f consented to the publication of the information; or
- the information was published on a qualified privileged instance.
In a case involving South Africa's former Minister of Health, Manto Tshabala-Msimang, the Sunday Times newspaper sought to publish information contained in the Health Minister's medical records. The Health Minister (and Medi-Clinic) sued principally for the return of the copies of the records and requested the court to interdict the Sunday Times from further commenting on the matter.
The Court decided that Sunday Times had to return the medical records to Medi-Clinic and pay the Health Minister's legal costs. However, the Sunday Times could continue to comment on the information in the medical records as there was public interest value in such information. "There was a pressing need for the public to be informed about the information contained in the medical records".
Contempt of Court
The media is restricted from commenting on judicial decisions in pending or on-going criminal or civil trials. In certain instances the media is restricted from reporting on judicial proceedings by various exceptions to the open justice principle (for instance, where minors are involved or in divorce cases).
Contempt of court law impacts negatively on freedom of expression, but as is the case in respect of the right to privacy, the right to freedom of expression is not absolute and an infringement of such right may be justified if there are overriding considerations which call for the infringement.
There are two areas within the law pertaining to contempt of court which are of relevance to the media law:
- the crime known as scandalising the court which involves the publication of a statement that undermines the dignity, repute or authority of the courts generally or in relation to a particular judicial officer; and
- the sub judice rule.
The test for whether an act of scandalising the court has taken place is set out in a 2001 Constitutional Court case, S v Mamabolo 2001 (3) SA 409 (CC). In this case an official 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 b