Over the past decade, as the broadcasting of court proceedings have become commonplace, populist attacks on judicial officers and the judgments they produce have become more conspiracy-fuelled and hysterical — particularly in politically charged cases.

While much of this kind of speech (no matter how uninformed or unhinged) is protected by section 16 of the Constitution, accusing a presiding officer of dishonesty and corruption — as EFF leader Julius Malema did last week — should be prosecuted as it amounts to “scandalising the court”, an incidence of contempt of court.

Addressing supporters outside the East London Magistrate’s Court on Thursday 19 October 2023, Mr Malema accused the magistrate presiding over his criminal trial, Twanet Olivier, of not writing the judgment in which she ruled against his bid to have the charges against him dismissed.

Mr Malema claimed that the magistrate interrupted her judgment to take instructions from Pravin Gordhan, President Cyril Ramaphosa and/or Shamila Batohi about how to rule, and that she thus produced a “sponsored” judgment. 

He also insulted the magistrate by calling her a racist and incompetent magistrate “who comes late to court”, “can’t get her papers in order”, and “can’t read her judgments”.

Mr Malema’s claims are self-serving and unsubstantiated. The claim that the magistrate was told what to write by Gordhan, Ramaphosa and Batohi is also obviously false. The claims are intended to delegitimise the trial and its outcome, and to intimidate the magistrate into ruling in Malema’s favour — regardless of whether the state had proven its case against him or not. (I make no prediction on whether he will indeed be found guilty of any of the charges he is facing.)

Much like Donald Trump, who has railed against prosecutors, judges and (in once case) even the clerk of a presiding judge in one of the criminal cases brought against him, Mr Malema has also suggested that he was being prosecuted to hamper his ability to campaign in the upcoming election. Like Trump, Malema also lashed out at those who criticised his utterances (targeting Judges Matter and the Ministry of Justice), telling the latter on X (formerly Twitter): “You can Voetsek small bedwetting boys.”

Disgruntled rambling vs facts

I have previously explained that there is normally nothing wrong with criticism — even harsh criticism — of court judgments or of presiding officers such as magistrates and judges. Ideally, such criticism should be supported by reasons and based on the true facts. It should, additionally, also be based on a good faith engagement with the relevant legal rules and principles.

One finds excellent examples of this type of criticism in academic law journals, where academics often criticise judgments for their lack of rigour, their muddled reasoning, or their interpretation and application of the legal rules and principles.

But even when criticism is uninformed, intemperate, unfair, scurrilous or clearly politically motivated (as is so often the case of criticism of court judgments on social media), such speech will normally be protected by the right to freedom of expression in section 16 of the Constitution.

While such criticism would have little value and could rightly be ignored by the rest of us, section 16 of the Constitution protects the right of everyone to make a fool of themselves, for example, by criticising a judgment that they had not read or had not understood.

It is only in the most extreme and clearest of cases that criticism of presiding officers or court judgments will become a punishable offence. As the Constitutional Court pointed out in S v Mamabolo, the expansive protection of the right to criticise presiding officers and court judgments is necessary as “vocal public scrutiny” of courts and court judgments ensures that presiding officers and the judiciary more broadly are held accountable by the public.

In Mamabolo the court made clear that such criticism will only rise to the level of a criminal offence (the offence of “scandalising the court”) where “a particular remark will tend to or is calculated to bring the administration of justice into contempt”.

As the court explained in Mamabolo, the crime of scandalising the court (which is an incidence of contempt of court) is not aimed at protecting “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.”

It is for this reason that even false and obviously defamatory attacks on presiding officers will not necessarily amount to the crime of “scandalising the court”. This is so, even though presiding officers are in the somewhat unique position of not being able defend themselves against such criticism as they “speak in court and only in court” and are thus “not at liberty to defend or even debate their decisions in public”. (Unfortunately, Chief Justice Raymond Zondo has on occasion ignored this principle by unwisely responding to critics of the State Capture Commission of Inquiry and of judges more broadly, thus entangling himself in political controversy.)

