Pistorius media frenzy could test sub judice rule in SA
AFTER a brief collective stunned silence, South Africans have since last week talked of little else than the death of Oscar Pistorius’s girlfriend, Reeva Steenkamp. With a voracious appetite for gory detail, we cannot get enough of the story.
Pistorius has not yet even formally pleaded to a murder charge in court. And even before his formal bail application on Tuesday morning, we had already read at the weekend that a bloodied cricket bat would be a key piece of evidence in the trial, that Steenkamp had been wearing her nightdress when she died and that her skull had been crushed. The press has also been replete with stories of Pistorius’s "temper" and womanising ways.
In the UK, the public and press may well be baffled by the amount of detail the South African press has published about the state’s case against Pistorius. There, leaked details of a criminal investigation would put a publication at risk of being held in contempt of court.
After a brief stint reporting courts in the UK, I was similarly baffled by how little British court reporters are able to cover, limited by what seemed to me to be draconian "reporting restrictions" — to the point where the report was little more than a description of the accused’s "blue suit and red tie".
It seems all the more strange because the law in the two countries is not actually all that different.
In South Africa, the "sub judice rule" allows for contempt-of-court prosecutions if media reports could prejudice a trial, as is the case in the UK.
And the legal test for when a successful prosecution can be brought is, in South Africa, similar to the test applied in the courts of England and Wales: a court must ask whether there will be a "real risk" of substantial prejudice to the administration of justice.
The bar was set much lower before the implementation of South Africa’s new constitutional order. Then, publications could be — and regularly were — successfully prosecuted for contempt of court if a report "tended" to prejudice the administration of justice.
But a seminal judgment of the Supreme Court of Appeal, South Africa’s highest court on non-constitutional matters, reviewed the test in 2007. The question must now be decided by balancing two competing constitutional rights: the right to a fair trial and the right to freedom of expression.
This, again, is similar to the way English courts have framed their approach.
But the big difference between the English and South African systems is that local criminal trials are not decided by jury. The jury system was done away with altogether in 1969.
The thinking is that judges are trained to put aside their prejudices and decide cases on the basis of the evidence before them and the law. Unlike juries, they also have to give reasons for their decisions. The risk of substantial prejudice to the administration of justice is therefore much lower when there is no jury.
In fact, many media lawyers in South Africa believe the sub judice rule should be abandoned altogether because it is an anachronism; a hangover from the days when South Africa had juries, preserved by the apartheid-era government to strangle the press.
In recent years, the rule has, in practical terms, fallen by the wayside. An attempt by fraud accused J Arthur Brown in 2011 for a stay of prosecution because of a "media campaign" against him failed dismally.
Others believe there may still be a danger of media coverage presenting a high enough risk of prejudice to a trial to trigger a successful contempt prosecution.
Media law expert Dario Milo at law firm Webber Wenztel says it would need to be a "pretty egregious breach". The Pistorius coverage, so far, has not reached that point, he says.
However, if the media circus around the Pistorius trial continues on its current trajectory, it may well become the case that truly tests whether the sub judice rule has any teeth or whether it has died a natural death in South Africa’s constitutional democracy.
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