There is a pretty interesting article on the Sunday Times site about how media rights have been tested and developed in our courts in recent months and years. There are two sets of competing considerations and a possibly outdated legal principle in the mix. On the one hand is the freedom of expression and the need to publish information which the public should know about and on the other hand is the State’s need to protect court processes and an accused’s right to a fair trial in criminal matters.
Recent cases where this issue was dealt with include the Mail & Guardian‘s efforts to publish information about Glen Agliotti’s role in Brett Kebble’s (in addition to the link between national police commissioner Selebi and Agliotti) murder and the media’s coverage of the Jacob Zuma rape trial.
In the middle of all of this is a rule called the "sub judice rule" which criminalises the publication of certain facts which, if the court accepted them as such, could influence the court’s decision. The effect of this rule is that the media can be prevented from publishing something where that publication could have an impact on the court’s ruling. While the test that is employed when balancing the various considerations is a proportional one, there is an argument to be made that this rule is far more appropriate in a legal system with a jury and not presided over solely by judges who presumably have the savvy to identify incorrect information and the wisdom to give what information the judge does come across the appropriate weight.
This is a fascinating issue and an important one for freedom of the press and expression. The principles that are laid down through these battles will have an impact on our democracy as a whole.