Read more in Daily Maverick: Raymond Zondo on Parliament and State Capture – perhaps he had a constitutional duty to speak out

In theory, presiding officers could sue any critic who makes false and defamatory claims about them, but I would argue that it would almost always be a catastrophic mistake to do so as it would inevitably entangle the presiding officer in political controversy or raise unnecessary questions about their temperament or impartiality.

Question of contempt

The magistrate presiding in Mr Malema’s criminal trial might well feel aggrieved that Mr Malema accused her of incompetence, suggested that she cannot read, and accused her of being a racist. But this is of no relevance when assessing whether Mr Malema made himself guilty of “scandalising the court”. The only question is whether these remarks will tend to or are calculated to bring the administration of justice into contempt.

While some of Mr Malema’s remarks were clearly defamatory and in bad taste, and while they obviously reflect poorly on Mr Malema’s character, I do not believe that they rise (or should rise) to the level of a criminal offence worthy of prosecution.

If individuals were to be prosecuted for questioning the competence or even-handedness of presiding officers it would have a chilling effect (even when the insults are scurrilous) with the fear of being prosecuted for criticising the courts making courts less accountable to the public.

That said, our courts may well hold that Mr Malema’s accusation of racism amounted to scandalising the court. In 2002 the Gauteng high court in S v Bresler & Another convicted a man of scandalising the court for launching a racist attack on the coloured magistrate who had convicted his daughter of a traffic offence after Mr Bresler wrote that the magistrate was unqualified, insane and incompetent, and had applied “bush law”.

However, I agree with the criticism of this judgment by Dario Milo, Glenn Penfold & Anthony Stein in Constitutional Law of South Africa that, while the “comments were clearly reprehensible, and would have provided solid grounds for […] a complaint before the Equality Court, the conviction for contempt of court was not, in our view, a justifiable restriction of free speech”. (I am, however, not persuaded by the authors’ thought-provoking argument that the crime of scandalising the courts should be abolished.)

Mr Malema’s statement that the magistrate interrupted her judgment to take instructions from Pravin Gordhan, President Cyril Ramaphosa and/or Shamila Batohi about how to rule, and that she thus produced a “sponsored” judgment is a different matter altogether.

This statement does not merely question the competence or even-handedness of the presiding officer. Instead, it accuses the presiding officer of corruptly taking orders from the president, a Cabinet minister and the NDPP, thus suggesting that the trial is a predetermined sham directed by Mr Malema’s political opponents and by the current NDPP.

The case law seems to be clear on the point: accusing a judge or magistrate of corruption and dishonesty when there is no factual basis to do so will often amount to criminal conduct punishable as an instance of scandalising the court.

For example, in 2018 the Eastern Cape high court in Gouws v Taxing Mistress (Port Elizabeth) and Others convicted Mr Gouws for contempt of court for scandalising the court and sentenced him to 18 months’ imprisonment, wholly suspended for a period of three years, after he had made “serious, egregious, and scandalous statements” about various judges, magistrates and legal practitioners.

To determine whether remarks like these made by Mr Malema were calculated to bring the administration of justice into contempt, a court will not only look at the words, but also at the larger context. The fact that Mr Malema is a powerful and influential politician, that he uttered these words outside court to a large gathering of supporters who would mostly be highly susceptible to believe his claim, and that the motive was to discredit the criminal trial and its outcome, would all count against him if he were to be criminally charged for these utterances.

While I can imagine some citizens arguing that Mr Malema should not be prosecuted because it would bolster his claims of being persecuted and would be to his political advantage, this is not a permissible ground for non-prosecution. The NPA is required to act without fear or favour and may therefore not base a decision to prosecute or not to prosecute an individual on the possible impact of the decision on the electoral fortunes of any political party.

It would be rather ironic if an impartial and independent decision by the NPA to prosecute ends up boosting the electoral fortunes of the EFF, while exposing Mr Malema to possible imprisonment. DM