Case Summary and Outcome

The Supreme Court of Swaziland overturned a conviction for contempt of court in respect of one article published by The Nation magazine but upheld a conviction in respect of a second article although it reduced the fine imposed. The first article criticized the Swazi judiciary for not being “bothered to interpret the Constitution” and dismissing fundamental rights; the second article compared the Chief Justice to Tarzan, a “high school punk”and a “street punk”. The Court reasoned that the criticisms of the judiciary in the first article were “bland and eminently permissible within the context of Swaziland’s constitutional freedom of the press guarantees” but that the second article “mounted a scurrilous and unwarranted attack upon the judiciary as a whole, and upon the administration of justice in this Kingdom”.

 

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Facts

The Nation magazine, Swaziland’s only independent magazine, published two articles that were critical of the Swazi judiciary, the judges in the Supreme Court and the Chief Justice.

In the November 2009 edition of the magazine the editor, Bheki Makhubu, wrote an article criticizing the Swazi judiciary. The article called upon newly-appointed judges to uphold the Constitution, and said that, in a recent judgment, the current judges had “stayed away from the Constitutional process that is taking place in the country”. The article said that “essentially what the eminent Justices of the Supreme Court were telling us in the judgment was that they could not be bothered to interpret the Constitution”, accused the judges of dismissing fundamental rights and said that their conduct had been “treasonous” by not accepting the views of academics (para. 63).

In the February 2010 edition Makhubu wrote an article specifically criticizing the Chief Justice, Michael Ramodibedi. He compared Ramodibedi to Tarzan, and ridiculed his own use of the derogatory South African term “Makhulu Baas” which is loosely translated as “Big Boss” (paras. 69-70). Makhubu also compared the Chief Justice to a “high school punk” (para. 72) and then a “street punk” (para. 73).

The Attorney General brought two separate applications in the High Court for a rule nisi to call upon the publisher of the magazine, Swaziland Independent Publishers, and the editor, Bheki Makhubu, to show cause why they should not be convicted of contempt of court in respect of the two articles. The High Court consolidated the two cases and heard them together.

The High Court found Swaziland Independent Publishers and Makhubu guilty of contempt in respect of both articles, and fined them each 100,000 emalangeni (approximately US$10,000) for each article, a total of E400,000 altogether. The Court suspended half of the payment of the fine for five years, but ordered if the required E200,000 was not paid by Makhubu within three days of the Order that he be imprisoned for two years.

Swaziland Independent Publishers and Makhubu appealed the conviction and sentence to the Supreme Court.

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Decision Overview

Moore JA delivered the unanimous judgment of the full bench of the Supreme Court.

The central issue for the Supreme Court was whether the conviction of contempt of court and the E400,000 fine was an unjustifiable infringement of the right to freedom of expression protected by section 24 of the Constitution.

Swaziland Independent Publishers submitted a detailed comparative analysis of freedom of expression and its relationship to contempt of court, and Moore referred to this analysis in detail in the judgment before he discussed the nature of the right to freedom of expression in Swaziland.  He stated that the right to freedom of expression is subject to a limitation under section 24(3) if it is imposed “under the authority of any law”, is “reasonably required” for the purpose of, inter alia, “maintaining the authority and independence of the courts” and is “reasonably justifiable in a democratic society”. Moore explained that section 24(3)(b)(iii), “enables the passage of laws that authorize the Court and judges of the courts to take appropriate action to maintain the authority and independence of the courts” (para. 15).

Moore then examined the nature of the contempt of court offense, specifically the offense of scandalizing the court. He referred to the South African Constitutional Court case of S v. Mamabolo 2001 (3) SA 409 (CC) which had called contempt of court the “Proteus of the legal world” as it had so many varied forms. He pointed out that, in the Mamabolo case, the Constitutional Court had held that the offense was compatible with the Constitution because the judiciary has no other means of protecting its authority (paras. 17-20). Moore quoted section 138 of the Swazi Constitution which states that “Justice shall be administered in the name of the Crown by the judiciary which shall be independent and subject only to this constitution” (para. 21). In addition, section 139(3) confers on the Courts the “power to commit for contempt of themselves” (para. 22), and section 140(2) empowers the Courts to “issue such orders and directions as may be necessary to ensure the enforcement of any judgment, decree or order of these courts” (para. 23). Moore also quoted the constitutional provisions which guarantee the judiciary’s independence, but acknowledged that “the judiciary also relies on the support of the public as well if it is to discharge its onerous duties free from the stresses which public hostility, or lukewarm support could engender” (para. 26).

