The Subjudice Rule.

CHAPTER 1

INTRODUCTION

Justice must not only be done but it must be seen to be done

1.1 INTRODUCTION

Freedom of expression and freedom of the media is one of the most fundamental right in all

democratic societies in the world. The media is the fourth estate and it provides a check to all

forms of exercise of power by informing the public of all matters of public interest and

providing a platform to discuss the exercise of power by the state and its institutions.

However freedom of expression is not absolute. Freedom of expression has its limitations.

One such limitation is the Subjudice rule, which prevents the publication of material that

prejudice the trail in pending proceedings. This research shows whether the Subjudice rule is

a justifiable limitation to freedom of speech and the media.

The research will give a critical analysis of the Subjudice rule. It shall delve into the origins

of the Subjudice rule, the justification of the rule and the justifiability of the limitations it

imposes on freedom of speech and the freedom of the media. The research shall also look at

the application of the rule on in our legal system by the Judiciary and whether it has been

constant. The writer shall assess the impact of the application of the rule on freedom of

expression, and other rights that can be violated by allowing or disallowing the application of

this rule.

1.2 BACKGROUND OF RESEARCH

Freedom of expression and freedom of the media is a fundamental right in section 61 of the

constitution. It guarantees one’s right to communicate ideas and other information. Our courts

have consistently maintained that freedom of expression is an indispensable condition for a

free and democratic society1. Without the freedom to express, interchange and communicate

new ideas and advance critical opinions about public affairs or the functioning of public

institutions democracy cannot survive. The fact that freedom of expression is indispensable to

democracy is axiomatic and has been articulated so often2.

1 Retrofit (Pvt) Ltd Vs P.T.C and Anor 1995 (2) ZLR2 See cases of Retrofit supra, In re Munhumeso and others 1994 (1) ZLR 49, S v Hartman and Anor 1983 (2) ZLR

DRAFT DISSERTATION | 1

Section 86 of the constitution realise that the constitutional promises such as of a free press,

are not absolute. By application of section 86 of the constitution, freedom of expression must

be exercised reasonably with due regard to the rights and freedoms of others. It can also be

limited by any law of general application. Therefore any law that purports to curtail the full

exercise of a constitutionally protected right might take the form of legislation, or a rule of

the common law, or even a provision of the Constitution itself.

In the case of Charles Kwaramba v The Honourable Mr. Justice Bhunu, it was stated that

the Subjudice rule is a time-honored practice which has crystallised into law. 3In other words

this means that the Subjudice rule has been part of our common law and it was also

incorporated in our statute law. As it shall be shown later that, section 84 (1) (c) and 182 (1)

Criminal law (Codification and reform) Act [Chap 9:23] has integrated the Subjudice rule in

our criminal law.

The law on defeating or obstructing the law of justice and the law of contempt of court shall

be used as a reference to the Subjudice rule. It must be borne in mind that some scholars are

of the view that the crime of defeating or obstructing the course of justice is derived from

contempt of court. The Subjudice rule therefore is part of our criminal law and since it

prohibits commending of publication of certain material it becomes a huge contender against

freedom of speech.

The Subjudice rule seeks to prevent negative pre-trial publicity which can affect the rights of

the accused person such as the right to a fair trial, to protect the independence and dignity of

the judiciary, to protect the rule of law and to prevent the obstruction of justice. The rule has

profound impact on the media and in this digital era there is flagrant breach and manifest

ignorance of the rule which begs the question whether it is still relevant at all.

The Subjudice rule realises that, the integrity of the judicial process is an essential component

of the rule of law. The Subjudice has the capability of eroding the rule of law by

compromising the integrity of the judicial process. 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

3 SC 46/12


through the media. It is prejudicial to bring improper pressure to bear on witnesses or judicial

officers. It is also prejudicial to obstruct the course of justice.

1.3 STATEMENT OF PROBLEM

Though the Subjudice rule has been integrated into the criminal code, it has never been

clearly articulated. The rule makes brief appearances here and then but it has never been

really used to meet the ends of justice. There has been great difficulty in applying this rule.

There are no clear guidelines on specific issues and matters where the rule should apply.

There is so much ignorance of this part of the law and the media and key persons in high

political offices have orchestrated flagrant violation of this rule to the detriment of accused

persons. Accused persons have been treated as people without rights at all and very few

advocate for the rights of accused persons. The Subjudice rule should protect arrested persons

just the same way as the law on defamation protects anyone. Defamation laws cannot do

much to protect accused persons because they don’t qualify in some of the cases but the harm

would have already been done. It is accused persons who are affected by negative pre-trial

publicity which leads to trial by media, negatively influencing the outcome of the trial and

public perception. The fact these effects are not surgically dealt with in our Criminal Law has

exacerbated the problem the law has failed to offer adequate protection to suspects in pending

criminal cases. The dignity of the courts have been impaired. It has become a grey area in our

law.

Ignorance of the Subjudice rule has compromised the independence of the judiciary and the

rule of law. The principle of innocent until proven guilty should be respected. It is also

evident that most of the articles in the media about pending proceedings feature opinions of

high ranking political figures seeking to influence the outcome of a trial and this has seriously

impairs the independence and dignity of the judiciary.

The constitution and the law does not state to what extent can the Subjudice rule be a

limitation to freedom of expression and the freedom of the media. When this rule has been

applied it has been criticised for infringing upon the rights of the media and freedom of

expression. There has been a danger of silencing the public on matters of legitimate national

interests.


1.4 RESEARCH QESTIONS

1. What is the Subjudice rule and its relevance in Zimbabwean law?

2. What is the impact of Subjudice on the judiciary and the right to a fair trial?

3. How does it limit freedom of expression and whether it is justiciable?

4. What must be done to strike a balance between media freedom or freedom of

expression and the Subjudice rule?

1.5 OBJECTIVES OF RESEARCH

The paper shall analyse the impact of the Subjudice rule as a limitation to freedom of

expression and freedom of the media and the extent which such limitations should be

realised. This shall also be explained within the notion that administration of justice is a

public process and it must be open to public scrutiny. An assessment shall also be made on

the impact the rule has or may have on muzzling the press. A comparison shall also be made

with other democratic societies similar to ours.

The research will analyse the fundamental underpinnings of the Subjudice rule and freedom

of expression, the rationale behind the rule and whether the rationale is justified, the

application of the rule in our judicial system and whether it has been constant, the impact the

rule has on freedom of expression, other rights that can be violated by allowing or

disallowing the application of this rule.

The findings show an analytic assessment of the impact publications by the media may have

to the decorum of the courts and dignity of the judicial officers. The effect it has on the

decisions the judiciary make and the proper administration of justice. The research will reflect

on the reaction of the judiciary towards publications show how the judiciary has reacted in

the past and whether is able to withstand the pressure. Various cases shall be used to show

violation and also application of the Subjudice rule.

The discussion will also look into the rules regarding obstruction of justice and contempt of

court and reveal whether these laws are being applied in our law.

The paper will discuss the impact of the Subjudice rule on the fundamental human the right to

a fair and impartial trial.


The research seeks to prove that the media has a powerful impact on public perception of

guilt and the creation of media personalities. The research seeks to show the impact of these

publications on public opinion and public pressure incited by the media. Impact on the

evidence which will be given by the witnesses to a trial and the conduct of the trial and also

the assessing of the evidence by the presiding officer especially with regards to the burden of

proof. The paper shall analyse the reaction of the media towards such expressions.

The paper seeks to reveal what the law is as it stands, the shortcomings or the law and

possible reforms which may be needed on the issue of the Subjudice rule. Finally conclusions

and recommendations shall be made, based on the discussion which shall be made in the

dissertation.

1.6 RESEARCH METHODS

The dissertation will undertake a qualitative research to respond to the problems outlined.

This includes analysis and evaluation of various legal materials. This study will be based on

library research, since there is little literature in Zimbabwe on the subject much reliance shall

be put on Case law. Relevant textbooks, law reports, legal forums, law review articles and

commentaries, bulletins and statutes. The study will also take into account relevant

international law, foreign judicial precedents, statutes, newspaper articles and more

importantly the internet.

1.7 BIBLIOGRAPHY

1.7.1 ACTS

1. The Constitution of Zimbabwe

2. Criminal Law (codification and reform) Act [Chapter 9:23]

1.7.2 INTERNATIONAL LAW INSTRUMENTS

1. Universal Declaration of Human Rights (Universal Declaration)

2. International Covenant on Civil and Political Rights (ICCPR)

3. African Charter on Human and Peoples’ Rights (ACHPR)

1.7.3 CASES

1. AG v Times Newspaper Ltd 1974 AC 273


2. AG v News Group Newspaper [1986] Z AER 833

3. Canaan Sodindo Banana v The State 1998 (1) ZLR 309

4. Civil Liberties Organisation and Media Rights Agenda v. Nigeria,

Communication No. 140 of 1994 [ACHPR]

5. Charles Kwaramba v The Honourable Mr Justice Bhunu SC 46/12

6. Dagenous v Canadian Broadcasting Corporation [1995] 25 CRRI

7. De Lange NO v Smuts & Others 1998 3 SA 785 (CC); 1998 7 BCLR 779 (CC)

8. Government of the Republic of South Africa v ‘Sunday Times’ Newspaper 1995

(2) SA 221 (T).

9. In re Baleka 1986 SA 214 (T)

10. In re Chinamasa 2000 (2) ZLR 322 (SC)

11. In re Phelan (1877) Kotze 5 at 9

12. In re Munhumeso and others and Retrofit (Pvt) ltd and another (1995) 2 ZLR

199

13. Midi Television (Pty) Ltd v Director of Public Prosecutions [2007] SCA 56 (RSA)

14. Morgan Tsvangirai v The State HH 100/03

15. Nebraska Press assn v. Stuart 427 US 539, 562 (1976)

16. Retrofit (Pvt) Ltd V PTC & Anor 1995 (2) ZLR 199 (SC)

17. Roach v. Garvan [1740] 2 ATK

18. R v Beck and Others, exparte Daily Telegraph p/c and others [1993] Z AER 177

19. R v Davies: Ex Parte Delbert Evans [1945] 2 All ER 167.

20. R v hardy 1904 NLR 359

21. South African National Defence Union v Minister of Defence and Another [1999]

ZACC 7; 1999 (4) SA 469 (CC); 1999 (6) BCLR 615 (CC).

22. S v Harber and Another [1988] 4 All SA 496 (AD)

23. S V Hartmann & Another 1983 (2) ZLR 186 (SC)

24. S v. Makwanyane and Another 1995 (3) SA 391(CC)

25. S v Mamabolo (E-tv, Business Day and the Freedom of Expression Institute

intervening) 2001 (3) SA 409 (CC)

26. S v Manamela (Director-General of Justice Intervening) 2000 (3) SA 1 (CC)

27. S v Morgan Tsvangirai HH 169/2004

28. Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (Sc)A


http://www.saflii.org/za/cases/ZASCA/1988/34.html

29. S v Van Niekerk 1972 3 SA 711 (A) & 724

30. The Queen in Right of Canada v Beauregard

31. Van Rooyen & Others v S & Others (General Council of the Bar of South

African Intervening) 2002 5 SA 246 (CC); 2002 8 BCLR 810 (CC)

32. Woods and Anor v Minister of Justice and Ors 1994 (2) ZLR 195

1.7.4 TEXT BOOKS

1. Arlidge, Eady and Smith on Contempt 2nd Edition; Sweet and Maxwell 1999,

London.

