Content Regulation / Censorship, Defamation / Reputation, Protection of Sources
Marena v. Auler
Closed Mixed Outcome
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The Constitutional Court of South Africa ruled that the conviction and sentence of the appellant for contempt of court was unconstitutional. The appellant, Russell Mamabolo, a spokesperson for the South African Department of Correctional Services, was quoted in a newspaper as saying that a High Court Judge had “made a mistake” in granting a right-wing leader bail. The Constitutional Court reasoned that the contempt of court offence was a justifiable limitation to the right to freedom of expression if it was interpreted narrowly. However, in this case the summary procedure adopted by the High Court judge was an infringement of Mamabolo’s right to a fair trial, and that, in any event, the statements made by Mamabolo did not constitute contempt.
Russell Mamabolo worked at the Department of Correctional Services in South Africa. In his capacity as a Spokesperson of the Department, Mamabolo criticized the decision of a High Court judge to grant bail pending appeal to Eugene Terre Blanche, the leader of a right-wing group, the Afrikaner Weerstandsbeweging. In an article in a daily newspaper, the Beeld, Mamabolo said that the judge “had made a mistake”. The judge saw the article and issued an order calling on Mamabolo (and another official) to appear before him and “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” (paras 5-6). In the hearing before the Judge, Mamabolo made two arguments: that a charge of contempt of court in the circumstances would infringe his right to freedom of expression; and that the right of a judge to “summarily order people before court to give an explanation of any kind whatever” infringed his right to a fair trial (para. 10). He argued that “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” (para 34).
The Judge delivered an oral judgment which held that Mamabolo’s statement “was a scandalous comment and it impugned on the integrity of this court … [i]t was not merely the exercise of the right of freedom of speech”, and convicted Mamabolo of contempt of court.
Mamabolo applied directly to the Constitutional Court to determine the constitutionality of the contempt of court offence and the correctness of his conviction.
Kriegler J delivered the majority judgment of the Constitutional Court.
The main focus of the appeal was the constitutionality of limiting the right to freedom of expression through the contempt of court offence. Kriegler characterized the issue as whether the law relating to the particular form of contempt of court, more colourfully referred to as scandalising the court, unjustifiably limited the right to freedom of expression guaranteed by the Constitution (para. 1).
The Freedom of Expression Institute (a non-governmental organization), E-TV (a free-to-air television station) and Business Day (a daily newspaper) intervened as amici curiae in the Constitutional Court. The Director of Public Prosecutions (DPP) formally opposed Mamabolo’s appeal in the Constitutional Court despite not having been involved in the actual contempt of court prosecution (which had been conducted solely by the High Court judge). The DPP argued that the offence did limit the right to freedom of expression, but that the limitation was justified as it served the public interest of “preserving the integrity of the administration of justice” (para. 3).
Mamabolo argued that under the new constitutional dispensation “criticism of judicial proceedings after the event could never constitute a crime” irrespective of whether the statement was true or not. He submitted that the “free market-place of ideas” would ensure that the truth of statements prevailed, and that “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.” (para. 34)
The Freedom of Expression Institute argued that South Africa should follow the approach in the Canadian case of R v. Kopyto (1987) 47 DLR (4th) 213 (Ont. CA) which had adopted the U.S. “clear and present danger test” (para. 35).
Kriegler acknowledged the difficulties involved in questions of the constitutionality of contempt of court offences. He asked “[i]s 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?” and “[i]ndeed, 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?”. He then explained that the judiciary is treated differently to the other branches of government because “[h]aving no constituency, no purse and no sword, the judiciary must rely on moral authority” (paras. 15-16).
Kriegler continued by explaining how the integrity of the judiciary is protected and said that “judges speak in court and only in court” and so judges “are not at liberty to defend or even debate their decisions in public”. He said that the public nature of court proceedings and the ability for individuals to appeal judgments they believe to be incorrect “is intended to enhance public confidence” (paras. 18-19). He said that there is a need to protect the judiciary and that “[o]ne of the protective devices is to deter disparaging remarks calculated to bring the judicial process into disrepute” (para. 19).
Kriegler then looked at the scope of the offence of scandalizing the court. He emphasized 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” (para. 24).
Kriegler then discussed how freedom of expression is used to guide the application of the contempt of court offence. He quoted the Privy Council in Ambard v. Attorney General of Trinidad and Tobago  1 All ER 704 (PC) which had held that “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” and the South African case of Argus Printing and Publishing v Esselen’s Estate 1994 (2) SA 1 (A) which had held that “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”. Kriegler said that the Argus Printing case demonstrates 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”. Kriegler said that “informed and vocal public scrutiny [of judicial proceedings] promotes impartiality, accessibility and effectiveness” and “constitutes a democratic check on the judiciary”. With reference to the U.S. case of Richmond Newspapers Inc. v. Virginia 448 U.S. 555 (1980), he added that “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” (paras. 27-31).
