Allan Greenblo: No place to hide. Freedom of expression at its best in SA.

By Allan Greenblo*

In case you hadn’t noticed, in recent days there’ve been screeds of newspaper columns devoted to affidavits and annexures filed respectively by Finance Minister Pravin Gordhan and then Public Protector Thuli Madonsela in separate trials yet to come before the courts.

Allan Greenblo
Allan Greenblo

More than this, the unprecedented publicity has been accompanied by mountains of comment on the merits and likely outcomes of the three imminent hearings: a declaratory on banking intervention in the case of Gordhan (also facing charges of alleged fraud) and release of the state-capture report in the case of Madonsela. It’s too late for the intensity of political consequence to be mitigated.

What the courts eventually decide is rendered marginal. Critical information, previously incapable of disclosure, is now out there in the public domain and the courts of public opinion have reached conclusions that are irreversible. For there can be no taking back the evidence that Gordhan and Madonsela have released.

Is this a good thing, or bad? Far be it for a humble hack to pronounce. Better for the Supreme Court of Appeal to explain the sea change in court reporting. Without a 2014 judgment of the SCA (City of Cape Town v SANRAL), there would have been continued application of the ancient rule that prevented media from revealing the contents of filed documents until they’d been called in open court.

Reversal of this blanket rule is now in full flight. The “animating principle”, the SCA held, has to be that “all court records are by default public documents open to public scrutiny at all times”. While there may be situations justifying a departure from this default position, “any departure is an exception and must be justified”. Further:

  • Even if a matter settles, it should still be subject to the requirement of openness especially where litigation involves public entities. This is because the public will have a real interest in evaluating the court papers to determine whether the decision to settle or withdraw was justified;
  • It is not possible for the media to report accurately on court proceedings if they can only access the documents once a case is called. It is vital that the public be able to access court records prior to the hearing so that they can follow proceedings in open court;
  • Having access to papers in advance allows journalists to prioritise reporting on matters of public interest;
  • Cases that are settled may also provide vital evidence that reveals wrongdoing. The public should be entitled to know whether a case was properly settled or whether the settlement was influenced by some improper motive.

Restraints on publication prior to matters being heard in court, the SCA added, should “only be ordered where there is a substantial risk of grave injustice”. Without more, it said, a blanket rule could hardly meet this high threshold or pass a constitutional challenge.

Free speech
Free speech

A related issue concerns the much-vaunted sub judice principle, frequently abused as a pretext by people wanting to avoid responses to journalists’ questions before a judgment has been handed down or an appeal finalised. Could a statement outside of court affect the outcome of a case where, as in SA, there is no jury system?

Last year Dikgang Moseneke, then the Deputy Chief Justice, posed the question in a professional journal: “The answer must surely be that it rarely could. The sub judice rule, and its relevance in SA, is at the very least on the verge of extinction.”

A clear message is presented to those left squirming in embarrassment at the impact of counter-strategies employed by Gordhan and Madonsela. Suck it up.

  • Allan Greenblo is editorial director of Today’s Trustee, a quarterly magazine mainly for the principal officers and trustees of retirement funds. You can follow him on twitter @Harrybulldog.
(Visited 25 times, 1 visits today)