Speaker is using Sub Judice rule to block debate on Mdluli
The Speaker of the National Assembly, Max Sisulu, has refused my request for a debate of public importance on the ongoing Mdluli saga on the basis of the matter now being Sub Judice.
The Democratic Alliance has received legal opinion on this decision. We believe it to be without basis and that it amounts to the improper extension of the Sub Judice rule in order to prevent debate on a matter of extreme public importance.
A decision of the Supreme Court of Appeal in the matter between Midi Television (PTY) LTD and Director of Public Prosecutions (Western Cape) has recognised the need to balance the Sub Judice common law rule with the Constitution of the Republic of South Africa, and the enshrined right to freedom of expression.
In doing so, the Supreme Court of Appeal has noted that:
What is required by all those tests (implicitly, even if not always expressed) before a ban on publication will be considered is a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice, substantial prejudice if it occurs, and a real risk that the prejudice will occur. ...For as I indicated earlier, the limitation must not only be directed towards a permitted end, but also be no more than is necessary to achieve its permitted purpose.