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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
44/00
THE STATE
versus
RUSSELL
MAMABOLO Appellant
Intervening
E.TV
BUSINESS DAY
FREEDOM OF
EXPRESSION INSTITUTE Amici Curiae
Heard on : 27 February 2001
Decided on : 11 April 2001
JUDGMENT
KRIEGLER
J:
Introduction
[1] How far can one go in criticising
a judge? Our law, while saying that “[j]ustice is not a cloistered
virtue”[1] and that “it is
right and proper that . . . [judges] should be publicly
accountable”,[2] does place
limits on the criticism of judicial officers and the administration of justice
for which they are responsible. This appeal
concerns the constitutional
validity of some of these limits. More specifically it relates to a conviction
for contempt of court
resulting from the publication of criticism of a judicial
order. Leave was granted to appeal directly to this Court because the
case
raised constitutional issues of substance on which a ruling by this Court was
desirable in the interests of
justice.[3] The first issue was
whether the law relating to the particular form of contempt of court, more
colourfully than definitively referred
to as scandalising the court,
unjustifiably limited the right to freedom of expression vouchsafed by the
Constitution.[4] The second is
whether the procedure recognised and sanctioned by our law whereby a judge could
deal summarily with cases of this
kind, fell foul of the fair trial rights
guaranteed by the Constitution.[5] An
ancillary constitutional issue relates to the binding force of judicial orders
and the related obligation imposed by the Constitution
on all organs of state to
assist and protect the courts.[6] In
respect of each of the first two issues, a finding that the law does indeed
limit the fundamental rights in the respects contended
for, will in turn require
an enquiry whether such limitation is nevertheless constitutionally
justified.[7]
[2] Although
detailed description and analysis of the opposing contentions and supporting
submissions must wait for later,[8] a
prefatory outline would be helpful. In the court below, and again on appeal,
both of the main issues were raised on behalf of
the appellant. In essence the
argument sought to be advanced on his behalf in the High Court, and later
developed more fully here,
was that the overriding constitutional protection
given to freedom of speech and to a fair trial was incompatible with the
continued
recognition of the crime of contempt of court and with the summary
procedure. With regard to both issues he enjoyed the support
on appeal of the
Freedom of Expression Institute and two commercial news media who were allowed
to intervene jointly and submit written
and oral argument as amici curiae. The
argument on behalf of the amici was presented on a considerably narrower
footing, however,
being confined to advocating an adaptation of the test for
scandalising committed outside the court and after the case had been concluded,
and that only in respect of such cases the summary procedure be
outlawed.
[3] Although the prosecution agencies of the state had no
direct interest (and seem to have played no formal part) in the contempt
proceedings in the High Court, the appeal was formally opposed on behalf of the
state by the Director of Public Prosecutions, Pretoria.
In substance that
office defended from constitutional challenge both the substantive and the
procedural provisions of the law as
it stands, while not straining to support
their application in this case by the learned judge in the court below.
Although criminalising
certain forms of criticism of the courts and their
officers did constitute a limitation on complete freedom of expression, and
although
the summary procedure did infringe some of the panoply of rights that
go to make up fair trial protection, the contention on behalf
of the state was
that both departures from the ideal were justified by the countervailing public
interest in preserving the integrity
of the administration of
justice.
The factual backdrop
[4] These opposing contentions
fall to be evaluated against the backdrop of a strange set of circumstances.
The appellant is an
official in the Department of Correctional Services (the
Department) who was summarily tried, convicted and
sentenced[9] for contempt of court in
the Transvaal High Court arising from comments concerning an order of that court
that he had published as
spokesperson for the Department. The order in question
related to a newsworthy bail application. Mr Eugene Terre Blanche, the leader
of the Afrikaner Weerstandsbeweging, had been sentenced to two concurrent
sentences of imprisonment, six years for attempted murder
and one year for
assault with intent to do grievous bodily harm. He exhausted his appeal
remedies on the lesser count and started
serving his sentence. On the other
count he was granted leave to appeal to the Supreme Court of Appeal, but on a
limited basis only,
the leave being confined to the question whether the
conviction should be reduced to one of assault with intent to do grievous bodily
harm. Later, while that appeal was still pending, he heard that his release on
parole on the lesser count was imminent and in anticipation
applied to the
Transvaal High Court for bail pending the outcome of the appeal. The
prosecution did not oppose and the application
was granted by Els J in
chambers.
[5] The Department was of the view that, because the scope of
the appeal was “limited to the nature of the offence only and
does not
relate to the sentence,”1[0]
the prisoner would indeed not shortly qualify for parole. Accordingly, so it
believed, bail had wrongly been granted and a departmental
media release to this
effect was issued. The author of the release was the appellant in this case, a
deputy-director, liaison services,
in the Department. The appellant also dealt
with media enquiries about the matter, among others by a reporter from
Beeld, an Afrikaans language daily newspaper. On 16 August 2001 the
paper featured a report which, in translation, reads as follows:
“NGCUKA INTERVENES OVER ET’S DETENTION
9Wife demands answer after ‘radical blunder’ 9Judge contributes to confusion - DCS
Elise Tempelhoff
Adv. Bulelani Ngcuka, national director of prosecutions, has intervened in the question of the AWB leader Eugene Terre Blanche’s detention and is now going to ‘study’ the technical aspects thereof.
Terre Blanche’s wife, Martie, said yesterday that her husband was being detained unlawfully. It is ‘a radical mistake’ that he is still in prison in the light of his successful bail application last week in the Pretoria High Court and the fact that the control magistrate of Potchefstroom had last Friday issued a warrant for her husband’s release, Mrs Terre Blanche said. Both Mrs Terre Blanche and Mr Dawie de Jager, Terre Blanche’s legal representative now demand an urgent and ‘thorough’ explanation from the DCS why the AWB leader is still being detained even after he had paid his bail money of R 5000.
Mr Russell Mamabolo, spokesperson of the DCS, said yesterday that judge Johan Els had made a mistake on Thursday by granting bail to Terre Blanche pending the appeal case. This has now contributed to further confusion, he said.
Mamabolo admitted that the Rooigrond prison, where Terre Blanche is being held had received a warrant for his release. He however adheres to his view that bail had ‘erroneously’ been granted to Terre Blanche, he said yesterday.
As far as the DCS is concerned, Terre Blanche was sent to prison for 6 years. He admitted that the DCS had contributed to the confusion when they determined in June this year that Terre Blanche could be considered for parole.
Terre Blanche can now only qualify to be released on parole after three years, Mamabolo said.
‘We have here two documents that make it impossible for Terre Blanche now to be released on bail or on parole. The one is an amended warrant issued by a magistrate in Potchefstroom on 7 August and the other is a notice from the appeal court that Terre Blanche can only appeal against the nature of the offence, viz. attempted murder, of which he had been convicted. It therefore makes no difference to the time he will have to spend in prison.’
According to De Jager, it is possible that the appeal court could now convict Terre Blanche on a lesser charge, viz. a charge of assault. The sentence would then possibly be only a year’s imprisonment, De Jager said. As Terre Blanche had to serve his sentences concurrently he would by March next year have been in prison for 6 months too long, because he had qualified for the 6 month amnesty that ex-president Nelson Mandela had granted on his 80th birthday. He will therefore have to be released next month already.”
[6] The learned judge read the newspaper
report and later the same day issued an order in the following terms:
“That the Director-General of Correctional Services, Commissioner Lulamile Mbete, together with the spokesperson of the Department of Correctional Services, as mentioned in Beeld, Mr Russel Mamabolo together with their legal representatives if they so desire appear before me on Monday 21 August 2000 at 10h00 in Court GC to explain whether they said what is reflected in the report and whether it is indeed the opinion of the DCS. In that event they will have to explain on what basis I erred and what right they had to cause to be published in the newspapers that a judge had erred if they had no grounds for such a statement.” (My translation from Afrikaans.)
[7] The two persons addressed in the order,
Commissioner Mbete and the appellant, duly appeared in court, represented by
senior and
junior counsel. Affidavits by them together with supporting
documents had been prepared in consultation with their legal advisors
and were
filed on Friday, 18 August 2000. Commissioner Mbete’s affidavit was brief
and to the point: he had said nothing
to the press about the matter; he was
not a lawyer (the departmental media statement reflected the view of its legal
advisors) and
he and his department had acted in good faith, committing no
contempt of court. The appellant’s affidavit was somewhat longer:
he too
was a layman; he had relied on responsible legal advice; the media statement
correctly reflected the Department’s
bona fide view; this view he had
conveyed to the reporter, whose story correctly reported what he had
said. The concluding paragraph of the affidavit summed up the appellant’s
case:
“In summary I therefore state that my actions do not amount to contempt of court, that I did not intend to commit contempt of court, and that my criticism of the relevant court order was based on the facts available to me and was furthermore lawful in terms of the Common Law and the South African Constitution as aforesaid.”
[8] Although the order of court issued
by Els J neither expressly nor by necessary implication conveyed that the object
of the exercise
was to pursue the question of contempt of court, both deponents
expressly addressed that question and disavowed any intention on
their part to
have acted contemptuously.
[9] The proceedings that unfolded on the
Monday morning were unusual in a number of respects. Three sets of counsel
apparently announced
their appearance: an advocate “on behalf of the
state”, an advocate “on behalf of the applicant (ETT Terreblanche)
” and two advocates “on behalf of the accused”. It is not
clear how the first two advocates came to be present,
nor what right of
audience, if any, they had (or claimed). The learned judge opened the
proceedings by announcing that it was “an
enquiry to determine whether
[the appellant and the commissioner] are guilty of contempt of court”. He
then invited counsel
who had acted in the bail application to confirm that they
had been present and went on, as he put it, “to set out shortly
the facts
which I feel led to this inquiry and I just want [the first two advocates] to
confirm or to deny the facts as set out by
me.” The record then shows
some three pages of the judge’s “setting out the facts”,
culminating in the two
advocates concerned being asked in turn whether they had
anything to add, and to confirm the correctness of the resumé. They
not
only responded affirmatively (although some parts of the resumé clearly
fell outside their knowledge) but made a number
of factual averments germane to
the “enquiry” — and adverse to the “accused”. The
invitation to comment
on the correctness of the resumé or to add to it
was not extended to counsel for the two “accused”, however.
