In recent weeks, following the Al-Bashir scandal, some of our most powerful politicians have made provocative statements highly critical of aspects of our judiciary.

It is now notorious that the government is alleged to have breached a clear court order: that Al-Bashir not be allowed to leave South Africa until such time as the court had rendered its final ruling in the case. (For a good summary of this low point in our constitutional history, see this Mail & Guardian article and the Johannesburg Bar Council’s media release on the issue).

Gwede Mantashe, the Secretary General of the ruling party, never one to mince his words, got the ball rolling on 21 June 2015, saying to the television programme Carte Blanche:

“There is a drive in sections of the judiciary to create chaos for governance. And we know, that if it doesn’t happen in the Western Cape High Court it will happen in the Northern Gauteng. Those are the two benches where you always see that the narrative is totally negative and create a contradiction.”

SA Communist Party secretary and Minister for Higher Education and Training, Blade Nzimande, quickly followed suite stating on 7 July 2015 that the judiciary was interfering with the state through its overreaching judgments (see News24 article).

In the same week it was also reported that Minister of Police Nkosinathi Nhleko had allegedly made a statement previously that “some elements of the judiciary meet with characters to produce certain judgments.” (see EWN article).

These statements led to an unprecedented show of force by the leaders of our judiciary, which released a statement on 8 July 2015 emphasizing the importance of respecting court orders and taking issue with what they called “general gratuitous criticism” and “repeated and unfounded criticism of the Judiciary.”

But while the judiciary’s intervention, and Chief Justice Mogoeng Mogoeng’s sterling leadership on these issues, is timely and critical, the elephant in the courtroom is whether the politicians’ comments are potentially punishable as contempt of court.

There is a crime that still exists in South Africa which is rather quaintly named “scandalising the courts”. It’s part of the family of contempt of court crimes.

The rationale for the crime is that the judiciary’s independence should be jealously safeguarded, as undermining this independence gravely harms the administration of justice itself.

Now there are of course important free speech issues at play here: we should all be entitled to criticise judicial decisions: judges exercise public power and their decisions have a profound impact on our community.

The right to criticise judges was confirmed by the Constitutional Court in its seminal scandalising case, S v Mamabolo, in 2001 (available here). In that case, a spokesperson for the Department of Justice, Mr Mamabolo, had stated that a judge had ruled erroneously in granting bail to the late leader of the Afrikaner Weerstandsbeweging, Eugene Terre Blanche, while he awaited the outcome of his appeal on his conviction of attempted murder.

Mamabolo was convicted of contempt of court in the form of scandalising the courts and the case came on appeal to the Constitutional Court.

The Court set aside Mamabolo’s conviction on various grounds. Most significantly, Justice Kriegler for the Court held that judges must accept robust criticism in a democracy: (at paras 29 – 30):

“Ultimately, 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. … [S]uch 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.”

But Justice Kriegler also accepted that the crime of scandalising is nevertheless important in our country as it is “one of the devices which protects the authority of the courts“. He drew attention to the distinction between fair criticism of the courts and scandalising them (at para 33):

“An important distinction has in the past been drawn between reflecting on the integrity of courts, as opposed to mere reflections on their competence or the correctness of their decisions. 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.”

The necessary constitutional reconciliation of these potentially competing propositions- the right to criticize judges and the importance of safeguarding the integrity of the judiciary – was, said the Court, that the crime of scandalising should only apply to the most egregious cases, where criticism, in all the circumstances of the case, was really likely to cause harm to the administration of justice. Mamabolo’s comments certainly did not meet this high threshold.

So all in all a sound judgment from our Constitutional Court, quite typical of the non-absolutist approach the Constitutional Court has adopted in free speech cases (in the Mamabolo case, finding a middle ground between a blanket ban on criticizing the judiciary and an absolute rule that anything goes).

In addition to the facts of the Mamabolo case itself, one finds some examples in the judgment of speech that might fall foul of the line drawn by the Court. Justice Sachs in a separate concurring judgment says this at para 75:

“In its context such expression [which scandalises the court] must be likely to have an impact of a sufficiently serious and substantial nature as to pose a real and direct threat to the administration of justice. Thus, it could be part of a wider campaign to promote defiance of the law or to challenge the legitimacy of the constitutional state … If the speech targets a particular judicial officer, it should be of such an unwarranted and substantial a character as seriously and unjustifiably to impede that judicial officer in being able to carry on with his or her judicial functions with appropriate dignity and respect. Thus, to call a judge a crook in circumstances where the public is likely to give credence to such allegation, is effectively to challenge and undermine the capacity of that judge to continue with the function of impartial adjudication.”

Now, against that background, let’s turn to the statements reportedly made after the Al-Bashir scandal.

In my view, statements such as these, emanating as they do from powerful politicians – some of whom are government ministers – can do real damage to the legitimacy and credibility of the judiciary, and may meet the high threshold for scandalising set in the Mamabolo case. The statement by Mantashe effectively alleges that two entire divisions of the High Court act with an agenda to cause chaos to government. The statement allegedly made by the Police Minister arguably accuses judges of deciding cases due to extraneous factors and not based on the evidence and application of the law.

While freedom of speech should always be given expansive breathing space, and we should never shy away from robustly criticising judges and their decisions, the Mamabolo case draws a line. Some of our most powerful politicians may well have crossed it.

P.S: While reading S v Mamabolo again for this blog, I was struck by this comment by the Court, so apposite too to the Al-Bashir saga. Justice Kriegler – with Chaskalson P, Justices Ackermann, Goldstone, Madala, Mokgoro, Ngcobo, Yacoob and Sachs, and Acting Justices Madlanga and Somyalo concurring – says this at para 65:

“It would have been a very serious matter indeed, calling for speedy and decisive action, if the [court] order [that Terre Blanche should be released on bail] had actually been defied. The spectre of executive officers refusing to obey orders of court because they think they were wrongly granted, is ominous. It strikes at the very foundations of the rule of law when government servants presume to disregard orders of court.”

Musings on Media is written by Dario Milo, a blog by Webber Wentzel