GUBBAY
CJ:
I.
INTRODUCTION
In
August 1999 three nationals of the United States of America, Gary
George Blanchard, Joseph Wendell Pettijohn and John Lamonte Dixon,
were jointly indicted with the commission of two offences:
(i)
The first was a contravention of section 7(1)(a) of the Aircraft
(Offences) Act [Chapter 9:01], as read with section 360(1) of the
Criminal Procedure and Evidence Act [Chapter 9:07], in that on 7
March 1999 they had attempted to place aboard an aircraft dangerous
goods, namely, various revolvers, pistols, rifles, knives and
ammunition.
(ii)
the second was a contravention of section 37(2) of the Law and Order
(Maintenance) Act [Chapter 11:07], in that on the same day they were
in unlawful possession of arms of war and offensive materials,
consisting of a variety of pistols, revolvers, rifles, firearms,
ammunition, knives, teargas and electric shock devices.
The
trial, which was protracted, was presided over by ADAM J and
assessors, in the High Court, at Harare. Judgment was delivered on 10
September 1999. The three accused were convicted on both counts. On
13 September 1999 the learned judge sentenced them to six months'
imprisonment with labour on the first count; and on the second, to
twenty-one months' imprisonment with labour, of which period nine
months were conditionally suspended for five years, and six months
were to run concurrently with the sentence imposed on count one. The
effective punishment of six months' imprisonment with labour was then
back-dated to 7 March 1999, being the day when the incarceration of
the accused as remand prisoners began.
The
judgment on both conviction and sentence is now reported, sub. nom. S
v Blanchard & Ors, in 1999 (2) ZLR 168 (H).
On
15 September 1999 a statement made by the applicant, then the
Attorney-General for Zimbabwe and presently the Minister of Justice,
Legal and Parliamentary Affairs, was published in The Herald
newspaper under the headings: “US gunmen's sentence causes
outrage Attorney-General's office expresses shock at court's
trivialisation of offence”.
The
article that followed reported that:
“The
Attorney-General's Office is shocked and outraged by the effective
six month jail term imposed on the three Americans, convicted for
illegal possession of weapons and attempting to take them on board an
aircraft. It intends to appeal to the Supreme Court against the
sentence which it said had trivialised the seriousness of the crime.
In a statement yesterday, the Attorney-General, Mr Patrick Chinamasa,
said the sentence handed down by High Court Judge Justice Adam
'induces a sense of shock and outrage in the minds of all
right-thinking people'.
He
said Gary George Blanchard, Joseph Wendell Pettijohn and John Lamonte
Dixon were convicted of offences which were treated as serious by all
civilised countries worldwide, including America, which was in the
forefront of fighting terrorism and gun-running.
'By
imposing sentences which do not match the seriousness of the
offences, Justice Adam has in effect trivialised crimes of unlawful
possession of arms and has seriously erred in doing so.
The
Attorney-General's Office is left bemused by the meaninglessness of
it all.
The
nation should know and be told that the leniency of the sentences
constitutes a betrayal of all civilised and acceptable notions of
justice and of Zimbabwe's sovereign interests.
Mere
unlawful transiting of firearms through the territory of Zimbabwe is
in itself a serious and gross violation of the sovereign and security
interests of Zimbabwe.'
Mr
Chinamasa said the attitude taken by the court in meting out
sentences which did not match the severity of the crimes committed
came against the backdrop of repeated complaints made to him by his
law officers of hostility and verbal abuse directed at them and their
submissions by the bench during proceedings. All these developments
erode the office's confidence in the administration of criminal
justice.”
Reaction
to the article led to the issuance of a citation for contempt of
court. It was served on the applicant on 28 September 1999. In its
amended form the citation reads:
“TAKE
NOTICE THAT on the 28th day of September 1999 The Honourable Mr
Justice Adam caused a citation to be issued against you whereby YOU
ARE TO APPEAR in person before the High Court of Zimbabwe in Harare
on the 1st day of October 1999 at 10.00am or soon thereafter to show
cause why an Order of Contempt should not be made for the wilful and
intentional contemptuous statement issued by you, which statement you
caused to be published or alternatively was published in the issue of
the 15th September 1999 of THE HERALD, as appears more fully from the
attached copy entitled 'US gunmen's sentences causes outrage'.”
II.
THE PROCEDURE ADOPTED BY THE HIGH COURT
The
hearing of the proceedings initiated by the citation was assigned to
BLACKIE J. He immediately appointed a legal practitioner in private
practice to appear as amicus curiae to present the complaint against
the applicant.
