l in the Department of Correctional Services was convicted of contempt of court for making the statement that "Judge Johan Els erroneously granted bail". The test applied by the court was "whether the offending conduct, viewed contextually, really was likely to damage the administration of justice". The court took into account a number of factors including, but not limited to:
- what was said;
- what meaning was likely to be understood from what was said;
- what the motives were;
- the effect it had on the audience; and
- the likely consequences.
The second form of contempt of court, the sub judice rule, applies when a particular statement or document serves to prejudice or interfere with the administration of justice in pending proceedings. In this case, the rights which need to be balanced involve the administration of justice and the right to free speech. In prosecuting a person for contravening the sub judice rule, the state has to prove that:
- the prohibited act was committed by the accused (actus reas); and
- fault on the part of the accused (mens rea).
In the past, if the publication of the facts were accepted by the court and could influence the court's decision in respect of particular proceedings before it, the publication would be regarded as sub judice.
This test has now been effectively altered by the judgment of the Supreme Court of Appeal in Midi Television (Pty) Ltd v Director of Public Prosecutions 2007 (5) SA 540 (SCA). In that case e-TV sought to broadcast interviews with various people who claimed to be witnesses in the Baby Jordan murder case, before evidence in this regard had been given in court.
In giving judgment in favour of ETV, the court applied a different test to determine whether the broadcast would offend the administration of justice: whether the prejudice that the publication may cause "is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place".
The decision of the court in this case implies that in future the courts will be hesitant to grant interdicts against the publication or broadcasting of information relating to pending court proceedings.
The traditional South African common law principles of protecting individual privacy and identity appear to be inadequate in circumstances where a person's personal particulars (data) are being processed (collected, stored, used and communicated) by another person or institution. Such collections take place on a daily basis and are facilitated by advancements in technology. For instance, companies often maintain detailed databases of their employees and customers.
In October 2005, The South African Law Reform Commission (SALRC) published a Discussion Paper with a view to addressing the current legislative dearth in South Africa regarding data protection. The SALRC noted in the Discussion Paper that, despite numerous international developments in regard to the protection of privacy and more specifically data protection, South Africa lacks comprehensive legislation dealing with these issues.
The SALRC's recommendations resulted in the publication of the Protection of Personal Information Bill (the Bill) which has been drafted as a result of the need to keep South Africa in line with international developments and to protect the privacy of South African data subjects.
The Bill aims to give effect to each person's right to privacy by introducing measures to ensure that the personal information of an individual is safeguarded. The Bill regulates the collection, dissemination, use and retention of personal information by responsible parties. The Bill defines a "responsible party" as a public or private body or any other person which determines the method for processing personal information.
The Bill was tabled in Parliament on 25 August 2009, but has not yet been finalised and adopted. Pending promulgation of the Bill, interim data protection provisions are contained in the Information Act (see above) and the Electronic Communications and Transactions Act, No. 25 of 2002 (ECTA) (see below).
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