REFORMULATION OF SUB JUDICE RULE AND PRIOR RESTRAINT OF PUBLICATIONS RESOLVED: A VICTORY FOR PRESS FREEDOM Midi Television (Pty) Ltd v Director of Public Prosecution (Western Cape) 2007 9 BCLR 958 (SCA)

Abstract

In order to ensure the integrity and accountability of an emerging  constitutional democracy, a free and open press is of critical importance. Lately, there has been a growing judicial distrust in the media, with a discernible trend towards “the erosion of free press rights” in South Africa (Danay and Foster “The Sins of the Media: The SABC Decision and the Erosion of Free Press Rights” 2006 SAJHR 563). It is submitted that the decision by the Supreme Court of Appeal in Midi Television (Pty) Ltd v Director of Public Prosecution (Western Cape) is a victory for the protection of press and media freedom, which will stem the descent into legal censorship. The issue for decision by the court was the extent to which freedom of expression (s 16(1) of the Constitution of the Republic of South
Africa, 1996 (hereinafter “the Constitution”)) may be limited to protect the preservation of the administration of justice and the right to a fair trial (s 34 of the Constitution). In his determination of this issue, Nugent JA reformulated the sub judice rule and dealt with the prior restraint of allegedly defamatory statements by the press. The aim of this note is to evaluate the judgment and the potential ramifications for freedom of the press and the media.