2. C. R Snyman, Criminal Law 4th Edition Lexis Nexis, Butterwoths, Durban

3. Geoff Feltoe: Guide to Media Law in Zimbabwe Legal Resources Foundation

(LRF) November 01, 2002.

4. K Ritchie and G Ansell, Reporting the Courts – A handbook for South African

journalists (2006) SA

5. Jonathan Burchell and John Milton, Principles of Criminal Law Juta & Co

6. Mike Feintuck: media regulation, public intrest, and the law, Edinburg University

Press, Edinburg, Great Britain.

7. Nkosi Ndlela, Critical Analysis of Media Laws in Zimbabwe, 2003, Konrad

Adenauer Foundation. Germany.

8. Peter Carey: Media Law 2nd Ed, Sweet & Maxwell, 1996. London.

9. Thomas David Jones, Human Rights: Group Defamation, Freedom of Expression

and the Law of Nations, Kluwer Law International 1998 Netherlands.

10. Tom Crone: Law and the Media 3rd Edition, Focal press 1989 Great Britain.

11. Yvonne Burns: Media Law, Butterworths 1990.

1.7.5 ARTICLES

1. Contempt of Court – The Subjudice rule Discussion Paper; Law Reform

Commission of Scotland; http://www.scotland - judiciary.org.uk/

2. Hansard Parliamentary debates, 27,50:5078-9

3. Media and the Law - A handbook for community journalist she Freedom of

Expression Institute Braamfontein, Johannesburg


http://www.scotland-judiciary.org.uk/



4. The Subjudice Rule - Briefing Note by Glenn Penfold, Webber Wentzel Bowens for

the South African National Editors’ Forum.

5. The Doctrine Of Res Subjudice And The Right To Free Speech In The Tanzanian

Parliament: Finding The Balance: John Seka.

6. The Sub Judice Rule - Briefing Note by Glenn Penfold, Webber Wentzel Bowens for

the South African National Editors’ Forum

7. ‘Challenges to the Subjudice rule in South Africa’, Van Rooyen, K., 2014, HTS

Teologiese Studies/Theological Studies 70(1)

8. General comments

1.7.6 WEBSITES

1. http://www.achpr.org/press/

2. http://www.bishop-accountability.org

3. http://www.dailynews.co.zw/

4. http://www.dnaindia.com/india/

5. http://www.radiovop.com/

6. http://www.newzimbabwe.com

1.8 CHAPTER SYNOPSIS

This dissertation shall take after the following format;

CHAPTER 1

This chapter shall introduce the topic and give a brief background the Subjudice rule and the

right to freedom of expression and the media. The chapter outlines how the dissertation shall

unfold and the questions which it seeks to answer. It also gives the bibliography and the

chapter synopsis.

CHAPTER 2

This chapter defines the Subjudice rule and what it entails. The chapter also shows the

application of the rule.

CHAPTER 3


http://www.newzimbabwe.com/

http://www.radiovop.com/

http://www.dailynews.co.zw/

http://www.achpr.org/press/

This chapter introduces the second dimension of this research which is freedom of expression

and the media. This chapter shows the importance and role freedom of expression and media

in our society and why it should not be limited unjustifiably.

CHAPTER 4

This chapter analyses whether the Subjudice rule is justifiable in light of the import of the

new constitution on freedom of expression and the media. The chapter also shows values

which are protected by the Subjudice rule.

CHAPTER 5

This chapter gives a comparative analysis by looking at other jurisdictions. The chapter seeks

to show the application of the rule in other jurisdiction and the differences or similarities the

application has with ours. It also seeks to find and copy best practices in other nations.

CHAPTER 6

This chapter gives recommendations which can be used to improve our law and the

conclusion of the dissertation.


CHAPTER 2

THE SUBJUDICE RULE

“Be ye never so high, the law is above you” – Lord Justice Denning

2.1 Introduction.

The objective of this chapter is to give an overview on what the Subjudice rule is and how it

is a derogation from the right to freedom of expression and the media. In order to give a

critical and informative analysis of the application of the Subjudice rule in Zimbabwe there is

need to articulate great detail what the rule entails. This approach will also help to asses

whether this rule is a justifiable limitation on freedom of speech and the media. To achieve

this objective a sequential approach shall be taken to study the origins and development of the

Subjudice rule. The paper shall also show how the rule has been applied in our legal system

by looking into the relevant legislation and case law which interpreted the relevant sections in

legislation.

2.2 Origins of the Subjudice rule.

The Subjudice rule emerged in English law as a specie of contempt of court called contempt

ex facie curiae, meaning it happens outside the courts. “Subjudice” is a Latin term which can

be loosely translated as “under judgment”. The rule was founded under the jury system in

England and the early formulation of the rule was that any commend upon pending

proceedings violated this rule and is in contempt of court. The tests for Subjudice changed

over the years and because of non-jury trials it was further relaxed. The English courts

changed from criminalising “any comment” to comments which “tends to prejudice” the

outcome of the trial and then it changed to comments which bears a “substantial risk of

prejudice”4.

It becomes apparent that the Subjudice rule is a time-honored practice which has crystallised

into law. This law prohibits the making of inappropriate statements on matters pending before

the courts5. Contempt of court has been defined as that which consist in unlawful and

intentional violating the dignity repute or authority of a judicial body, or interfering in the

4 The Sub Judice Rule - Briefing Note by Glenn Penfold, Webber Wentzel Bowens for the South African National Editors’ Forum 5 Charles Kwaramba v The Honourable Mr Justice Bhunu SC 46/12


administration of justice in a matter pending before the courts6. The Subjudice rule as a form

of contempt of court deters and penalise the publication in the press or other media of any

information or commentary upon a matter which is under judicial consideration.

2.3 The objective of the Subjudice rule.

According to Peter Carey7 the object of this type of contempt is that trial must occur in the

court room rather than the media. This is because the proper forum in which to resolve legal

disputes is the courts not the media. The acceptability of the Court's administration of justice

and therefore the interests of an orderly society is likely to be harmed if the Court is brought

into contempt or if there is a pre-judging in the community and “trial by media”. In the case

of S v Harber8 trial by newspaper was called a “monster”. Therefor the existence of

contempt of court is founded in the belief that the public interests in the proper and effective

administration of justice by the courts of the land requires that the respect of the public for the

courts and their administration of justice must be maintained9. The media cannot be allowed

to be a quasi-judiciary body it is not its function.

According to S.R Snyman10 if the dignity and authority of a court or judicial officer is

undermined, the public respect for the administration of Justice and thus the whole legal order

suffers. The courts very existence and functioning are after all in the interests of the whole

community. In re Phelan11 it was stated:

“I do not in the slightest degree desire to fetter free and open discussion in the public

prints of the proceedings of this Court. The liberty of the press is a great privilege, and

a great safeguard to the public; but the administration of justice is, in like manner, a

matter of public importance. Consequently the law – the very protector of the liberty of

the press – will not, on the grounds of public policy, allow that liberty – its own creature

– to be abused and employed as an instrument to bring the administration of justice

into contempt.”

It is also important to note that the legal object protected is not merely the dignity or

reputation of the individual officers of the court but the office itself. One must be cognisant of

6 Yvonne Burns, Media Law, Butterworths 1990 7 Media Law 2nd Ed, Sweet & Maxwell, 1996. London 8 S v Harber and Another [1988] 4 All SA 496 (AD)9 Jonathan Burchell and John Milton, Principles of Criminal Law Juta & Co10 C. R Snyman, Criminal Law 4th Edition Lexis Nexis, Butterwoths, Durban11 In re Phelan (1877) Kotze 5 at 9


the fact that it is the administration of justice which is of paramount importance, and the

Subjudice rule is aimed at protecting the administration of judges and not to vindicate

individuals.

In the case of AG v Times Newspaper Ltd12 Lord Diplock explained the rationale for

protecting the integrity and credibility of our courts in the following passage:

“… in any civilised society it is a function of government to maintain courts of law to

which its citizens can have access for the impartial decision of disputes as to their

legal rights and obligations towards one another individually and towards the state as

representing society as a whole. The provision of such a system for the administration

of justice by courts of law and the maintenance of public confidence in it, are

essential if citizens are to live together in peaceful association with one another.”

The object of the Subjudice rule relates to the effective administration of justice and

upholding the dignity and authority of the courts. Since an effective administration of justice

is important in order to ensure peace, stability, and continuance of good order in the state.

However it is designed to prevent or punish violations of the dignity or authority of the courts

and not mere criticism of the administration of justice in the courts. The courts of Law must

be able to come to a decision without improper external influences.

The Subjudice rule realises that, the integrity of the judicial process is an essential component

of the rule of law. Rule of law demands that the judiciary must be separate and no person or

state should try to influence the decisions of the judiciary. The judiciary has to maintain its

independence and it must be free to decide on those matters before it, undisturbed and

unfettered by any outside influence13. The Subjudice rule maintain the rule of law by

preventing the integrity of the judicial process form being compromised.

The Subjudice rule protects the right to a fair trial. According to C.R Snyman the whole

concept of a fair trial presupposes a trial in which the court decides on the issues before it on

the basis of the evidence placed before it and not on the basis of statements or opinions in the

media. Pre emptying the decisions of the court is a clear violation of this rule.

12 1974 AC 27313 Tom Crone; Law and the Media 3rd Edition, (An everyday guide for professionals) Focal Press Great Britain 1989


2.4 The Subjudice rule in Zimbabwean law

Section 184 (1) (c) of the Criminal law (Codification and reform) Act [Chap 9:23] It states

that,

184 (1) (c) any person who makes any statement, whether written or oral, in

connection with any case which is pending before a court, intending the statement to

prejudice the trial of the case, or realising that there is a real risk or possibility that

the trial of the case may be prejudiced by the statement; shall be guilty of defeating or

obstructing the course of justice.

Therefore, this section clearly makes the definition of the Subjudice rule apply as a form of

defeating or obstructing the course of justice. Subjudice has always been a form of contempt

of court and 182 (1) states that,

182 (1) Any person who, by any act or omission, impairs the dignity, reputation or

authority of a court

(a) intending to do so: or

(b) realising there is a real risk or possibility that his or her act or omission may have

such an effect; shall be guilty of contempt of court and liable to a fine not

exceeding level six or imprisonment for a period not exceeding one year or both.

Contempt of court and the crime of defeating or obstructing the course of justice tent to

overlap. This means that acts which fall beyond the ambit of contempt of court could well fall

into the ambit of defeating or obstructing the course of justice. That’s why section encompass

the Subjudice rule as a form of defeating or obstructing the course of justice.

2.5 Application of the Subjudice Rule in Zimbabwean Courts.

The locus classicus for the application of the Subjudice rule is the case of S v Hartman14. In

this case it was held that the proper test to be applied in deciding whether or not a publication

was a contempt of court was that there had to be a real risk of interference with the due

administration of justice. The court went on further to explain that the statement had to be

examined objectively to determine whether there could be said to be a real risk that it was

likely to prejudice the fair trial of the action discussed in it. In this case the court showed that

it was pro freedom of expression. The reasoning of the court was that though it is permissible

to make an inroad into the protected right of freedom of speech in order to maintain the

14 1983 (2) ZLR 186 (SC)


authority and independence of the courts, that inroad should not be wider or deeper than is

required for the achievement of the declared objective.