Nor
were they afforded an opportunity to challenge or explore any of the factual
material that had been related; not that it would
have served much purpose in
the circumstances. Their counsel could hardly have asked to cross-examine any
of the “witnesses”
who had participated in compiling the factual
resumé that was to serve as the basis of the enquiry.
[10] Mr
Fabricius then proceeded to address argument on behalf of the appellant and the
Commissioner, among others pointing out that
the order of court did not mention
that there was to be an enquiry into contempt of court and submitting that (a)
such a charge infringed
their right to freedom of speech; and (b) “the
Constitution has overtaken the court’s [sic] previous powers to summarily
order people before court to give an explanation of any kind whatsoever”
and, expressly relying on section 35(3) of the Constitution,
that it
“transgresses there [sic] right to a fair trial”. Counsel also made
the point that simply publishing a statement
that a judge was wrong, could not
constitute contempt of court. The record reflects that this part of the
argument concluded with
the following exchange:
“COURT: Stating that you are going to ignore an order of court are you saying is not contemptuous of court?
MR FABRICIUS: My Lord, it depends on the circumstances.
COURT: Are you stating that, that is not contemptuous of court?
MR FABRICIUS: He does not say that ‛I am going to ignore this court order.’
COURT: He said ‛we are going to ignore it.’ That is what it boils down to. What else can you infer from that? Please go on.”
[11] Towards the end of Mr Fabricius’s
argument the debate turned to freedom of speech. He and Els J were apparently
agreed
that this freedom “includes the right to criticise the
courts” but differed as to the meaning of the appellant’s
statements
as reported in the Beeld article. At the conclusion of the argument
by Mr Fabricius the court adjourned and upon its reconvening the judge
delivered an oral judgment, concluding with the following summation
of what was
found to be offensive in the press report:
“1. It is stated that I was wrong in granting bail. It is a statement of fact. A fact, if not disputed, would be accepted by the general public. It is not said that ‛in his opinion’ or ‛in the opinion of the Department of Correctional Services’ I had erred.
2. It is stated that I contributed to the confusion. To what confusion they are referring is not clear and how they can say that I contributed thereto I do not know. The Department of Correctional Services is solely responsible for the confusion, if any. They created the confusion, if any, and;
3. The Department of Correctional Services through Mamabolo and with the authorisation or knowledge and consent of the Department of Correctional Services indicated that because of my so-called erroneous granting of bail the Department of Correctional Services is not prepared to release Terreblanche when such release becomes due, that is relating to the sentence of one year’ [sic] imprisonment or part thereof on the count of assault with intent to do grievous bodily harm.
I have no doubt that this was a scandalous comment and it impugned on the integrity of this court. It was not merely the exercise of the right of freedom of speech. It is a wrongful, mala fide attack on me as judge and therefore on the judiciary and the administration of justice . . .
Mamabolo and the Department of Correctional Services intended to bring the dignity, honour and authority of this court in discredit [sic]. If they did not have direct intent it is clear that they did have the intention in the form of dolus eventualis . . .
The press statement was unwarranted, unfounded and irresponsible and not merely fair criticism which, as it was argued, was an exercise of their right of freedom of speech.”
[12] Notwithstanding the
strictures on the Department, the learned judge concluded that because
Commissioner Mbete was not shown to have known about and sanctioned
the press
statement prior to its publication, he could not be found to have been party to
the contemptuous conduct. The appellant
alone was convicted and sentenced. The
appellant thereupon applied to Els J for leave to appeal to this Court,
alternatively to
the Supreme Court of Appeal or a full bench of the Transvaal
High Court. He also asked for a certificate in terms of the Constitutional
Court Rules.1[1] The learned judge
held that the matters in issue were factual, not constitutional, that there was
no reasonable prospect of success
on appeal, whether to this Court or otherwise,
and refused leave. That is when the appellant obtained the leave of this Court
to
appeal directly to it, and was shortly thereafter joined by the amici.
Against that factual backdrop we can now turn to examine
the first
constitutional issue raised, namely, whether the particular manifestation of the
generic offence of contempt of court presented
by this case unjustifiably limits
the fundamental right of freedom of expression.
The nature and purpose
of the offence of scandalising the court
[13] Evaluation of the argument
presented on behalf of the parties and the amici respectively regarding this
question must logically
start by establishing what limits the law places on the
right to criticise a judge, or a judicial ruling, in these circumstances.
Put
differently, what are the elements of the crime of scandalising the court? That
question must be addressed in its context:
scandalising is a form of contempt
of court which, in turn, is a broad variety of offences that have little in
common with one another
save that they all relate, in one way or another, to the
administration of justice. Contempt of court has indeed been called “the
Proteus of the legal world, assuming an almost infinite diversity of
forms”.1[2] The breadth of
the genus is apparent from the definitions of contempt of court in standard
textbooks on South African criminal law.
For example Burchell and
Milton’s1[3] definition
reads:
“Contempt of court consists in unlawfully and intentionally violating the dignity, repute or authority of a judicial body, or interfering in the administration of justice in a matter pending before it.”
Milton1[4]
repeats the Burchell and Milton definition and
Snyman,1[5] referring to the two
authorities mentioned, gives a more detailed but equally sweeping
definition:
“Minagting van die hof is die wederregtelike en opsetlike
(a) aantasting van die waardigheid, aansien of gesag van ’n regterlike amptenaar in sy regterlike hoedanigheid, of van ’n regsprekende liggaam, of
(b) publikasie van inligting of kommentaar aangaande ’n aanhangige regsgeding wat die strekking het om die uitslag van die regsgeding te beςnvloed of om in te meng met die regsadministrasie in daardie regsgeding.”
[14] The reason for the existence of
contempt of court as a punishable offence is often traced back to the
observations of Wilmot
J in the old English case of R v
Almon:1[6]
“The arraignment of the justice of the Judges, is arraigning the King’s justice; it is an impeachment of his wisdom and goodness in the choice of his Judges, and excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men’s allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the Judges, as private individuals, but because they are the channels by which the King’s justice is conveyed to the people. To be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open, and uninterrupted current, which it has, for many ages, found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth.”
Something of the kind also existed in Roman and
Roman Dutch law, although it was not recognised as a specific
crime.1[7] It has also received the
stamp of approval, albeit in passing, of this Court in Coetzee v Government
of the Republic of South
Africa:1[8]
“The institution of contempt of court has an ancient and honourable, if at times abused, history . . . the need to keep the committal proceedings alive would be strong because the rule of law requires that the dignity and authority of the courts, as well as their capacity to carry out their functions, should always be maintained.”
[15] The fundamental question
that has to be addressed at the outset here, is why there is such an offence as
scandalising the court
at all in this day and age of constitutional democracy.
Why should judges be sacrosanct? Is this not a relic of a bygone era when
judges were a power unto themselves? Are judges not hanging on to this legal
weapon because it gives them a status and untouchability
that is not given to
anyone else? Is it not rather a constitutional imperative that public
office-bearers, such as judges, who wield
great power, as judges undoubtedly do,
should be accountable to the public who appoint them and pay them? Indeed, if
one takes into
account that the judiciary, unlike the other two pillars of the
state, are not elected and are not subject to dismissal if the voters
are
unhappy with them, should not judges pre-eminently be subjected to continuous
and searching public scrutiny and criticism?
[16] The answer is both
simple and subtle. It is, simply, because the constitutional position of the
judiciary is different, really
fundamentally different. In our constitutional
order the judiciary is an independent pillar of state, constitutionally mandated
to exercise the judicial authority of the state fearlessly and impartially.
Under the doctrine of separation of powers it stands
on an equal footing with
the executive and the legislative pillars of state; but in terms of political,
financial or military power
it cannot hope to compete. It is in these terms by
far the weakest of the three pillars; yet its manifest independence and
authority
are essential. Having no constituency, no purse and no sword, the
judiciary must rely on moral authority. Without such authority
it cannot
perform its vital function as the interpreter of the Constitution, the arbiter
in disputes between organs of state and,
ultimately, as the watchdog over the
Constitution and its Bill of Rights — even against the
state.
[17] No-one familiar with our history can be unaware of the very
special need to preserve the integrity of the rule of law against
governmental
erosion. The emphatic protection afforded the judiciary under the Constitution
therefore has a particular resonance.
Recognising the vulnerability of the
judiciary and the importance of enhancing and protecting its moral authority,
chapter 8 of
the Constitution, which marks off the terrain of the judiciary,
significantly commences with the following two statements of principle:
“(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”
These two general propositions
are then fleshed out and reinforced in the succeeding three subsections of
section 165 of the Constitution:
“(3) No person or organ of state may interfere with the functioning of the courts.
(4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
(5) An order or decision issued by a court binds all persons to whom and organs of state to which it applies.”
The breadth
of the injunction is emphasised if one has regard to the compendious meaning
that the Constitution gives to the term “organ
of state” so as to
include all executive and legislative bodies in all spheres of
government.1[9]
[18] The
judiciary cannot function properly without the support and trust of the public.
Therefore courts have over the centuries
developed a method of functioning, a
self-discipline and a restraint which, although it differs from jurisdiction to
jurisdiction,
has a number of essential characteristics. The most important is
that judges speak in court and only in court. They are not at
liberty to defend
or even debate their decisions in public. It requires little imagination to
appreciate that the alternative would
be chaotic. Moreover, as a matter of
general policy judicial proceedings of any significance are conducted in open
court, to which
everybody has free access and can assess the merits of the
dispute and can witness the process of its resolution. This process of
resolution ought as a matter of principle to be analytical, rational and
reasoned. The rules to be applied in resolving the dispute
should either be
known beforehand or be debated and determined openly. All decisions of judicial
bodies are as a matter of course
announced in public; and, as a matter of
virtually invariable practice, reasons are automatically and publicly given for
judicial
decisions in contested matters. All courts of any consequence are
obliged to maintain records of their proceedings and to retain
them for
subsequent scrutiny. Ordinarily the decisions of courts are subject to
correction by other, higher tribunals, once again
for reasons that are debated
and made known publicly.
