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.

The Speaker, in his response, has not provided the DA with reasons why a public debate on the matters surrounding the questionable appointment and then suspension of Richard Mdluli would infringe on the administration of justice, or influence the case currently against Mr Mdluli.

The information regarding the Mdluli saga is already in the public domain, and has been the subject of regular articles in the press. Raising this information in Parliament cannot be seen to influence any decision against Mr Mdluli.

Nor does the Speaker provide any reasons why he believes the right of Members of Parliament to exercise their constitutional right to Freedom of Expression should be limited on the basis of what he interprets to be a threat to the administration of justice.

Indeed, Parliament is recognised in the Constitution (s42 (3)) as the being national forum for the public consideration of issues. Members of Parliament are further afforded freedom of speech in the Assembly and in its committees (S 58(2)). 

I will therefore write to the Speaker and request that he furnish me with reasons based in law as to why he believes the Sub Judice Rule prevents a debate on the Mdluli saga in Parliament. 

I will use this response to determine whether the DA will seek a judicial review of his decision not to grant a debate.

Parliament must ensure that it does not divorce itself from the debate, which will continue to take place in public. The DA is committed to helping to build a vibrant and robust Parliament, and we will use all mechanisms available to us to ensure that this happens.

Statement issued by Lindiwe Mazibuko MP, DA Parliamentary Leader, June 24 2012

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