Moore, with reference to the Mamabolo case and the Swazi case of African Echo (Pty) Ltd. v. Simelane [2013] SZSC 7, said that judicial officers are defenseless because they are prohibited from speaking out in public to respond to criticism. In the African Echo case the Supreme Court had said that “Contempt of Court is a blunt instrument which judicial officers are loath to deploy, even where it could be properly unsheathed in a case warranting its use” (para. 27). Moore said that judicial decisions are widely available for the legal profession to assess and analyse and so judges “conduct themselves in a restrained and self-effacing manner which would inspire public confidence” (para. 28).

Moore quoted the old South African case of In re Philani (1877) which had stated that the greatest threat to the administration of justice is a public newspaper suggesting that a judge had been influenced by “personal and corrupt motives” in deciding a matter (para. 29).

Moore stated that “the crime of scandalizing the court was not created for the purpose of providing a salve for the wounded feelings of the judicial officer concerned or balm to soothe his bruised ego” but that its purpose was “in the preservation of the moral authority of the judicial process itself” (para. 30), and referred to the South African case of Argus Printing and Publishing Co. Ltd v. Esselen’s Estate 1992 (2) SA 1 (A) and the Zimbabwean case of In Re: Chinamasa 2000 (12) BCLR 1294 (ZS).

Moore said that the global jurisprudence on the offense of scandalizing the court “underscore[s] the right of full, ample, vigorous and candid criticisms of the judgments of the courts, and of the opinions expressed by judges” (para. 32), but also that “there is a tension between liberty and licence” (para. 33). He said that contempt of court exists in “England, Australia, Canada, Malaysia, Hong Kong, Sri Lanka, and Zimbabwe” (para. 36) and that it was irrelevant that the offense had become obsolete in many countries. He said that all the Court was required to determine was whether the offense exists in Swaziland at the present time. He noted that the offense of scandalizing the court exists in 13 countries, so the fact that it exists in Swaziland is “not, therefore, some local aberration peculiar to this Kingdom” (para. 38).

Moore held that the determination of whether contempt of court has occurred is contextual and so any article “must be read as a whole and its overall tone and tenor examined before a determination can properly be made as to whether it scandalizes the court or not” (para. 39).

Moore criticised Swaziland Independent Publishers for relying on U.S. freedom of expression jurisprudence and quoted Professor Ronald J. Krotoszynski, Jr. who had said that “[t]he radical differences reflected in the free speech jurisprudence of the United States, Canada, Germany, Japan, and the United Kingdom offer a strong cautionary note against unlimited universalist claims for any particular understanding of freedom of expression” (para. 43). He also quoted Prof. Krotoszynski who had said that freedom of expression in Germany was narrower than in the U.S. (para. 46). Moore said that “[i]n a series of landmark opinions, the German Constitutional Court has firmly embraced dignity as a preferred constitutional value over the freedom of speech” (para. 47).

Referring again to the U.S.’ right to freedom of expression, Moore said that the right in that country’s Constitution must be interpreted in light of the specific background and “social, cultural and political environment” (para. 50). He added, “Yet, even in the U.S.A, there have been limits placed by the courts upon the untrammeled exercise of the right to free speech, and upon the freedom of the press” (para. 52). Moore said that the situation in the U.K. also differs to that in the U.S.

Having analysed the comparative jurisprudence and rationale for the offense Moore examined the circumstances in the present case. Moore held that because a summary procedure for conviction of contempt of court exists elsewhere it should be permitted in Swaziland (paras. 55-57). He also held that the constitutional framework empowers the Attorney General to initiate contempt of court proceedings in situations such as the one before him (paras. 58-62).

