Shortly after my column proposing that interconnect rates should be set at zero by the regulator, Vodacom responded to the outcry over the high interconnect fees it charges. Or rather, it didn't respond.
Here is what its spokesperson told ITWeb's Candice Jones: "Due to the fact that interconnection rates are currently under investigation by the Competition Commission, this matter is sub judice."
This is, of course, utter rubbish.
Where do we start? First, let's stipulate that the Competition Commission is not a court. It does not merit being described by a fancy Latin term for it. The matter was not sub judice at all.
Moreover, the rule's origin lies with trial-by-jury criminal jurisprudence. Since a jury of non-professional members can easily be influenced by comments or speculation made outside the courtroom (and particularly in the media), it was considered inimical to a fair trial to permit public statements about the case. Parties to a case could be charged with contempt of court for saying the wrong thing about the matter before the judge.
In South Africa, however, the likelihood of a case being compromised by such comments or speculation is low, since we don't have trials by juries. Our criminal cases are tried by professional magistrates or judges, who can reasonably be expected not to let public speculation influence their assessment of matters of fact and law before the court.
As constitutional law expert Pierre de Vos noted on his blog (in relation to a different case), Justice Nugent, writing for the full bench in Midi Television v Director of Public Prosecutions, developed a very strict test to decide when the exercise of press freedom could be restricted to protect another right or interest.
To be fair, Vodacom's spokespeople aren't the only snivelling liars who refuse to answer questions by hiding behind an invented "sub judice" rule.
Ivo Vegter, ITWeb contributor
De Vos writes: "Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough."
To be fair, Vodacom's spokespeople aren't the only snivelling liars who refuse to answer questions by hiding behind an invented "sub judice" rule.
SITA told ITWeb it wouldn't discuss a R5 million civil suit it had filed because the case was "sub judice". It wasn't a criminal case, and there was no obvious likelihood of prejudice to the case. The rule would not have applied even if there was, since it is clearly in the public interest to know the reasons for such claims against a company that performs work for many clients, by an organisation that commissions work from many contractors. In short, SITA just didn't want to comment. Fair enough, but don't try to blame the court for your own reticence.
When Square One Solutions Group applied to have Choice Technologies liquidated, ITWeb was told it couldn't comment, because the matter was "sub judice". Yet Choice itself didn't find itself bound by this rule. Could this be because there was no such rule? Granted, it was polite of Square One not to comment, and it stood to gain nothing by speaking publicly about it. But why didn't it just say, "no comment"?
When Mantra Consulting filed a R10 million suit against Valor IT, in connection with a R153 million enterprise content management contract the latter had with the Companies and Intellectual Property Registration Office, Mantra's lawyer told ITWeb: "I can't say anymore, because matters are sub judice and, in terms of the rules of court, I will only be able to provide you with details once the matters are finalised."
Read: "Discussing our case with nosy journalists might expose its weaknesses, so we'd rather you don't ask any questions."
Comments De Vos on his blog: "Journalists should be made aware of this so that they can challenge spokespersons who rely on a non-existent rule to evade difficult questions that - if answered truthfully - would embarrass their bosses."
Whenever you hear someone say "sub judice", assume they're lying. The odds are good you'll be right.
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