Should we throw Helen Zille in jail?

When should courts use their powers to jail politicians and other individuals who disrespect the judicial system and undermine the legitimacy of our courts? Can they actually do so without infringing on the rights of an individual protected in the Bill of Rights? Should Youth League members (or Helen Zille, for that matter) be jailed for contempt of court when they attack the personal integrity of individual judges? And what should happen when organisations or individuals just flagrantly ignore the orders made by courts?  

These questions are rather more difficult to answer than one might think. The recent case of the shenanigans of some of the leaders of the ANC Youth League is a case in point.

When ANC Youth League secretary-general Vuyiswa Tulelo told a daily newspaper last month that a High Court Judge who had ruled against the Youth League had arrived at a “drunken decision”, Advocates for Transformation rightly took Tulelo to task for insulting Grahamstown High Court Judge Nomathamsanqa Beshe. Judge Beshe had ruled against Julius Malema’s leadership of the league and reversed its decision to disband the league’s Eastern Cape provincial leadership. Should Tulelo not have been summonsed to court and thrown in jail for contempt of court?

This matter was, of course, made worse when ANC Youth League KwaZulu-Natal provincial secretary, Bheki Mtolo then said the following in response to the ruling:

We also want to warn the judiciary to desist from meddling with our internal political issues…. We have always respected the independency of the judiciary. However, the conduct of some of these judges who have become political role players has made us conclude that we will engage with them in a political manner.

Last week Chief Justice Sandile Ngcobo rightly called these assaults on the judiciary “very troubling”  because “this kind of criticism may well undermine public confidence in our courts”. When politicians attack the integrity of individual judges (something Helen Zille and Gwede Mantashe have also made themselves guilty of in the past), instead of focusing on the reasons given for the judgment and engaging with the correctness of such a judgment – based on legal principles and analysis – they go beyond acceptable criticism of the judiciary and they undermine the legitimacy of our courts.

So, are members of the judiciary finally fighting back against this kind of flagrant disrespect shown to our judicial system by “some among us” (to quote that other guy who used to be President – what is his name again?)? News that the Labour Court in Johannesburg had found Gauteng leaders of the SA Democratic Teachers Union (SADTU) guilty of contempt of court, and had ordered that the provincial management and leaders of the central branch (Soweto) be arrested and detained for 15 days for ignoring an interdict that was handed down on Sunday, suggests so.

The SADTU leaders were prohibited by the court order from holding meetings in school time and disrupting the matric preliminary exams in any way but they had allegedly ignored this order.

These examples deal, of course, with two different kinds of contempt of court. The Youth League statements might have been contempt of court because it “scandalised the court”, while the  SADTU refusal to obey a court order might have led to a different kind of contempt of court not related to the “scandalising” of the courts.

Contempt of court is a difficult matter to deal with in a constitutional democracy. It has been argued that the exceptional summary procedure for contempt of court could be interpreted as subverting the fundamental presumption of innocence guaranteed in section 35(3)(h) of the Constitution. The fact that the very judge whose judgment was ignored or who was scandalised by the personal attacks of politicians could make a decision on whether an individual was guilty of contempt of court, could also raise constitutionally difficult issues, given the fact that everyone has a right to be tried by an independent and impartial court.

In 2001 in the case of S v Mamabolo the Constitutional Court dealt with one aspect of contempt of court relating to the “scandalising of the court” (Justice Kriegler writing the judgment) and confirmed that this was indeed a constitutionally valid criminal offense that could be used to protect the judicial process against scurrilous attacks.

It confirmed that “scandalising the court” is a form of contempt of court recognised by our law. This, said Kriegler, was part of “a variety of offences that have little in common with one another save that they all relate, in one way or another, to the administration of justice”. Noting that the definition of contempt of court is rather broad, Kriegler wondered why  there is such an offence as scandalising the court at all “in this day and age of constitutional democracy”.

Why should judges be sacrosanct? Is this not a relic of a bygone era when judges were a power unto themselves? Are judges not hanging on to this legal weapon because it gives them a status and untouchability that is not given to anyone else? Is 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? Indeed, 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?

The answer is both simple and subtle. It is, simply, because the constitutional position of the judiciary is different, really fundamentally different. In our constitutional order the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. Under the doctrine of separation of powers it stands on an equal footing with the executive and the legislative pillars of state; but in terms of political, financial or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential. Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.

There is of course a tension between the need to protect the judicial process (for the benefit of us all) and the need to safeguard freedom of expression for those who wish to criticise a decision made by a judge.  Because statements concerning judges and the performance of their duties can have a much wider impact than merely hurting the feelings of an individual judge, this crime focuses on acts or statements that reflect on the integrity of courts, as opposed to mere reflections on the competence of judges or the correctness of their decisions.

As the Constitutional Court pointed out, the test for scandalising the court, namely that one has to ask what the likely consequence of the utterance was, will mean that it will be rather difficult to find someone guilty of this offence. Merely criticising a decision – even in harsh terms – would not constitute contempt of court in a constitutional democracy. Launching a personal attack on the integrity of a judge by, say, suggesting that he or she is a drunkard or that he or she is a political lackey of a particular political party would get closer to meeting the requirements for this kind of contempt of court.

Similarly, when contempt of court deals with the intentional and unlawful disobeying of a court order, one will only be convicted if it can be shown beyond reasonable doubt that one indeed had the intention to disobey a court order. The Supreme Court of Appeal confirmed in the case of Fakie v CCII Systems (pty) Ltd that one would only be found guilty of this kind of contempt if one had disobeyed a court order “deliberately and in bad faith”. If one honestly believed that one was justified in ignoring the court order one could not be found guilty of contempt of court, said the SCA.

It seems to me where any individual or organisation (whether it is a ordinary citizen, a public official, a Minister, a political party or a union) deliberately disobeys a court order – even when it is clear that there was no valid excuse for doing so – the attack on the legitimacy of the judicial system is so severe that there should be little problem with throwing the person in jail. The order of the Labour Court therefore seems appropriate (unless other factors not mentioned in the media might have cast doubt on whether the SADTU leaders had disobeyed the court order in bad faith). If court orders are not obeyed, then the judicial system breaks down and with it the rule of law. Chaos and anarchy is inevitably the result.

But when immature, self-serving, or rather dim-witted politicians attack the integrity of judges (whether they are members of the Youth League, the ANC proper or the DA) one should be rather more careful about using contempt of court proceedings to reign them in. If this procedure is used too quickly, there is a danger that this will stifle debate and dialogue about the work done by courts. Judges are not directly accountable to anyone – which is a good thing – but they are indirectly accountable to the public at large in that their decisions and the reasons given for decisions can be subjected to analysis and criticism.

But what to do in a case like the one mentioned above, where a Youth League leader calls a decision a “drunken judgment”? Should one press for the court to hold her in contempt of court on the basis that she scandalised the court?

Personally, I believe such statements are outragous and that the ANC should take action against the guilty officials, and that their membership of the ANC should be suspended for a number of years. Failure to do so will cast doubt on the ANC’s commitment to an independent and impartial judiciary.

But at the same time, I suspect that it is better to err on the side of free expression and therefore not to throw such oficials in jail on the basis that they are guilty of contempt of court. Besides, if our courts decide to go down that road we might sit with the strange situation where Gwede Mantashe, Helen Zille, and several Youth league leaders are all locked up for contempt of court. Imagine they all find themselves in the same prison for a 15 day period! It would make for an interesting discussion in jail, but would probably not be good for the legitimacy of the judicial system in the long run.

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