The abused cop-out that is the sub judice rule

2015-03-09 10:00

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What did he know and when did he know it? That is the question that confronted Deputy President Cyril Ramaphosa in Parliament this past week. It is a question that former US president Richard Nixon chose not to answer rather than face impeachment. He resigned instead.

The allegation was that Nixon had stolen (or caused to be stolen) audio tapes of his telephone conversations with various insalubrious characters because

the tapes implicated him in unlawful conduct. That was in June 1973 in Washington.

A little shy of 42 years later, the same question was put to our deputy president inside the parliamentary chamber in Cape Town.

It related to the irrationally unexplained presence of a signal-jamming device in the parliamentary chamber that made it impossible for journalists to post parliamentary news on social media platforms and elsewhere in the performance of their constitutional right. Ramaphosa, too, performed a deft toyi-toyi around the question and invoked the careworn sub judice rule.

South African politicians aren’t known for falling on their swords in the face of what some among us might consider unlawful conduct.

That is beneath our politicians and their God-given right to lead us all to the Promised Land.

Politicians are ambidextrous creations that, like the main character in a Shaolin movie, have the uncanny knack of always landing on their feet, against all odds.

So, true to form, the deputy president did not disappoint. Sub judice, said he, and that was that.

But was it, really? Of all the legal defences available to humanity, thesub judice rule is probably the most abused in South Africa.

A relic of the trial-by-jury system, it was intended to serve as a shield for juries from being possibly improperly influenced by comments outside the courtroom about the case on which they would soon deliberate and render a verdict.

Thus, juries would be forbidden from talking to anyone outside their number about the case they were hearing, lest they be influenced.

This led to reverence for thesub judice rule, which means “still under consideration by a jury”.

But in South Africa there is no danger of a jury being improperly influenced by the loud musings of a deputy president about a signal-jamming device inside the parliamentary chamber.

Simply put, we don’t even have juries. Here we have people called judges to deliberate on these things. And our law affords them the presumption of impartiality.

In other words, judges are presumed to be impartial even in the wake of a deputy president’s owning up inside the parliamentary chamber to knowing a thing or two about how, why, when and by whom a signal-jamming device came to festoon the parliamentary columns.

In any event, what is said in the parliamentary chamber stays in the parliamentary chamber. It is privileged and cannot be used to hoist the deputy president by his own petard in subsequent court proceedings.

In short, the sub judice rule does not avail the deputy president.

Ngalwana is a senior counsel member of the Johannesburg Bar

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