S v Mamabolo (E TV and Others Intervening)

• Jurisdiction: South Africa
• Citation: 2001 (1) SACR 686 (CC)

S v Mamabolo (E TV and Others Intervening)
2001 (1) SACR 686 (CC)

2001 (1) SACR p686

Citation	2001 (1) SACR 686 (CC)
Court	Constitutional Court
Judge	Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Madlanga J, Sachs J and Somyalo AJ
Heard	February 27, 2001
Judgment	April 11, 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.

Flynote : Sleutelwoorde

Contempt of court — What B constitutes — Contempt ex facie curiae — Contempt in form of offence of scandalising court — Nature and purpose of offence discussed — Offence consisting in making of statement which, viewed contextually, likely to damage administration of justice — Purpose of offence to protect integrity of administration of justice, not dignity of individual judicial C officer — Need to preserve integrity of rule of law and to protect moral authority of and public trust in Judiciary to be balanced against right of freedom of expression — While latter right guaranteed by s 16(1) of Constitution of Republic of South Africa Act 108 of 1996, Constitution also protecting dignity of courts, particularly in s 165(4) D thereof — No room for argument that Constitution requiring abandonment of offence in question — Limitation on right of freedom of expression implied by recognition of offence justified — Threshold for conviction high — Summary procedure in terms of which Judge allowed to summons suspected scandaliser to appear before him to answer charge of contempt of court, contrary to fair trial provisions of s 35(3) of Constitution E of the Republic of South Africa Act 108 of 1996 — Ordinary mechanisms of criminal justice system to be employed.

Fundamental rights — Right to freedom of expression in terms of s 16 of Constitution of Republic of South Africa Act 108 of 1996 — Limitation of right of freedom of expression by common-law offence of contempt of court committed ex facie curiae (in F form of scandalising court) justifiable in light of narrow ambit of offence and public interest in maintaining integrity of judiciary.

Fundamental rights — Right to freedom of expression in terms of s 16(1) of Constitution of Republic of South Africa Act 108 of 1996 — Such right not absolute nor enjoying status superior to that of other fundamental rights — First Amendment of Constitution of United G States of America in contrast containing an unequivocal and sweeping commandment to uphold freedom of expression, ranking it above all other rights — Test of 'clear and present danger' to administration of justice used in United States when dealing with challenges to the First Amendment not consonant with South African constitutional value system. H

Fundamental rights — Right of accused to a fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Procedure whereby person charged with contempt of court committed in facie curiae (in form of scandalising the court) inquisitorial and inherently punitive and unfair, and not I reconcilable with standards of fairness called for by s 35(3) — Procedure not saved by s 36(1) of Constitution — Ordinary mechanisms of criminal justice system to be employed.

2001 (1) SACR p687

Headnote : Kopnota

The offence of scandalising the Court: nature, purpose, and limits

The offence of scandalising the court has been defined as 'publications or words which tend, or are calculated, to bring the administration of justice into J disrepute'. The interest served is not the private interest of the court concerned, but those of the public at large. Nor is it the A self-esteem or dignity of any judicial officer, or even the reputation of a particular court that is sought to be protected, but the moral authority of the judicial process as such. The offence is a public injury: it exists to protect the integrity of the administration of justice. There is, however, a tension between the preservation of the reputation of the judicial process and the right of freedom of speech, B and this was recognised long before South Africa's adoption of constitutional democracy with its set of fundamental norms and Bill of Rights. The freedom to debate the conduct of public affairs by the Judiciary does not mean that attacks on the Judiciary, however scurrilous, may be made with impunity. Although it is impossible to draw a clear distinction between acceptable criticism of the Judiciary C and statements that harm the public interest by undermining the legitimacy of the judicial process, the ultimate objective remains that the courts should be able to attend to the proper administration of justice and, more importantly, be seen and accepted by the public to be doing so. Therefore, the offence is particularly concerned with the publication of comments that reflect adversely on the integrity of the D courts as opposed to mere reflections on their competence or the correctness of their decisions.

The constitutional challenge to the offence

The argument that the offence did not survive the advent of the new constitutional dispensation because it places an unconstitutional damper on the freedom of expression guaranteed by E s 16(1) of the Constitution of the Republic of South Africa Act 108 of 1996, cannot be upheld: the Constitution itself in s 165(4) recognises the importance - and commands enforcement, if necessary by 'legislative or other measures' - of the dignity of the courts, the very feature the offence aims to protect. Nor is the minimalist test of a 'clear and present danger' to the administration of justice used by F the American courts in dealing with challenges to the right of freedom of expression appropriate in the South African context: our Constitution, unlike the American one, does not rank freedom of expression above all other rights, or declaim it as an unqualified right. When one looks at an allegedly scandalising statement, one has to ask what the likely effect of the statement was. The test is an objective one, applied with the standard measure of reasonableness, G that aims to establish whether the harmful effect at which the law strikes (the bringing into disrepute of the administration of justice) came about or not, and this is inferred from an interpretation of the statement itself, evidence about the actual effect of the disputed statement on the persons to whom it was made being irrelevant. The H threshold for a conviction is now even higher than before the superimposition of constitutional values on the existing common-law principles, and prosecutions are likely to be instituted only in clear cases of impeachment of judicial integrity. The test, in short, is whether the offending conduct, viewed contextually, was likely to damage the administration of justice. I

Justification

The category of cases in which the existence of the offence 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 required by s 36(1) of the Constitution J

2001 (1) SACR p688

clearly tilts in favour of the limitation. Balancing the importance of the public interest in A maintaining the integrity of the judiciary against the minimal degree of limitation involved also favours saving the sanction.

The constitutionality of the summary procedure

The suspected scandaliser who is summoned by a superior Court to answer a summary charge of contempt of court is an accused person as contemplated in s 35(3) of the Constitution, and the procedure B employed, in which the complainant, prosecutor, witness and Judge are amalgamated into one entity, is inquisitorial and inherently punitive and unfair, and not reconcilable with the standards of fairness called for by s 35(3). Nor is the procedure saved by s 36(1) of the Constitution: if it is borne in mind that the enquiry is limited to the C use of summary procedure in cases of alleged scandalising of the court, the limitations imposed are not reasonable and justifiable in an open and democratic society. There is no pressing need for firm or swift measures to preserve the integrity of the judicial process, and if punitive steps are indeed warranted by criticism so egregious as to demand them, there is no reason why the ordinary mechanisms of the D criminal justice system cannot be employed. The alternative is constitutionally unacceptable: it is inherently inappropriate for courts as the constitutionally designated primary protectors of personal rights and freedoms to pursue the course of conduct currently employed in cases of contempt of court ex facie curiae. E

Case Information

Appeal against a decision in a Provincial Division.

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. F

Cur adv vult.

Postea (April 11).

Judgment

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

2001 (1) SACR p689

Kriegler J

this Court was desirable in the interests of justice. [3] The first issue...