The test which can be deduced from S v Hartman15 the law outlined is that the statements

published should pass for the publisher to be guilty of Subjudice. There are two major

elements of the crime of Subjudice. The publication made concerning a matter pending before

the courts should fulfill the following basic elements;

a) There must be a real risk or possibility that the trial of the case may be prejudiced by

the statement.

b) The person making the statement must have the intention to prejudice the trial of the

case.

The first element is an objective analysis of the statements made and an inquiry of the effect

of the statements made on the case at hand. The rationale behind this inquiry is that the courts

seek to protect the fundamental right of freedom of expression and to do that the inroads into

the right of freedom of speech should not be wider or deeper than is required for the

achievement of the declared objective. This test departed from the orignal test which only

inqured whether the statements had a tendency to prejudice or interfere with the

administration of justice. The previous tests was too great an inroad into the right of freedom

of expression and the media. This tests follows the English approach which inquires whether

there was a real risk, as opposed to a remote possibility, that the publication was calculated to

prejudice a fair hearing of the action discussed16.

Regarding the second element of intention it was held in the case of, In re Chinamasa17 that,

offence of contempt of court may be committed ex facie curiae by

“words spoken or published which are intended to interfere with, or are likely to

interfere with, the fair administration of justice. It is committed by the publication,

either in writing or verbally, of words calculated to bring a court, or the

administration of justice through the courts generally, into contempt.”

This passage shows that intention is a key element of the offense. And if it is said that a

publication is calculated to prejudice it shows that the person knew or should have known

15 Supra16 Supra17 2000 (2) ZLR 322 (SC)


that there will be prejudice and the person regardless of that went out of their own way to

publish the statement.

Another prominent case where there was claim of breach of the Subjudice rule was the case

of Morgan Tsvangirai V The State18 the applicant contented that the headline of The Herald

which read “Tsvangirai denied bail” and a cartoon at page 10 of the same newspaper,

apparently showing, in the third segment of the cartoon, the applicant counting his days as a

prisoner until July, was a gross violation of the Subjudice rule which prohibits comments

upon subjudice proceedings. And also contented further, that this constitutes contempt of

court and was done with malice. It was held that,

“only a remote possibility exists of a judge, imbued with basic impartiality, legal

training and power of objective thought, being consciously or subconsciously

influenced by extraneous matter…at a trial judges are not influenced by what they

may have read in the newspapers”19

The court’s reasoning was that it’s not every comment or statement which can be said to have

the potential to sway a judge. Therefore the test for Subjudice should be high, the court must

not take it lightly. This forms the basis of the strict objective test which requires a real risk of

prejudice.

This chapter has articulated the Subjudice rule and its application in Zimbabwe. It is clear that

the Zimbabwean approach to Subjudice has always been two pronged, an objective and a

subjective test. Statements made on pending cases in the courts must have a real risk of

prejudicing the course of the trial. Without a real risk there can be no claim of Subjudice. The

person who is alleged to have breached the Subjudice rule must also have intended or realised

that there is a real risk or possibility that the trial will be prejudiced. The judiciary has also

maintained that they are impervious of any extraneous influences whatsoever.

CHAPTER 3

The right to Freedom of Expression and the freedom of the Media

18 HH 100/0319 Morgan Tsvangirai v The State HH 100/03


“No greater calamity could come upon the people than the privation of free

speech.”Desmosthenes

3.1 Introduction.

The purpose of this chapter is to introduce the law on freedom of expression and the media

and analyse the extent and limitations of the freedom. This chapter will be a forensic analysis

of freedom of expression and the freedom of the media as contained in section 61 of the

Constitution of Zimbabwe. The chapter will also look at international law on freedom of

expression and the media. The approach of the court in light of the provisions of the

constitution and international law will also be analysed. This will provide the background to

analyse the Subjudice rule and make a finding on whether it is a justifiable limitation to

freedom of expression and the media.

3.2 The constitutional provisions of freedom of expression and freedom of the media.

Freedom of expression and freedom of the media is a fundamental right in section 61 of the

constitution. According to the relevant subsections to section 61 of the Constitution of

Zimbabwe;

Freedom of expression and freedom of the media

(1)Every person has the right to freedom of expression, which includes—

(a)freedom to seek, receive and communicate ideas and other information; (b)

freedom of artistic expression and scientific research and creativity; and (c) academic

freedom.

(2)Every person is entitled to freedom of the media, which freedom includes

protection of the confidentiality of journalists’ sources of information.

(4) All State-owned media of communication must,

(a) be free to determine independently the editorial content of their broadcasts or

other communications;

(b) be impartial; and

(c) afford fair opportunity for the presentation of divergent views and dissenting

opinions


Freedom of the media was not expressly provided for in the Lancaster house Constitution. In

Retrofit (PVT) LTD v Posts and Telecommunications Corporation20 it was held that the

constitutional provision did not only mean that persons were free to express themselves but

that they were not hindered in the means of expression. Though this interpretation of freedom

of expression extended it to freedom of the media, there was no clarity on the extent to which

freedom of expression provided protection to the media. Our Constitution now expressly

provides for it. It shows that freedom of expression as an indispensable condition for a free

and democratic society, is inextricably linked with freedom of the media. The constitution

reflects the realisation that our world view is arguably influenced more by the media than our

personal experience. We rely to a large extent on both the broadcast and the printed media as

communicators of politics, culture and of information and as such, the media exercise great

power in our lives21. Therefore as an institution that has such profound influence in our lives,

it has to be given proper recognition in the Bill of rights.

3.3 Relevant International law on freedom of expression and the media.

The Constitution encourages that members of the judiciary should keep themselves

knowledgeable about the developments in international law22. When interpreting the rights in

the constitution of Zimbabwe the court should take into account international law and all

treaties which Zimbabwe is a party to23. The judiciary must also prefer an interpretation of the

law which is consistent with customary international law24 or international treaties25 than the

one which is not.

Freedom of speech and the media as defined in the constitution is in line with Article 19 of

the Universal Declaration of Human Rights which states that,

“everyone has the right to freedom of opinion and expression; this right includes

freedom to hold opinions without interference and to seek, receive and impart

information and ideas through any media and regardless of frontiers.” Universal

declaration of Rights26

20 1996 (1) SA 84721 Mike Feintuck ; Media regulation, public intrest, and the law-Edinburg University Press, Edinburg, GB22 Section 165 (7) of the Constitution of Zimbabwe23 Section 46(1)(c) of the Constitution of Zimbabwe24 Section 326 (2) of the Constitution of Zimbabwe25 Section 327 (6) of the Constitution of Zimbabwe26 Article 19 of the Universal Declaration of Human Rights


Of the various international law treaties which were made pursuant to Article 19 of the

UDHR the one which is more relevant to Zimbabwe is ARTICLE 9 of African Charter on

Human and Peoples' Rights which gives every person has the right to receive information and

also the right to express and disseminate his opinions within the law. Furthermore the

Declaration of Principles on Freedom of Expression in Africa, adopted by the Commission in

2002 to supplement the provisions of Article 9 of the African Charter. Specifically, Principles

I (1) and II of the Declaration on Freedom of Expression respectively state that,

“freedom of expression and information…is a fundamental and inalienable human

right and an indispensable component of democracy” and “any restrictions on

freedom of expression shall be provided by law, serve a legitimate interest and be

necessary in a democratic society.”27

This declaration though not binding states the basic principle of the right to freedom of

expression and the media. From the Constitutional provisions stated above it is clear that our

constitution is in line with international law of the right to freedom of expression and the

media. The paper shall then analyse later whether the Subjudice rule is in line with

international norms on freedom of expression and the media.

3.4 The principle of Constitutional Supremacy

Zimbabwe is a constitutional democracy by virtue of section 2 (1) of the Constitution, which

states that, “this Constitution is the supreme law of Zimbabwe and any law, practice, custom

or conduct inconsistent with it is invalid to the extent of the inconsistency .” This means that if

the Subjudice rule is inconsistent with the constitution it is not valid to the extent of its

inconsistency and this may mean that it can also be wholly invalid if it is wholly inconsistent.

Therefore there is also need to determine the validity of this rule in our law.

Furthermore section 2 (2) states that the obligations imposed by this Constitution are binding

on every person, natural or juristic, including the State and all executive, legislative and

judicial institutions and agencies of government at every level, and must be fulfilled by them.

This shows that the inclusion of rights and freedoms in the bill of rights is fundamentally

increases their value and impact upon the law and society. Elevating freedom of expression as

a human right it means that every person, by the virtue of being a human has, as of right the

power to demand from society the freedom to express his or her right as contained in the

27 http://www.achpr.org/press/2015/05/d257/


http://www.achpr.org/press/2015/05/d257/

constitution without any impediment whatsoever. A human right is not acquired by grace,

favor nor is it earned but it is an inalienable guarantee or constitutional promise binding upon

society.

Furthermore it is a trite rule of statutory interpretation that when interpreting the rights

contained in the constitution one must give them a wider meaning than a restrictive one. A

liberal approach that leans more to protect the fundamental human rights is encouraged. It

was held in SMYTH v USHEWOKUNZE & ANOR28

“in arriving at the proper meaning of a constitutional provision guaranteeing a right,

the court should endeavour to expand the reach of the right rather than attenuate its

meaning and content. What is to be accorded is a generous and purposive

interpretation with an eye to the spirit as well as the letter of the provision, one that

takes full account of changing conditions, social norms and values. The aim must be

to move away from formalism and make human rights a practical reality.”

3.5 The importance of Freedom of Speech and the Media.

Freedom to express, interchange and communicate new ideas and advance critical opinions

about public affairs or the functioning of public institutions, are key to the survival of

democracy29. Furthermore, it was held in the case of that,

“Freedom of expression, especially when gauged in conjunction with its

accompanying fundamental freedoms, is of the utmost importance in the kind of open

and democratic society the Constitution has set as our aspirational norm. Having

regard to our recent past of thought control, censorship and enforced conformity to

governmental theories, freedom of expression — the free and open exchange of ideas

— is no less important than it is in the United States of America. It could actually be

contended with much force that the public interest in the open market-place of ideas is

all the more important to us in this country because our democracy is not yet firmly

established and must feel its way. Therefore we should be particularly astute to

outlaw any form of thought control, however respectably dressed.”

28 1997 (2) ZLR 544 (SC)A29 In re Chinamasa 2000 (2) ZLR 322 (SC) see also In re Munhumeso and Ors 1994 (1) ZLR 49 and others and Retrofit (pvt) ltd and another (1995) 2 ZLR 199


This quote shows that the south African constitutional court promoted free expression as long

as it is respectively dressed. This should also apply to comments upon pending proceedings

in court. If these comments are respectably worded, they should not be censored.

In In Re Mahumeso and others30 one of the broad major purposes is that it helps in

individual fulfillment. This is because speech is an expression of self, whether effected by

face-to-face exchange, or over the telephone, by writing, by pictures, or by any other mode.

The desire to communicate, to express feelings and thoughts and to contribute to discussion

and debate, is an essential attribute of human nature. To unreasonably prevent a person from

expressing a view, belief or emotion is to deny his or her basic dignity, freedom and

individual autonomy as a human being.