On
1 October 1999 the learned judge held a pre-hearing conference at
which the parties agreed to a time-frame for the filing of a defence
outline by the applicant and written heads of argument by both him
and the amicus curiae. The matter was then postponed for a week.
At
the commencement of the proceedings on 8 October 1999 the amicus
curiae particularised the passages in the reported words of the
applicant which were considered to contain the contempt alleged
against him. These were:
(a)
The statement that the sentence handed down “induces a sense of
shock and outrage in the minds of all right-thinking people”.
(b)
The statement that: “By imposing sentences which do not match the
seriousness of the offences, Justice Adam has in effect trivialised
crimes of unlawful possession of arms and has seriously erred in
doing so. 'The Attorney-General's Office is left bemused by the
meaninglessness of it all. The nation should know and be told that
the leniency of the sentences constitutes a betrayal of all civilised
and acceptable notions of justice and of Zimbabwe's sovereign
interests'.”;
(c)
The statement that: “All these developments erode the office's
confidence in the administration of criminal justice.”
Thereafter,
counsel for the applicant, acting in terms of section 24(2) of the
Constitution of Zimbabwe, requested the court to refer to the Supreme
Court for determination a number of questions in respect of which it
was contended that the proceedings were in contravention of the
Declaration of Rights.
The
questions, subsequently re-drafted and re-presented to the Court,
were these:
“1.
Whether the High Court, and/or counsel appearing amicus curiae, can
before the High Court present allegations of contempt of court in the
light of the provisions of section 76 and section 18(2) of the
Constitution.
2.
Whether the choice and assignment to deal with this matter by the
Judge, who passed the sentence which was commented upon in the
alleged contemptuous statement of the presiding judge and the
selection of counsel to appear amicus curiae by the assigned judge
violates the Attorney-General's right to appear before an
independent and impartial court established by law as provided in
section 18 of the Constitution.
3.
Whether the order issued by the High Court on 1 October 1999, which
order was issued in the presence of the Attorney-General and, in
respect of which the Attorney-General, when invited, elected to make
no submissions:
(a)
violates the Attorney-General's right not to be compelled to give
evidence as provided for in section 18(8) of the Constitution, given
that he was ordered to file a defence outline;
(b)
violates the Attorney-General's right to be given adequate time to
prepare his defence as provided for in section 18(3) of the
Constitution, in circumstances where the Attorney-General, at no
stage, applied for or requested an extension of time, nor did he, at
any time object to the time limits set out in the said order, and in
circumstances where the Attorney-General requested a postponement to
6 October 1999 and then 8 October 1999, to enable him to travel to
Zambia on Government business, both requests being granted;
(c)
violates the Attorney-General's rights to examine witnesses as
provided for in section 18(3)(e) of the Constitution, in
circumstances where he was ordered to file argument relating to the
facts and the law before the hearing.
4.
Whether the procedure in terms of which the Registrar can issue a
court application, which is not supported by any affidavit as to
facts, as is provided in Order 43 Rule 389, violates the
Attorney-General's right to a fair trial as is provided for in
section 18 of the Constitution.
5.
Whether the citation issued on 28 September 1999, which calls upon
the Attorney-General to show cause why an order of contempt should
not be made, violates the presumption of innocence of the Attorney
General and unfairly places the onus to prove innocence on the
Attorney-General in contravention of section 18 of the Constitution.
6.
Whether the contempt proceedings, as particularised, violate the
Attorney-General's freedom of expression, that is to say, his right
to hold opinions and to express such opinions without interference as
is provided for in section 20 of the Constitution.”
After
reserving his decision on the questions raised, BLACKIE J ruled that
it had not been shown to his satisfaction that question 1 concerned a
breach of the Declaration of Rights; and that questions 3 and 4 were
frivolous and vexatious within the meaning attributed to the phrase
in Martin v Attorney-General & Anor 1993 (1) ZLR 153 (S) at 157
C-F. He therefore declined to refer these three questions. His
Lordship's detailed reasons for so concluding are to be found at
297B-298A and 299E-300D of the judgment, which is reported in 1999
(2) ZLR 291 (H).
However,
the request to refer questions 2 and 6 (as modified in the judgment),
as well as question 5, was acceded to.
Added
thereto was the further question of whether a person charged with
contempt of court falls under the protections provided to a person
charged with a criminal offence under section 18 of the Constitution.
The
learned judge recast the questions in the following manner:
“1.
Whether a charge of contempt of court is a charge of a criminal
offence entitling the person charged to the protections afforded by
the provisions of section 18 of the Constitution.
2.
