W hat did he know and when did he know it? That is the question that confronted then Deputy President, Cyril Ramaphosa, in Parliament in 2015. It is a question that US President Richard Nixon chose not to answer than face impeachment. He resigned instead.
The allegation was that President Nixon had stolen (or caused to be stolen) audio tapes of his telephone conversations with various insalubrious characters because those tapes implicated him in unlawful conduct. That was June 1973 in Washington.
A little shy of 42 years later, the same question was put to then Deputy President Ramaphosa inside the parliamentary chamber in Cape Town. It related to the unexplained presence of a signal jamming device in the parliamentary chamber that reportedly made it impossible for journalists to post parliamentary news on social media platforms and elsewhere in the performance of their constitutional right. He, too, performed a deft toyi-toyi around the question and invoked an Aunt Sally in the form and shape of the sub-judice rule.
Sub judice is the thin veil of choice by politicians when faced with awkward questions about things they have done or said which are the subject of a court case.
But what is the sub judice rule, really?
Of all legal defences available to Man, the sub judice rule is probably the most abused in South Africa. A relic of the trial-by-jury system, it was intended to serve as a shield for juries from possible improper influence of extra-judicial comments about the case on which they would soon deliberate and render a verdict. Thus, juries would be forbidden from talking to anyone outside their number about the case lest they be influenced.
Hence sub judice or “still under juridical consideration”.
But in South Africa there is no danger of a jury being improperly influenced by the loud musings of a Deputy President about a signal jamming device inside the parliamentary chamber.
Here we have people called Judges to deliberate on these things. Our law affords them the presumption of impartiality. In other words, Judges are presumed to be impartial even in the wake of a Deputy President owning up inside the parliamentary chamber to knowing a thing or two about how, why, when, and by whom that signal jamming device came to festoon beneath parliamentary columns.
In any event, what is said in the parliamentary chamber, stays in the parliamentary chamber. It is privileged and cannot be used to hoist a Deputy President by his own petard in subsequent court proceedings.
In short, the sub judice rule does not serve as protection from accountability or the obligation to answer awkward questions in South Africa.
This being an election year, it is likely that politicians, either directly or indirectly through their hired goons, may be tempted to take liberties with other people’s rights and, when confronted, plead sub judice. The media should not let them off the hook on that pretext.
