“I can’t comment, the matter is sub judice” is the favourite refrain of politicians everywhere wanting to avoid difficult questions.
Everyone from President Ramaphosa to your local councillor has invoked this at some time or another.
The Latin legalese (pronounced sub jew-de-say) is supposed to impress you mightily and because you probably are not sure what “sub judi-what did he say?” means anyway, you might accept the ruse and go away.
“Don’t fall for it.
The misuse of this sticky little phrase has for too long acted like a ‘get out of jail free’ card for the ill-informed (or worse still, they probably know it is hogwash and use it anyway).
Journalists are usually the ones on the receiving end of sub judice (short hand for “I’m going to be in deep trouble if you print that”).
“Sub judice” is a Latin expression meaning “under judgment” that refers to a pending or on-going judicial process (this does not apply to an internal municipal investigation or disciplinary).
The sub judice rule is that anything which causes prejudice to such a process constitutes the criminal offence of contempt of court.
A relic of the trial-by-jury system, sub judice was intended to protect juries from being improperly influenced.
Now just about everything interesting and of national concern has to go through the courts. Jacob Zuma is a case in point.
And truth be told, what happens in court is open to public scrutiny.
It’s not like camp (what happens at camp, stays at camp).
What the rule really means is that material must not be published which creates a real risk of prejudice to a fair trial.
Media lawyer Willem de Klerk wrote a great article on the subject.
He explained that while sub judice was a serious offence in South Africa some 30 years ago, since the adoption of the new Constitution the courts have considerably relaxed the rules around contempt of court.
“The Constitutional Court in the 2001 Mamabolo judgement signalled a new approach to public debate around matters serving before the courts. In that case the court acknowledged that the public has the right to ‘discuss, endorse, criticise, applaud or castigate the conduct of the courts’ and that ‘free and frank debate’ about judicial proceedings is central to a healthy democracy.”
– (Media lawyer Willem de Klerk’s guide to sub judice rule).
Where the boundaries lie is the more difficult question.
Corruption Watch puts it like this: “In a constitutional democracy like ours, competing rights must be weighed and balanced against each other.
In the present example, it is the right to a fair trial (as protected by the sub judice rule) that must be balanced with the right to freedom of expression.
The right to freedom of expression entails the press’ right to publish, and the public’s right to receive, information on important issues.”
Newspapers most especially must be careful to not behave as a ‘judge and jury’ when reporting on court cases, but it is also our role to keep the public informed and any attempts to stifle healthy public debate should be resisted.
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In the same way transparency is very much needed in our police service and municipalities, where the default is too often to treat the public like the enemy, holding all the cards close to their chests.
A good example is our reporting on Umhlali police station.
We have always had a good relationship with our local cops and we do what we can to assist.
Make no mistake they have a tough job and I do not envy them for it.
They have to make do with ridiculously poor resources, they are understaffed and underpaid.
But ask a direct question on how the station operates and suddenly no one will look you in the eye.
The citizens are crying, from Etete to Shakas’ Head and Ballito, because they live in fear of criminals who rape, murder and steal. I do not blame our local police – they are not miracle workers – but hard questions must be asked about the allocation of resources.
ALSO BY EDITOR: #Perspective: Could tragedy have been avoided?
You have a right to know how many cops are employed, what shifts they work and how many vehicles are (still) sitting in a mechanic’s workshop.
When your house is burgled and no one arrives to help you, you have a right to know why.
Further than that, you have a right to know how and when this unsustainable situation will be resolved.
What will it take to get more vans and more bodies in uniform?
When we ask these questions we are continually stonewalled, and fed vague answers that are nothing but hot air.
Honest answers to these questions are the only way to rebuild trust between the people and the authorities that we have placed in power to maintain law and order.
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