[19] This manner of conducting the business of
the courts is intended to enhance public confidence. In the final analysis it
is
the people who have to believe in the integrity of their judges. Without
such trust, the judiciary cannot function properly; and
where the judiciary
cannot function properly the rule of law must die. Because of the importance of
preserving public trust in the
judiciary and because of the reticence required
for it to perform its arbitral role, special safeguards have been in existence
for
many centuries to protect the judiciary against vilification. One of the
protective devices is to deter disparaging remarks calculated
to bring the
judicial process into disrepute.
[20] That is where the crime of
scandalising the court fits into the overall scheme of the administration of
justice. It is one
of the devices which protect the authority of the courts.
It is therefore hardly surprising that it is recognised as a crime in
many
common law jurisdictions. In a recent judgment of the Zimbabwean Supreme Court,
reported as In re:
Chinamasa,2[0] Gubbay CJ
conducts a review and analysis of comparative sources and provides a lucid and
exhaustive exposition of the law on this
topic — so much so that anything
more than adoption would be supererogatory. Suffice it to say that in present
day practice
scandalising the court is to be found in the jurisdictions of
England and Wales, Canada, India, Australia, New Zealand, Mauritius,
Hong Kong
and of Zimbabwe, Namibia and our own
country.2[1]
[21] One
notable exception to the list of common law jurisdictions recognising this
particular offence is the United States of America
which has, as is well known,
its own historically rooted special reverence for the First Amendment and the
pre-eminence it affords
freedom of speech and of the
media.2[2] It is not necessary at
this juncture to engage in any detailed discussion of the approach of that
constitutional democracy to the
issue currently under discussion. It will be
touched on later, in the course of examining the opposing submissions of counsel
for
the respective parties.
[22] The nature and purpose of scandalising
the court have been expressed many times in South African case law, probably
nowhere
more clearly than by Kotzé J in In re
Phelan:2[3]
“ . . . any publications or words which tend, or are calculated, to bring the administration of justice into contempt, amount to a contempt of Court. Now, nothing can have a greater tendency to bring the administration of justice into contempt than to say, or suggest, in a public newspaper, that the Judge of the High Court of this territory, instead of being guided by principle and his conscience, has been guilty of personal favouritism, and allowed himself to be influenced by personal and corrupt motives, in judicially deciding a matter in open Court.”
[23] It is unnecessary for the purposes
of this case to consider any of the other elements of the offence, such as the
nature of
the mens rea required or possible defences to a charge of
having scandalised a court.
The limits of the offence of scandalising
the court
[24] Having established the general nature and purpose of the
crime, it is necessary to delineate its scope. First, the interest
that is
served by punishing scandalising is not the private interest of the member or
members of the court concerned. The offence
was created and has been kept
extant in the interest of the public at large:
“. . . the real offence is the wrong done to the public by weakening the authority and influence of a tribunal which exists for their good alone.”2[4]
In
the second place it is important to keep in mind that it is not the self-esteem,
feelings or dignity of any judicial officer, or
even the reputation, status or
standing of a particular court that is sought to be protected, but the moral
authority of the judicial
process as such:
“The purpose which the law seeks to achieve by making contempt a criminal offence is to protect ‘the fount of justice’ by preventing unlawful attacks upon individual judicial officers or the administration of justice in general which are calculated to undermine public confidence in the courts. The criminal remedy of contempt of court is not intended for the benefit of the judicial officer concerned or to enable him to vindicate his reputation or to assuage his wounded feelings . . . ”2[5]
To
this one could usefully add with endorsement the following statement of
principle by Gubbay CJ in Chinamasa:
“The recognition given to this form of contempt is not to protect the tender and hurt feelings of the judge or to grant him any additional protection against defamation other than that available to any person by way of a civil action for damages. Rather it is to protect public confidence in the administration of justice, without which the standard of conduct of all those who may have business before the courts is likely to be weakened, if not destroyed.” 2[6]
[25] The
crucial point is that the crime of scandalising is a public injury. The reason
behind it being a crime is not to protect
the dignity of the individual judicial
officer, but to protect the integrity of the administration of justice. Unless
that is assailed,
there can be no valid charge of scandalising the
court.
[26] But this clarity of principle should not seduce one into
believing that applying the principle is simple. On the contrary,
if one lesson
is to be learnt from the numerous reported judgments, here and abroad, where
courts have grappled and continue to grapple
with the problem of applying the
broad principles to individual sets of facts, it is that there is no simple and
universally appropriate
measure that can be applied to determine whether the
mark of acceptable comment has been overstepped. There is no litmus
test.
[27] That does not mean that the test is wholly intuitive or
subjective. There are certain general guidelines, the first and most
important
of which is that which evoked the participation of the amici. I speak, of
course, of freedom of expression. Before World
War II, in an era when deference
for those in public office was much greater than now, and when freedom of
expression was a remote
dream in much of the world, Lord Atkin, in language that
may sound quaint to modern ears, nevertheless expressed the basic relationship
between the two values in terms that remain wholly valid:
“But whether the authority and position of an individual judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way . . . Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.”2[7]
More
recently Corbett CJ, as he then was, quoting these famous remarks of Lord Atkin,
expressed the modern balance as follows:
“ . . . Judges, because of their position in society and because of the work which they do, inevitably on occasion attract public criticism and that it is right and proper that they should be publicly accountable . . .
. . . .
There seems little doubt that in the nearly 60 years which have passed since Lord Atkin made these remarks attitudes towards the judiciary and towards the legitimate bounds of criticism of the judiciary have changed somewhat. Comment in this sphere is today far less inhibited. Criticism of judgments, particularly by academic commentators, is at times acerbic, personally oriented and hurtful. I doubt whether some of this criticism would have been regarded as falling within the limits of what was regarded as ‘respectful even though outspoken’ in Lord Atkin’s day . . . To some extent what in former times may have been regarded as intolerable must today be tolerated . . . This, too, will help to maintain a balance between the need for public accountability and the need to protect the judiciary and to shield it from wanton attack.”2[8]
[28] The
measured observations of Corbett CJ make plain that, even before the adoption of
constitutional democracy with its set of
fundamental norms and the Bill of
Rights, it was accepted that there was a tension between preserving the
reputation of the judicial
process on the one hand and on the other hand
acknowledging the right of each and every one of us to form our own opinions
about
matters and to propound them. That freedom to speak one’s mind is
now an inherent quality of the type of society contemplated
by the Constitution
as a whole and is specifically promoted by the freedoms of conscience,
expression, assembly, association and
political participation protected by
sections 15 to 19 of the Bill of Rights. It is the right — idealists
would say the duty
— of every member of civil society to be interested in
and concerned about public affairs. Clearly this includes the
courts.
[29] Indeed, the ostensible tension between freedom of
expression and protection of the reputation of the judicial process, ought
not
to be exaggerated. Since time immemorial and in many divergent cultures it has
been accepted that the business of adjudication
concerns not only the immediate
litigants but is a matter of public concern which, for its credibility, is done
in the open where
all can see. Of course this openness seeks to ensure that the
citizenry know what is happening, such knowledge in turn being a means
towards
the next objective: so that the people can discuss, endorse, criticise, applaud
or castigate the conduct of their courts.
And, ultimately, such free and frank
debate about judicial proceedings serves more than one vital public purpose.
Self-evidently
such informed and vocal public scrutiny promotes impartiality,
accessibility and effectiveness, three of the important aspirational
attributes
prescribed for the judiciary by the
Constitution.2[9]
[30] However,
such vocal public scrutiny performs another important constitutional function.
It constitutes a democratic check on
the judiciary. The judiciary exercises
public power and it is right that there be an appropriate check on such power.
The impeachment
and removal from office of a judge under section 177 of the
Constitution is a check available in extreme cases only, namely incapacity,
gross incompetence or gross misconduct on the part of the
judge.3[0] The nature of the
separation of powers between the judiciary on the one hand and the legislature
and executive on the other, is
however such that any other check on the
judiciary by the legislature or the executive runs the risk of endangering the
independence
of the judiciary and undermining the separation of powers
principle. Members of the public are not so constrained.
[31] (ii Ideally, also, robust and informed public debate about judicial affairs promotes peace and stability by convincing those who have been wronged that the legal process is preferable to vengeance; by assuring the meek and humble that might is not right; by satisfying business people that commercial undertakings can be efficiently enforced; and, ultimately, as far as they all are concerned, that there exists a set of just norms and a trustworthy mechanism for their enforcement. In a memorable passage in Richmond Newspapers Inc. v Virginia3[1] Burger CJ characterised these objectives thus:
“The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value.
. . . .
When a shocking crime occurs, a community reaction of outrage and public protest often follows . . . Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion.
. . . .
To work effectively, it is important that society's criminal process ‘satisfy the appearance of justice’ . . . and the appearance of justice can best be provided by allowing people to observe it.” (Citation omitted.)
[32] But the freedom to debate the conduct of
public affairs by the judiciary does not mean that attacks, however scurrilous,
can
with impunity be made on the judiciary as an institution or on individual
judicial officers. A clear line cannot be drawn between
acceptable criticism of
the judiciary as an institution, and of its individual members, on the one side
and on the other side statements
that are downright harmful to the public
interest by undermining the legitimacy of the judicial process as such. But the
ultimate
objective remains: courts must be able to attend to the proper
administration of justice and — in South Africa possibly more
importantly
— they must be seen and accepted by the public to be doing so. Without
the confidence of the people, courts cannot
perform their adjudicative role, nor
fulfil their therapeutic and prophylactic purpose.
[33] Therefore
statements of and concerning judicial officers in the performance of their
judicial duties have, or can have, a much
wider impact than merely hurting their
feelings or impugning their reputations. An important distinction has in the
past been drawn
between reflecting on the integrity of courts, as opposed to
mere reflections on their competence or the correctness of their decisions.
Because of the grave implications of a loss of public confidence in the
integrity of its judges, public comment calculated to bring
that about has
always been regarded with considerable disfavour. No one expects the courts to
be infallible. They are after all
human institutions. But what is expected is
honesty. Therefore the crime of scandalising is particularly concerned with the
publication
of comments reflecting adversely on the integrity of the judicial
process or its officers.