Moore looked at the article in The Nation magazine in November 2009 as a whole and said that the criticisms of the judges and the judgment at the beginning of the article were “bland and eminently permissible within the context of Swaziland’s constitutional freedom of the press guarantees” (para. 66). He said that even though there was the use of words such as “criminal” and “treasonous” with reference to the judges, that was merely the opinion of the author. He found that that article did not constitute scandalizing the court (para. 67).

However, Moore interpreted the second article, published in February 2010, in a different manner. He described the tone of the article as having “stridency and belligerence” and said that it “mounted a scurrilous and unwarranted attack upon the judiciary as a whole, and upon the administration of justice in this Kingdom” (para. 68). Moore dismissed the argument that the editor of the magazine did not intend to scandalize the court by highlighting that in the article itself Makhubu had written “Before I get slapped with a charge of contempt of court, let me have my say” (para. 73).

Moore said that Makhubu’s use of “street punks” to describe the Chief Justice was “incalculably worse” than merely describing him as a “high school punk” (para. 74).  He concluded that the statements made in the article “when read together with the rest of the article, contribute significantly to the contemptuous tenor, tone, temper and thrust of the piece, thus exacerbating and compounding the contemptuous character of the article read as a whole” (para. 75).

Moore referred to the U.K. case of R v. Gray [1900] 2 QB 36, and said that the language used by the journalist in that case, which was held to be contemptuous, was “mild, polite, and even genteel, compared with the vituperative cadences of the article in this case” (para. 76).  Moore added that Makhubu’s use of the term “Your Worship” in the article to describe the Chief Justice was disdainful, and said that “author disdained even to afford the Honourable Acting Chief Justice the courtesy of his proper form of address” (para. 77).

Moore concluded that “[t]he writer’s guilt of the offense of scandalizing the court has, on the evidence dripping from his own scurrilous pen, been overwhelmingly established” and that the “conviction by the trial judge cannot therefore be faulted” (para. 77).

Moore then examined the sentence handed down by the High Court. Swaziland Independent Publishers and Makhubu had submitted that the lack of a separate judgment on sentencing was a “gross irregularity in the proceedings” (para. 79). In addition, the Crown acknowledged that the sentence imposed by the High Court was harsh, and submitted that the fine should not exceed E30,000 or six months imprisonment (para. 80).

Moore recognized that the High Court had not heard argument in mitigation of sentence, and said that “I have no doubt but that the court a quo would have arrived at a very different sentence if prosecuting counsel had alerted him to the necessity to hear the appellants in mitigation of sentence” (para. 81). Moore accepted the newspaper’s arguments in mitigation – that it is a small company employing 3,000 people, makes a small profit and that the fines could result in its closure (para. 84) – and the editor’s submissions that the legal costs and incarceration have had significant effects on his personal life (para. 84).

Moore said that the two articles “written by the same person illustrate the kind of searching and critical comment which represents the legitimate exercise of the freedom of the press on the one hand, and the kind of article which strays into the impermissible terrain of scandalizing the court” (para. 85). He said that he was “moved by the pleas of the appellants in mitigation” (para. 86), and that “[n]o one would want to see the little company which publishes The Nation go to the wall. All lovers of freedom and democracy would want to see it continue to comment vigorously upon matters of public interest and concern” (para. 87). He added, however, that The Nation “must do so on the right side of the laws relating to scandalizing the court” (para. 87). He stated that the penalties he imposed “are designed to encourage all members of the press to enjoy their freedoms within the law” (para. 87).

Moore concluded by saying that “those who aim criticisms at the courts, and at members of the judiciary at all levels, must bear in mind that personal attacks upon individual members of the judiciary, upon the courts, and upon the system of justice within this kingdom, carry with them the potential for eroding the foundations of the very institutions which they care so earnestly about” (para. 88).

In conclusion, Moore set aside the convictions and sentences on the November 2009 article, but dismissed the appeal on the conviction in respect of the February 2010 article. However, he altered the sentence imposed by the High Court in respect of that article, changing it to a fine of E30,000 for the newspaper, and a prison sentence of three months for Makhubu, suspended for three years (para. 90).

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