S v Harber and Another

• Jurisdiction: South Africa
• Citation: 1988 (3) SA 396 (A)

S v Harber and Another
1988 (3) SA 396 (A)

1988 (3) SA p396

Citation	1988 (3) SA 396 (A)
Court	Appellate Division
Judge	Rabie ACJ, Jansen JA, Van Heerden JA, Vivier JA and Viljoen AJA
Heard	March 11, 1988
Judgment	March 30, 1988

Flynote : Sleutelwoorde

I Contempt of court — Newspaper publication in contempt of court — Requirement of intent — Sound policy considerations for holding at least editor of newspaper liable for contempt of court if he acted either intentionally or negligently — Interference with administration of justice — What J constitutes — Court applying tendency test, viz whether statement

1988 (3) SA p397

A or document tends to prejudice or interfere with or influence administration of justice in pending proceedings — Court holding that newspaper article in question contemptuous in that it prejudged issue in pending criminal trial, which fact was likely to interfere with proper adducing of evidence in trial — Editor of newspaper (first appellant) B acting negligently in publishing such article — Correct approach in matters such as these that, because press exercised such tremendous influence on public thinking, it shouldered a correspondingly heavier responsibility than ordinary individual to control correctness of what it published — First appellant should have realised that mistake had possibly been made in writing of the article and should not have C published it without controlling its correctness — No absolute rule against prejudging of issues in pending proceedings — Real question whether material tended to constitute improper interference with administration of justice — Further article published found to be contemptuous as it constituted improper speculation on possible outcome of criminal trial and could thus influence proceedings in trial — D Conviction in this regard also confirmed and appeals dismissed.

Headnote : Kopnota

Certain articles concerning a criminal trial in the Transvaal Provincial E Division had appeared in The Weekly Mail of 2 May 1986. The first appellant was the editor of the newspaper and second appellant was the reporter responsible for writing these articles. The trial, in which 22 accused were arraigned on charges of high treason, had then been in progress at Delmas for more than three months before a Judge and assessors. One article appeared under the heading 'A Judge's own notes on police activities' and set out notes that the Judge had allegedly made while watching video footage shown by legal representatives for the F treason accused, which notes portrayed police activities during the September 1984 unrest in an unfavourable light. A second article contained the statement that the Van der Walt Commission into the September unrest in the Vaal townships could have major implication for the Delmas treason trialists and that the Commission's report, which had been inexplicably delayed, could perhaps have caused the Delmas trial to have taken a different route. A third article listed three new pieces of G evidence in the case 'which could shake the State's case'. The Judge issued a rule nisi on 5 May 1986 calling upon the two appellants to show cause why they should not be convicted of contempt of court in respect of these articles, and he placed on record that the notes quoted were not his. On the return day of the rule nisi, it appeared from the evidence that the notes had, in fact, been made by an attorney from the firm of attorneys representing some of the accused in the trial and had been given to second appellant by another attorney in the same firm, who H informed second appellant that they were the Judge's notes, as to his knowledge at the time they were. Both appellants testified that they had no reason to believe that the notes were not the Judge's own which he had read into the Court record. The Judge found that the article concerning his alleged notes was contemptuous, that the appellants had not intentionally committed contempt of court and that a proprietor, publisher and editor of a newspaper in which contemptuous matter I appeared was liable even in the absence of mens rea - this strict liability did not, however, apply to the reporter concerned. He therefore convicted only first appellant of contempt in respect of the first article and, as regards the other articles, found that they tended to interfere with the administration of justice in pending proceedings, against which there existed an absolute rule, and convicted both appellants of contempt of court in regard thereto. First appellant was sentenced to a fine or, alternatively, imprisonment and second appellant to a suspended fine or imprisonment. Both appealed against their J convictions.

1988 (3) SA p398

A On appeal, the Court accepted that first appellant had not known, and had not foreseen the possibility, that the notes had not been read into the record, proceeded to examine whether intention is an element of the offence of contempt of court, and concluded that there were sound policy considerations for holding at least the editor of a newspaper, or another form of the media, liable for contempt of court if he acted either intentionally or negligently.

B The Court then examined the test to be applied in determining whether conduct constitutes that form of contempt of court which consists in an interference with the administration of justice, and found no compelling reason to deviate from the 'tendency test' adopted by the Appellate Division in S v Van Niekerk 1972 (3) SA 711 (A), viz whether the statement or document in issue tends to prejudice or interfere with the administration of justice in a pending proceeding.

Dealing with the question of whether the articles concerned contained C contemptuous matter, the Court held, as regards the article referring to the Judge's notes, that, although it did not amount to scandalising the Court, it was contemptuous in that it prejudged an issue in the case, viz the issue of what the effect of police action after a mass funeral in a Vaal township was. The Court applied Vine Products Ltd v Green [1966] 1 Ch 484 at 496 in holding that a publication was contemptuous if it was likely to interfere with the proper adducing of evidence either by discouraging witnesses from testifying or by influencing their D testimony, and further held that the article concerned could have had a profound influence on a prospective witness who read it, as the notes portrayed the police in an unfavourable light and contained adverse comment on police activities in the Vaal townships. The Court held (Van Heerden JA dissenting) that the first appellant had been clearly negligent in publishing this article and observed that the correct approach should be that, because the press exercised such a tremendous E influence on public thinking, it correspondingly shouldered a heavier responsibility than an ordinary individual to control the correctness of what it published. Therefore, first appellant should have realised that a mistake had possibly been made in the writing of the article and should not have published it without controlling its correctness, which could easily have been done in the instant case.

In regard to the other two articles, the Court found that there was no F absolute rule against the prejudging of issues in pending proceedings (as the Court a quo had held): The real question was whether the material in question tended to constitute an improper interference with the administration of justice, ie whether the article mentioning the report of the Van der Walt Commission and posing the question whether the Delmas trial might have taken a different route had the report been tabled earlier satisfied the tendency test. The Court held that such a G remark could not have influenced the Court or prospective witnesses even if its validity had been accepted by them. As far as the remainder of these articles were concerned, in which the relevant sections stated that the report of the Van der Walt Commission could have major implications for the accused, and that new evidence had emerged which could shake the State's case, the Court, with some hesitation, found that these comments were contemptuous, as they constituted an improper speculation on the detrimental consequence that the Van der Walt Commission and the new evidence could have on the State's case, and that this could influence the proceedings in the treason trial. The Court thus dismissed both the appeals.

H The decision in S v Harber and Another: In re S v Baleka and Others 1986 (4) SA 214 (T) confirmed.

Case Information

Appeals from convictions in the Transvaal Provincial Division, reported at 1986 (4) SA 214 (T) (Van Dijkhorst J). The facts appear from I the judgment of Van Heerden JA.

D A Kuny SC (with him G J Marcus) for the appellants: (a) The Court below erred in holding that proprietors, publishers and editors of newspapers are strictly liable for contempt of court. (b) The test for contempt of court enunciated in S v Van Niekerk 1972 (3) SA 711 (A) is out of keeping with contemporary notions of Anglo-American jurisprudence J and should be reconsidered in the light of modern developments.

1988 (3) SA p399

(c) The procedure adopted by the Court below was irregular in that the presiding Judge assumed the role of complainant, prosecutor and Judge in his own cause. These submissions are dealt with seriatim. Mens rea : In the Court below, Van Dijkhorst J held that the proprietor, publisher and editor of newspapers are strictly liable for contempt of court. There appear to be two bases for his finding: (a) A number of very early South B African cases (most of which were decided at the turn of the century or earlier) suggest that newspapers were to be held strictly liable for contempt. The only 'modern' authority relied upon for this proposition was the decision...