South Africa: S v. Mamabolo ( and Others Intervening)

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01 Jan 2001


2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (Constitutional Court of South Africa)

The Court set aside the conviction for contempt of court committed by an official in the Department of Correctional Services who was summarily tried, convicted and sentenced arising from comments he had made concerning a decision of the High Court.

Theme:Other content restrictions
Sub-Issues:Administration of justice
Decision:conviction for contempt set aside; summary procedure declared to be unconstitutional
Jurisdiction:South Africa (Constitutional Court)


Mr Mamabolo, a spokesman for the Department of Correctional Services issued a statement to the effect that a judge of the High Court had wrongly granted a prisoner bail and that the prisoner would not be released. The Judge ordered the appellant to appear before him to explain what he had said and what right he had to publish the statement. The appellant filed an affidavit and was represented in Court by counsel. The appellant was ultimately convicted of contempt of court for bringing the dignity, honour and authority of the Court into disrepute. He was sentenced to a fine and suspended imprisonment. The case thus concerned the nature of the common law offence of scandalising the court and the procedure to be adopted in prosecutions for this form of contempt.


The Court initially addressed the question of the justification, if any, for the offence of scandalising the Court. The answer was stated thus:

"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."

While the Constitutional Court was not prepared to find the common law offence of scandalising the Court to be unconstitutional, it nevertheless held that the common law did not properly address the limits of the offence. This was because of the importance of freedom of expression, in an open and democratic society:

"That freedom to speak one's mind is now an inherent quality of the type of society contemplated by the Constitution as a whole and is specifically promoted by the freedoms of conscience, expression, assembly, association and political participation protected by ss 15 - 19 of the Bill of Rights. It is the right - idealists would say the duty - of every member of civil society to be interested in and concerned about public affairs. Clearly this includes the Courts.
Indeed, the ostensible tension between freedom of expression and protection of the reputation of the judicial process ought not to be exaggerated. Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: So that the people can discuss, endorse, criticise, applaud or castigate the conduct of their courts. And, 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.
However, such 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. ...
Ideally, also, robust and informed public debate about judicial affairs promotes peace and stability by convincing those who have been wronged that the legal process is preferable to vengeance; by assuring the meek and humble that might is not right; by satisfying business people that commercial undertakings can be efficiently enforced; and, ultimately, as far as they all are concerned, that there exists a set of just norms and a trustworthy mechanism for their enforcement." 
The Court was of the view that freedom of expression "does not mean that attacks, however, scurrilous, can with impunity be made on the Judiciary as an institution or on individual judicial officers". The reason for this was that without the confidence of the people, "courts cannot perform their adjudicative role, nor fulfil their therapeutic and prophylactic purpose". In determining where the line was to be drawn, the Court stressed that the focus should be on the consequences of the allegedly offending conduct. An objective test is to be applied in asking what the effect of the statement was likely to have been. The Court postulated the following requirements:
".... now that we have the benefit of a constitutional environment in which all law is to be interpreted and applied, there can be little doubt that the test for scandalising, namely that one has to ask what the likely consequence of the utterance was, will not lightly result in a finding that the crime of scandalising the court has been committed. Having regard to the founding constitutional values of human dignity, freedom and equality, and more pertinently the emphasis on accountability, responsiveness and openness in government, the scope for a conviction on this particular charge must be narrow indeed if the right to freedom of expression is afforded its appropriate protection. The threshold for a conviction on a charge of scandalising the Court is now even higher than before the super-imposition of constitutional values on common law principles; and prosecutions are likely to be instituted only in clear cases of impeachment of judicial integrity. .... Ultimately the test is whether the offending conduct, viewed contextually, really was likely to damage the administration of justice."

With regard to the question of procedure, the Court stated:

"If one keeps in mind that the inquiry is limited to the use of the summary procedure in cases of alleged scandalising of the Court, there can be only one answer. In such cases there is no pressing need for firm or swift measures to preserve the integrity of the judicial process. If punitive steps are indeed warranted by criticism so egregious as to demand them, there is no reason why the ordinary mechanism of the criminal justice system cannot be employed.
The alternative is constitutionally unacceptable: It is inherently inappropriate for a Court of law, the constitutionally designated primary protector of personal rights and freedoms, to pursue such a course of conduct. The summary contempt procedure employed in the present case is, .... a wholly unjustifiable limitation of individual rights and must not be employed. ... Justice would have been better served had the learned Judge reported the matter to the Director of Public Prosecutions and left it to that office to take up as it deemed best."

The Court accordingly set aside the conviction and sentence.