Furthermore, freedom of speech provides a mechanism to establish a balance between

stability and social change. Freedom of expression advances social stability while restraint

impedes rational discussion and reduces society's ability to adjust to changing circumstances.

The state is the guarantor of the principle of pluralism, which encourages diversity of views

and positions rather than a single approach.

This is a recognition of the important role that the media play in furthering the interest of

freedom of expression. As O‟Regan J stated in Khumalo v Holomisa at paras 22-4:

“The print, broadcast and electronic media have a particular role in the protection of

freedom of expression in our society. Every citizen has the right to freedom of the

press and the media and the right to receive information and ideas. The media are key

agents in ensuring that these aspects of the right to freedom of information are

respected. The ability of each citizen to be a responsible and effective member of our

society depends upon the manner in which the media carry out their constitutional

mandate.”

In this case it is quite clear that the media has constitutional mandate in furthering freedom of

expression in the public interest.

Freedom of speech assists in the discovery of the truth, the truth may emerge out of the

competition of ideas. Free speech strengthens the capacity of an individual to participate in

30 In re Munhumeso and Ors 1994 (1) ZLR 49


decision making. The halls of justice stand for the truth and frown upon lies so they must

have a bigger interest in enforcing free speech and expression.

The unfettered propagation of ideas and opinions enables members of the society to make

informed judgments on matters of national or private interests. As it was articulated in Woods

and Ors vs Minister of Justice and Others31 freedom of expression should be jealously

guarded.

Freedom of speech has its bearing on the core value and right of human dignity. Everyone

should be afforded the right to be heard. The most insignificant ideas must have an equal right

to be heard as those which are regarded as the most significant. Freedom of expression must

be protected not because the ideas are valid, but because they are relevant. The freedom of

ideas shall not be abridged.32

Furthermore, In the case of South African National Defence Union v Minister of Defence

and Another33

“The rights implicitly recognise the importance, both for a democratic society and for

individuals personally, of the ability to form and express opinions, whether

individually or collectively, even where those views are controversial.”

Therefore freedom of expression does not mean freedom to express one’s consensus with the

judiciary or any other organ of government but it is also means freedom to express ones

disagreement with the system. The courts should never be beyond public scrutiny, the public

has a right to criticize the courts more than the government of the day because judges are not

elected officials.

31 S-145-91

32 Thomas David Jones, Human Rights: Group Defamation, Freedom of Expression and the Law of

Nations, Kluwer Law International 1998 Nethrlands

33 South African National Defence Union v Minister of Defence and Another [1999] ZACC 7; 1999 (4) SA

469 (CC); 1999 (6) BCLR 615 (CC) at para 8.


3.6 The limitations of freedom of expression and the freedom of the media

Though freedom of expression is a vitally important right that is an indispensable condition

for a free and democratic society, it is not an absolute right34. The right has its limitations, for

with great power comes great responsibility. When exercising freedom of expression the form

of exercise must not infringe upon the right of others. Section 61 (5) of the constitution bears

such limitations which are;

61 (5) Freedom of expression and freedom of the media exclude

(a) incitement to violence;

(b) advocacy of hatred or hate speech;

(c) malicious injury to a person’s reputation or dignity; or

(d) malicious or unwarranted breach of a person’s right to privacy.35

These exclusions are clear as they are prescribed by the Constitution. Section 86 (2) of the

constitution prescribe that the fundamental rights and freedoms such as freedom of expression

and the media may be limited only in terms of a law of general application. But however in

order to protect constitutional rights the section further stated that, when limiting freedom of

expression the limitations imposed must be fair, reasonable, necessary and justifiable in a

democratic society based on openness, justice, human dignity, equality and freedom36. Such a

safeguard is important because to limit freedom of the media does not only affect the media

but it is limiting the rights of all citizens.

Law of general application that purports to curtail the full exercise of a constitutionally

protected right might take the form of legislation, or a rule of the common law, or even a

provision of the Constitution itself. In each case the extent to which the intrusion that it

purports to make upon a protected right is constitutionally valid is to be evaluated against the

standard that is set by the provisions of section 86 because there are no other grounds upon

which it is permissible to limit protected rights.

3.7 The international standard on limitations to Freedom of expression.

34 Retrofit (Pvt) Ltd v PTC & ANOR 1995 (2) ZLR 199 (SC)

35 Section 61 (5) of the Constitution of Zimbabwe

36 Constitution of Zimbabwe section 85 (2)


Zimbabwe in not a party to the International Convenent on Civil and Political Rights

(ICCPR) but the treaty articulates the basic norm on International Human rights law

regarding freedom of expression and the media. Article 19(3) of the ICCPR states that, the

exercise of freedom of expression and the media carries with it special duties and

responsibilities. It may be subjected to certain restrictions, but these must be provided by law

and necessary for respect of the rights and reputations of others; for the protection of national

security or of public order, or public health or morals. The European Convention on Human

Rights in article 10(2) goes even further to explicitly mention the maintenance of the

authority and impartiality of the judiciary.

3.8 Subjudice rule as a limitation to freedom of expression and freedom of the media.

There are various limitations to the right of freedom of expression and freedom of the media

but the focus of this research is to deal with one limitation which is the Subjudice rule. It is

not only a time honoured practise of common law but it has crystallised into law. It prohibits

certain comments from being made, which may prejudice the trial of a pending case.

Although the Subjudice rule is permissible limitation to the right of freedom of expression by

virtue of it being a rule of common law and statute law, there is still one consideration left

which is the enquiry of whether it is a justifiable limitation to freedom of speech in line with

the new constitutional dispensation.

3.9 Conclusion

This chapter has shown that freedom of expression and freedom of the media is a

fundamental and inalienable right in our constitution. A vital component of freedom of

expression is free press and a free and vigorous press plays a vital democratic role by

supplying the people with a range of information and reporting the various views and

opinions of the people. A free Press helps to curb abuses of power and to make those in

positions of power more accountable. A free press will ensure a free and fair judiciary since it

will be subject to public scrutiny. However it has its limitations and one such limitation is the

Subjudice rule. The next chapter shall delve into the justifiability of this rule.


CHAPTER 4

THE JUSTIFICATION OF THE SUBJUDICE RULE.“No greater calamity could come upon the people than the privation of free speech.”

Demosthenes

4.1 Introduction

This chapter shall determine whether the Subjudice rule as a limitation of freedom of

expression and freedom of the media, is justifiable in a democratic society imbued with

impartiality, openness, justice human dignity and freedom37. To determine the justifiability

and the relevance of this rule there is need to look at relevant case studies and show a clear

picture of what is actually occurring in societal practice and state policy. The writer shall look

at relevant case studies which show breach of the Subjudice rule and the impacts of non-

adherence to this rule if any. In the analysis the paper shall show the various defences given

for not applying the rule and the position that the rule must be relegated to the annals of

history. A conclusion shall be reached on the issues arising and show a way forward.

4.2. Dydimus Mutasa and Rugare Gumbo v ZANU PF and The President of

Zimbabwe.38

This case involved two Members of parliament for ZANU PF39 that were challenging their

ouster from the party and Government. In a statement broadcasted on national television and

later almost in every newspaper, the president of Zimbabwe R.G. Mugabe, speaking at the

official opening of Africa Chrome Fields’ (ACF’s) smelting plant in Zibagwe, he said that

“the court application that Mutasa and former Zanu PF spokesman Rugare Gumbo had

filed against him and the ruling party was not one for the judges to handle.” 40 The

president added controversially that “he would also question the qualifications of any

judge who would accept to hear the case41.”

Commenting on the statements made by the President, Constitutional law expert Alex

37 See the Constitution of Zimbabwe Amendment (No. 20) Act, 201338 Th Daily News 8 March 2015 1:09pm, http://www.dailynews.co.zw/ se also the Herald 8 March 2014, see also Lawyers Say Mugabe Warning To Judges Intimidatory Prejudicial 08/03/2015, Voice of the people, http://www.radiovop.com/ 39 Zimbabwean African National Union Patriotic Front. The Zimbabwean Ruling Party.40 The Daily News 8 March 2015 1:09PM, http://www.dailynews.co.zw/41 Ibid


http://www.radiovop.com/


Magaisa42, said Mugabe’s remarks were in bad taste and had the net effect of inducing fear

among judges43. Given the position he held.

“I think it’s unfortunate that the president has had to go down that route. Judges must

not operate in circumstances that induce fear and intimidation... These statements

might be regarded as pre-empting the judicial decision-making process and it also

puts a dent on judicial independence. If Mutasa and Gumbo’s case has no merit, let

the courts make that determination,”44

Professor Lovemore Madhuku45 had this to say on the issue,

“The major problem with Mugabe is that he has limited understanding of the law. He

studied law in prison and he never went to a law school. So his understanding of law

is limited... There is no matter or dispute that cannot be brought to court. Under the

constitution there is no matter that can be said to be non-judiciable. Mugabe is

ignorant of this fact...What his lawyers should do when they go to court is to raise the

issue that Mugabe’s remarks, as one of the respondents, were inappropriate as the

matter is sub judice, and therefore his defence in court should be dismissed on that

basis...Unfortunately, there are no remedies to the matter because a president cannot

be arrested. But the Chief Justice can issue a statement like what Chief Justice Enoch

Dumbutshena did in 1989 calling upon the executive to stop interfering with the

judiciary”46

Dewa Mavhinga47, said Mugabe was undermining the independence of the judiciary.

“As a party to the court case in question, President Mugabe should not be making

any comments about the chances of Mutasa’s case succeeding... That is for the court

and the court alone to decide. As head of state representing the executive arm of

government, Mugabe’s statements undermine the independence of the judiciary and

the constitutional principle of separation of powers, President Mugabe should respect

the constitution which requires that the executive cannot infringe on the independence

42Constitutional Lawyer quoted in Lawyers Say Mugabe Warning To Judges Intimidatory,Prejudicial 08/03/2015 18:24:00,Voice of the People, http://www.radiovop.com/43Ibid44 Ibid45 Professor at the University of Zimbabwe and Constitutional Law expert. Quoted ibid note 37 46Ibid47Human Rights Watch Southern Africa senior researcher quoted in The Daily News 8 March 2015 1:09PM,



of the judiciary and legislature and vice-versa. Such unwarranted and pre-emptive

criticism of the judiciary amounts to intimidation,”48

In response to the statements of the President cited above, The Law Society of Zimbabwe

through its President also issued a press statement quoted above on page 20. According to

The Herald,49 below are the statements read on his behalf by the Chief Registrar of Superior

Courts Mr Munamato Mutevedzi at a Press conference on 10 March 2015;

“The Chief Justice calls upon all to refrain from publicly commenting on matters

under consideration by the courts in violation of the sub-judice rule,…Although the

law allowed reports on court cases of public interest, such reports or comments

should not seek to interfere with the administration of justice. The Chief Justice also

said...Notwithstanding the comments and reports on pending matters, the Chief

Justice reassures all that matters before the courts are and will be determined in

accordance with nothing other than the law,…The Chief Justice notes with concern

the proliferation in the public media of inappropriate comments on matters pending

before the courts, contrary to the time honoured and internationally accepted practice

of refraining from publicly commenting on matters that are sub-judice,…However,

such reports and comments must not seek to, or be perceived as seeking to prejudice,

influence or interfere with the due administration of justice or fair trials of the matters

reported on.”50

Furthermore in a press statement the President of the Law Society of Zimbabwe had this to say concerning on the issue of the executive commenting on pending proceedings before the courts; LAW SOCIETY OF ZIMBABWE [LSZ] PRESS STATEMENT ON COMMENTS MADE ON MATTERS BEFORE THE COURTS The LSZ is concerned about the recent comments by members of the Executive arm of the

state regarding matters pending before the courts. The public has been at the mercy of

conflicting and completely polarised views regarding the propriety or otherwise of a

statement that has been attributed to His Excellency, the President of the Republic of

Zimbabwe Cde. R. G. Mugabe.

