Defend Truth

JUJU JUSTICE OP-ED

Julius Malema has opened himself to criminal charges of ‘scandalising the court’

Julius Malema has opened himself to criminal charges of ‘scandalising the court’
EFF leader Julius Malema. (Photo: Gallo Images / Luba Lesolle)

Malema’s claims outside the East London Magistrates’ Court were intended to delegitimise the trial and its outcome, and to intimidate the court into ruling in his favour.

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

Gallery

Comments - Please in order to comment.

  • jcdville stormers says:

    Self serving indivudual,obvious false statements,prosecute him

  • Alan Hunter says:

    Pierre de Vos is an experienced journalist but must use a dictionary. It should be “instance”, not “incidence”.

  • Fanie Rajesh Ngabiso says:

    ANC too chicken to touch him. Cluck cluuuuuuuck.

  • Denise Smit says:

    Please, can somebody take this up urgently. Thanks for a great legal hint. Denise Smit

  • Peter Doble says:

    Just treat Malema with the contempt he deserves. He is a big mouthed, bigoted, fascist playing the Trump card. Feeding him more oxygen will only make it worse.

  • Middle aged Mike says:

    “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.”

    I’m afraid that for this punter at least that horse bolted some time ago. There is a very obviously connected and protected class in SA and the talented Mr Malema is a leading member.

  • wjdct says:

    The accused in S v Bresler [2002 (4) SA 524 (C)] was convicted on a charge of contempt of court in the Western Cape High Court, not in Gauteng. The presiding judge was Satchwell, J, of the Gauteng High Court, Johannesburg. She was imported from Gauteng for this case because one of the potential witnesses for the State was a Western Cape judge.

  • Cunningham Ngcukana says:

    The attack against Malema by Pierre de Vos over his comments that the magistrate was incompetent is political on its own. de Vos ha defined himself as a supporter of Ramaphosa at every turn and would use pseudo legal language to advance his political agenda and hatred for Malema. de Vos knows how much a mess are the magistrates courts in our country are. Victims of gender based violence have been on the receiving end of this incompetence and one can say this without fear of contradiction because one has experienced this in the Protea Magistrates Courts that civil society has been condemning for donkey years. One can send him reports of civil society about the magistrates courts in this country and their incompetence including corruption regarding child maintenance support that is routinely looted and other corruption. The drivel he is saying about Malema we would appreciate if they can charge him so that we can give supporting evidence that is both in the public domain and in civil society reports. The nonsense that a magistrate must come late to court and nonchalantly leave her judgement in the office and to send a court orderly to fetch it requires the condemnation that Malema gave. de Vos attacked the former Chief Justice Panel on Phala Phala along with other legal plumbers like him including one Richard Calland without experience that the former Chief Justice has. Ramaphosa is no longer reviewing the findings of the Panel as de Vos and his ilk called as it is proper.

    • Ben Harper says:

      Hahahahaha – trollville

    • Michael Thomlinson says:

      Cunningham – you need to do a little more research: Pierre de Vos is a well respected professor of law at UCT and an expert in constitutional law (and not actually a journalist as someone else has suggested). He is not in league or in the pay of any polotical figures in this country, as far as I know. You can be certain that what he writes has been carefully thought through and considered before “putting pen to paper”. His opinion is to be valued and not thrown the toilet. By the way, how much is Malema paying you?

    • Graeme de Villiers says:

      One must take one’s red-bereted glasses off. Once and for all! Your continued allegations of ‘political agenda’ from Mr de Vos and Mr Calland is actually hilarious in its repetitive drivel, much the same as your continued use of ‘legal plumber’.

    • Rencia Cloete says:

      Dude, Malema is as corrupt as they come! He plays games for his own benefit and LOVES the limelight.
      LOOK at the VBS situation. Open your eyes.
      Malema has positioned himself as a “fighter for the poor” and appeals to rebellious teenager mentality with his inflammatory rhetoric – but he is using you and poor people for his own games. Watch out!!

    • Fanie Rajesh Ngabiso says:

      What a ham

    • Manfred Hasewinkel says:

      Did you read the article?

  • Confucious Says says:

    Sink agent woodwork once-and-for-all!

  • Derek Jones says:

    Never argue with an idiot. They will drag you down to their level and beat you with experience.
    Mark Twain….True then and especially true now.

  • Oh for G- sake, I hope this academic diatribe is not going to be credited as a publication. Pierre you forgot the bibliography.
    The point is, (and I’m no fan of Malema and his ilk) that this magistrate demonstrated her incompetence from day one. I cringed every time she spoke, and not because of her accent I can assure you.
    Her judgment made me think of Alzheimer’s on tranquillisers – a shocking display from someone who is so well qualified. Sometimes we need to recognise that it’s time to step down after a good run.
    Malema is an uncouth pig at all times, so his utterances have only dug his hole deeper if you get my drift. He thrives on shock value so the less publicity he gets the better.

    • P B M .. says:

      Nonechez, he thrives on shock value to remain “relevant. After all, what, if anything has Malema done for the sheeple that keep him in power? Amazing how his big mouth has enabled him to intimidate so many.

  • Deon Botha-Richards says:

    Prosecuting him would require some form of commitment from the NPA to hold people to account.

    I don’t see that.

    It’s never going to happen

    • Joe Irwin says:

      Malema knows that the chance of the NPA holding him to account for his action is zero, hence he can say whatever he wants to whenever he wants to.

  • Martin Smith says:

    All these carefullty chosen words and arguments and all the attempts to either prosecute Malema or to have him prosecuted are a waste of time. The authorities have no intention of finding him guilty of anything anymore than they intend to deal with the high level corruption within government and business. This pretense of living in a ‘rule-based’ world with rational processes is tiresome; we live in a dog eat dog world where power is the determining factor. Regretable perhaps but true nevertheless.

    • Gerrie Pretorius says:

      True. We live in anc-Africa. The sooner we accept that fact the better. No morals, no integrity, no responsibility, no justice, no care for ‘our people’. Just feeding …. forever feeding …

    • Joe Irwin says:

      Power combined with money rules the world. We see it daily and there’s no way to stop it. Corrupt politicians are wealthy and know who has cupboards full of skeletons.

    • Fanie Rajesh Ngabiso says:

      Not clear what point you’re making. Shut down newspapers? Join the dogs and steal?

      What is tiresome is rather the dog eat dog; and I for one am very pleased to see that there are people who actually give a damn. Keep it up people, don’t cave.

  • Hilary Morris says:

    “They” would never dare send him to prison – his past actions (shooting gun in public) etc. have proved that. Malema is metaphorically both bullet proof and immune from punishment. How sad is that?

  • Leslie van Minnen says:

    Try prosecuting Malema, Zuma or any of the multitude of comrades (thieves) and SA can expect a second Russian Revolution compliments of the communistic ANC and their communist partners.

  • Andrew Blaine says:

    While we might have one of our Worlds premium constitutions, which apparently protect against all possible dangers, its intrinsic power lies in the hands of those swirn to protect it.
    As this function is, currently, selectively applied, the power has been sidelined and our society is, thus, demeaned and denied this power and influence.
    Juju is one who pays not even lip service to his responsibility.

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