The constitutional challenge to the crime of
scandalising the court
[34] In the court below Mr Fabricius took a bold
line on behalf of the appellant and in this Court primarily adhered to that
stance:
in the light of the constitutional rights and freedoms now contained in
the Bill of Rights, there is no room for the continued recognition
of this
crime. It could not and did not survive the advent of the fundamental freedom
of expression afforded to everyone by the
Constitution. At most it could be
accepted, so he argued, that a limited form of contempt of court remained
extant. This he defined
as being where an intentional expression in pending
proceedings is proven to have subverted the supremacy of the Constitution and
the rule of law. In the course of argument in this Court, he somewhat tempered
his contention but substantially adhered to the basic
proposition that criticism
of judicial proceedings after the event could never constitute a crime in the
constitutional atmosphere
that now prevails. Any statement, whatever its tenor
and however damaging to the standing of a judicial officer and, through that
officer, to the administration of justice, was now permitted. According to the
argument it does not even matter whether the injurious
statement is true or
false. The remedy dictated by the Constitution and its values was that the free
market-place of ideas would
fix the value of such statements. In effect, so he
contended, the reputation of judges and the integrity of the judicial process
would be best served by its unceasing and manifest integrity: let the record of
the judiciary speak for itself.
[35] Mr Marcus took a less radical line
in pressing the argument on behalf of the amici, namely, that the test for
scandalising should
be adapted to accommodate the heightened claim of the right
of freedom of expression vis-a-vis the reputation of the judiciary in
the
constitutional era. He was content to support the decision of the majority in
the Ontario Court of Appeal judgment in Kopyto
case.3[2] That was to adapt the
clear and present danger test applied by the American courts when dealing with
challenges to the First Amendment
and the protection it gives to freedom of
expression. I respectfully share the misgivings expressed by Gubbay CJ —
and by
Dubin JA who was in the minority in Kopyto — about the
suitability of that test in a jurisdiction that does not have to apply the First
Amendment nor enjoys the benefit
of the extensive and complex jurisprudence so
carefully constructed by the United States courts.
[36] In any event,
before one could subscribe to such a wholesale importation of a foreign product,
one needs to be persuaded, not
only that it is significantly preferable in
principle, but also that its perceived promise is likely to be substantiated in
practice
in our legal system and in the society it has been developed to serve.
More pertinently, it would have to be established that the
clear and present
danger test, in the adapted form proposed or in some other permutation, was
consonant with our South African constitutional
value system. And, Mr
Marcus’s erudition and eloquence notwithstanding, I remain very much
unpersuaded. The reasoning advanced
in support of the plea for a reformulation
of the test is in substance that the law as to scandalising the court, as it now
stands,
places an unconstitutional damper on the freedom of expression. More
specifically, so it is argued, the current test, viz whether
the statement in
issue has the tendency to bring the administration of justice into disrepute,
has lead to unwarranted criminalisation
of conduct that falls within the
protective ambit of freedom of expression.
[37] There can be no quarrel
with the kernel of the argument presented by Mr Marcus. Freedom of expression,
especially when gauged
in conjunction with its accompanying fundamental
freedoms, is of the utmost importance in the kind of open and democratic society
the Constitution has set as our aspirational norm. Having regard to our recent
past of thought control, censorship and enforced
conformity to governmental
theories, freedom of expression — the free and open exchange of ideas
— is no less important
than it is in the United States of America. It
could actually be contended with much force that the public interest in the open
market-place of ideas is all the more important to us in this country because
our democracy is not yet firmly established and must
feel its way. Therefore we
should be particularly astute to outlaw any form of thought-control, however
respectably dressed.
[38] There are more important features to be
considered when deciding on the suitability in our jurisprudence of the proposed
North
American model for drawing the line between permissible comment on
judicial affairs and scandalising. The most important of these
is to be found
in the plain wording of section 165(4) of the Constitution:
“Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.”
In the
new era of constitutional supremacy and the rule of law the judiciary is
invested with materially enhanced powers, including
that of invalidating any law
or governmental conduct to the extent that it is found to be inconsistent with
the Constitution.3[3]
Self-evidently the exercise of these powers could involve the judiciary in
public contention and it is therefore significant that
the Constitution, having
reposed such trust in the judiciary, then directs this command to all organs of
state. The Constitution
thus recognises the importance — and commands
reinforcement, if necessary by “legislative and other measures”
—
of the dignity of the courts. This is the very feature the crime of
scandalising aims to protect.
[39] It follows that there is little room
for any argument that adherence to the Constitution requires abandonment of a
measure such
as the crime in question, or for attenuating materially the
circumstances in which it could be applied, as would the test advocated
by
counsel for the amici. On the contrary, where the Constitution itself
contemplates legislative protection of these judicial qualities,
it would be
difficult to uphold an argument that any measure to that end which, even
minimally, limits one or other of the fundamental
rights contained in the Bill
of Rights, is an unjustifiable infringement. It follows that a test which
proceeds from such hypothesis
would be inappropriate.
[40] There is yet
another and no less fundamental reason why one should be slow to engraft such a
test on to our law: the two are
inherently incompatible, and they are
incompatible because they stem from different common law origins and subsist in
materially
different constitutional regimes. The balance which our common law
strikes between protection of an individual’s reputation
and the right to
freedom of expression3[4] differs
fundamentally from the balance struck in the United
States.3[5] The difference is even
more marked under the two respective constitutional regimes. The United States
constitution stands as a
monument to the vision and the libertarian aspirations
of the Founding Fathers; and the First Amendment in particular to the values
endorsed by all who cherish freedom. But they paint eighteenth century
revolutionary insights in broad, bold strokes. The language
is simple, terse
and direct, the injunctions unqualified and the style peremptory. Our
Constitution is a wholly different kind of
instrument. For present purposes it
is sufficient to note that it is infinitely more explicit, more detailed, more
balanced, more
carefully phrased and counterpoised, representing a
multi-disciplinary effort on the part of hundreds of expert advisors and
political
negotiators to produce a blueprint for the future governance of the
country.3[6]
[41] A detailed
analysis of the difference between the two constitutional regimes is
unnecessary. Here we are concerned with one
crucial difference. The
fundamental reason why the test evolved under the First Amendment cannot lock on
to our crime of scandalising
the court, is because our Constitution ranks the
right to freedom of expression differently. With us it is not a pre-eminent
freedom
ranking above all others. It is not even an
unqualified right. The First Amendment declaims an unequivocal and sweeping
commandment;3[7] section 16(1), the
corresponding provision in our
Constitution,3[8] is wholly
different in style and significantly different in content. It is carefully
worded, enumerating specific instances of the
freedom and is immediately
followed by a number of material limitations in the succeeding
subsection.3[9] Moreover, the
Constitution, in its opening
statement4[0] and repeatedly
thereafter,4[1] proclaims three
conjoined, reciprocal and covalent values to be foundational to the Republic:
human dignity, equality and freedom.
With us the right to freedom of expression
cannot be said automatically to trump the right to human dignity. The right to
dignity
is at least as worthy of protection as is the right to freedom of
expression. How these two rights are to be balanced, in principle
and in any
particular set of circumstances, is not a question that can or should be
addressed here.4[2] What is clear
though and must be stated, is that freedom of expression does not enjoy superior
status in our law.
[42] It is therefore in my view not wise to choose to
embrace a re-tooled version of a minimalist test, that was originally crafted
for the American system where minimal interference with a predominant
constitutional right under the First Amendment was called for,
and was then
adapted by a Canadian provincial court for its society under its equivalent of
our Bill of Rights.4[3] It does not
fit and is more likely to confuse than to clarify. In any event, as I hope to
show shortly, advocating adoption of
the proposed test is
misdirected.
[43] The amici are not really aiming at the correct target.
Their criticism should not be directed at the “tendency”
component
of the test, but at the consequences of the allegedly offending conduct. It is
not, on the argument of the amici, the
question of causation that needs
reappraisal but that of outcome. The complaint is not really that there is
something wrong with
the test of “tendency to harm” as an element of
the crime under discussion. A tendency, or likelihood, a statement calculated
to bring about a result — they are all variations on the same theme. Nor
are they confined to cases of scandalising the court.
It is common practice
where one is concerned with an offending statement, or rather an allegedly
offending statement, not to put
the threshold too high for the party bearing the
onus of proof. Whether one is looking at an allegedly scandalising statement,
or
an allegedly defamatory or fraudulent one, this particular part of the
enquiry has to ask what the effect of the statement was likely
to have been. It
is an objective test, applied with the standard measure of reasonableness, in
order to establish whether the harmful
effect at which the law strikes, came
about or not. Therefore one does not ask — indeed it is not permissible
for a party
to try to prove — what the actual effect of the disputed
statement was on one or more publishees. The law regards it as more
reliable to
infer from an interpretation of the statement what its consequence
was.
[44] It is also important not to get bogged down in a sterile
semantic debate about the difference between, and relative merits of,
tests in
the abstract. Ultimately, whether the test is worded this way or that, the real
question is whether the trier of fact has
been satisfied, with the requisite
preponderance depending on the nature of the case, that the publisher of the
offending statement
brought about a particular result. In the case of
scandalising the court that result must have been to bring the administration
of
justice into disrepute.
[45] In any event and moreover, now that we do
have the benefit of a constitutional environment in which all law is to be
interpreted
and applied,4[4] there
can be little doubt that the test for scandalising, namely that one has to ask
what the likely consequence of the utterance
was, will not lightly result in a
finding that the crime of scandalising the court has been committed. Having
regard to the founding
constitutional values of human dignity, freedom and
equality, and more pertinently the emphasis on accountability, responsiveness
and openness in government,4[5] the
scope for a conviction on this particular charge must be narrow indeed if the
right to freedom of expression is afforded its
appropriate protection. The
threshold for a conviction on a charge of scandalising the court is now even
higher than before the
superimposition of constitutional values on common law
principles; and prosecutions are likely to be instituted only in clear cases
of
impeachment of judicial integrity. It is a public injury, not a private delict;
and its sole aim is to preserve the capacity
of the judiciary to fulfil its role
under the Constitution. Scandalising the court is not concerned with the
self-esteem, or even
the reputation, of judges as individuals, although that
does not mean that conduct or language targeting specific individual judicial
officers is immune. Ultimately the test is whether the offending conduct,
viewed contextually, really was likely to damage the administration
of
justice.