48The Daily News 8 March 2015 1:09PM, http://www.dailynews.co.zw/. See also Mutasa can’t fight his case before the same people who expelled him. https://www.newsday.co.zw/2015/03/12/49The Herald March 11 2015, Chidyausiku warns media. . .dissuades public comments on matters before the courts. 50 The Herald March 11 2015, Chidyausiku warns media. . .dissuades public comments on matters before the

courts.


The Chief Justice has rightly stepped in to bring sobriety to the whole matter. The doctrine of

separation of power is part of our law and this is enshrined in our Constitution. It was

accordingly necessary that respect to this doctrine be restored….

The dark cloud however hovers over the question of the rule of law. How confident can we be

that decisions of the courts will be respected? The Executive owes the nation an assurance

that the decisions of the courts will be respected even if they go against the Executive, the

ruling political party or other powerful individuals. Recent comments do not inspire that

confidence in the litigating public especially those who sue the state…

We remain committed to justice and the Rule of law.

LSZ – PRESIDENT51

The above statement contain some of the remarks made by the President of the Law Society

of Zimbabwe pertaining the comments made by the executive and published in most of the

media sources. This shows how the executive can use the media to try and influence the

course or even prevent the springs of justice from flowing. The rule of law dictates that the

judiciary must be independent from the executive. The Subjudice rule seeks to uphold the

rule of law.

Though the various commentators show that there was breach of the Subjudice rule the court

never determined any issue regarding the Subjudice rule. From the quote by Lovemore

Madhuku52 he made it clear that there was no remedy to the matter because the president

cannot be arrested. However as he had suggested the Chief Justice, came out and scolded all

those who were trying to influence the decisions of the courts. In the statement made by the

Chief Justice quoted above, he made it clear that the judiciary is independent and will not be

pressurised by any external influence. Based on this it can be said that one can say that what

the country needs is an independent judiciary not an unenforceable Subjudice rule.

In comments made by the various commentators in the legal arena various arguments have

been raised justifying the Subjudice rule. The following paragraphs shall look at these

arguments and in the end show whether they justify the Subjudice rule

4.3 The protection of the rule of law and the independence of the judiciary

51 Press statement by the Law Society of Zimbabwe President on comments made on matters pending before the courts; ZIM LEGAL SOCIAL FORUM(Z.L.S.F) https://www.facebook.com/groups/245991552106876/

52 Ibid note 44


The basic principle underlining the rule of law is that one can never be so high as to be above

the law.53 The law include the Subjudice rule on one hand and the guarantees of freedom of

expression on the other. The laws of the land especially the supreme law of the land, the

constitution, binds every person natural or juristic, including the state, executive, legislative,

judicial institutions and agencies of government54. “Any practice, custom or conduct

inconsistent with the constitution is invalid to the extent of its inconsistency.”55 The various

rights and guarantees in the constitution must be self-evident in society for there to be rule of

law.56 The violation of any rule if that rule is proved constitutional and the constitution does

not expressly oust it, is a violation of the rule of Law.

According to Tom Crone57 the essence of the Subjudice rule is that, the courts must court

must be free to decide on those matters before it unhindered and unfettered by any external

influences. This is also the essence of the principle of the independence of the judiciary.

However as it was shown before, protecting the independence of the judiciary through a

criminal offence which is difficult to enforce will never reach the required end.

The constitution gives the rule of law and also separation of powers as independent

principles. These principles are better protected independently and enforced independently

rather than through another principle in the form of the Subjudice rule. That will be trying to

export new wine in old wine skins. Section 164 (2) of the Constitution58 states that; The

independence, impartiality and effectiveness of the courts are central to the rule of law and

democratic governance and therefore neither the State nor any institution or agency of

government at any level, and no other person, may interfere with the functioning of the

courts; The state, through legislative and other measures, must assist and protect the courts to

ensure their independence, impartiality, dignity, accessibility and effectiveness and to ensure

that they comply with the principles set out in section 165.59

53Per Lord Denning, Gouriet v Union of Post Office Workers and Others [1977] CA54The Constitution of Zimbabwe, Amendment no. 20 section 2 and 355Ibid56Ibid 57 Tom Crone, Law and the Media 3rd Edition (An Everyday Guide To Professionals) 1989 Great Britain58 The Constitution of Zimbabwe, Amendment no. 20

59The Constitution of Zimbabwe section 164 (2)


The independence of the judiciary has been defined by Chief Justice Dickson, former Chief

Justice of Canada as;

“The complete liberty of individual judges to hear and decide the cases that comes

before them. For this to be evident no outsider; be it government, pressure groups,

individuals or even another judge should interfere in fact, or attempt to interfere, with

the way in which a judge conducts his or her case and makes his or her decision.."60

A judge should value independence above gold, not for his or her own benefit, but because it

is of the essence of the rule of law.61 Therefore the integrity of the judicial process is an

essential component of the rule of law. If the rule of law is itself eroded through

compromising the integrity of the judicial process then all constitutional rights and freedoms

are also compromised.

The Indian position according to Mr. Justice G.N. Ray62 is that,

“The media is expected and obligated to work within the framework of Constitution

and other relevant statutes and guidelines framed by the Press Council of India, the

statutory regulatory body for the print media in the country, and similar other bodies

by way of minimum standards of ethics to be observed and followed by media so that

by observing the same, media in turn enjoys higher standards of protection in the

matter of freedom of expression. It goes without saying that for this, an independent

and fair judiciary is a sine qua non.”63

This statement shows that the Indian press is required to follow certain ethical standards in

reporting. The Subjudice rule can be an ethical standard a principle that works outside

criminal law but instilled through ethical reporting which does not seek to influence the trial

or prejudice the accused.

60 De Lange NO v Smuts & Others 1998 3 SA 785 (CC); 1998 7 BCLR 779 (CC) para 70; see also Van Rooyen & Others v S & Others (General Council of the Bar of South African Intervening) 2002 5 SA 246 (CC); 2002 8 BCLR 810 (CC) para 19, citing The Queen in Right of Canada v Beauregard (1986) 30 DLR (4th) 481 (SCC) 49161Lord Chief Justice Phillips, 2007. The rule of Law is also part of the Founding values of our Constitution according to section 3 (1) (b)62 Law Lecture by Mr. Justice G.N. Ray, Chairman, Press Council of India on “Reasonableness of restrictions

on reporting on matters sub judiced” on August 31, 2008 at Bhubaneswar organised by Gora Chand Pattnaik Memorial Trust http://presscouncil.nic.in/OldWebsite/speechpdf/Bhubaneswar%20Law%20Lecture.pdf

63Law Lecture by Mr. Justice G.N. Ray, Chairman, Press Council of India on “Reasonableness of restrictions on reporting on matters sub judiced” on August 31, 2008 at Bhubaneswar organised by Gora Chand Pattnaik Memorial Trust http://presscouncil.nic.in/OldWebsite/speechpdf/Bhubaneswar%20Law%20Lecture.pdf


Furthermore one may argue that the judiciary must earn their respect just like everyone else.

This respect must not be imposed upon the people and society should have the same right to

criticise judicial mechanisms as they have to criticise government machinery. That is to say

all public officials in the executive the legislature and the judiciary must be subject to public

scrutiny and criticism.

Freedom of expression and the media and independence of the judiciary are important

principles in a free and fair democratic society. According to Mr. Justice G.N. Ray,

“A free press is not to be preferred to an independent judiciary, nor an independent

judiciary to a free press. Neither has primacy over the other, both are indispensable to

a free society. The freedom of the press in itself presupposes an independent judiciary

through which that freedom may, if necessary, be vindicated. And one of the potent

means for assuring judges their independence is a free press”.

Therefore, a balance should be struck between the two. None of these fundamental principles

should be ousted but they all need to be enjoyed for the betterment of our society.

The right to freedom of expression and the media not to be preferred to an independent

judiciary, nor an independent judiciary to a free press either. The integrity of the judiciary is a

right, contrary to argument that the judiciary have to earn their respect, just as constitutional

rights do not have to be earned or deserved but are inherent in every person by the virtue of

being a human being, the respect and integrity of the judiciary inhere by the virtue of it being

the judiciary. It is not also enough that the courts are independent but the public must know

and see that the courts are independent.

4.4 The protection of the right to a fair trial.

The Subjudice rule protects the right to a fair trial therefore violation of the Subjudice rule

undermines the right to a fair trial.64 The predetermination of the matter and influencing the

minds of the judiciary violates this right. An accused person is to be regarded innocent until

proven guilty. When statements have the capacity to limit a person’s defense either by

64Article 10 of The Universal Declaration of Human Rights guarantees that, Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. See also African Union, the African Commission on Human and Peoples Rights.


deterring witnesses and situations when witnesses alter their statements to fit in with what is

being stated in the media the right to a fair trial as a fundamental human right is abridged.

In cases against the state and the state seeks to influence the outcome of the case by

commenting in the media, the old adages nemo iudex in causa sua that one must not be a

judge unto his cause and audi alteram partem the right to be heard must be applied. Therefore

prejudging especially when you are a party to the proceedings is prejudicial. The true test for

a fair hearing is the impression of a reasonable man who was present at the trial whether from

his observation justice has been done in that case. Fair trial must almost always take

precedence over the right of freedom of speech and the media. What is at stake here is the

liberty and dignity of an individual.

Furthermore, it is the contention of this paper that the Subjudice rule, where it protects the

right of the accused to a fair trial or of the civil litigant to have his rights

determined according to law justifies a temporary curtailment of freedom of expression

and the freedom of the media65. The reason is not because of the circumstances of the

particular accused or civil litigant but that every citizen has an interest in the due

administration of justice. This value is equally fundamental to every democratic society

and, in some instances, more so.

4.5 Prevention of trial by Newspaper.

As the name suggests this is when the media turns itself into a quasi-court. When this occurs

the media ignores the golden principles of innocent until proven guilty and that the threshold

for guilty is guilty beyond any reasonable doubt and goes on to pre-empt and prejudge a

cases pending in the courts before the courts have made any determination.

According to Devinish66

“The most objectionable part, and unfortunate too, of the recently incarnated role of

media is that the coverage of a sensational crime and its adducing of ‘evidence’

begins very early, mostly even before the person who will eventually preside over the

65Media and the Law - A handbook for community journalist she Freedom of Expression Institute Braamfontein, Johannesburg. fxi.org.za/PDFs/Publications/MediaandtheLawHandbook.pdf

66 See Devinish, TRIAL BY MEDIA PREJUDICING THE SUBJUDICE


trial even takes cognizance of the offence, and secondly that the media is not bound by

the traditional rules of evidence which regulate what material can, and cannot be

used to convict an accused. In fact, the Right to Justice of a victim can often be

compromised in other ways as well, especially in Rape and Sexual Assault cases, in

which often, the past sexual history of a prosecutrix may find its way into newspapers.

