What 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, rather 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 role. 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.
The then Deputy President had not been asked to pronounce on the merits of the use of signal jamming devices in the parliamentary chamber. In other words, he had not been asked to pronounce on the lawfulness of such use. That question was at the time still being considered by the Western Cape High Court.
The High Court subsequently ruled on the merits question and the matter then served before the Supreme Court of Appeal.
Now that the Supreme Court of Appeal has ruled on the unlawfulness and unconstitutionality of the signal jamming, in September 2016 in Primedia (Pty) Ltd and Others v Speaker of the National Assembly and Others 2017 (1) SA 517 (SCA), he to whom the questions of fact were posed has still not answered them.
Fast forward to 2018 and, by then President of the country, he invoked the sub judice rule again in the parliamentary chamber when asked about the future of the then National Director of Public Prosecutions and the appointment of Mr Arthur Fraser at Correctional Services.
Declining to answer the question put to him in Parliament on 25 July 2019, the new Deputy President also invoked the rule when asked about the lawfulness of the investigation unit (also known as the rogue unit) that was established within the South African Revenue Service (the tax collection agency in South Africa) in 2007. That question is reportedly the subject of court proceedings. Opposition parties, citing the need for accountability, objected to the Deputy President’s refusal to answer the question.
But was Deputy President Mabuza correct in declining to answer the merit question about the lawfulness of the establishment of the rogue unit? Does his defence lie in the sub judice rule?
The rule has been invoked by a number of politicians, one could argue, when it appears to suit their purpose at the time. It is difficult to miss the clear pattern. They seem to invoke the rule when a question cuts too close to the bone, but when it is convenient – perhaps with a view to swaying public opinion in their favour – they have no qualms pronouncing on matters that are the subject of litigation. One example is the numerous tousled engagements between the Executive and the Public Protector.
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. It is a source of frustration to many journalists keen on an angle.
But what is the sub judice rule, really?
Of all legal defences known 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 improperly 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 factual musings of a Deputy President about a signal jamming device inside the parliamentary chamber, or of a President about the factual details as regards the future of a prosecutor or correctional service commissioner.
Here we have people called Judges to deliberate on these things. Our law affords them the presumption of impartiality, and the Constitution that safeguards their independence. In other words, Judges are presumed to be impartial and not susceptible to undue influence by media reports of what happened inside or outside the parliamentary chamber. It is, of course, a rebuttable presumption. But the point is it is generally accepted that Judges – trained in the discipline of weighing up relevant facts and applying relevant law to those facts based on sound legal principles – generally do not require the quarantine from the outside world to which lay people need be subjected during the hearing of a case.
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. Here, section 195 of the Constitution places a constitutional obligation on public servants – which includes Members of Parliament, the President, Deputy President and all cabinet ministers – to be “accountable” and “transparent . . . by providing the public with timely, accessible and accurate information”.
Often the decision of the Supreme Court of Appeal in Midi Television (Pty) Ltd t/a E—TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) is cited for the proposition that the rule does not prohibit fair and accurate reporting of factual content of ongoing judicial proceedings by the media, as long as the report does not usurp the court’s role by prejudging the case or the legal issues involved. The SCA said:
“ . . . If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms – including the freedom of the press – are also compromised.
 The exercise of press freedom has the potential to cause prejudice to the administration of justice in various ways – it is prejudicial to prejudge issues that are under judicial consideration, it is prejudicial if trials are conducted through the media, it is prejudicial to bring improper pressure to bear on witnesses or judicial officers. . .”
But the Court was not there dealing with the sub judice rule. The case was about an interdict to stop the television broadcast of a documentary that the prosecuting authority felt might prejudice the administration of justice in a pending trial. The SCA articulated the standard as follows:
“In summary, 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.”
So, the sub judice rule does not seem to enter into the equation at all. In other words, prejudice caused to the administration of justice can be demonstrable and substantial whether publication or pronouncements are made in relation to an issue before court proceedings begin or while they are underway. It is not the timing of the pronouncement or publication that matters; it is rather the real risk that demonstrable and substantial prejudice may be caused to the administration of justice.
For example, articles have been published which, it may be argued, pronounce on the outcome of the “rogue unit” case in which a cabinet minister has challenged the Public Protector’s findings that the establishment of an investigation unit (also known as the rogue unit) within the South African Revenue Service (the tax collection agency) was unlawful. That case is currently before the courts. Yet, at least one journalist, invoking obiter dicta remarks (remarks that carry no binding legal significance) in a recent judgment of the Johannesburg High Court for the proposition that establishment of the SARS investigation unit in 2007 was not unlawful, has now plainly pronounced on the outcome of the pending case in which that very question is to be determined.
But that is not an instance of the breach of the sub judice rule. It is rather an example of demonstrable and substantial prejudice that such pronouncement may cause to the administration of justice. It matters less that the journalist entered the judicial fray while a court case is pending on that very issue. Of significance is that by her pronouncement she runs the real risk that demonstrable and substantial prejudice may be caused to the administration of justice. How? Because the public (87% of whom, the Chief Justice tells us, instinctively believe what they read in newspapers without question according to a study by the German and American intelligence agencies) will expect the outcome as prejudged by the journalist. If the outcome is different, there is a real risk that the public may start believing that the judiciary (or the legal system) is “captured”.
