Shocking allegations suggesting that Oscar Pistorius murdered Reeva Steenkamp in cold blood in a fit of rage have been published in newspapers.
The publication of these allegations illustrates that the sub judice rule is no longer in existence in its original guise.
It also illustrates that in the court of public opinion the notion of “innocent until proven guilty” is often used by those blindly supporting an accused criminal, regardless of the alleged facts, to try avoid admitting that their guy might very well be a criminal.
In a criminal justice system in which criminal trials are heard by a jury of ordinary citizens, relatively strict rules are 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 could be contaminated as they might form a strong opinion about the guilt or innocence of the accused long before the state begins to present evidence against the accused in court.
The sub judice rule is used to regulate reporting on criminal cases before the courts to prevent this from happening. If the proper administration of justice may be prejudiced or interfered with, this constitutes a breach of the sub judice rule and a person guilty of such interference could be found to be incontempt 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.
Taking into account the constitutional guarantee of 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 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 Supreme Court of Appeal confirmed that the broad scope of this rule 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 associated with the publication that need to be brought to account but also the interests of every person in having access to information.
This test must be applied in 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 the publication 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 sue the newspaper for defamation.
Ordinary citizens are thought to be far more likely to jump to conclusions than trained judges.
Ordinary citizens 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, 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 were 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 fact is that in an open and democratic society, 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 as with the prejudices and emotional and ideological commitments of the individual 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.
l Pierre de Vos teaches constitutional law at UCT. This column appears on his website, constitutionally speaking.co.za