Introduction
Constructive contempt is a form of contempt of court that is committed outside of court or not in the presence of the court. The elements that may be deduced from the foregoing is that the impugned act must happen ex facie the court; the person acting must be in violation of a present or pending order of court; there must also be mala fides on the part of the person so acting. Sub judice is a species of constructive contempt, and it is the main focus of this research.
Sub judice Rule Application
Under the common law doctrine of constructive contempt, there is the sub judice rule. The sub judice rule can be traced back to Roach v Garvan, when Lord Hardwicke held that:
“There are three different sorts of contempts. One kind of contempt is scandalizing the court itself. There may be likewise a contempt of this court in abusing the parties who are concerned in causes here. There may also be a contempt of this court in prejudicing mankind against persons before the cause is heard.”
The third type has been interpreted to be the sub judice rule. The rule is a limitation on freedom of speech, (especially the media that has the tendency to publish opinions that have potential to influence the masses). In the case of Moafrika Newspaper Re: Rule Nisi (sub judice matter) (In Rex vs Mokhantso and Others), the court remarked that:
“The subjudice rule places a temporary limitation upon freedom of expression regarding a comment that creates a real and substantial risk of prejudice to the fair determination of the proceeding pending in court.”
In Phaila v Principal Secretary Ministry of Local Government, the court clarified that the rule is limited to publication and freedom of expression. It found that:
[a]pplicant further contends that continuing with the disciplinary hearing constitutes breach of the sub judice rule as this matter is already being dealt with in the magistrates’ court. Yet again he demonstrates a misconstrual and misapplication of this legal concept. The essence of the sub judice rule is that it is inappropriate to publish or comment in the media on pending or on-going judicial proceedings. Any such conduct is punishable as contempt of court… I fully agree with Respondents’ counter-argument that the question of sub judice does not arise at all in casu, as the conduct of disciplinary proceedings does not amount to publication and is not likely to influence the magistrate. That is to say, there will be no real risk of substantial prejudice to the administration of justice.
The foregoing means that the sub judice rule does not arise in matters that do not involve a publication and the act (disciplinary proceedings) will not influence the fact-finder. In casu, the DPP’s impeachment is not a publication and will not influence the judge in the pending proceedings.
Justification
In the Moafrika case, Peete J held that:
“[t]he main purpose of the common law sub judice rule is to protect the fair administration of justice against any statement that has the substantial effect of prejudicing the impartiality, dignity or authority of the court which is seized with the pending court proceedings.”
Stuart also views that the sub judice rule’s “purpose is to maintain the administration of justice.” In the case of Phaila, the court observed that “[t]he aim of the rule is to protect the administration of justice.” Also, said that the rule has potential to influence the jury or judge, witnesses or the public. The jury or judge are at risk of reaching an improper decision; the witness may be reluctant to come forward to testify, and withhold the vital evidence; the public may undermine the integrity of the justice system and lack confidence in the administration of justice or the justice system.
Test
In the Moafrika case, the court laid down the test of contempt in terms of the sub judice rule as “substantial risk of prejudicing or interfering with the pending court proceedings” Although he laid down the minority decision Mason CJ endorsed the substantial risk test over the tendency to prejudice the administration of justice, which was endorsed by the majority.
Exception
In Australia, Walker observes that public interest is a defence regarding the sub judice contempt. He finds that the defence enables the courts to found that although an act (or publication) has a real and substantial risk of prejudicing the conduct of the proceedings (administration of justice), it does not amount to a contempt because the act relates to a matter of great public importance and interest. In the case of Moafrika, the court observed that:
“[w]ithout a free media there is no free society. A free media is the bulwark and watchdog of the public interest. A free media is a means of mass communication and if responsibility characterizes it, it becomes a reliable barometer or litmus of public opinion… Consequently, I am of the view that statement made in the Moafrika on a matter of public interest such as the one in casu even though seemingly outrageous, offensive or intemperately worded, still comes within the protection of section 14 of the Constitution of Lesotho. This should not be taken to offer a carte blanche to the press to invade or abuse the subjudice rule without good cause and a true sense of responsibility.”
Conclusion
The DPP cannot successfully raise the sub judice rule if the PM continues with the impeachment. However, should she raise constructive contempt instead, she may succeed although it may be difficult to prove mala fides on the part of the premier.
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