Online Reporter
Trust Maanda
Legal Position
WHEN matters are before the courts, the public is discouraged from discussing them.
The rule against discussing in the public domain, matters that are before the courts for adjudication is called the sub judice rule. The term sub judice is defined in Black’s Law Dictionary as meaning “before a court or judge for determination”.
It is a legal principle that prevents public discussion or proceedings on a matter that is currently before a court.
This rule is designed to avoid interfering with the administration of justice. Courts must not be influenced by public opinion on a subject matter that is pending before them.
Even courts themselves defer to each other. If a matter is pending before a court of competent jurisdiction, another court cannot comment or be seized with the same matter unless the decision is appealed to it or an application for review is made.
If a matter is pending before the Supreme Court, the High Court is reluctant to hear a matter that is “sub judice the Supreme Court,” meaning the case is still pending before the Supreme Court.
The purpose of the sub judice rule is to prevent any real risk of interference with the fair and impartial administration of justice.
This rule applies to all public discussions and proceedings that could affect a case currently before the courts. This prevents judicial interference and enjoins all institutions and citizens to respect the judicial process.
The sub judice rule may be viewed as a rule of court, a statutory rule, a parliamentary convention or simply a practice that has developed in the interaction between the media and public officials.
It is mainly aimed at preventing the publication of statements that may prejudice court proceedings.
Even institutions like Parliament must generally defer to the judicial process once a case is before the courts.
When the rule is applied to parliamentary proceedings, it bolsters the concept of separation of powers.
Parliament and the judiciary have separate and distinct roles which each must respect.
It is a rule that is steeped in the concept of the rule of law.
The specific duty of Parliament to observe the sub judice rule was expressly recognised and reaffirmed in Zvoma N.O. v Moyo & Ors 2012 (1) ZLR (H).
The rule is recognised as an essential component of the rule of law and as binding on the conduct of Parliament.
There are, however, some limitations or exceptions to the sub judice rule when it comes to Parliament. However, the general principle is that when the judiciary is seized with a matter, even Parliament has to defer to the judicial process.
The primary purpose of the sub judice rule is to avoid a real risk of interference with the due administration of justice.
See S v Hartmann & Anor 1983 (2) ZLR 186 (SC). It is aimed at preventing external factors from influencing the determination or outcome of legal proceedings and, as a result, the course of justice.
We often hear people passing comments on a pending case, “analysing” the evidence or “dismissing” it, or even “convicting” the accused, as if they were judges who are presiding over the case.
The rule is to avoid prejudging of the case and interfering with the thought process of the court. The administration of justice must not be interfered with. Justice must be left to take its course and the administration of justice allowed to function.
It is not permissible to discuss in a radio or television talk show the proceedings before court.
This rule binds journalists as well. If they report on a pending case, the media must report facts of what is happening in court, but should not analyse the facts and the law, and giving a verdict on the matter.
This is not like in football where any commentator can comment about the type of play by a particular team or player, while the match is going on. It is not like in soccer where people are allowed to predict the winner and the score line.
In these days of social media, the sub judice rule is often disregarded. When one opens the comment section of any article on pending court cases, one comes across so many “judgments” from the court of public opinion. That amounts to a crime of contempt of court.
In the case of S v Hartmann & Anor 1983 (2) ZLR 186 (S), it was established that that any comment on a matter which is sub judice will constitute contempt of court if that comment created a real risk of prejudicing the outcome of the case before the court.
An accused person is presumed innocent until they are proven guilty before a court of law. The public must allow the law to take its course.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