[46] It would be unwise, if not impossible, to attempt to
circumscribe what language and/or conduct would constitute scandalising
the
court. Virtually the only prediction that can safely be made about human
affairs, is that none can safely be made. The variety
of circumstances that
could arise, is literally infinite and each case will have to be judged in the
context of its own peculiar
circumstances: what was said or done; what its
meaning and import were or were likely to have been understood to be; who the
author
was; when and where it happened; to whom it was directed; at whom or
what is was aimed; what triggered the action; what the
underlying motivating
factors were; who witnessed it; what effect, if any, it had on such audience;
what the consequences were
or were likely to have
been.
[47] Nevertheless there does remain that narrow category of
egregious cases where the crime in question will still be found to have
been
committed. From that it follows that some degree of limitation of the
untrammeled right to speak one’s mind openly and
fearlessly about public
affairs must be acknowledged.
Justification
[48] That then
gives rise to an enquiry as to
justification.4[6] In terms of
section 36(1) of the Constitution a finding that a particular law limits a right
protected by the Bill of Rights is
not an end to the matter. A limitation may
be saved to the extent that it “is reasonable and justifiable in an open
and democratic
society based on human dignity, equality and freedom, taking into
account all relevant factors”, including a number of enumerated
criteria.4[7] In the present
context, it is unnecessary to engage in an exhaustive limitation analysis. The
category of cases where the existence
of the crime of scandalising the court
still poses a limitation on the freedom of expression is now so narrow, and the
kind of language
and/or conduct to which it will apply will have to be so
serious, that the balance of reasonable justification clearly tilts in favour
of
the limitation. Furthermore, there are very weighty considerations underlying
the retention of the particular sanction, more
specifically there is a vital
public interest in maintaining the integrity of the judiciary, an essential
strut supporting the rule
of law. Weighing the importance of that interest
against the minimal degree of limitation involved, the scale once again favours
saving the sanction.
[49] Mr Fabricius argued, however, that the public
interest in the protection of the legitimacy of the judicial process could be
better served by allowing calumnies, even malicious falsehoods, concerning the
judiciary to be aired and refuted by open public debate.
There is a certain
stark appeal in such an absolutist stance, yet it is both unrealistic and
inappropriate — unrealistic in
an imperfect world with massive
concentration of power of communication in relatively few hands and
inappropriate where the Constitution
requires a balancing exercise. Where
section 36(1)(e) speaks of less restrictive means it does not postulate an
unattainable norm
of perfection. The standard is reasonableness. And in any
event, in theory less restrictive means can almost invariably be imagined
without necessarily precluding a finding of justification under the section. It
is but one of the enumerated considerations which
have to be weighed in
conjunction with one another, and with any others that may be relevant. On
balance, while recognising the
fundamental importance of freedom of expression
in the open and democratic society envisaged by the Constitution, there is a
superior
countervailing public interest in retaining the tightly circumscribed
offence of scandalising the
court.4[8]
[50] Finally,
with regard to the question of justification, I want to acknowledge the benefit
and pleasure I derived from studying
the dissent of my colleague Sachs J before
signing off this judgment. However, I see no merit in examining cases from a
bygone era
to see whether or not they would pass the higher test now demanded by
our constitutional democracy. Although the degree of divergence
between our
respective conclusions seems more semantic than substantive, and although the
divergence on substance is narrow, it is
real. The test set in this judgment is
that the offending conduct, viewed contextually, really was likely to damage the
administration
of justice. The rider my colleague espouses, namely that conduct
must “pose a real and direct threat to the administration
of
justice” before it can be said to constitute scandalising the court, sets
the benchmark too high. It would require proof
of such close causal proximity
between conduct and consequences, and of such grave consequences, that I suspect
it would effectively
put an end to prosecutions for this form of contempt of
court. That, I believe, is neither wise nor constitutionally
mandated.
The constitutionality of the summary
procedure
[51] Having determined the substantive question, the next line
of enquiry is to ascertain whether the procedural question, namely
whether the
option allowed to a judge to summon a suspected scandaliser to appear before her
or him to answer to a summary charge
of contempt of court, constitutes a
limitation of any of the fundamental rights protected by the Bill of Rights.
Before commencing
that enquiry it should be observed that we are concerned only
with an evaluation of the summary procedure that exists at common law.
There
are a number of analogous statutory provisions providing for some form of
summary intervention by a judicial officer relating
to conduct of a kind broadly
similar to contempt of court.4[9]
But none of them deals with allegedly contemptuous conduct of the kind in issue
here, i.e. outside court and after the event. The
enquiry is also limited to
proceedings in superior courts. Lower courts have no extraordinary jurisdiction
to deal with instances
of scandalising the court. I use the word
“extraordinary” to distinguish between prosecutions in the ordinary
course
at the instance of the prosecutorial authorities, which may be tried
before a lower court, and the special proceedings initiated
by the presiding
judicial officer.
[52] It should also be noted that we are not
concerned here with the kind of case where the orderly progress of judicial
proceedings
is disrupted, possibly requiring quick and effective judicial
intervention in order to permit the administration of justice to continue
unhindered.5[0] Here we are not
looking at measures to nip disruptive conduct in the bud, but at occurrences
that by definition occur only after
the conclusion of a particular case —
or possibly unrelated to any particular case. Swift intervention is not
necessary.
[53] A person so summoned is an accused person as
contemplated by section 35(3) of the Constitution. The primary enquiry is
therefore
whether the procedure infringes one or more of the elements of the
composite set of provisions that go to make up the fair trial
protection
afforded to an accused person under the provisions of that subsection. The
answer, on that assumption, is really quite
simple. It is now settled
law5[1] that the right under section
35(3) “embraces a concept of substantive fairness” and that it is
“a comprehensive
and integrated right” composed of a number of
elements, some of which are specified in the subsection. Here one need look
no
further than paragraphs (a), (b), (c), (h), (i) and (j) of subsection 35(3),
which provide as follows:
“(3) Every accused person has a right to a fair trial, which includes the right—
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
. . . .
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence . . . .”
[54] Manifestly the summary procedure is
unsatisfactory in a number of material respects. There is no adversary process
with a formal
charge-sheet formulated and issued by the prosecutorial authority
in the exercise of its judgment as to the justice of the prosecution;
there is
no right to particulars of the charge and no formal plea procedure with the
right to remain silent, thereby putting the
prosecution to the proof of its
case. Witnesses are not called to lay the factual basis for a conviction, nor is
there a right to
challenge or controvert their evidence. Here the presiding
judge takes the initiative to commence proceedings by means of a summons
which
he or she formulates and issues; at the hearing there need be no prosecutor, the
issue being between the judge and the accused.
There is no formal plea
procedure, no right to remain silent and no opportunity to challenge evidence.
Moreover, the very purpose
of the procedure is for the accused to be questioned
as to the alleged contempt of court.
[55] The composite effect of these
departures from the normal procedure where an accused person is called upon to
face a charge of
criminal conduct, is fundamental. Indeed, there is no
adversarial process where an impartial judicial officer presides over and keeps
the scales even in a contest between prosecution and defence. The process is
inquisitorial and inherently punitive and unfair.
Moreover, this procedure
which rolls into one the complainant, prosecutor, witness and judge — or
appears to do so —
is irreconcilable with the standards of fairness called
for by section 35(3).
[56] There can be no doubt that a procedure by
which an individual can be haled before a judge for the sole purpose of
enquiring
into the possible commission of a crime, there to be questioned and,
depending on the judge’s view of the responses to the
questioning,
possibly to be punished by a fine or imprisonment, constitutes a major inroad
into his fair trial rights. Nor can it
be denied that such an individual enjoys
little protection or benefit of the law and its processes.
[57] The next
question to be asked is whether the summary procedure is saved by section 36(1)
of the Constitution.5[2] Accepting
that the rules of the common law which sanction the procedure qualify as
“law of general application” within
the meaning of the subsection,
the question is whether the limitation they pose is reasonable and justifiable
in an open and democratic
society. If one keeps in mind that the enquiry is
limited to the use of the summary procedure in cases of alleged scandalising of
the court, there can be only one answer. In such cases there is no pressing
need for firm or swift measures to preserve the integrity
of the judicial
process. If punitive steps are indeed warranted by criticism so egregious as to
demand them, there is no reason
why the ordinary mechanisms of the criminal
justice system cannot be employed.
[58] The alternative is
constitutionally unacceptable: it is inherently inappropriate for a court of
law, the constitutionally designated
primary protector of personal rights and
freedoms, to pursue such a course of conduct. The summary contempt procedure
employed in
the present case is, save in exceptional circumstances such as those
in Chinamasa’s case5[3]
where ordinary prosecution at the instance of the prosecuting authority is
impossible or highly
undesirable,5[4] a wholly
unjustifiable limitation of individual rights and must not be employed. Indeed,
what transpired in the court below in this
case demonstrates the pitfalls of the
procedure and underscores why it should be reserved for the most exceptional
cases only.
[59] Justice would have been better served had the learned
judge reported the matter to the Director of Public Prosecutions and left
it to
that office to take up as it deemed best.
The merits of the
conviction
[60] The conclusion that the summary procedure adopted in the
court below was an unjustifiable infringement of constitutionally protected
rights, must of course result in a finding that the conviction and sentence
cannot stand. But even if the case had not been fatally
defective on this
procedural ground, it could not be sustained on its substantive merits. The
learned judge, probably because of
his proximity to the case caused by the
inappropriate procedure he elected to adopt, did not do justice to the case.
With the perspective
of hindsight it is clear that he really missed the
fundamental point. The issue was not, as the judge appeared to believe, whether
the appellant’s statement that the judge had made a mistake or that he had
by such mistake contributed to confusion, was a
statement of fact or an
expression of opinion. The appellant neither purported nor was reported in
Beeld to have expressed anything other than an opinion. Criticism of a
judgment can, because of the very nature of that which is criticised,
never be
anything else but a judgment, that is itself an opinion.
[61] But fact
or opinion, it matters not. What was published did not in any way impair the
dignity, integrity or standing of the
judiciary or of the particular judge.
Whatever the appellant’s intention might have been, and there is no reason
to doubt
his word when he says he intended no disrespect, the statements he made
do not bear a meaning such as could possibly found a charge
of scandalising the
court. Therefore, on the substantive merits also, the conviction cannot be
supported.
