Stop hiding behind sub judice

The sub judice rule refers to the prohibition on certain statements about matters “under judgment”: in other words, matters that are the subject of ongoing court proceedings. The rule offers a veneer of legality, a way for a politician to evade a question without taking responsibility for doing so - a way to pretend, indeed, that evasiveness is legally required. But the veneer is wearing thin.

The unscrupulous invocation of the rule is not new. In 2011, Pierre de Vos described it as “one of the most irritating phenomena of our political life”. But the use of the sub judice rule has reached epidemic proportions this year. The Zuma camp has fallen upon it with delight, waving it about like a get-out-of-jail-free card whenever it is asked difficult questions about matters in which litigation is pending. And, since almost any question of any political significance is taken to court nowadays - from Marikana to Nkandla to the composition of the Springboks - the sub judice rule threatens to stifle debate on virtually any issue that needs it. (Enthusiasm for the rule seems to be infectious: e.g. when GroundUp asked USN for comment on claims that its CEO was a “liar”, “scam artist” and “snake oil salesman”, its belated reply was that it would not comment because the matter is sub judice.)

In truth, the sorts of statements that the sub judice rule prohibits are very few indeed. A statement is prohibited, according to our courts, only if there is a “real risk” that it would cause “demonstrable and substantial” prejudice to the administration of justice. Simply put, you mustn’t say something only if it would make the court proceedings plainly unfair.

When would a statement have that effect? Most obviously, if the judge himself is asked about a case over which he is presiding. This is because a fair trial requires a judge who is impartial and open-minded, ready to give full consideration to the arguments and evidence before him. If he publicly commits himself to a particular view of the case before he delivers judgment, the possibility of a fair judicial process disappears. This is why Chief Justice Mogoeng, for example, appropriately refused to answer questions about the al-Bashir saga.

Another clear case is when a journalist publishes information about a criminal defendant that the judge, in the interests of a fair trial, must not know. For example, it is prohibited for a judge to know that an accused person has previous convictions, since this might predispose her to find that he also committed the crime of which he now stands accused. It follows that a journalist would breach the sub judice rule, and be in contempt of court, if he reveals (in any medium that might reach the judge’s eyes or ears) that the accused has previous convictions.

Clearly, however, this is an exceptional case resulting from the rule that previous convictions may not be known by the judge. Beyond this, publications of allegations about a criminal case will “almost never” constitute a breach of the sub judice rule. And, when one is dealing with politicians commenting on matters subject to civil litigation, where fair trial rights are not at stake, it is even harder to think of contraventions. Merely expressing an opinion about a case, including about how it should be decided, is perfectly acceptable.

It was not always so. Under apartheid, the sub judice rule was used to punish law professor Barend van Niekerk for suggesting that our courts should discount evidence obtained from detainees in solitary confinement, whose admissions might’ve been extracted through torture, or at least the implied threat of it. The Nats also used the rule to squash media reports that cast doubt on the state’s case in the Delmas Treason Trial. The test applied by the courts was whether the statement “tends” to prejudice the administration of justice: an elastic term which the conservative Appellate Division used to full effect.

This all changed in 2007, however, when the Supreme Court of Appeal in Midi Television deliberately distanced itself from the apartheid-era position. It adopted the very different test mentioned above, in terms of which the sub judice rule is breached only if there is a real risk that a statement would cause grave prejudice to the administration of justice. The Court adopted this very high threshold, it said, because of how damaging the rule would otherwise be to freedom of speech, which section 16 of our Constitution protects. The upshot is that the sub judice rule has been almost completely emasculated - and rightly so. It is only a slight exaggeration to say “there’s no such a thing as sub judice anymore“.

Get rid of Rule 67

So is the DA right to call Cyril Ramaphosa’s interpretation of the sub judice rule, when he refused to answer a simple question about signal-jamming, “spurious“? Actually, no.

Thus far, I have been discussing the position at common law: that is, the generally applicable sub judice rule laid down by our courts. In accordance with constitutional imperatives, this allows for maximal freedom of expression, and gives no place for Mr Ramaphosa to hide. The problem, however, is simply this: the Rules of Parliament (pdf) are very different from the common law, and much more restrictive of free speech. Rule 67 says that-

“No member shall refer to any matter on which a judicial decision is pending.”

