Parliament and use of the sub judice rule: Justified or not?

On Tuesday, opposition party Members of the Communications Portfolio Committee expressed frustration with Communications Minister, Faith Muthambi, who was responding on behalf of the Department of Communications to the Public Protector’s report on the South African Broadcasting Corporation. DA and EFF Members accused the Minister of using the sub judice rule to avoid answering questions about the controversial appointment of SABC Chief Operating Office Hlaudi Motsoeneng and the falsification of his qualifications.

A precedent was set at the beginning of the presentation when the Minister warned that she would not be able to respond in depth to the Public Protector’s report. “In light of the pending review application brought by the DA in the Western Cape High Court, it will not be proper for me to go into details for fear of infringing the sub judice principle,” she said.

Later, when asked about Motsoeneng’s controversial appointment at the SABC, as well as other matters concerning maladministration, the Minister responded that it was “sub judice”. This sparked a debate between the Minister, the DA and the EFF regarding the interpretation of the sub judice rule.

The DA’s Gavin Davis and the EFF’s Mbuyiseni Ndlozi were outraged at the Minister’s use of the sub judice rule, with Davis saying that it was quite clear from the Minister’s response that she had chosen to ignore the Public Protector’s report because the matter of remedial action for the SABC was not addressed substantively, while some of the points in the presentation stated that the Public Protector was wrong in her findings.

“I find this contempt of the Public Protector to be absolutely unacceptable and probably unconstitutional. This government has failed to implement the remedial action set out in the Public Protector’s report, just like it failed to implement the remedial action in the Nkandla report. And, this kind of growing trend should really be of concern to every South African that cares about our constitutional democracy,” said Davis.

Davis drew the Minister’s attention to constitutional law expert, Pierre de Vos, who was quoted as saying, “One of the most irritating phenomena of political life is the manner in which politicians wrongly invoke the sub judice rule to avoid accountability because they do not want to answer difficult questions or deal with politically awkward issues. Such politicians invoke a rule that only exists in their imagination.”

He noted that the first Speaker of Parliament, Frene Ginwala, ruled on this in 1998 stating that the sub judice rule was not designed to exclude subject matter before the courts, but it was designed to prevent the predetermination of the outcomes of the courts. The last interpretation of the sub judice rule came from the Task Team reviewing the National Assembly Rules in 2013 where it was decided that Rule 67 could not prevent a general political debate on a matter before the court. The sub judice principle means that the merits of a case that is still being considered by a judge or court, should not be discussed by MPs and government officials. The debate in this situation was whether the Minister was using the rule to avoid answering pertinent questions. Davis argued that there was a fundamental difference between responding to MPs questions and trying to predetermine an outcome of a case or influence the decision of a case. “It does not mean you cannot talk about any matter relating to the case,” he said.

With no fear of being accused of using ‘unparliamentary language’, EFF’s Ndlozi told the Minister that there was a “game” being played in Parliament that was “growing like a cancer in the government”. He told the Committee that by invoking the sub judice rule, the Minister is “conceding that we are useless… this is just basic hogwash, nonsense in my view. Even if the matter were not sub judice… she would have come to Parliament and given this lousy report. This is a non-report. There is no response whatsoever to the Public Protector’s remedial actions that must be taken.”

Chapter 8, section 165(3) of the Constitution, which talks to courts and administration of justice, says, “No person or organ of state may interfere with the functioning of the courts”.

The Minister drew the Committee’s attention to Rule 67, while biting back at the DA’s Davis, saying “You, the DA, opted to take the matter to court instead of exhausting all internal options like coming to the Committee. I’m not avoiding to account to Parliament, but you have made this matter difficult… I will not interfere in the functioning of the courts.”

While opposition party MPs expressed their frustration with the Minister’s lack of response, ANC MPs seemed satisfied with it. And, although the meeting was by no means finalised, MPs were reassured that the matter would not always be sub judice and that MPs would have time to engage with the Minister once the case was resolved in court.