oa Comparative and International Law Journal of Southern Africa - The "gagging writ" and contempt of court - the correct means to the correct end? A comparative analysis of South African and English law
The valuable role that investigative journalism plays in a democratic society, in as much as the public is informed of matters in which they may have a legitimate interest, must never be underestimated. Yet, in performing this role, the media often comes into conflict with the law of contempt. No responsible journalist or member of the public wants to see a trial conducted by the media, but it must always be recognised that conflicting interests may be present. It is therefore indeed conceivable that there may be circumstances where the possibility of prejudice to a litigant may be required to yield to superior considerations, for example the right of the public to be informed of a matter which is of vital public interest (and not merely of interest to the public). It is submitted that in this respect a distinction can be drawn between pending criminal proceedings and pending civil proceedings in so far as the freedom of the individual is not at stake in the latter case. There is no final or foolproof method to distinguish between a mala fide plaintiff in defamation proceedings and a bona fide one. In the author's view the recognition of a ground of justification based on the public interest, excluding the unlawfulness of publication of information regarding a pending defamation case, will at least confine the extent to which the law is presently open to abuse.
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