THE BIG READ: Beware knee-jerk justice
Shocking allegations, suggesting that Oscar Pistorius murdered Reeva Steenkamp in cold blood in a fit of rage, were published in the City Press newspaper at the weekend.
The publication of these allegations illustrates that the sub judice rule no longer exists in its original guise in South Africa.
It also illustrates that, in the court of public opinion, the notion of innocent until proven guilty, and the sub judice rule, are often used by those blindly and loyally supporting a criminal accused.
These two issues are intimately related.
In a criminal justice system in which trials are heard by a jury of ordinary citizens relatively strict rules are often 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 might be contaminated: the jurors might form a strong opinion about the guilt or innocence of the accused long before the state begins to present its evidence in his trial.
The sub judice rule is often used to regulate reporting on criminal cases to prevent this from happening. When the proper administration of justice might be prejudiced or interfered with, this would constitute a breach of the sub judice rule and a person guilty of such interference could be found to be in contempt of court.
This principle also works in a constitutional democracy because the right to a fair trial will be infringed upon 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.
The right to a fair trial must, however, be balanced against the right to freedom of expression. This balance will be struck differently in a country with a jury system than in a country with a system such as ours.
Taking into account the constitutional guarantee to 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 vs the Director of Public Prosecutions (Western Cape).
In that judgment, the court confirmed that the broad scope of this rule, which was in force in the pre-democratic era, has been severely curtailed by the constitution. In the context of pre-publication censorship imposed on the media in relation to the reporting of criminal cases, JA Nugent, 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."
This test must be applied in light of the principle set out in President of the Republic of South Africa and Others vs SA 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 court argued that this presumption of impartiality "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 always sue the newspaper for defamation.
Ordinary citizens are thought to be far more likely to jump to conclusions than trained judges.
We often make judgments 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 has not assumed that those charged with the brutal rape and murder of Anene Booysen are guilty of the crimes they are being prosecuted for?
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 than with the prejudices and emotional and ideological commitments of the individual citizens.
One can try to moderate these impulses by warning citizens that a person has not actually been convicted and by pointing out that facts often emerge at a trial that cast a different light on the allegations reported in the media, but that is not going to stop people taking sides and making assumptions about the guilt or innocence of an accused.
That is why I am thankful we do not have a jury system in South Africa.
Though 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 emotions and prejudices.
- Professor De Vos teaches constitutional law at the University of Cape Town. This is an edited version of a piece he published on his blog, "Constitutionally Speaking"