Secondly, the media treats seasoned criminal and the ordinary one, sometimes even

the innocents, alike without any reasonable discrimination. They are treated as a

‘television item’ keeping at stake the reputation and image. Even if they are acquitted

by the court on the grounds of proof beyond reasonable doubt, they cannot resurrect

their previous image. Such kind of exposure provided to them is likely to jeopardize all

these cherished rights accompanying liberty.”67

Materials which can cause prejudice when published to a defendant in civil or criminal

proceedings can be accused’s previous convictions and prior conduct before or during trial,

identifying an accused before plea or initial appearance, implications of guilty before verdict,

threats against witnesses, judges and obstructing officials.

4.6 The Cain Nkala murder case.

A case study of the media reports surrounding the case of the murder of Cain Nkala 68 the late

Bulawayo War Veterans leader will show the extent of gross trial by media. In this case the

media conducted its own private investigation and a footage of Nkala’s exhumation was

shown on television while it was announced that Nkala was murdered by MDC terrorist

including the names of the alleged killers, Khethani Sibanda and Sazini Mpofu were among

the accused persons. Furthermore on 13 November 2001 statements were apparently aired on

Zimbabwe state television stating that the accused persons had made confessions implicating 6768 For the information on the media reports sorrounding the case of the murder of case of Cain Nkala this research has depended on information from MEDIA MONITORING PROJECT ZIMBABWE MEDIA UPDATE # 2001/46, http://pambazuka.org/en/category/media/4443

The ZANU PF Bulawayo Chairman,as then he was, Jabulani Sibabanda was quoted saying, “That is terrorism and we are going to fight it… Politically, militarily, whichever way. We have got the right as a people to defend ourselves. And I have got a right to mobilize my people in my province against terrorism and that I am going to do” This shows media statements did not only throw the principle of innocent until proven guilty out of the door but the statements were couched in hate speech and state propaganda advocating for violence againist its own cistizens. Minister John Nkomo was interviewed by Ruben Barwe on ZTV, and Ruben Barwe asked, “...Could you infer that this was done in a military fashion because shoe strings really don’t kill people?” the minister answered, “…this is an operation very reminiscent of what the Selous Scouts used to do and we can read and see very clearly a similar pattern in this particular area”. Andrew Ndlovu said, “…Now we have realized that it (MDC) is a terrorist party and we feel…that the MDC must be banned with immediate effect”.(ZBC, 14/11/2001, 8pm)


http://pambazuka.org/en/category/media/4443

themselves and others in the abduction and subsequent murder of Cain Nkala. The footage

also showed the accused persons being interrogated by the police on National television and

the report stated that they were giving indications of where they buried the body. There was

total disregard of the fact that the alleged confessions were made after the two of the accused

persons were gruesomely tortured by the police.69 The rights of the accused persons where

undressed.70

In this case the mighty fourth estate never investigated or reported about the alleged torture of

the accused persons in gross violation of the rights of accused and detained persons. The

media was used as a medium to perpetuate further violation of the accused persons. Neither

did the court convict anyone for contempt of court or even issue a statement to tell the media

to dissuade from the campaign against the accused persons.

Furthermore the statements made regarding the allegations that the suspects had money and

guns on them, was not based on any evidence which support the statements. Moreover the

Herald published two articles which seemed like the writer had actually witnessed the murder

first hand titled “MDC reliving the Nazi era”71 and “Nkala prayed for his captors”72. The

writer described the abduction of Nkala, how he begged for his life and in his last moments

asked if he could make a last prayer in which he did not only pray for his soul and the lives

of his wife and children but also that “God forgive his captors”73. The death of Cain Nkala

was compared to that of Jesus Christ. All this occurred while the matter was pending before

the courts. Surely Freedom of expression cannot be used to violate the rights of another

human being to such an extent. If freedom of expression is not absolute in any jurisdiction

the framers of constitutions the world over sought to protect the public against such

irresponsible exercise of freedom of expression.

69 Findings on the Human Rights Situation in Zimbabwe by United Nations and Regional Human Rights Bodies (2000-2005) Findings on Human Rights in Zimbabwe by UN and regional bodies. By The International Commision of Jurists (ICJ) on the 61st session of the United Nations. At paragraph 1889

70Section 50 (1) (c) state that, Any person who is arrested must be treated humanely and with respect for their inherent dignity.71The Herald 14 November 200172The Herald 16 November 2001

73 Ibid


After the trial the court came to the decision which shocked everyone that the accused

persons where innocent of the crime. Most people were shocked because they had been led

by the Media to believe that the accused persons where guilty of the crime and some still do.

The right to liberty of the accused persons was protected and in the end there was a fair trial

but the judicial process was brought into contempt. Justice must not only be done but it must

be seen to be done. Adherence to the principles of the Subjudice rule in this matter would

have caused less harm on freedom of expression than on the dignity and rights of the accused

persons.

The media had negated the principle of innocent until proven guilty and that the threshold for

guiltiness is guilty beyond any reasonable doubt. This was in clear violation of the Subjudice

rule, and certainly does reduce the people’s confidence in the administration of justice. If

people lose confidence in the judicial system it will create an environment of fear and people

will resort to self-help. There can be no doubt that this was an unchecked interference with

the administration of justice and the worst case of trial by media.

Trial by newspaper or by media is and remains a real danger to a fair and impartial disposal

of an issue in the judicial process.74 The media as the fourth estate holds overwhelming

power. The media has the ability to control the moods and emotions of a people. It can be

used to drive change or propaganda. People feed off the media each and every day. The

media in Zimbabwe is also largely state owned. The only nationwide television broadcasting

network and all the radio stations except one owned by a member of the ruling party are all

state owned. The Largest Print media distributing company, ZimPapers, is also state owned.75

This shows that the largest amount of media is controlled the executive which commands a

majority in parliament and appoints members of the judiciary. Certainly if there is any truth in

the age old adage that power corrupts and absolute power corrupts absolutely, therefore with

great power there must be great responsibility.

4.7 Onismus Sibanda v. Archbishop Pius Ncube

74 See S v Harber and Another [1988] 4 All SA 496 (AD) that an absolute rule against prejudgment is necessary in order to prevent a gradual slide towards trial by newspaper or Tele-vision.

75 Parliamentary debates, 27,50:5078-9 in a democratic society, government has no greater right to be heard than anybody else. The imposition of government's views on every broadcast is an unconstitutional infringement of the right of freedom of expression.


In the case of Onismus Sibabnda v Archbishop Pius Ncube, while the case was pending

before the courts President Robert Mugabe made a statement that he will be praying for

Archbishop Pius Ncube who was at the centre of a sex storm involving a married woman and

possibly up to ten other women, he said in a televised speech on 18 July 2007.76 President

Mugabe said he would pray for the Roman Catholic bishop to be redeemed by God for his

"sins".77 This was said after Onesimus Sibanda filed a Z$20 billion78 lawsuit alleging that the

cleric bedded his wife over a period of two years. State media had reported that Ncube slept

with at least 10 other women during the period he was being trailed by a private investigator.

In addition to the comments made by the President state media Newsnet showed clips of

Ncube in bed with Sibanda's wife and another unidentified woman. State media went on

further than just showing clips of Ncube in bed with Sibanda's wife and another unidentified

woman, it went into an overdrive over Ncube's alleged steamy sexual peccadilloes with a

married woman. This drew criticism from the Media Institute of Southern Africa (MISA

Zimbabwe)79. The media coverage by ZBC, The Chronicle and The Herald, was against

ethical journalism and the principle of fair and balanced reporting. The matter was also before

the courts and thus violated the Subjudice rule.80 The press statement by MISA Zimbabwe

went on to state that, the state media was embarking on a parallel 'legal process' and

persecution of the Archbishop, acts which should be condemned as unacceptable from any

media that intends to be respected and believed by society.81

Furthermore this was a perfect example of the abuse of state media by those in power for

political gain just like the murder case of Cain Nkala in which the security agents colluded

with the state media to tarnish the alleged perpetrators of the murder well before the court

case. Zimbabwe was shocked that after mounting such 'evidence' against the 'perpetrators' the

76Televised speech addressed to mourners and ZANU PF supporters who gathered at the burial of the late Brigadier General Fakazi Muleya. Story by Torby Chimhashu, New Zimbabwe July 18, 2007 http://www.newzimbabwe.com/pages/roma37.16690.html . See also www.bishopaccountability.org 77Ncube had been a thorn on Mugabe's side and was respected worldwide for his stand against human rights abuses in Zimbabwe. Ncube has said he prayed for Mugabe's death and is amiable to a foreign military invasion of the country to oust the 83-year-old leader.78 Amount is in the then currency of Zimbabwe, Zimbabwean Dollars. Was reported to be equivalent to (£80

000) according to http://www.bishop-accountability.org79 http://www.bishop-accountability.org80 Loughty Dube, Misa Zimbabwe chairman, http://www.bishop-accountability.org

81Ibid


http://www.bishopaccountability.org/

http://www.newzimbabwe.com/pages/roma37.16690.html

courts found the accused innocent.82 On behalf of MISA-Zimbabwe, he made a call for the

respect of the restorations of the rights of the parties and the media to engage in fair and

accurate reporting.

This paper is not advocating for the muzzling of the press. This paper is against the

perpetuation of injustice by the press hiding behind freedom of expression and the media. If

freedom of expression is not exercised responsibly it will become a powerful instrument of

injustice. The powers given to the media must be used in service of the public and they create

an obligation of honour to exercise this purpose only with the utmost sense of responsibility.

The contending entitlements of the court to uphold its authority and of the freedom of the

expression and the media to comment on matters of public interest must be reconciled.

Without freedom of expression there society will be in fetters. Freedom of expression and the

media, however, is not an end in itself but a means to an end of a free and democratic society.

The same applies to the independence of the judiciary for the proper functioning of an

independent judiciary puts the freedom of expression and the media in its proper perspective.

The media must never be used by the government of the day to seek a conviction. The media

must never be a medium to violate human rights. In the case of In re Phelan 187783. It was

held that,

“I do not in the slightest degree desire to fetter free and open discussion in the public

prints of the proceedings of this court. The liberty of the press is a great privilege and

a great safeguard to the public. Consequently the law – the very protector of the

liberty of the press – will not on the fronts of public policy allow that liberty – its own

creature – to be abused and employed as an instrument to bring the administration of

justice into contempt.”

One human right cannot be used to erase another.

4.8 Prevention of any prejudice

82 Ibid 83 as cited in Guide to Media law In Zimbabwe by G Feltoe, Legal Resources Foundation (LRF) November

01, 2002. archive.kubatana.net/docs/resour/021101mediaguide_gf.pdf


It is rare for judges to be influenced by what they hear in the press however, judges are

human. There is the influential pull of the unconscious. Since judges, however, unfaltering,

are human, the subtle task of administering justice ought not to be made improperly

challenging by irresponsible publication. While the media may, in the public interest, make

rational criticism of a judicial act or the judgment of a court for public benefit, they should

not cast scandalous accusations on, or impute indecorous motives or personal prejudice to the

judge.84

According to Lord Widgery CJ in A-G v Times Newspapers Ltd

“It is widely recognised that a professional judge is likely to be unaffected by

temperate comment on the case before him, even though that comment is one sided,

but we should not, in our judgment, too readily accept the proposition that a judge

sitting alone is not open to prejudice of this kind. Unfortunately, the comments made

on pending proceedings are not always temperate, and, indeed, they may in some

instances be so strong as to amount to a threat to the judge that if he does not follow

the arguments there put forward, he may be severely criticised, if not pilloried

subsequently.”85

There still also remains a further consideration which is of fundamental importance that

justice must not only be done but it must manifestly and undoubtedly be seen to be done.