Kriegler cautioned, however, that “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”. He emphasized that courts require public confidence in their legitimacy in order for them to perform their role. He distinguished between statements made about the judiciary which reflect on the judiciary’s integrity as opposed to the competence of its decisions and commented that “the crime of scandalising is particularly concerned with the publication of comments reflecting adversely on the integrity of the judicial process or its officers” (paras. 32-33).
Kriegler rejected the proposition from the Freedom of Expression Institute that the Court adopt the “clear and present danger” test in determining whether an offence had been committed. He said that the formulation of the test was inconsistent with the textual structure of South Africa’s Constitution which permits the protection of the judiciary’s integrity through legislative means. He added that unlike the situation in the U.S., in South Africa freedom of expression is not absolute and confirmed that “the right to dignity is at least as worthy of protection as is the right to freedom of expression” (para. 41).
Kriegler criticized the Freedom of Expression Institute’s argument that focused on “tendency to harm” stating that the focus should be on the consequences of the statement. He said that in all situations in which the liability for an offending statement is assessed the Court must apply an objective test and “ask what the effect of the statement was likely to have been”. He went on, the “law regards it as more reliable to infer from an interpretation of the statement what its consequence was” rather than looking at its actual effect. (para. 43). He said “[u]ltimately the test is whether the offending conduct, viewed contextually, was really likely to damage the administration of justice” (para. 45).
Kriegler explained that the effect of the Constitution on the offence of scandalizing the court was not to make the offence unconstitutional but rather to narrow the scope of the offence. He said that “[h]aving regard to the founding constitutional values of human dignity, freedom and equality, and more pertinently the emphasis on accountability, responsiveness and openness in government, 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”. He added that “[t]he 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” (para. 45).
Kriegler emphasized that it was impossible to create a definitive list of what language and conduct would meet the criteria for a conviction of scandalizing the court. He said that this determination must remain context-dependent (para. 46).
Kriegler then moved on to the justification aspect of the limitations analysis. Section 36 of the South African Constitution is a general limitations clause, and requires that all limitations to any rights be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. He said that the importance of the limitation, namely to protect the integrity of the judiciary, means that “weighing the importance of that interest against the minimal degree of limitation involved, the scale once again favours saving the sanction” (para. 48).
Kriegler acknowledged that there was a “certain stark appeal” in the approach proposed by Mamabolo 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”. However, he concluded that it was “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” . He concluded by saying that “[o]n 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” (para. 49).
The other issue before the Court was whether, in contempt of court cases, a summary procedure leading to a conviction by the judge concerned was an infringement of the constitutionally protected right to a fair trial. Kriegler concluded that it was, he said that the “summary contempt procedure employed in the present case is, save in exceptional circumstances….a wholly unjustifiable limitation of individual rights and must not be employed. ” Accordingly he ruled that Mamabolo’s conviction and sentence were unconstitutional.
Kriegler went on to say that, in any event, the conviction was not factually supportable because “[w]hat was published did not in any way impair the dignity, integrity or standing of the judiciary or of the particular judge”(para. 61). The Constitutional Court set aside the conviction and sentence.
Sachs J provided a separate but concurring judgment in which he concurred with the judgment and order but expressed concern about the continued use of “criminal sanctions for speech made outside of court and not directed at pending cases”. His first concern was with the continued use of the words “scandalizing” and “disrepute” which he said were archaic and not suitable for a modern constitutional dispensation (paras. 69-70).
In addition, Sachs said that it may well be that criticism of the judiciary is necessary to ensure its integrity: “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.” (para. 70).
Sachs also that scandalizing the court is generally concerned with statements made outside of court, and said that “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”. He suggested 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”. He did, however, recognize that although the test he proposed differed from that established in Kriegler’s majority judgment “in practice the difference might be slight” (para. 75).
Sachs concluded by providing a cautionary tale of the judiciary under apartheid South Africa in South Africa and said that “the more the critics were suppressed, the greater the loss of prestige of the judiciary”. He said that “[i]t 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” and that “[i]t is particularly important that, as the ultimate guardian of free speech, the judiciary show the greatest tolerance to criticism of its own functioning” (paras. 76-78).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the Constitutional Court confirmed that the offence of contempt of court through scandalizing the court was constitutional it declared that the offence must be narrowly defined in order to remain consistent with the Constitution. In addition, it ruled that the procedure by which a Judge can convict an individual of contempt of court without involving the prosecution authorities was an unjustifiable limitation of the right to a fair trial.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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