As an investigative journalism unit, a core part of our task involves sending questions to various entities.
These can include individuals allegedly involved in criminal activity, companies that appear to be fronts or facilitators of crime and government departments that may have engaged in irregularities.
Sending these questions is a fundamental part of our investigative process and we couldn’t do our job without them.
Not only do they create the avenue for the subjects of our investigations to get their right of reply, but they also provide vital information in helping us join the dots in our investigations.
We get many different types of responses. Some detailed and helpful, some hostile, some evasive and some incomprehensible.
What is concerning though is the increasing reluctance from state officials and departments to respond to questions and share information, even though they have a constitutional duty to do so.
Transparency and openness are vital elements of public service; in fact, the Constitution requires that public administration “be governed by the democratic values and principles enshrined in the Constitution including [that] transparency must be fostered by providing the public with timely, accessible and accurate information.”
During the investigation into the tenders awarded by Johannesburg Water for the provision of water tankers, our investigators Susan Comrie and Buyeleni Sibanyoni sent detailed questions to Johannesburg Water.
One portion of the questions related to one specific tender, the award of which, we later learnt, was being challenged in court.
Johannesburg Water responded to those questions with a bald refusal, saying that “[t]he above-mentioned tender is currently sub judice given the court application that Johannesburg Water is currently opposing. Johannesburg Water therefore cannot respond to the media query (i.e. questions 1 to 24) until the court processes have been finalised.”
This resort to the sub judice rule has become a common response from South Africa’s public servants, but it is fatally flawed.
The South African law on sub judice was fundamentally impacted when the Constitution was adopted, given the Constitution’s protection of freedom of expression and access to information, as well as the values of transparency and accountability it introduced.
In 2007, the Supreme Court of Appeal delivered judgment in Midi Television (Pty) Ltd v. Director of Public Prosecutions (Western Cape).
This case involved a television documentary on the Baby Jordan Norton case – the murder of a six-month old baby that had gripped the country. The provincial director of public prosecutions sought to prevent the broadcast of the documentary and the case became the first real test of the constitutional balance between media freedom and the need to protect the judicial process.
The sub judice rule exists to protect the integrity and independence of court processes and to prevent trials “by media”. It prohibits the publication of material that may influence the decision-makers in a case and is particularly important for jury trials as members of the juries are less equipped to resist external influence than professional judges.
It is therefore immediately clear that the sub judice rules loses some relevance in South Africa as we have no jury trials.
The Midi Television case, however, also highlighted the important role our constitutional framework plays in the application of the rule.
This judgment brought the sub judice rule in line with our Constitution and its protection of the right to freedom of expression.
The old test prohibited any publication of information that had a ‘mere tendency’ to prejudice ongoing legal proceedings.
Now, following Midi Television, the sub judice rule only applies when there is a ‘real risk’ of ‘demonstrable and substantial prejudice’.
The Supreme Court of Appeal also ensured that the application of South Africa’s sub judice aligns with international practice on the sharing of information with the media.
In our investigation into the tenders awarded by Johannesburg Water, there was no justification for the public entity to refuse to answer our questions because the case was sub judice.
There was no indication that their answers would create a ‘real risk’ of influencing the outcome of the proceedings or that any influence would create ‘demonstrable and substantial prejudice’.
Our piece on the red flags in Johannesburg Water’s tenders with Builtpro and Nutinox highlights how flouting tender principles threatens service delivery and the achievement of basic human rights.
But our investigation also demonstrated how the other constitutional principles of transparency and accountability are trampled on by public entities who hide behind the incorrect application of the sub judice rule.