[62] The question that then arises is whether this judgment
should be confined to a declaration to the effect that on constitutional
grounds
the conviction and sentence were, both procedurally and substantively bad and
refer the matter back to the trial court for
reversal of the conviction and
sentence. Fortunately such pointless prolixity is unnecessary. Section 38 of
the Constitution provides
for a court to grant “appropriate relief”
where a right in the Bill of Rights is found to have been infringed. Moreover,
section 167(3) of the Constitution, which delineates the jurisdiction of this
Court, expressly empowers it to “decide . . .
issues connected with
decisions on constitutional matters”, which clearly encompasses the
setting aside of a verdict and/or
sentence found to be insupportable on
constitutional grounds.
Separation of powers
[63] However, I
suspect that what really motivated the learned judge to take the course that he
did, and to handle the proceedings
in court as he did, was an unarticulated
suspicion that the appellant, Commissioner Mbete and the Department were minded
to defy
the bail order and were proclaiming such defiance to the world at large.
Had that indeed been the case, there can be little doubt
that they would have
been acting contrary to their duties under the Constitution. Theirs was not to
challenge a judicial order by
means of a press release and media interviews.
They, as servants of the state, were obliged to be exemplary in their obedience
to
court orders,5[5] subject of
course to the right that existed to take the order on appeal. Moreover the
Constitution, recognises and expressly commands
not only exemplary conduct by
the executive and legislative branches of the state, but the active support of
all organs of state
in subsections 165(3), (4) and
(5).5[6]
[64] However,
analysis of the judgment shows that the learned judge concluded that he could
not convict the Commissioner of contempt,
which then makes the conviction of the
appellant on this basis all the more problematic. The appellant was in no
position either
to execute the order for Terre Blanche’s release on bail,
nor to frustrate the order. He is a media spokesman of the Department,
and no
more. If anyone had the power to order obedience or defiance, it was
Commissioner Mbete.
[65] It would have been a very serious matter
indeed, calling for speedy and decisive action, if the order had actually been
defied.
The spectre of executive officers refusing to obey orders of court
because they think they were wrongly granted, is ominous. It
strikes at the
very foundations of the rule of law when government servants presume to
disregard orders of court. What the most
appropriate form of action would have
been, is a matter for speculation and need not be pursued. Suffice it to say
that the appellant
was wrongly convicted of having scandalised the court. In
addition his conviction and
[65] sentence followed on a procedure that unjustifiably limits his rights under the Constitution.
Order
[66] The
appellant’s conviction and sentence are set
aside.
Chaskalson P, Ackermann J, Goldstone J, Madala J,
Mokgoro J, Ngcobo J, Yacoob J, Madlanga AJ and Somyalo AJ concur in the judgment
of Kriegler J.
SACHS J:
[67] It is easy to guarantee
freedom of speech when it is relatively innocuous. The time when it requires
constitutional protection
is precisely when it hurts. The justification for
punishing mere speech, however unfair, inaccurate or offensive it may be, when
it does not directly threaten to disrupt, pressurize or prejudice ongoing
litigation, must be compelling
indeed.[1]
[68] Kriegler
J’s judgment in this matter [the judgment] states that in certain tightly
circumscribed circumstances where language
of a serious nature is used, the
public interest in protecting the administration of justice and maintaining the
rule of law justifies
the survival of the offence ‘more colourfully than
definitively referred to as scandalising the
court.’[2] I agree in general
terms with this broad proposition. I also accept that the facts in the present
case fall far short of substantiating
the commission of any such offence, with
the result that this court was not obliged to delineate in any detail the full
contours
of the crime. Furthermore, I agree with the finding that the procedure
used in this matter was constitutionally impermissible. The
law cannot be above
the law; if impartial adjudication is to be at the heart of the administration
of justice, a judge should not
ordinarily be a judge in his or her own cause.
[69] In a word, I concur in the judgment and order. Nevertheless, I
feel it necessary to qualify my concurrence with the gloss that
follows. The
qualifications relate to two interconnected matters, one semantic, the other
substantive. Both touch on the question
of the constitutionality of imposing
criminal sanctions for speech made outside of court and not directed at pending
cases.
[70] My semantic concern lies not with the words
‘tendency’, ‘likelihood’ or ‘calculated to’,
which were the subject of vigorous debate at the hearing. I agree that they are
variants of a common theme which requires an objective
evaluation of probable
outcomes, and that it might not in all cases be necessary for the prosecution to
prove actual impact upon
or direct prejudice to the administration of justice.
My unease relates rather to the emphasis given to the words
‘scandalizing’
and ‘disrepute’. Taken in conjunction,
they belong to an archaic vocabulary which fits most uncomfortably into
contemporary
constitutional analysis. They evoke another age with other values,
when a strong measure of awe and respect for the status of the
sovereign and his
or her judges was considered essential to the maintenance of the public peace.
Constitutionalism arose in combat
with mystique, and does not easily become its
bride. The problem is not simply that the nomenclature is quaint - something
not uncommon
in legal discourse - but that it can be misleading. As the
judgment points out, the heart of the offence lies not in the outrage
to the
sensibilities of the judicial officers concerned, but in the impact the
utterance is likely to have on the administration
of justice. The purpose of
invoking the criminal law is not essentially to provide a prophylaxis for the
good name of the judiciary,
as the term scandalizing suggests. It is to ensure
that the rule of law in an open and democratic society envisaged by the
Constitution
is not imperilled. There might be a link between the repute of the
judiciary and the maintenance of the rule of law. But it would
be a mistake to
regard them as synonymous. Indeed, bruising criticism could in many
circumstances lead to improvement in the administration
of justice. Conversely,
the chilling effect of fear of prosecution for criticising the courts might be
conducive to its deterioration.
[71] My second and more
substantive qualification flows from the first. In an open and democratic
society, freedom of speech and
the right to expose all public institutions to
criticism of the most robust and inconvenient kind, are
vital.[3] At the same time, the
existence of a vigorous and independent bench capable of protecting all rights,
including freedom of speech,
is essential. The problem arises when speech is
used in a manner calculated to undermine the very institution designed to
protect
all fundamental rights, including the right to free
expression.[4] What further
complicates the matter in South Africa is that the very context of a newly
developing democracy that requires the greatest
openness of debate, necessitates
the existence of a judiciary with the strongest capacity to defend that
openness. It is in this
complex situation that any possible tension between the
right to free expression and the capacity of the courts to defend free
expression,
must be resolved. The interaction between these dual needs is
eloquently dealt with in the judgment and requires no further comment
from
me.[5] I do, however, feel it
necessary to clarify my position on the question of justification for the
retention of the crime described
- unfortunately, in my view - as scandalizing
the court.
[72] The Constitution makes it clear that freedom of speech
is not absolute. There are express internal qualifiers which permit
the
prohibition in appropriate circumstances of propaganda for war and what is
commonly referred to as hate
speech.[6] More generally, section
36 permits limitations which are reasonable and justifiable in an open and
democratic society based on dignity,
freedom and equality. As the judgment
points out, contempt of court can be committed in many ways. Open and
democratic societies
permit restraints on speech, coupled with appropriate
penalties, in the case of statements of a disruptive character made in court
during proceedings, as well as of statements made outside of court calculated to
pressurise adjudicators or prejudice the outcome
of
proceedings.[7] Such societies also
permit commital proceedings, including imprisonment, to be used to compel
recalcitrant persons to comply with
court
orders.[8] What all these species
of contempt of court have in common is the objective of protecting the due
administration of justice in actual
proceedings. In one way or another they
involve sanctions against perverting the course of justice in specific cases.
The offence
of scandalizing the courts is qualitatively different. It
contemplates utterances made outside of court and not relating to ongoing
proceedings. My qualification to the judgment relates only to this particular
class of utterances, and not to the constitutionality
of contempt of court
proceedings in general. In my view, statements of such a kind which have no
direct bearing on ongoing proceedings,
should only attract criminal sanctions if
they threaten the administration of justice in a manner analogous to the other
forms of
punishable contempt of court. To justify limits on freedom of speech,
something more is required than simply proof of utterances
likely to bring the
judiciary into disrepute, whether for alleged ineffectiveness, incompetence, or
lack of probity or impartiality.
One can give any number of examples of cases
where criticisms are made which are likely to diminish the general confidence
which
the public has in the way justice is being administered and yet, which, I
believe, should not give rise to the possibility of prosecution.
[73] Thus, one of the most prominent lawyers of his time in England,
Lord Goodman, went famously on record as saying that any client
of his who
engaged in litigation was a fool, since the processes of court were inordinately
costly, debilitating, protracted and
uncertain. It is not unheard of in this
country for judicial officers to be lambasted by senior political figures for
alleged lack
of assiduity. Disappointed litigants often explode with angry
comments on what they regard as lack of
justice.[9] At a more serious and
systemic level, major debates, frequently of an acrimonious and wounding kind,
take place about the transformation
of the judiciary, with demeaning and
disempowering labels being freely thrown around. The press regularly refer to
discrepancies
in sentence as proof of racism on the bench, and to comments made
in sexual violence cases as evidence of judicial sexism.
[74] These
statements are sometimes unfair, often discourteous, frequently immoderate and
occasionally even scurrilous. By their
nature they are all disparaging in one
way or another of the manner in which the judiciary functions. Objectively
speaking, they
are calculated to undermine public confidence in the capacity and
moral authority of the courts. They all need to be taken seriously
and in
appropriate circumstances rebutted or even
restrained.1[0] Yet, in my view,
something more than damage to the repute of the courts is required before they
can give rise to sanctions under
the criminal
law.1[1] As Cory JA in R v
Kopyto1[2] said, it is important
to note that:
“...there have been no convictions for this offence in England for the past 60 years. Furthermore, cases from the United Kingdom are replete with admonitions that the court's jurisdiction in contempt cases should be exercised with great restraint. These facts are particularly significant given that, like Australia and New Zealand, the United Kingdom does not have a constitutionally-protected guarantee of freedom of expression. For example, in Attorney-General v Times Newspapers Ltd., [1973] 3 All E.R. 54, Lord Reid stated at p. 60:
Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.”1[3]
[75] I
would accordingly suggest that to meet the constitutional standards of
reasonableness and justifiability, prosecutions should
be based not simply on
the expression of words likely to bring the administration of justice into
disrepute, but on the additional
ingredient of provoking real prejudice. In its
context such expression must be likely to have an impact of a sufficiently
serious
and substantial nature as to pose a real and direct threat to the
administration of justice.1[4]
Thus, it could be part of a wider campaign to promote defiance of the law or to
challenge the legitimacy of the constitutional state.
