The Nation and its editor have recently
been sentenced to a E200,000 fine or 2 years imprisonment for the contempt of
court known as scandalizing the court (to read the judgment, click HERE).
This is a type of contempt of court which makes it an offence to detrimentally affect
the administration of justice as a whole, usually by 'scurrilous abuse' or alleging illegal bias of a particular judge or a court. It does not require a
specific case to be affected, which is usually the time when a contempt charge
would be brought, for example if a person ignores an order of a court.
But the contempt of scandalizing the court
may require a connection to a case, judge or court beyond that of mere
observer. This entry looks at the cases relied on in Attorney-General v Swaziland
Independent Publishers Pty Ltd & Bheki Makhubu (the "Swaziland Independent
Publishers Case"), to see whether the law of contempt for scandalizing
the court for general or post-trial statements has such a requirement. This entry
does not address the merits of the decision, instead focussing on one
particular aspect of the offence and its interaction with modern freedom of
expression as contained in s 24 of the 2005 Constitution.
Precedents where trial pending
To explore this, we can put to one side
those cases of contempt relied on in the judgment where a pending case was said
to be affected. There was no allegation that any particular trial was affected
in the Swaziland Independent Publishers Case. In this regard, I note that:
Solicitor General v Radio New Zealand (1994) concerned a media company
interviewing jurors in a pending trial; and AG v Newspaper Publishing
PLS (1987) involved a
British newspaper publishing confidential material which was the subject
of on-going proceedings.
The situation is less clear for Rex
v Gray (1900) 2 QB 36.
In the Swaziland Independent Publishers Case, His Honour Justice
Maphalala suggests that this concerned post-trial statements. My research
suggests that the proceedings were ongoing and that the journalists had
proceeded to publish the very material they had been directed not to publish.
Any clarification on this issue would be greatly appreciated (my email is
swazibillofrights@gmail.com).
Post-judgment comments
Of the cases relied on in the judgment, I
have been able to analyse three that relate to material published after a trial
has been completed and judgment handed down. One of these is an old
English case, R v Editor of
New Statesman (1928), which
involved a statement by the paper that one could not expect a fair trial before
a certain judge on account of his religious convictions.
The other two are more recent.
The Australian case of Gallagher v Durack (1983) (HERE)
involved the head of a union who was convicted for saying that a court had
ruled the way it did in a case involving his union because of a strike by the
union during the trial. The Canadian case of R v Kopyto (1988) (HERE) concerned statements made by a lawyer after a
decision went against his client. Both of these cases involved statements
made by a person directly
involved in a recently-concluded case.
Mamabolo
This ties into the South African
Constitutional Court's decision in S
v Mamabolo 2001 (HERE), which is referred to extensively in the
Swaziland Independent Publishers Case. Mamabolo involved a statement by a spokesperson
for a prison that an order granting bail had been made
incorrectly and that the prison would not
abide the order and release the prisoner. The South African
Constitutional Court upheld the finding that the spokesperson was guilty of scandalizing the court.
As South African media lawyer, Dario Milo, has pointed out (HERE), however, the Constitutional Court stated that the
"the scope for conviction on [the charge of
scandalizing the court] must be narrow indeed if the right to freedom of
expression is afforded its appropriate protection." One appropriate
way of limiting the scope of the offence of scandalizing the court for comments
made after the conclusion of a trial, or where
the comments do not involve a particular case, may be by requiring
that the alleged offender is something more than a mere observer of any
case, judge or court. In Mamabolo, the fact that the spokesperson for the very prison holding the person granted bail was the one making comments about the judgment would seem to satisfy this requirement for a connection between the alleged contempt and the court.
R v Editor of New Statesman (1928) was decided long ago in an age not accustomed to human rights and
a jurisdiction without jurisprudence around freedom of expression as it is
defined in the Swazi Bill of Rights. More modern case law suggests that
in order for the offence of scandalizing the court to be made out in respect of
comments made after a judgment has been handed down, or where these comments
are directed to a particular judge or a court as a whole, a more direct
connection is required between the alleged wrongdoer and the judge or court
than that of ordinary commentator. If that is so, and I am not aware of
any supreme court or regional/international body ruling directly on this question, then the
the publisher and its editor ought not have been convicted.
