdictions it is referred to as ‘the case at bar’. In many countries including Australia, England and Wales, to mention but a few, it is generally considered inappropriate to comment publicly on ongoing trials. In South Africa, where the rule of law finds applicability, it could be held that the ongoing commentary somewhat interferes with due process ideals. We have heard witness after witness in the Pistorius trial confessing to having been glued to their television screens, and one wonders just how far these witnesses have gone to tailor their evidence in favour of or against the State and/or Mr Pistorius. Some expert witnesses who are not usually expected to remain outside as others testify (which is an accepted rule for normal witnesses), have remained in court throughout and have, to a large extent, focussed on either agreeing or disagreeing with other experts. A ‘working record’ of proceedings is produced and made available, ensuring that both sides can study this record thoroughly and focus on closing any gaps. Even if the record were not transcribed, one can download the entire proceedings online from websites like ‘Wild About Trial’. It is indeed true that the public and journalists are allowed to report on proceedings in the print media, but it appears as though this is the first instance where analysis of a case takes place on such a grand scale.

In English law (on which our common law for our law of evidence and procedure is based), the term sub judice was used to describe material that would prejudice court proceedings by publication. That was, however, the situation before 1981. Contempt of court in England is now codified through the Contempt of Court Act, 1981. Section 2 of this Act refers to a substantial risk of serious pre-judice only being possible by a media report when proceedings are active. Active proceedings are further defined to mean instances when there is an arrest, an oral charge, a warrant issued or a summons.

The situation in the US through their First Amendment, is somewhat different as the extent of the right to free speech there prevents tight restrictions on free speech. The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices. It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely.  It also guarantees the right of citizens to assemble peaceably and to petition their government. (www.law.cornell.edu, accessed 9-6-2014). However, having said that, State Rules of Professional Conduct governing legal practitioners in the US, often place restrictions on the out-of-court statements an attorney may make regarding an ongoing case.

That situation has largely been accepted as standard practice for professionals in South Africa as well. Mlambo J in warning about who the trier was in the Pistorius case, must have had in mind – and in fact explicitly mentioned – that a media circus would be undesirable. Since South African courts must take international law into account and may take foreign law into account, it would be sad if Mr Pistorius’s lawyers can argue that he was convicted (in the event that he is convicted) in an atmosphere of a media circus resulting in his fair trial rights being violated to such an extent that they call for the entire proceedings to be vitiated and the conviction overturned.

The sub judice rule itself has origins in the jury system and was designed to prevent juries from being influenced by irrelevant considerations. In jurisdictions where in criminal cases, the jury is still pivotal, the sub judice rule is still critical. It is very difficult to gauge the extent to which judges and lay assessors (and perhaps even the state and defence) are swayed by the public discourse on these matters. It would thus be highly unlikely if they were not aware of all the discussions and debates. However, the critical question which remains to be answered, is whether they would be influenced by irrelevant factors arising out of innocuous and/or potentially contemptuous statements or discussions taking place in the public domain. The example of the ruling by Judge Masipa banning ‘all tweets and blogging’, is a case in point where the judge was made aware of the dissent and contravention of her order.

It is clear from Mlambo J’s order that he was careful to ensure that Mr Pistorius is not vilified as an accused person, as his vilification would pose a potential impediment to the course of justice. The interests of justice demand (and this is both for the benefit of the state and defence), that fair trial rights remain supreme. There is a real fear in such instances that potential witnesses might be deterred from providing valuable information about the commission of the crime and in some instances they may even refuse to testify. In the Pistorius matter some expert witnesses who ought to have testified were no longer called to testify. One can speculate whether witnesses were reluctant to be associated with Mr Pistorius or whether they feared being perceived to be his supporters. There is also a possibility that they now doubt information at their disposal, which is either inculpatory or exculpatory.

Ongoing adverse publicity around the trial and allegations of unequal treatment of accused persons also has the tendency and potential to impede the course of justice and impact on perceptions around the administration of justice. The pressure principle is another consideration, given the vast barrage of commentary going mostly in one direction in this instance. The sensational nature of the Pistorius trial will no doubt fuel perceptions by the public that courts are influenced by publicity and external pressure, when in fact it might not be so at all. The blocking out of images of Reeva Steenkamp and the comparison to the case of Anene Booysen is but one example.

It is critical to bear in mind that the course of justice is not only concerned with the outcome of the proceedings or the substantive issues but also the entire process (meaning that attention has to be given to formal law as well). A serious prejudice thus arises in instances where the accused, the state and/or the court are influenced to the extent that they change their course, rulings and strategies based on the court of public opinion.

It is thus, in conclusion, not sufficient merely to weigh the right to freedom of expression by the media against the right of an accused to a fair trial as the latter has far-reaching consequences for the liberty of an individual. It can never be held that the public (of South Africa and by necessary implication of the world) has a more superior right to be ‘informed’ (whatever that entails in the context of the Pistorius matter) which supercedes the rights of Mr Pistorius to be tried in a manner that is fair and humane.

The Lord Thomas the Lord Chief Justice of England and Wales – responding to questions during the annual oral evidence session of the House of Lords Select Committee on the Constitution on 7 May 2014 – expressed his concern with what is happening in South Africa at the Pistorius trial, indicating that he had requested a report on live broadcasts. To a certain extent, I am in total agreement with the concern he expressed.

Brenda Wardle LLB LLM (Unisa) is Chief Operations Officer at Wardle College of Law in Johannesburg.

This article was first published in De Rebus in 2014 (July) DR 27.