Defamation / Reputation
Commonwealth v. Pon
Closed Expands Expression
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The Lesotho High Court held that a newspaper caption relating to an ongoing criminal case did not violate the sub judice rule and to rule otherwise would be an unnecessary limitation on the constitutional right to freedom of expression. After assessing foreign and international jurisprudence on the issue the High Court reasoned that while freedom of expression may be limited by a salutary principle such as the sub judice rule, the latter must always be narrowly interpreted and the “necessity for any restrictions must be convincingly established.”
In November 2002 the Judge presiding over a high-profile criminal case, Peete J, read a caption on the front page of the weekly Moafrika newspaper which pertained to the case. The case involved the assassination of the then-deputy Prime Minister seven years before in which the army was suspected of being involved. The caption in the newspapers asked who had killed the deputy Prime Minister and said that the killers had not yet been arrested and charged.
Peete J. learnt that the caption appeared to have been printed weekly, beginning before the arrests and the commencement of the criminal trial. He called upon the editor of Moafrika to show cause why the caption “should not be declared by this Court as being prejudicial to the proceedings, subjudice to Criminal Trial 95/02, and why the said caption should not be ordered to be removed from further publication of Moafrika Newspaper, until the determination of these proceedings” (p. 3). The Judge believed that “the caption in question had equivocal meanings or innuendos because it was – I must say – ambiguous and also inelegant and that it could likely prejudice these pending proceedings” (p. 3).
In the judgment Peete was required to determine whether the caption in the newspaper did, indeed, violate the sub judice rule.
He said that “[t]he main purpose of the common law subjudice 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” (p.6). He went on that it is “not whether the average person (or potential witness) is likely to be affected by the caption” (p. 6).
Peete J. acknowledged that the rule is a limitation to the right to freedom of expression, protected by section 14 of the Constitution. He referred to the Zimbabwean case of S. v. Hartman 1984 (1) SA 305 (ZSC) which had stated that it is permissible “to make an inroad into the protected right of freedom of speech in order to maintain the authority and independence of the courts but that inroad should not be wider or deeper than is required for the achievement of the declared objective” (p. 6). The Court in the Hartman case had held that the South Africa case of S v. Van Niekerk 1972 (3) SA 711 (A) allowed “too great an inroad into the right of freedom of expression” (p. 7). Peete J. also quoted Prof John Dugard who had disagreed with the judgment in the van Niekerk case and said that the problem with that case was that “it fails to take into account the fact that the judges by training are unlikely to be influenced by most comments on pending proceedings” (p. 7).
Peete J. said that the concern with the caption in the Moafrika newspaper was that it raised the unique question of whether the true perpetrators had not been brought before the court and questioned whether the ongoing trial was a “wild goose chase” (p. 11). However, he held that the caption in the Moafrika Newspaper did not have any obvious effect of “scandalizing or prejudicing” the criminal proceedings or labelling them ‘a sham’ (p. 12). With reference to the Zimbabwean case of In re: Chinamasa 2000 (12) BCLR 1294 (ZS) Peete J. said that the right to freedom of expression should be given a generous interpretation, and concluded that the“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” (p. 13).
He referred to the European Court of Human Rights case of The Observer v U.K.  ECHR 13585/88 and held that the sub judice rule “must always be narrowly interpreted and ‘necessity for any restrictions must be convincingly established’” (p. 14). He said that the sub judice rule was an important and useful tool to protect the proper administration of justice against statements which have a substantial risk of prejudicing or interfering with the pending court proceedings but that today’s courts should interpret this limitation on the freedom of expression restrictively save in cases where real and substantial risk existed.
Accordlingly, Peete J. took no further action against Moafrika.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by giving more weight to freedom of expression than the potential prejudice to proceedings caused by a newspaper caption relating to an on-going criminal case.
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