Reasoned criticism of courts holds the judiciary accountable, questioning the integrity of judges does not

South African courts are likely to hand down several politically significant judgments in 2020. This will include cases involving Public Protector Busisiwe Mkhwebane and former President Jacob Zuma. No doubt, these judgments will provoke harsh criticism from those who do not like the outcome. There is normally nothing wrong with criticism – even harsh criticism – of court judgments. But when does harsh criticism tip over into contempt of court?

In 2011 my colleague Jaco Barnard-Naude and myself published a scathing critique of the majority judgment of the Constitutional Court in Le Roux v Dey in the South African Law Journal. The case dealt with two schoolboys who had pasted the faces of the headmaster and deputy headmaster of their school onto a picture of two naked men, sitting next to each other on a couch, seemingly pleasuring themselves. We particularly objected to the fact that acting Constitutional Court justice Brand (for the majority) interpreted the picture as follows:

[T]he vision created is one of two promiscuous men who allowed themselves to be photographed in what can only be described as a situation of sexual immorality, which  would  be  embarrassing  and  disgraceful  to  the  ordinary members of society.

 How, we asked, could the judge conclude that two people being sexually intimate with each other are necessarily promiscuous and are involved in “sexual immorality”? We argued that the judge must unknowingly have relied on a heteronormative assumption about same-sex sexuality – an assumption that same-sex sexuality is immoral and that people who engage in same-sex sexual activity simply are promiscuous. (We did not engage with what, to my mind is, the prudish assumption that promiscuity is always a bad thing.)

Those who read law journal articles will know that such harsh (but reasoned) criticism of court judgments is not unusual. It is part of one’s job as an academic to analyse and, where appropriate, to criticise the reasoning employed in court judgments. Such criticism will not amount to contempt of court.

However, had we suggested that the judge was instructed by his church (assuming that he belongs to one) to argue in the way he did, or that he was bribed to do so, we would surely have opened ourselves up to a contempt of court charge. (We would also, rightly, have been ridiculed by our peers for indulging in bizarre conspiracy theories.)

To understand this distinction between harsh but acceptable criticism of court judgments and judges, on the one hand, and impermissible criticism that amounts to contempt of court, on the other, it is helpful to turn to the definitive Constitutional Court judgment of S v Mamabolo.

Unlawful criticism of courts, court judgments, and judges is prohibited by the rather quaintly named crime of “scandalising the court”, which is one form of contempt of court. In Mamabolo the Constitutional Court pointed out that the crime of scandalising the court must be interpreted narrowly to prevent an impermissible limitation on the right to freedom of expression.

The crime of “scandalising the court” is not aimed at protecting the dignity of the individual judicial officer (something the Public Protector seems to be unaware of). Rather, it is aimed at protecting the integrity of the administration of justice. Quoting from the Zimbabwean Supreme Court judgment of In re: Chinamasa, the court explained:

The recognition given to this form of contempt is not to protect the tender and hurt feelings of the judge or to grant him [sic] any additional protection against defamation other than that available to any person by way of a civil action for damages. Rather it is to protect public confidence in the administration of justice, without which the standard of conduct of all those who may have business before the courts is likely to be weakened, if not destroyed.

Reasoned criticism of courts, court judgments, and judges does not undermine public confidence in the judiciary. Such criticism does the opposite, serving as a mechanism to hold the judiciary accountable. Judges are unelected and they are therefore not directly held accountable by voters. But as the Constitutional Court pointed out in Mamabolo:

[U]ltimately, such free and frank debate about judicial proceedings serves more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the important aspirational attributes prescribed for the judiciary by the Constitution. However, such vocal public scrutiny performs another important constitutional function. It constitutes a democratic check on the judiciary. The judiciary exercises public power and it is right that there be an appropriate check on such power.

It is for this reason that the crime of scandalising the court does not concern itself with remarks that merely question the competence of a judge or the correctness of a decision. It is when someone questions the integrity of the courts, or of an individual judicial officer, that the crime of scandalising the court may come into play. As the court stated in Mamabolo:

Because of the grave implications of a loss of public confidence in the integrity of its judges, public comment calculated to bring that about has always been regarded with considerable disfavour. No one expects the courts to be infallible. They are after all human institutions. But what is expected is honesty. Therefore the crime of scandalising is particularly concerned with the publication of comments reflecting adversely on the integrity of the judicial process or its officers.

In another passage in the same judgment, the Constitutional Court stated that the nature and purpose of scandalising the court have probably nowhere been more clearly described than in the following passage:

 …any publications or words which tend, or are calculated, to bring the administration of justice into contempt, amount to a contempt of Court. Now, nothing can have a greater tendency to bring the administration of justice into contempt than to say, or suggest, in a public newspaper, that the Judge of the High Court of this territory, instead of being guided by principle and his conscience, has been guilty of personal favouritism, and allowed himself to be influenced by personal and corrupt motives, in judicially deciding a matter in open Court.

Whether a particular remark will tend to or is calculated to bring the administration of justice into contempt will depend on many factors. Each case will have to be judged in the context of its own peculiar circumstances, which include:

what was said or done; what its meaning and import were or were likely to have been understood to be; who the author was; when and where it happened; to whom it was directed; at whom or what is was aimed; what triggered the action; what the underlying motivating factors were; who witnessed it; what effect, if any, it had on such audience; what the consequences were or were likely to have been.

A politician who attempts to discredit a judgment he or she finds politically inconvenient by accusing the judge of being a “paid agent of white monopoly capital” or “of knowingly allowing himself to be manipulated by the Marxist ANC”, will be in trouble. But I suspect a twitter user who accuses a judge of acting in a patronising manner towards an advocate in court because the advocate is black, or a woman, or gay or lesbian, may well be safe.

In the former case, the politician is deliberately attacking the integrity and honesty of the judge to try and discredit the judgment, which is not permitted. In the latter case, the twitter user is expressing an opinion, based on what he or she has witnessed during televised court proceedings, not calling into question the honesty and sincerity of the judge. However, the twitter user in my example may arguably be in trouble if he or she states as fact that the judge is racist, sexist or homophobic and continues that the judge is deliberately favouring the white over the black litigant, the male over the female litigant, or the straight over the gay or lesbian litigant because of the judge’s alleged racism, sexism or homophobia.

The latter example illustrates that it will not always be easy to distinguish between remarks that scandalises the court, on the one hand, and remarks that may be misguided or intemperate but would not rise to the level of scandalising the court. Context will be all important.

What is clear is that a person will not be guilty of scandalising the court just because his or her criticism of a judgment or a judge is uninformed, misguided, or plainly wrong. One does not commit a crime merely because you are an uninformed idiot, who is criticising a judgment merely because it does not confirm your opinion or (in some cases) the opinion the leaders of your political party told you to have.

That said, just because you have a right to say something does not mean it is right to say it. While uninformed criticism of a court judgment by people who have not bothered to read the judgement they are criticising may not usually amount to the crime of scandalising the court, such criticism has little value and can profitably be ignored. If you wish to play your part in holding the judiciary accountable, you will have to do some work and will have to familiarise yourself with the arguments of the judgment you are criticising.

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