The media frenzy surrounding the criminal proceedings against Oscar Pistorius for his killing of his girlfriend, Reeva Steenkamp, is unprecedented in South Africa.
Media representatives from around the world have descended in droves on Pretoria Magistrate’s Court to catch every detail of this week’s bail hearing. Broadcast, print and social media are replete with details (and much speculation) about the case, from the nature of the relationship between Pistorius and Steenkamp to the killing and the motive.
The only certainty thus far from the bail proceedings is that Pistorius fired gunshots through the bathroom door in his home, that this resulted in the death of Steenkamp and that Pistorius’s version is that he thought there was an intruder in his home.
But before the bail hearing took place, explosive allegations were published in the media including allegations of a skull bludgeoned with a bat, fierce arguments between the couple and a pattern of abuse.
Have the media crossed the line between what can and cannot be reported in South Africa about pending court proceedings?
This important question raises the notorious sub judice rule, and the uncertainty that surrounds what it means and how it applies. The rule creates an obvious tension between the administration of justice, which it purports to protect, and the constitutional right to freedom of expression, which includes the right to receive and impart information. A breach of the sub judice rule could result in a charge of contempt of court and a criminal conviction.
The rule is designed to protect the administration of justice by restricting publicity about pending court proceedings (both civil and criminal). It applies from the time that the proceedings commence: in a civil case, usually when the summons or application is issued; and in a criminal case, usually from the date of arrest or when a warning to appear in court is issued. The period only ends once the final judgment on the matter is handed down after all possible appeals have been exhausted.
The South African position has changed considerably since the apartheid days. Under the old position, the sub judice rule would be breached if the statement might have influenced the outcome of a case, assuming that the court accepted that statement.
In the 1988 Appellate Division case of S v Harber, for instance, the Weekly Mail had published several articles concerning the Delmas treason trial in which 22 accused faced charges of high treason. One article referred to new evidence that could “shake the State’s case”, and set out three aspects of this evidence.
The Appellate Division held that the comments were contemptuous and constituted improper speculation that could influence the proceedings of the trial, and the editor, Anton Harber, received a suspended sentence of a R400 fine or two months’ imprisonment.
There was a drastic change in the legal position with the 2007 Supreme Court of Appeal (SCA) decision of Midi Television (Pty) Ltd v Director of Public Prosecutions, Western Cape.
The case dealt with the “Baby Jordan” murder that occurred in Cape Town. A documentary on the murder had been made by e.tv, for which it interviewed several people, including two witnesses to the crime. A decision was taken not to broadcast the documentary before the police had made arrests; however, after the police had arrested and charged five people, e.tv proceeded to schedule its broadcast.
The SCA accepted that the exercise of press freedom in breach of the sub judice rule has the potential to cause prejudice to the administration of justice by causing issues under judicial consideration to be pre-judged; or by conducting trials through the media; or by bringing improper pressure to bear on witnesses or judicial officers.
However, the SCA reformulated the test, holding that: “(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.”
One of the concerns of the director of public prosecutions was that the interviews of the witnesses in the documentary might differ from what they had told the police, and that this may be used to discredit their evidence.
The SCA, however, was of the view that, if there were discrepant accounts, it would in fact be more conducive to the interests of justice and a fair trial that the discrepant accounts be exposed rather than hidden.
The SCA noted further that if the documentary was broadcast and was indeed unlawful, e.tv would be liable to criminal prosecution.
However, in the absence of even a reasonable apprehension that the documentary would be unlawful or compromise the conduct of the trial, the SCA found in favour of e.tv and did not impose any restrictions on the broadcast.
This decision has created a much higher threshold for anyone seeking to prosecute the media for breaching the sub judice rule.
What is effectively now required is for there to be a real and substantial risk to the administration of justice in order for the rule to be breached, and the media have seldom been concerned about the new and improved sub judice rule in the constitutional era.
In distinction to the South African position, the UK takes a much harsher line when applying the sub judice rule, despite the UK law imposing a similar test to that adopted by the SCA in the Midi Television case. The issue is governed in the UK by its Contempt of Court Act 1981, which sets out broad principles for what may constitute a substantial risk and a consequent violation of the sub judice rule.
Breaches of the sub judice rule have led to hefty fines in the UK. In 2002, for example, the Sunday Mirror was ordered to pay one of the largest recorded fines for contempt of court: this comprised a fine of £75 000, as well as an additional £40 000 in costs.
The case arose from a media report on two Leeds United footballers who had been charged with assault. The newspaper published an interview with the victim’s family while the first jury was still deliberating, which resulted in the collapse of the trial.
The newspaper accepted that it was guilty of contempt, and unreservedly apologised. It also resulted in the editor of the newspaper resigning when the trial collapsed. But an important distinguishing feature between the UK and South Africa is that the UK still makes use of the jury system, which is no longer the case in South Africa.
This makes the stricter application of the sub judice rule in the UK more understandable, because there is a greater risk of lay jurors being more easily influenced by what they read in the media.
In South Africa, where cases are decided by judges who are familiar with the legal principles and are mandated by law to decide matters impartially, it is difficult to understand how – at least in theory – pre-trial publicity could in general influence the outcome of a case.
Moreover, while trial by the media is extremely unpleasant for the parties to the proceedings, this in itself is not sufficient to meet the threshold for a breach of the rule under our law.
This was highlighted in the recent case of Brown v National Director of Public Prosecutions, in which J Arthur Brown (former chief executive of Fidentia) applied for the immediate and permanent stay of the prosecution against him in respect of the Fidentia Group Companies investigation, saying that the pre-trial publicity adversely affected him and prejudiced his right to a fair trial.
The court accepted that there had been widespread media attention, and even accepted that the media coverage had been adverse. However, the court held that Brown had failed to show a link between the adverse media coverage and the effect that it would have on him having a fair trial, and had therefore failed to establish any prejudice.
In view of this, it is clear that, in establishing whether there is a real and substantial risk to the administration of justice, the mere existence of adverse media coverage is insufficient.
So, although the media have been replete with sensational allegations about what happened on that fateful Valentine’s Day, none of this reportage has, in our view, crossed the legal line.
* Milo is a partner and Singh an associate at Webber Wentzel attorneys