S v Mamabolo (E TV and Others Intervening)

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Madlanga J, Sachs J and Somyalo AJ
• Judgment Date: 11 April 2001
• Citation: 2001 (1) SACR 686 (CC)
• Hearing Date: 27 February 2001
• Counsel: H J Fabricius SC (with S M Lebala) for the appellant. E C J Wait (with S C Bukau) for the State. G J Marcus SC (with M Chaskalson) for the amici curiae.
• Court: Constitutional Court

Kriegler J:

Introduction G

[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 H 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

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this Court was desirable in the interests of justice. [3] The first issue was whether the law A 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 B 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 C 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 D 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

Kriegler J

with the A 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 B 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 C 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 D 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 E 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 F 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 G 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 H 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 I for bail pending the outcome of the appeal. The prosecution did not oppose and the application was granted by Els J in Chambers.

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[5] The Department was of the view that, because the scope of the A appeal was 'limited to the nature of the offence only and does not relate to the sentence', [10] 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 B 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:

Wife demands answer after ''radical blunder'' Judge contributes to confusion - DCS C

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 D 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 R5 000. E

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. F

As far as the DCS is concerned, Terre Blanche was sent to prison for six 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 G 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.'' H

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 six months too long, because he had qualified for the six month amnesty that ex-president Nelson I Mandela had granted on his 80th birthday. He will therefore have to be released next month already.'

Kriegler J

[6] The learned Judge read the newspaper report and later the same day issued an order in the following terms: A

'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 10:00 in Court GC to B 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.) C

[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 advisers 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 D was not a lawyer (the departmental media statement reflected the view of its legal...