Or, more specifically, it
could be connected to attempts by persons such as warlords or druglords to
achieve de facto immunity for themselves. Alternatively, there might be
less dramatically confrontational examples where the speech in its context
is
likely in a direct and significant way to sap the capacity of the courts to
function properly. If the speech targets a particular
judicial officer, it
should be of such an unwarranted and substantial a character as seriously and
unjustifiably to impede that judicial
officer in being able to carry on with his
or her judicial functions with appropriate dignity and respect. Thus, to call a
judge
a crook in circumstances where the public is likely to give credence to
such allegation, is effectively to challenge and undermine
the capacity of that
judge to continue with the function of impartial adjudication. It seems
appropriate that unwarranted allegations
of that kind, if sufficiently serious
in the circumstances, could give rise to prosecution, even if the administration
of justice
in general was not threatened. I agree with the judgment that in
matters of this sort, context and impact are decisive. The test
that I would
propose would be more specific than that indicated in the judgment, though in
practice the difference might be slight.
[76] I make the above
observations not simply to manifest enthusiasm for the abstract virtues of
freedom of speech. Experience in
this country indicates that it is precisely
when the judiciary lacks prestige that some of its members are most likely to be
tempted
to shore up its position by means of contempt of court proceedings
against its critics.1[5] The Deputy
President of this Court has pointed out that:
“The divisions and conflicts of our apartheid past have distorted the relationship between, on the one hand, institutions involved in the administration of justice, including the judiciary and, on the other, significant sections of the South African community. This has to be set right now in order to ensure and to maintain a healthy democracy, which fully espouses the values of the new constitutional dispensation . . . A process needs to take place, a process which will not only liberate those members of the judiciary who have felt the alienation, but which will also reassure the formerly oppressed about the judiciary's rededication to justice for all.”1[6]
The
Deputy President went on to state that:
“I have no doubt the role of the courts in the implementation of the pass laws contributed to a diminishing of the esteem which ordinary people might have had for institutions set up to administer justice . . . The role of the judicial system at this level was to put the stamp of legality on a legal framework structured to perpetuate disadvantage and inequality.”1[7]
Yet
when a newspaper with a largely black readership stated in an editorial, under
the heading “Hose-Pipe Justice”, that
a case involving two white
farmers who had thrashed a black farm worker to death was a travesty of justice
and that most “non-whites”
have had too much experience of law
courts both high and low, with or without juries, to be deceived by the
falsehood that the fault
lay in the jury system, it was successfully
prosecuted.1[8] Academic research
into the impact of race on capital punishment was effectively stifled for many
years by the institution of contempt
proceedings. In the words of Professor
John Dugard, justice became a “cloistered virtue” and this
“seriously interfered
with the proper pursuit of legal
scholarship.”1[9] He went on
to say that the judicial process in a racially stratified society and the role
of the judiciary in an unjust legal order
became taboo subjects on which
academics wrote at their peril, most preferring the quiet waters of private and
commercial law.2[0] I would add
that the result was not to strengthen the manner in which the judiciary
functioned nor to generate public support for
the institutions of justice. On
the contrary, the more the critics were suppressed, the greater the loss of
prestige of the judiciary.
[77] The primary function of the judiciary
today is happily to protect a just rather than an unjust legal order. Yet
criticism,
however robust and painful, is as necessary as ever. It is not just
the public that has the right to scrutinize the judiciary, but
the judiciary
that has the right to have its activities subjected to the most rigorous
critique. The health and strength of the
judiciary, and its capacity to fulfil
time-honoured functions in new and rapidly changing circumstances, demand no
less. There are
no intrinsically closed areas in an open and democratic
society.
[78] It is particularly important that, as the ultimate
guardian of free speech, the judiciary show the greatest tolerance to criticism
of its own functioning. Its standing in the community can only be undermined if
the public are led to draw the inference that in
pursuance of the principle
that an injury to one is an injury to all, the judicial establishment is closing
ranks. In this respect
I can do no better than quote and adopt the observations
of Chief Justice Gajendragadkar of the Indian Supreme Court:
“We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgements, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”2[1]
If
respect for the judiciary is to be regarded as integral to the maintenance of
the rule of
law, as I believe it should be, such respect will be
spontaneous, enduring and real to the
degree that it is earned, rather than
to the extent that it is commanded.
For the appellant: HJ Fabricius SC and SM Lebala instructed by the State
Attorney, Pretoria.
For the state: ECJ Wait and SC Bukau instructed by the Director of Public
Prosecutions, Pretoria.
For the amici curiae: GJ Marcus SC and M Chaskalson instructed by Rosin Wright Rosengarten Attorneys, Johannesburg.
[1] Ambard v Attorney-General of Trinidad and Tobago [1936] 1 All ER 704 (PC), per Lord Atkin at 709, quoted in Argus Printing and Publishing Co Ltd and Others v Esselen’s Estate 1994 (2) SA 1 (A), per Corbett CJ at 25G—H.
[2] The Argus Printing and Publishing case, above n 1 at 25E—F.
[3] See s 167(6)(b) of the
Constitution, read with s 16(2)(b) of the Constitutional Court Complementary Act
13 of 1995 and rule 18 of
the Constitutional Court
Rules.
[4] Section 16(1) of the
Constitution reads as follows:
“(1) Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.”
[5] Section
35(3) of the Constitution commences with the broad proposition that
“[e]very accused person has a right to a fair trial,
which includes the
right . . . ” and then itemises an extensive list of specific rights in
paras (a) to (o).
[6] Section 165
of the Constitution provides as follows:
“(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
(3) No person or organ of state may interfere with the functioning of the courts.
(4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
(5) An order or decision issued by a court binds all persons to whom and organs of state to which it applies.”
[7] Section 36(1) of the Constitution reads as follows:
“(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
[8] See para 34 et seq below.
[9] He was sentenced to a fine of R2 000 or six months’ imprisonment and to a further six months conditionally suspended.
1[0] The wording is taken from a
letter written on behalf of the Department by the State Attorney, Pretoria, to
the prisoner’s attorneys
on 15 August 2000, explaining why “the
parole that was initially approved has been
revoked.”
[1]1 Rule 18(6)
reads as follows:
“(a) If it appears to the court hearing the application made in terms of subrule (2) that—
(i) the constitutional matter is one of substance on which a ruling by the Court is desirable; and
(ii) the evidence in the proceedings is sufficient to enable the Court to deal with and dispose of the matter without having to refer the case back to the court concerned for further evidence; and
(iii) there is a reasonable prospect that the Court will reverse or materially alter the judgment if permission to bring the appeal is given,
such court shall certify on the application that in its opinion, the requirements of subparagraphs (i), (ii) and (iii) have been satisfied or, failing which, which of such requirements have been satisfied and which have not been so satisfied.
(b) The certificate shall also indicate whether, in the opinion of the court concerned, it is in the interests of justice for the appeal to be brought directly to the Constitutional Court.”
1[2] Moskovitz “Contempt of Injunctions, Civil and Criminal” (1943) Columbia Law Review 780, quoted by Professor Labuschagne in a most helpful article, “Minagting van die hof: ’n strafregtelike en menseregtelike evaluasie” (1988) 3 TSAR 329 at 330.
1[3] Principles of Criminal Law 1 ed (Juta, Cape Town 1991) at 627.
1[4] South African Criminal Law and Procedure 3 ed (Juta, Cape Town 1996) vol II at 164.
1[5] Strafreg 4 ed (Butterworths, Durban 1999) at 329.
1[6] (1765) 97 ER 94 at
100.
1[7] Thus Voet
Commentary,5.1.2, Gane’s translation Vol 2 p 5, citing Gail, Bk 1,
obs 39 and by way of exception to the rule that one should not be a
judge in
one’s own cause, says:
“ . . . there is no injustice in [the judge] punishing . . . those who have the audacity to inflict injury on him . . . by word or deed in his capacity as judge and when he is fulfilling his duty . . . .”
Melius de Villiers The Roman and Roman-Dutch Law of Injuries (Juta, Cape Town 1899) at 166 defined contempt of court as “an injury committed against a person or body occupying a public judicial office, by which injury the dignity and respect which is due to such office or its authority in the administration of justice is intentionally violated.” At about the same time Kotzé CJ conducted an exhaustive analysis in In re Dormer (1891) 4 SAR 64 of the common law roots of the power of a court to punish contemnors. See also In re Phelan 1877 Kotze 5 at 8; S v Gibson NO and Others 1979 (4) SA 115 (D) 120; S v Kaakunga 1978 (1) SA 1190 (SWA) at 1193E—G.
1[8] Coetzee
v Government of the Republic of South Africa; Matiso and Others v Commanding
Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC); 1995 (10)
BCLR 1382 (CC) at para
61.
1[9] Section 239 of the
Constitution contains the following broad definition of the term “organ of
state”:
“(a) any department of state or administration in the national, provincial or local sphere of government; or
(b) any other functionary or institution—
(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation,
but does not include a court or a judicial officer”.
2[0] 2000 (12) BCLR 1294 (ZS).
2[1] S v Harber and Another 1988 (3) SA 396 (A); S vKaakunga 1978 (1) SA 1190 (SWA); Ahnee & Others v Director of Public Prosecutions [1999] 2 WLR 1305 (PC); Attorney-General v Times Newspapers Ltd [1973] 3 All ER 54 (HL); R v Metropolitan Police Commissioner, Ex parte Blackburn (No 2) [1968] 2 All ER 319 (CA); R v Kopyto (1987) 47 DLR (4th) 213 (Ont. CA); Narmada Bachao Andolan v Union of India and Others (1999) 8 SCC 308; Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887; Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA); Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293 (CA).
[2]2 See e.g. Bridges v California 314 US 252 (1941).
2[3] (1877) Kotzé 5 at 7.
2[4] R v Davies [1906] 1 KB 32 at 40.
