The death of 'sub judice rule'

It points out the legal test for when a successful prosecution can be brought in South Africa is similar to the test applied in the courts of England and Wales: a court must ask whether there will be a 'real risk' of substantial prejudice to the administration of justice. The report notes a seminal judgment of the Supreme Court of Appeal reviewed the test in 2007. The question must now be decided by balancing two competing constitutional rights: the right to a fair trial and the right to freedom of expression. This, again, is similar to the way English courts have framed their approach, notes the writer, adding: But the big difference between the English and SA systems is that local criminal trials are not decided by jury. 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. Many media lawyers in SA believe the sub judice rule should be abandoned altogether because it is an anachronism; a hangover from the days when South Africa had juries, preserved by the apartheid-era government to strangle the press. Others believe there may still be a danger of media coverage presenting a high enough risk of prejudice to a trial to trigger a successful contempt prosecution. According to the article, media law expert Dario Milo at law firm Webber Wenztel says it would need to be a 'pretty egregious breach'. The Pistorius coverage, so far, has not reached that point, he says. Full BDlive article