This has given the sub judice rule an unwelcome afterlife. Though our courts tried to kill it in Midi Television, it is alive and well in the parliamentary chamber.

Indeed, it may be stronger than ever. The wording of Rule 67 is strikingly broad. Pierre de Vos says it “contains the pre-constitutional position regarding the sub judice rule“, which Midi Television overruled. In fact, it is worse than that. The apartheid courts required a statement on a matter sub judice to have the tendency to impair the administration of justice. Even that basic limitation is absent from Parliament’s formulation, which, on its face, prevents any discussion of any kind about a matter that is the subject of pending litigation.

In 1998, then Speaker of Parliament Frene Ginwala tried to qualify Rule 67, finding that it was designed only to prevent the outcomes of the court proceedings being “predetermined”; any discussion of a case falling short of that was still permitted. Parliament’s Guide to Procedure (pdf) repeats this wording, saying the Rule should be applied so as “to impose the minimum limitation on open debate”. And in 2013, according to the People’s Assembly, a parliamentary task team reached a similar conclusion, saying that the Rule prevents discussions of “the merits of a case” that is sub judice, but not a “general political debate” about it. A constitutional lawyer would call these attempts to “read down” the Rule: creative interpretations that tweak or add glosses to the Rule’s literal meaning in order to make it constitutional.

That a reading down is thought necessary only confirms the Rule’s clear shortcomings. The Rule flouts the position set out in Midi Television, and dramatically restricts the free exchange of views that the Supreme Court of Appeal held is constitutionally required. Yet parliamentary debate should be especially robust if democracy is to thrive. There, of all places, difficult questions must be asked, and answered. (The law recognises this in other contexts. For example, MPs cannot be sued in defamation for comments they make in Parliament. This is because the threat of a defamation suit would have a chilling effect on parliamentary speech, which should be frank and unhindered. Under apartheid, Helen Suzman used her immunity to level criticisms against the government that it had successfully squelched outside Parliament.) So Rule 67 gets things exactly the wrong way round: it makes debate within the parliamentary chamber more restricted than debate without.

The justification usually advanced for the Rule (for example by parliamentary legal advisor Nathi Mjenxane) is the separation of powers. Parliament must, it is said, defer to the judicial process. This is self-serving nonsense. Respect for the judiciary does not mean having no opinions about cases that are before it. It means accepting that the judiciary gets to determine, when all is said and done, which opinion is the right one. Politicians must therefore treat our courts’ orders as binding, and their judgments as legitimate and authoritative determinations of fact and law. Leading politicians have flagrantly failed to do this (most notoriously in the course of the al-Bashir saga, but also over the appointment of Brigadier Ntlemeza as head of the Hawks), giving the Rule’s purported justification a darkly comical ring.

And the attempts to pare down the Rule clearly do not do enough: the frequency with which the Rule is invoked to stifle important discussion shows this. In addition, they introduce distinctions that are unsustainable. What is the difference between discussing the correct outcome of a case and “predetermining” that outcome? What is a “general political debate” about a case, and at what point does it become a debate about the case’s merits? These questions cannot be sensibly answered. They introduce not clarity but a further layer of obfuscation, and have led to ongoing contestation by parliamentarians about the precise scope of Rule 67’s prohibition - distracting still further from the issues that really matter.

In short, Parliament should delete Rule 67 altogether. Fortunately, MPs from the DA, EFF and even the ANC said exactly this in August. On the other hand, Parliament’s legal team has continued to assert the Rule’s supposed importance in preserving the separation of powers. If Parliament is too divided, or too dysfunctional, to delete the Rule itself, or replace it with Midi Television‘s radical reformulation, it will be high time for someone to take the matter to court - and make it squarely sub judice.

Boonzaier is a doctoral student at the University of Oxford and a former law clerk at the Constitutional Court of South Africa. Views expressed are not necessarily GroundUp’s.