The judgment by Justice Robert Nugent overturned a ruling by the Cape Provincial Division in favour of the DPP and stated that publication was susceptible to being declared unlawful and thus subject to prohibition only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that prejudice will actually occur.
The judge made the point that mere conjecture or speculation that prejudice might occur will not be enough.
According to SANEF, Judge Nugent's decision means that South African law has been brought into line with global trends and what may be expected in contemporary democracies, and effectively rules that the sub judice rule is outdated. “This means that recourse to this legal excuse to avoid public discussion of an issue – a favourite ploy of politicians – is no longer valid and those using it can be called to account.”
The judge declared that the principle enunciated in the judgment would seem to apply whenever the exercise of press freedom is sought to be restricted in protection of another right.
This judgment means that the prohibitions on publication following urgent application to the courts -- such as occurred with the Danish cartoons in relation to two Sunday papers and in regard to a number of other stories in the Mail & Guardian and other papers -- would not have been possible.
SANEF, which has always maintained that those prohibitions offended against the media's constitutional rights to freedom and were eroding the practice of press freedom in the country, commends the SCA for stopping the slide into legal censorship and for upholding the freedom of the media.
