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| The Oscar Pistorius media circus may test South Africa's contempt laws | The Oscar Pistorius media circus may test South Africa's contempt laws |
| (7 months later) | |
| After an initial brief gasp of collective stunned silence, South Africans have talked of little else than the death of Oscar Pistorius's girlfriend, Reeva Steenkamp. We simply can't get enough of the story and our voracious appetite for more, and yet more, gory detail seems only to feed on itself. | After an initial brief gasp of collective stunned silence, South Africans have talked of little else than the death of Oscar Pistorius's girlfriend, Reeva Steenkamp. We simply can't get enough of the story and our voracious appetite for more, and yet more, gory detail seems only to feed on itself. |
| Pistorius has not even formally pleaded to a murder charge in court yet. And even before his formal bail application this morning, we had already read over the weekend that a bloodied cricket bat would be a key piece of evidence in the trial, that Steenkamp was 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. | Pistorius has not even formally pleaded to a murder charge in court yet. And even before his formal bail application this morning, we had already read over the weekend that a bloodied cricket bat would be a key piece of evidence in the trial, that Steenkamp was 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. |
| The British 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. In the UK, leaked details of a criminal investigation would be likely to 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 press sometimes was able to cover little more than a description of the accused's "blue suit and red tie". | The British 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. In the UK, leaked details of a criminal investigation would be likely to 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 press sometimes was able to cover 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. What is famously known in South Africa as the "sub judice rule", which allows for contempt of court prosecutions if media reports could prejudice a trial, is still, in theory at least, part of South African law. The legal test for when a successful prosecution can be brought is, in South Africa, very similar to the test applied in the courts of England and Wales: the question a court must ask is whether there will be "real risk" of substantial prejudice to the administration of justice. | It seems all the more strange because the law in the two countries is not actually all that different. What is famously known in South Africa as the "sub judice rule", which allows for contempt of court prosecutions if media reports could prejudice a trial, is still, in theory at least, part of South African law. The legal test for when a successful prosecution can be brought is, in South Africa, very similar to the test applied in the courts of England and Wales: the question a court must ask is whether there will be "real risk" of substantial prejudice to the administration of justice. |
| The bar was set much lower before the dawn of South Africa's constitutional order in 1993. 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 in the context of a balancing exercise between two competing constitutional rights: the right to a fair trial and the right to freedom of expression. This is similar to the way English courts have framed their approach. | The bar was set much lower before the dawn of South Africa's constitutional order in 1993. 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 in the context of a balancing exercise between two competing constitutional rights: the right to a fair trial and the right to freedom of expression. This is similar to the way English courts have framed their approach. |
| The big difference between the English system and South Africa is that South African 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. A real risk of substantial prejudice to the administration of justice is therefore much, much lower when there is no jury. In fact, many media lawyers in South Africa think the sub judice rule should be abandoned altogether because it is an anachronism; a hangover from the days when the country had juries, which was preserved by the apartheid-era government to strangle the press. | The big difference between the English system and South Africa is that South African 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. A real risk of substantial prejudice to the administration of justice is therefore much, much lower when there is no jury. In fact, many media lawyers in South Africa think the sub judice rule should be abandoned altogether because it is an anachronism; a hangover from the days when the country had juries, which was 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 think there may still conceivably be a chance that media coverage could present a high enough risk of prejudice to a trial to trigger a successful contempt prosecution, but media law expert Dario Milo at solicitors firm Webber Wenztel says it would need to a "pretty egregious breach". The Pistorius coverage, so far, is yet to reach that point, he says. | 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 think there may still conceivably be a chance that media coverage could present a high enough risk of prejudice to a trial to trigger a successful contempt prosecution, but media law expert Dario Milo at solicitors firm Webber Wenztel says it would need to a "pretty egregious breach". The Pistorius coverage, so far, is yet to reach that point, he says. |
| However, if the media circus around the Pistorius trial continues on its current trajectory, it may very well be the case that truly tests whether the sub judice rule has any teeth, or whether it has simply died a natural death in South Africa's constitutional democracy. | However, if the media circus around the Pistorius trial continues on its current trajectory, it may very well be the case that truly tests whether the sub judice rule has any teeth, or whether it has simply died a natural death in South Africa's constitutional democracy. |
| • This article was amended on 19 February 2013. A production error led to it originally stating that the supreme court of appeal was South Africa's highest court on constitutional matters. This should have read "non-constitutional", and has now been corrected. | • This article was amended on 19 February 2013. A production error led to it originally stating that the supreme court of appeal was South Africa's highest court on constitutional matters. This should have read "non-constitutional", and has now been corrected. |
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