pistorius_2486158bWhat do President Jacob Zuma and Oscar Pistorius have in common?  In both their cases, the courts commented on the potentially harmful impact on the administration of justice of publicity about the case.

When judge Willem van der Merwe acquitted Zuma on a charge of rape in 2006, he said:

“I have no problem with fair comment and the media’s duty to keep the public informed of important matters, especially the case we are dealing with at present.  …What, however, is disconcerting, is the fact that some pressure groups, organisations and individuals found the accused guilty and others found him not guilty in their comments on the case, without knowing what the evidence is and long before all the evidence was presented.”

Similarly, this past Tuesday, when Pistorius made a court appearance in his case (he is accused of murdering his girlfriend, Reeva Steenkamp), acting chief magistrate Daniel Thulare reportedly said that it

“would appear that there is somewhat of a trial by the media houses of Mr Pistorius …  It would appear some of the activities may amount, if not to scandalising the court system in the republic, then to contempt of court.” 

This followed broadcasts by Sky News of bloody images of the crime scene.

Comments such as these by the judiciary bring into sharp focus where the line should be drawn with media publicity about ongoing court cases.  The test was set out in the Baby Jordan Lee-Norton murder case in 2007, where a television broadcaster wanted to broadcast an interview with a number of eye witnesses, before they gave evidence in court.   The Supreme Court of Appeal held that the test is whether there is a real risk of “demonstrable and substantial prejudice to the administration of justice  …  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.”  Applied to the facts of the Baby Jordan case, the court thought that there was nothing wrong with broadcasting the interviews with the eye witnesses: if what they said to the media differed from their police statements, all the better for justice that this be exposed in the trial.

Another useful example is provided in the case of J Arthur Brown, former chief executive of Fidentia, who was charged with numerous counts of fraud and theft (Brown was recently convicted in respect of two counts of fraud).  At an earlier stage of the case, Brown applied for a permanent stay of the prosecution against him on the grounds that the pre-trial media publicity adversely affected him and prejudiced his right to a fair trial.   Although the court accepted that there was adverse media coverage concerning his case, Brown had failed to show a link between the publicity and the effect that it would have on his trial.  The court distinguished our legal system from those where juries decide criminal cases.  “It is possible“, said judge Robert Henney, “that the jury might be influenced by the media in some way or another“.  In our legal system “the presiding officer is a trained official who knows the justice system and who is impartial”; in other words, judges will not be swayed by media publicity.

So while the sub judice rule has not been abolished by cases such as these, it has certainly been watered down significantly. And even publishing pictures of the crime scene or interviews with possible witnesses in the Oscar Pistorius case will generally not breach this rule.

But that does not mean that the media should with impunity publish any material at all about the Pistorius trial: they should act ethically, fairly and responsibly, and at all times be sensitive to the dignity rights of the accused and the family of the deceased.  While the law might give you the right to publish, it does not compel you to do so.

Dario Milo is a partner at Webber Wentzel attorneys.