Parties to a case and even outsiders should be satisfied that the courts conclusion is based

only upon information laid before the court in an admissible way and in the absence of any

external meddling forces. There is also need to remove any such suspicion to restore public

confidence in the judiciary.

Furthermore it is the contention of this research that the person making the statement and the

environment prevalent in the state may make even the simplest of statements prejudicial.

Statements made by Government officials are to be regarded as more prejudicial than those

made by the common person. Earlier it has been alluded to that the media is largely in the

hands of the ruling party and also taking into consideration the fact that during the land

84K Ritchie and G Ansell, Reporting the Courts – A handbook for South African journalists (2006)

85[1972] 3 All ER 1136 (QBD) at 1142c-d:


reform cases Judges were being attacked in public, the war veterans invaded the supreme

court and the Chief Justice and some judges were forced to resign. The people's confidence in

the judiciary especially when the case involves the ruling party is very low.

4.9 To maintain public confidence in the administration of justice

The justifiability of the law of contempt has been before the courts before and in this instance

it was the case of In re Chinamasa86 the Supreme Court decided that the crime was not

unconstitutional. The court maintained that the courts should certainly be criticised, and the

courts are certainly strong enough to withstand criticism. However the court went on further

to state that criticism should never be calculated to create real or substantial risk of impairing

the public confidence in the administration of justice. The court also decided that although

contempt of court restricts freedom of expression, the limitation imposed upon this right is

reasonably justifiable in a democratic society. Because of the narrow formulation of the rule it

does not excessively limit the right of freedom of speech. Freedom of expression must be

weighed against public confidence in the administration of justice.87

4.10 Conclusion

This chapter has shown that though the Subjudice is underlined by very important principles

it should be invoked narrowly and only when justified in the circumstances. There is nothing

in and of itself malicious in commentary and discussion of proceedings whether before,

during, or after its conclusion. Indeed, it is healthy in egalitarianism for public officials to

comment on matters of public concern. There is a significant and fundamental difference

between commenting on litigation and inappropriately influencing that litigation or the

integrity and neutrality of the courts. The law is there to address certain mischief in society

and it must be wide enough and also limited enough to address that particular mischief. The

day we abandoned the law for lawlessness is the day our society fall. The survival of our

society is dependent upon respect of the law and the suppression of absolute power.

CHAPTER 5

86 2000 (2) ZLR 322 (S)

87 See also the South African case of S v Mamabolo 2001 (3) SA 409 (CC)


Comparative analysis

5.1 Introduction

This chapter will give a comparative analysis of how the Subjudice rule applies in other

jurisdictions which have adopted this rule from English Law. The Chapter shall look at the

application of the Subjudice rule in South Africa, Tanzania and then England itself. This

chapter shall look at the Constitutions and the penal codes of the respective countries. It shall

also look at the common law or case law of that country. This chapter shall note the

differences or similarities in the formulation and application of the Subjudice rule in these

jurisdictions.

5.3 The South African approach

To give a clear picture of how the Subjudice rule has been applied in South Africa I shall first

look at the relevant enactments, the impact of the constitution in interpreting the Subjudice

law and then how case law has defined the parameters of the Subjudice rule.

5.3.1 Freedom of expression, press and the media.

Section 16 (1) (a) guarantees everyone’s right to freedom of expression, which includes

freedom of the press and the media and freedom to receive and impart ideas. O’ Regan J in

Khumalo v Holomisa88 at paragraphs 22-24, stated that,

“The print, broadcast and electronic media have a particular role in the protection of

freedom of expression in our society. Every citizen has the right to freedom of press

and the media and the right to receive information and ideas. The media are key

agents in ensuring that these aspects of the right to freedom of information are

respected. The ability of each citizen to be a responsible and effective member of our

society depends upon the manner in which the media carry out their constitutional

mandate. The media thus rely on freedom of expression and must foster it. In this

sense, they are both bearers of rights and bearers of constitutional obligations in

relation to freedom of expression.”89

88 2002 (5) SA 401 (CC) paragraphs 22-24

89Ibid


An efficient and autonomous media is a vital agent in ensuring that the government is

transparent, open responsive and accountable to its citizens.90

From the above passage it is clear that the South African interpretation of freedom of

expression and the media is mostly the same as ours.91 In practice though, it can be disputed.

It is given a wide interpretation and it is recognised as the hallmark of an independent and

democratic society. In South Africa it was also recognised that the freedom has to have its

limitations. Section 36(1) of the Constitution of South Africa provides that:

“The rights in the Bill of Rights may be limited only in terms of law of general

application to the extent that the limitation is reasonable and justifiable in an open

and democratic society based on human dignity, equality and freedom, taking into

account all relevant factors including

(a)the nature of the right,

(b)the importance of the purpose of the limitation,

(c)the nature and extent of the limitation,

(d)the relation between the limitation and its purpose,

(e)less restrictive means to achieve the purpose.”92

The limitation clause in the South African constitution is couched in a slightly different with

ours. However the effect of the provision is by and large the same with section 86 of the

Zimbabwean Constitution. The application of these limitations essentially entails the

balancing of values and the benefits of the rights vis a vis the benefits of the infringements.93

In the case of S v Mamabolo and others94 Even though freedom of expression is essential to

our democratic society, it is not absolute. It must be construed in the milieu of the other

values enshrined in the Constitution. In this case, the values are human dignity, freedom and

equality.95

90 Government of the Republic of South Africa v Sunday Times Newspaper and Another1995 (2) SA 221 1-228 A

91 See Retrofit (Pvt) Ltd v P.T.C and Another 1995 (2) ZLR 19992 Section 36 (1) of the Constitution of South Africa 199793 See S v. Makwanyane and Another 1995 (3) SA 391(CC)94 2001 (3) SA 409 (CC) at paras 40-41.

95www.sanef.org.za/images/uploads/Sub_Judice_Rule_March_2005.pdf . See also S v Mamabolo (E.TV and others intervening) 2001 (3) SA 409 (CC) at paras 40-41.


5.3.2 The Subjudice rule in South Africa.

Section 39(2) of the Constitution of South Africa provides that when a court develops the

common law, it must promote the spirit, purport and objects of the Bill of Rights. This means

that the court should ensure that the common law (including the Subjudice rule) is consistent

with the fundamental rights set out in the Bill of Rights.

The case of Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions96

maintained the Subjudice rule is part of South African law as a species of contempt of court.97

The case confirmed that a publication will be in contravention of the Subjudice rule if the

prejudice which might be caused to the administration of justice is “demonstrable and

substantial” and there is a “real risk” that prejudice will occur to proceedings pending98

before the courts if publication takes place. According to Van Rooyen 2014,

“Mere conjecture or speculation that prejudice might occur will not be enough...

Applying the ordinary principles that come into play when a final interdict is sought,

if a risk of that kind is clearly established, and it cannot be prevented from occurring

by other means, a ban on publication that is confined in scope and in content and in

duration to what is necessary to avoid the risk might be considered.”99

In the during the trial of Oscar Pistorius the trial became a media circus, possibly with much

more publicity than any other trial in the region. Television cameras were fixed into the

courtroom, there was live coverage of the trial. Several concerns were raised about the breach

of the subjudice rule however unlike the case studies in Zimbabwe shown in the previous

96Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (WC) 2007 (5) SA 540 (SCA)97According to Burchell and Milton Principles of Criminal Law 2 nd Edition (1997) at 693, one commits contempt of court by unlawfully and intentionally violating the dignity, repute or authority of a judicial body or interfering in the administration of justice in a matter pending before it.98 The Subjudice rule applies to “pending” proceedings. Criminal proceedings are probably pending from the

moment of arrest, summons or a warning to appear. Civil proceedings are pending from the time of issue of summons or an application is launched. Proceedings remain pending until all appeals have been exhausted or the time period for the lodging of an appeal has expired. R v Davies : Ex Parte Delbert Evans [1945] 2 All ER 167. Greater latitude is given in relation to statements that are published after the initial matter has been decided by a court but while an appeal is being pursued (see Kelsey Stuart’s Newspaperman’s Guide to the Law 5th ed. (1990) at 107).

99 Van Rooyen, K., 2014, ‘Challenges to the Subjudice rule in South Africa’, HTS Teologiese Studies/Theological Studies 70(1), Art. #2714, 9 pages. http://dx.doi.org/10.4102/hts.v70i1.2714


page there was no improper motive by the media houses calculated to influence the

proceedings in any way.

In the judgment by Mlambo J in the case of Multichoice (Pty) Ltd and Others v National

Prosecuting Authority and Another; In Re: S v Pistorius and Another Related Matter 100the court specifically held that

“[I]t has come to my attention that there are media houses that intend to establish 24

hour channels dedicated to the trial only and that panels of legal experts and retired

judges may be assembled to discuss and analyse the proceedings as they unfold.

Because of these intentions, it behoves me to reiterate that there is only one court that

will have the duty to analyse and pass judgment in this matter. The so-called trial by

media inclinations cannot be in the interest of justice as required in this matter and

have the potential to seriously undermine the court proceedings that will soon start as

well as the administration of justice in general.”

It is clear from Mlambo J’s order that he was cautious to ensure that Pistorius is not maligned

as an accused person, as his disparagement would pose a prospective impairment to the

course of justice. The interests of justice demand that fair trial rights stay supreme. It is

imperative to bear in mind that the path of justice is not only concerned with the consequence

of the trial or the substantive issues but also the whole process.

According to Brenda Wardle101 From the stance taken by the South African Constitutional

Court, it apparent that it can never be held that the public has a more greater right to be

informed which supplants the rights of rights of an accused person to be tried in a manner that

is fair and humane. Brenda Wardle

It is also pertinent to note that publication will not be considered unlawful unless a court is

convinced that the cons of curtailing the free flow of information outweigh its advantages. In

making that evaluation, the court does not only consider the interests of those associated with

100 [2014] 2 All SA 446 (GP)101 The sub judice rule and the Oscar Pistorius case: Will the crime of contempt of court ex facie curiae

become abrogated by disuse? By Brenda Wardle LLB LLM (Unisa) is Chief Operations Officer at Wardle

College of Law in Johannesburg


the publication but, more importantly, the interest of every person having access to

information.

5.4 The English Approach

The Subjudice rule in England is codified under the contempt of court Act of 1981 and it is a

strict liability offence section 2 (2) which simply states that the strict liability rule applies

only to a publication which causes a substantial risk that the administration of justice in

pending proceedings will be gravely prejudiced or impeded.102

The common law form of contempt was much stricter since the requirement was a tendency

to prejudice. The enactment of this statutory provision seems to be in response to the decision

of the case of European Court of Human Rights in Sunday Times v. United Kingdom.103

The case was brought before the European Court for Human Rights after the UK court had

granted a ban against the paper to publish the stories regarding the Thalidomide case104. The

European court applied a three part test, that is;

(a) the infringement on freedom of expression was prescribed by law

(b) There was a legitimate aim of maintaining the authority of the judiciary

(c) but it was not necessary in a democratic society.