Therein lies the prejudice to the administration of justice, and that has nothing to do with the sub judice rule.
Another example – this time before legal proceedings have been launched – is the President’s pronouncement last Sunday evening (on 21 July 2019) that the Public Protector’s Report, that he tells us he will be challenging in court, is “fundamentally and irretrievably flawed”. The public has seen and heard that pronouncement. No doubt the judges who will hear the President’s challenge have too. What is the average citizen to expect of the judge hearing the case then?
Some among us will flippantly assert that there is nothing wrong with “a litigant expressing a view” on the prospects of success of his court challenge openly in public. But is it that simple? This is a President we are talking about, not an ordinary citizen. He appoints Judges. He has been portrayed generally in the media as “cleaning up” the state of corruption. Anyone who seeks to hold him to account is generally portrayed as standing in the way of the President’s efforts to clean up. Now he stands before the nation telling us, and the judge who will be assigned to hear his challenge, what the outcome of his application must be. And a Full Bench has recently elevated the President’s political campaign slogan, “New Dawn”, to the annals of South African jurisprudence.
In light of all these objective facts, can it genuinely be believed by an objective observer that the President’s pronouncement poses no real risk of demonstrable and substantial prejudice whatsoever to the administration of justice? Again, the sub judice rule has nothing to do with this inquiry. There was no court case that had been filed when the President made the pronouncement. But does that make any difference whatsoever to the real risk posed by the pronouncement to the administration of justice?
Judicial independence and the presumption of judicial impartiality ought to dispose of any apprehension that Judges may be swayed by the President’s announcement last Sunday – 21 July 2019 – in these terms. But then the Full Bench of the Pretoria High Court did not seem prepared to run that risk when it ordered that the former President was not to appoint the Judge who would chair the “State Capture” commission because, said the court, he was conflicted.
From this, a number of awkward questions arise. Was that not a reflection more on the independence and inherent impartiality of the Judge than on the character of he who ordinarily appoints commission chairs? Put differently, what else could the Full Bench have feared, in making the order that it did, than suspicion that the former President might appoint a malleable Judge? Is that fear itself not an indictment on judicial independence and inherent impartiality?
If the idea in Midi Television (which has been followed in numerous subsequent judgments, including the Constitutional Court) is to prevent the usurpation of the court’s role which happens when prejudging the case or the legal issues involved, did the President not do just that when he told South Africa that the Report he was about to challenge is “fundamentally and irretrievably flawed”? Is that not a breach of the Midi Television standard?
Is Deputy President Mabuza on firm ground when refusing to answer a question on the lawfulness of an investigation unit, a question that is currently before court? In my view, yes. But does the basis for his refusal lie in the sub judice rule? In my view, no. On a proper reading of the Midi Television judgment, it seems to me the Deputy President’s justification may lie in his caution not to run the real risk of demonstrably and substantially prejudicing the administration of justice by pronouncing on the merits of an issue that is yet to be determined by the courts, especially when that process has already commenced.
So, if politicians play fast and loose with a rule of ancient origin intended for lay people in a jury system, and journalists honour it in its breach, what legal certainty does the sub judice rule provide? Has the time not come for the courts to say, as the appeal court said about another anachronistic relic many years ago, “requiescat in pace!” (rest in peace) to the sub judice rule, thereby paving a clear path to true accountability?
Absolutely spot on. The way the subjudice rule is used in South Africa actually undermines constitutional values of accountability and transparency as articulated in this piece. This piece also raises a few other issues. The first is around the quality of the judgments coming out of the courts. What jurisprudential value does the country derive from words such as the “New Dawn” in a court judgment? What impact does this have on judicial legitimacy in the eyes of the public?
Secondly, I once heard a practitioner say that in some high court corridors, it is well known that certain judges are EFF, DA or ANC sympathizers. This makes me wonder whether there is value in our system not to keep this a secret? For instance, in the United States, it is well known that conservative justices (like the late Scalia, Justice Thomas and others), usually those appointed by Republican Presidents, will almost always uphold conservative policies associated with the Republican Party when disputes are brought before them. Equally, it is well known that justices like Justice Breyer and Justice Sotomayor and others are liberally minded and tend to be sympathetic to liberal causes often associated with the Democratic Party.
In SA on the other hand, our judges prefer to appear as if they have no political philosophies or preconceptions. Could recent developments signify a change in this legal tradition for SA? In his discussion about transformation adjudication, the late Chief Justice Langa in a 2011 Stellenbosch Law Review article argues that:
“This approach to adjudication requires an acceptance of the politics of law. There is no longer a place for assertions that the law can be kept isolated from politics. While they are not the same, they are inherently and necessarily linked. At the same time, transformative adjudication requires judges to acknowledge the effect of what has been referred to elsewhere as the ‘‘personal, intellectual, moral or intellectual preconceptions’’ on their decision-making. We all enter any decision with our own baggage, both on technical legal issues and on broader social issues. While the policy under apartheid legal culture was to deny these influences on decision-making, our constitutional legal culture requires that we expressly accept and embrace the role that our own beliefs, opinions and ideas play in our decisions. This is vital if respect for court decisions is to flow from the honesty and cogency of the reasons given for them rather than the authority with which they are given.”
Is Justice Langa correct in his assertion?
Thank you again for this insightful piece.