2[5] Per Corbett CJ in the Argus Printing and Publishing case, above n 1 at 29E —F.
2[6] Above n 20 at 1311C—E.
2[7] See the Ambard case, above n 1 at 709.
2[8] The Argus Printing and Publishing case, above n 1 at 25E—26C.
2[9] See s 165(4) quoted in n 6
above.
3[0] Section 177 of the
Constitution provides as follows:
“(1) A judge may be removed from office only if—
(a) the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and
(b) the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.
(2) The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed.
(3) The President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1).”
3[1] 448 U.S. 555 (1980) at 570—2.
3[2] R v Kopyto (1987) 47 DLR (4th) 213 (Ont. CA).
[3]3 Sections 169(a) and 172(1)(a) of the Constitution, read with s 167(5) empower high courts to strike down legislation and executive acts (other than those of the President), subject to confirmation by the Constitutional Court.
3[4] As to which see e.g. the Argus Printing case, above n 1 at 25B—E.
3[5] See The New York Times Co v Sullivan 376 US 254 (1964).
3[6] The process is outlined in paras 13—21 of Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC).
3[7] Contrast Laurence Tribe’s characterisation of the First Amendment as “the [US] Constitution’s most majestic guarantee” (American Constitutional Law 2 ed (The Foundation Press, New York 1988) at 785).
3[8] Above n
4.
3[9] Section 16(2) of the
Constitution provides as follows:
“The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
4[0] Section 1 of the Constitution reads as follows:
“The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms . . .”
4[1] See ss 7(1), 9, 10, 12, 36(1) and 39(1)(a) of the Constitution.
4[2] It is instructive to note that two provincial courts in Canada, one a court of appeal, upheld s 300 of the Canadian Criminal Code, which provides for the crime of criminal libel, on the basis that although it infringed freedom of expression contrary to s 2(b) of the Canadian Charter of Rights and Freedoms, it passed the minimal infringement test under s 1 of the Charter and was saved. See Lucas v Saskatchewan (Minister of Justice) (1995) 31 CRR (2d) 92 and especially R v Stevens (1995) 28 CRR (2d) 78. Moreover, although human dignity is not an enumerated right under the Charter, the Canadian Supreme Court in Hill v Church of Scientology (1995) 30 CRR (2d) 189, per Cory J at 219—25, engaged in a balancing exercise between freedom of expression and protection of reputation.
4[3] The Canadian Charter of
Rights and
Freedoms.
[4]4 Section 39(2)
of the Constitution contains the following clear injunction:
“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”
4[5] Section 1 of the Constitution reads as follows:
“The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”
4[6] S v Manamela and Another (Director-General of Justice intervening) 2000 (3) SA 1 (CC); 2000 (5) BCLR 491 (CC) at para 33.
4[7] See s 36(1) quoted in n 7
above.
4[8] It is interesting to
note in this context the observations of the Indian Supreme Court in Narmada
Bachao Andolan v Union of India and Others, above n 21 at 313C—F:
“We wish to emphasise that under the cover of the freedom of speech and expression no party can be given a licence to misrepresent the proceedings and orders of the court and deliberately paint an absolutely wrong and incomplete picture which has the tendency to scandalise the court and bring it into disrepute or ridicule. The right of criticising,, in good faith in private or public, a judgement of the court cannot be exercised, with malice or by attempting to impair the administration of justice. Indeed, freedom of speech and expression is the ‘lifeblood of democracy’ but this freedom is subject to certain qualification. An offence of scandalising the court per se is one such qualification, since that offence exists to protect the administration of justice and is reasonably justified and necessary in a democratic society. It is not only an offence under the Contempt of Court Act but is sui generis. Courts are not unduly sensitive to fair comment or even outspoken comments being made regarding their judgments and orders made objectively, fairly and without any malice, but no one can be permitted to distort orders of the court and deliberately give a slant to its proceedings, which have the tendency to scandalise the court or bring it to ridicule, in the larger interest of protecting administration of justice.”
4[9] See e.g. s 108 of the Magistrates’ Courts Act 32 of 1944, ss 159(1), 178(1) and (2) and 189 of the Criminal Procedure Act 51 of 1977 and s 7 of the Regulation of Gatherings Act 205 of 1993, each of which empowers a presiding officer to deal with a particular form of disruptive conduct on the part of an accused, a witness or members of the public in the course of criminal proceedings.
5[0] As to which see S v Nel 1991 (1) SA 730 (A) at 752H—753A.
5[1] See S v Zuma and Others 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (SA) at para 16, and S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC); 2000 (11) BCLR 1252 (CC) at para 9.
5[2] See s 36(1) quoted in n 7 above.
5[3] See n 20 above.
5[4] And even in such an
extraordinary case it would not be permissible for a judge targeted by the
scandalising to preside at the contempt
hearing. As was done in
Chinamasa, another judge should be designated to hear the
matter.
[5]5 It is as well to
remember the warning of Justice Brandeis in Olmstead et al v United States
277 US 438 (1928) at 485 of the dire consequences when the state itself
disobeys the law:
“If the Government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.”
5[6] See n 6 above.
[1] Milton argues that the offence of scandalizing the court is arbitrary, irrational, vague in its nature and constitutes a violation of the principle of legality. He asserts further that there is no evidence that the offence of scandalizing the court is necessary for upholding respect for the judiciary. He submits that the offence constitutes an unreasonable and unjustifiable inroad upon freedom of expression. Milton South African Criminal Law and Procedure 3 ed (Juta, Cape Town 1996) vol 2 at 187-88. See also Burchell and Milton Principles of Criminal Law 2 ed (Juta, Cape Town 1997) at 701.
[2] See para 1 of the judgment.
A comprehensive survey of the South African cases on contempt of court in the
form of scandalization
up to 1988 can be found in Van Blerk Judge and be
Judged (Juta, Cape Town 1998) at ch
2.
[3] In Speaker of the
National Assembly v De Lille and Another 1999 (4) SA 863 (SCA), 1999 (11)
BCLR 1339 (SCA) para 20, Mahomed CJ referred to freedom of speech in the context
of the National
Assembly as “a crucial guarantee.”
[4] More
than a century ago Kotzé J stated that:
“[T]he administration of justice is [like the freedom of the Press] a matter of public importance. Consequently the law-the very protector of the liberty of the press-will not, on grounds of public policy, allow that liberty-its own creature-to be abused and employed as an instrument to bring the administration of justice into contempt.”
In In re Phelan (1877) Kotzé 5 at 9-10, quoted in Van Blerk above n 2 at 9.
[5] See paras 48 and 49 of the judgment.
[6] See s 16(2) of the Constitution of the Republic of South Africa, 1996.
[7] See The Sunday Times v The
United Kingdom (1979) 2 EHRR
245.
[8] It was in connection
with commital proceedings for alleged defiance of a court order that I made the
following comment in v Government of the Republic of South Africa; Matiso
and Others v Commanding Officer, Port Elizabeth Prison, and Others, 1995 (4)
SA 631 (CC), 1995 (10) BCLR 1382 (CC) para 61:
“The institution of
contempt of court has an ancient and honourable, if at times abused, history.
If we are truly dealing with contempt of court then the need to keep the commital proceedings alive would be strong, because the rule of law requires that the dignity and authority of the courts, as well as their capacity to carry out their functions, should always be maintained.”
[9] See for example R v Sachs 1932 TPD 201, where the accused, a trade union leader, denounced a conviction by a magistrate, saying that it was an example of class justice.
1[0] Thus, restraining orders
could in certain circumstances be made, breach of which could give rise to
prosecution.
[1]1 See the
discussion by Milne J in S v Gibson NO and Others 1979 (4) SA 115 (D)
127G-128F. The learned judge cites English and South African authority for the
proposition that:
“Even if the criticism is a criticism of the Courts, and even if it is not well-founded or does not commend itself to the Court, that does not mean that it is a contempt of Court.”
1[2] (1987) 47 DLR (4th) 213 (Ont.CA).
1[3] Id n 12 at
236.
1[4] In R v Kopyto
above n 12 at 241, the Ontario Court of Appeal divided 4 - 1 on the question of
whether or not the crime of scandalizing the court
survived the advent of the
Charter guarantee of the right to freedom of speech. Although the four judges
who held that it could
survive were split on what the appropriate test should
be, they all agreed that the impact on the administration of justice had to
be
substantial. Cory JA laid down the following requirements for the offence of
contempt of scandalizing the court: (i) intent or
recklessness (ii) extreme
seriousness (iii) real, substantial and immediate threat to the administration
of justice.
I do not think it either necessary or advisable in the present matter to explore the fuller reaches of the crime or to attempt a precise definition, but I do feel that the need for substantial impact on the administration of justice should be underlined.
1[5] It must be remembered that the judiciary, like all institutions, had a varied composition, and many of the principles now enshrined in our Constitution were kept alive by distinguished members of the Bench. Nevertheless, for large sections of the public, the judiciary as an institution was seen as part and parcel of the system of racial domination.
1[6] Submission to the Truth and Reconciliation Commission by Pius Langa, quoted by Dyzenhaus Judging the Judges, Judging Ourselves (Hart Publishing, Oxford 1998) at 60.
1[7] Id n 16 at
61.
1[8] R v Torch Printing
& Publishing Co. (Pty.) Ltd & Others 1956 (1) SA 815 (C) at
817F-818A discussed in Van Blerk above n 2 at 13-14. The court held, at 821B-C,
that:
“To say, in the context of the first paragraph of the article complained of as set out in the charge sheet, that in cases where Whites and non-Whites are involved travesties of justice are frequent in our Courts, is, in my judgment, calculated to bring the administration of justice into contempt [and that it reflected] in an 'improper and scandalous manner' upon the Judges and magistrates whose duty it [was] to administer justice in our Courts.”
1[9] Dugard Human Rights and the South African Legal Order (Princeton University Press, Princeton 1978) at 301. See also Van Blerk above n 2 at 21 - 31.
2[0] Id n 19 at 301.
2[1] In re, Under Article 143, Constitution of India AIR 1965 SC 745 at 791 para 142. For a discussion in India of the topic of Criticism of Judges and the Administration of Justice, see Desai and Gonsalves Freedom of the Press (Omega Printers, Belgaum n.d.) at 39.
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