The court rejected that there were competing principles in this issue but just one principle of

freedom of expression that is subjected to various exceptions and these exceptions must be

narrowly interpreted. The court also concluded that the public interest in this case was too

high to restrict freedom of expression. The court ruled that in this case the law restricting

comments upon prejudicial cases was in violation of freedom of expression therefore the

injunction was overruled.

Therefore the law in England now which corresponds or which is in line to freedom of

expression is now similar to ours which needs a substantial risk of prejudice. However in

England the rule is stricter than in Zimbabwe and South Africa because of the fact that

England unlike Zimbabwe and South Africa still uses the jury system. The jury system

102http://www.cps.gov.uk/legal/a_to_c/contempt_of_court/ . See also Textbook on Civil Liberties and Human Rights By Richard Stone, https://books.google.co.zw/books?isbn=0198701551103 The Sunday Times v. United Kingdom, Series A No. 30, 14 EHRR 229.104These cases involved people who had been affected by the use of the drug called Thalidomide and they were suing the manufacturers of the drug.


http://www.cps.gov.uk/legal/a_to_c/contempt_of_court/

comprises of a jury of ordinary people and they are more prone to external influence than

judges.

5.5 The Tanzanian Approach

In the Tanzanian Bill of Rights, article 17 that provides for a number of fundamental rights

including the right to free speech. The Constitution of the United Republic of Tanzania has

recognised the right to free speech under Article 18 of the Constitution. Article 18 of the

Tanzanian Constitution basically states out that, every person has a freedom of opinion and

expression of his ideas including freedom to communicate and receive protection from

interference with his communication. It also includes the right to be informed at all times of

various important events of life and activities of the people and also of issues of importance

to the society.

Free speech like in any other jurisdiction has its usual restrictions. Restriction to the right to

freedom of speech is provided for under Article 30 which states that human rights in the

constitution should not be exercised in a way that infringes upon the rights of others or

society. Freedom of speech cannot also render unlawful any law or lawful act in accordance

with the law for the purposes of preventing prejudice to the rights of others. Most importantly

article 30 (2) (d) of the Tanzanian Constitution restricts free speech for the protection of the

reputation, rights and freedoms of others or the privacy of persons involved in any court

proceedings, prohibiting the disclosure of confidential information, or safeguarding the

dignity, authority and independence of the courts.

5.5.1 Subjudice Rule in Tanzania.

The fact that the Tanzanian constitution allows derogation from free speech to protect the

rights of others and to safeguard the dignity, authority and independence of the judiciary

shows influence of the Subjudice rule. Furthermore section 114 of the Tanzanian Penal Code

provides that,

Contempt of court (1) Any person who–

“(d) while a judicial proceeding is pending, publishes, prints or makes use of any

speech or writing, misrepresenting the proceeding, or capable of prejudicing any

person in favour of or against any parties to the proceeding, or calculated to lower

the authority of any person before whom that proceeding is being had or taken; is


guilty of an offence, and is liable to imprisonment for six months or to a fine not

exceeding five hundred shillings.”105

One can see that the formulation of the Tanzanian contempt of court law in relation to the

Subjudice rule shown is clearer than in our law. It talks about misrepresentation of the trial

and the capabilities of prejudice in favour or against any party. These are not directly

addressed in our law. This shows that the Subjudice rule is in use in Tanzania the same way as

it is in our jurisdiction however it lacks like in our case proper mechanisms and guidelines as

to its application.

5.5 Evaluation and Conclusion

This Chapter has shown that the Subjudice rule applies in most jurisdictions like ours. The

Subjudice rule is not only relevant in jurisdictions with a jury but also jurisdictions without

one. It has been shown that the Subjudice rule is an elusive concept and more has to be done

in order to conscientise the public about this principle and make sure everyone understands

their duty to uphold the rule of law and the independence and dignity of the judiciary.

The other jurisdictions referred to in this chapter have a different political atmosphere than

ours. This is relevant because law does not operate outside politics but in a political

environment. In the Zimbabwean political atmosphere the main perpetrators of the Subjudice

rule are the government officials. Their main objective is to intimidate the judiciary and the

persons seeking justice. It is pertinent that in order for any democratic society to have a

healthy growth public officials should have respect for the law and the judicial process. The

people will only have confidence in the judicial system if their leaders lead by example.

CHAPTER 6

Recommendations and conclusion.“Legal obligations that exist but cannot be enforced are mere ghosts that are seen in the law

but are elusive to the grasp.” Oliver Wendell Holmes J

105www.academia.edu/7361489/SUB_JUDICE_RULE_IN_TANZANIA


6.1 Recommendations

For law to have any function in society it does not only have to be codified, but there must be

certainty about the law, state policy should be in line with the law, administrative measures to

facilitate the law should be put in place and there must be effective judicial remedies. The

enforcement of this rule has proved difficult.

The law relating to the Subjudice rule is uncertain. In our law, at times, it is not certain

whether the Subjudice rule constitutes contempt of court or obstruction of justice or both.

There are no clear guidelines on the actions that breach the Subjudice rule. The law needs to

specific. This removes the air of mystery around this rule and makes the law clear.

There should be an ethical code of conduct that guides the media. This is not done to curtail

free press but to promote fair and accurate reporting. Not even state media is above the law; it

must work within the framework of the constitution. In Zimbabwe there is need of a free,

independent and responsible press. The code of ethics should include restriction on; making

payments to witnesses to comment on the evidence they will give in court or to extract

information from them before the trial; intimidating witnesses; publishing information

obtained from confidential court documents106; reporting on the defendant's prior convictions;

mounting an organised crusade to influence court proceedings; reporting on court

proceedings in contravention of reporting restriction or a court order; breaching gag order;

anticipating the course of a trial or pre-emptying the outcome; revealing the identity of child

victims or defendants, witnesses or victims of sexual offences.

Respect for the law is like a river that flows from the mountain top going downwards.

Respect for the law should begin from the highest offices of government. Hence state policy

should reflect what the law says, because the negation of even the smallest of laws might

have great consequences. There is need for reform on the part of the state to desist from

trying to influence the coursed of justice and the independence of the judiciary.

The state should also consider replacing a Subjudice rule as a specie of contempt with a Sub-

judice principle. The ethical principle would accomplish the deterrent and punitive character-

106 www.out-law.com › Topics › TMT & Sourcing


istics of the rule, but courts and tribunals should still be in charge of granting a suitable rem-

edy, in proper circumstances.

State policy is reflected through the pronouncements and acts of the executive. Public

officials should openly disapprove actions that try to stifle the administration of justice and

publicly promote the administration of justice, independence of the judiciary, the rule of law

and fair trials. The proper functioning of a state is dependent upon the people in that state to

be law abiding citizens. The executive and all public officials should spearhead these

practices.

The state should take appropriate administrative measures to ensure that the media does not

engage in Subjudice. Preventative or proactive measures should be encouraged rather than

reactive measures. If a Media Commission is eventually established, there is need to establish

an independent state owned media or to do away with state owned media and privatise it. The

need of an independent media cannot be gainsaid. Journalists should not work in fear but they

must be given freedom within the confines of the constitution. That is what freedom of the

media entails.

More considerations on guidelines can be publishing details of a defendant's lifestyle, if

related to the charge. Recording or filming inside court premises without permission.

Reporting proceedings concerning Mental Health Act applications and national security in a

way contravening the law, adoption and other children related hearings.

In India the Supreme Court laid down the constitutional principle which will allow the

aggrieved parties to seek from appropriate court the postponement of the publication of court

hearings.107 The concerned court will make a determination on whether to postpone reporting

court proceedings on case-by-case basis. This practice will inform the practice that the

judiciary does not condone violation of the Subjudice rule and will work more as a deterrent

measure than a punitive one.

To enforce the law there must be effective judicial remedies. There has been no judicial

enforcement of the Subjudice rule where it actually matters. The fact that there has been

107http://www.dnaindia.com/india/report-no-guidelines-to-regulate-media-reporting-of-sub-judice-matters-sc-1739372


flagrant violation of this rule while the judiciary is yet to convict anyone shows the public

that certain laws can be ignored. It also shows that it is an empty law one which does not

need to be followed hence the gross violation of the Subjudice rule. After so much flagrant

violation of this rule surely someone should have answered to contempt of court or

obstruction of justice charges. The judiciary needs to come out and publicly denounce or

discourage breaches of the Subjudice rule. During the media circus surrounding the Mutasa

case the Chief justice published a statement directing the media to refrain from commenting

upon pending proceedings in a way that seeks to influence the court or impair the

administration of justice, this was a step in the right direction and it needs to be done more

often when the need arises. The courts also need to fulfil their major function of enforcing the

law. Enforcement of laws by the courts acts as a deterrent measure to would be perpetrators.

The judiciary needs to send the message that the law is not dead.

There is need for certainty of what is Subjudice what constitutes Subjudice and the nature of

acts which are protected under the Subjudice rule. It is pertinent that, criminal law, of

which contempt of court is a stem of, ought to be as certain as the behaviour which

it seeks to deter permits. Freedom of expression is fundamental to a democracy and it

should only be curtailed when the cause is justifiable. Therefore there is need for certainty.

A state controlled press does not exhibit the fundamental tenets of the right of freedom of

press and the media. While a responsible press will make sure that in the course of carrying

its duties it does not infringe on people's rights, a free and independent press promotes

freedom of expression speech and the media. This facilitates investigative journalism where

the press determines the real issues and disseminates accurate and informed information to

the public. This is what facilitates accountability and a progressive democratic institutions

and government.

6.2 Conclusion

This research has shown that freedom of expression and freedom of the media are

fundamental inalienable human rights. It has been noted that though these rights are

guaranteed they must be exercised responsibly. However there are not absolute they are

limited by the constitution and also by the law as long the limitations are justifiable in an


open free and fair democratic country. It has been shown that the Subjudice rule is a

justifiable limitation to freedom of expression and the media.

This paper has shown that the Subjudice rule is applies where comments made upon pending

proceedings pose substantial risk to the administration of justice. It has been established that

this test balances the right to freedom of expression and the media with the application of the

Subjudice rule which promotes the administration of justice, fair trial, independence of the

judiciary and the rule of law.

The dissertation also made a comparative analysis with other jurisdictions similar to ours. An

evaluation was made on how these countries have balanced the right to freedom of expression

and the media with the Subjudice rule. The paper concluded with recommendations of what

the writer thinks should be done in applying the rule in Zimbabwe. The paper has also

included best practices of other nations in its recommendations.

There is more to be done in our law in order to uphold the law. It is the trend that principles

which seek to uphold fundamental human rights such as the right to fair trial and the rule of

law are always negated for political reasons. It is time we have to move away from

politicising the administration of justice. The courts must be given room to exercise their

functions and if there is criticism let it be fair and honest criticism. There is need to maintain

the people's confidence in the judiciary.


The Subjudice Rule.

Documents

subjudice rule

freedom of speech

law of justice

common law

law of contempt

statute law

law of general application

criminal law codification