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Pre-trial publicity: Freedom of the press versus fair trial rights in South Africa?

This article focuses on the impact upon the pending and trial criminal process by potentially prejudicial statements, or information of alleged fact, or opinion, published by the printed media, and its constitutional ramifications in both South African law and foreign law. The discussion centres on the conflict between the constitutional guarantee of a free press to report crime news in the written media, and the constitutional criminal procedural rights of an accused person to a fair trial. It investigates the sub judice rule as a mechanism to limit the prejudgement of issues in pending or imminent criminal litigation, which when offended, may constitute contempt of court ex facie curiae. The sub judice rule applied in South African criminal courts is compared to equivalent rules in Australia, United States, England and New Zealand, and the constitutionality of the South African sub judice rule is reconsidered.

Keywords: Fair trial, freedom of the press, gag orders, open courts, open justice, pending proceedings and assessors, pre-trial publicity, sub judice rule, trial by media