If the answer to question 1 is in the affirmative:
(a)
Whether the procedure whereby a person charged with contempt of court
is tried by the court which complains about the contempt violates the
right of a person, in terms of section 18 of the Constitution, to be
tried by an independent and impartial tribunal.
(b)
Whether the citation issued on 28 September 1999, which called upon
the accused person to show cause why an order of contempt should not
be made against him, violates the presumption of innocence on the
part of an accused person in contravention of section 18 of the
Constitution.
3.
Whether the law of contempt of court, as contained in the common law
of Zimbabwe, is such as cannot be shown 'to be reasonably
justifiable in a democratic society' and, therefore, is
incompatible with the provisions of section 20 of the Constitution.”
III.
THE REACTION OF THE APPLICANT
The
applicant felt aggrieved by the refusal of BLACKIE J to refer
questions 1, 3 and 4 to this Court. He lodged a notice of appeal
against that part of the judgment, setting out several grounds in
which it was claimed the learned judge had erred.
In
seeking to appeal against the refusal of the High Court to refer the
aforementioned questions to the Supreme Court, the applicant
obviously overlooked the limitation expressed in section 24(3) of the
Constitution. It is there provided:
“Where
in any proceedings such as are mentioned in subsection (2) any such
question as is therein mentioned is not referred to the Supreme
Court, then, without prejudice to the right to raise that question on
any appeal from the determination of the court in those proceedings,
no application for the determination of that question shall lie to
the Supreme Court under subsection (1).”
The
purport of section 24(3) was considered by this Court in S v Mbire
1997 (1) ZLR 579 (S) where, at 581G-582D, it was stated:
“It
is clear from the wording of this provision that where a referral has
been refused by the High Court or by any court subordinate to it,
albeit the opinion that the raising of the constitutional question
was merely frivolous or vexatious was manifestly erroneous, there is
to be no interruption in the proceedings. They are to continue to the
stage of determination, which in a criminal case is when the accused
is convicted and the final sentence delivered. See R v Mhosva 1980
ZLR 74 (G) at 75C; S v Morrisby 1995 (2) ZLR 270 (S) at 271C.
Thereafter,
the right to raise the constitutional question as a ground of appeal
against such determination becomes permissible.
Quite
apart from there being no provision in the Constitution permitting an
appeal to the Supreme Court against a refusal to refer to it a
question raised under section 24(2) thereof, there is no right of
appeal given in either the Magistrates Court Act [Chapter 7:10] or
the Supreme Court Act [Chapter 7:13] against such a ruling.
To
repeat the self-evident words of KENNEDY LJ in National Telephone Co
Ltd v His Majesty's Postmaster-General [1913] 2 KB 614 (CA) at 621:
'The
creation of a right of appeal is an act which requires legislative
authority. Neither the inferior nor the superior tribunal nor both
combined can create such a right, it being essentially one of the
limitation and of the extension of jurisdiction'.”
See
also Muchero & Anor v Attorney-General S-107-00 (not yet
reported).
It
follows that any determination of the three questions which were not
referred may only be made by this Court in the event of an appeal
brought before it against a finding by the High Court that the
applicant was guilty of contempt.
IV.
WHETHER THE LAW OF CONTEMPT OF COURT UNDER THE COMMON LAW OF ZIMBABWE
IS SUCH AS CANNOT BE SHOWN “TO BE REASONABLY JUSTIFIABLE IN A
DEMOCRATIC SOCIETY” AND, THEREFORE, IS INCOMPATIBLE WITH THE
PROVISIONS OF SECTION 20 OF THE CONSTITUTION
It
is convenient at the outset to consider what I regard as the main
question. In doing so a preliminary matter must be made clear.
In
the context of the applicant's statements, the reference in the
question to the law of contempt must be taken to mean that species of
the common law of contempt which has been given the colourful
nomenclature of “scandalising the court”; and not any of the
other different ways in which the offence may be committed.
A
consideration of the following issues is, I believe, essential to the
resolution of the question posed:
(1)
Does the form of contempt known as scandalising the court continue to
exist as an offence under the common law of Zimbabwe?
There
are two modes of conduct which fall within the scope of criminal
contempt:
(i)
First, there is contempt in facie curiae, which encompasses any word
spoken or act done within the precinct of the court that obstructs or
interferes with the due administration of justice, or is calculated
to do so.
(ii)
Secondly, the offence may be committed ex facie curiae by words
spoken or published or acts done which are intended to interfere
with, or are likely to interfere with, the fair administration of
justice.
An
example of this type of contempt is that described as “scandalising
the court”. It is committed by the publication, either in writing
or verbally, of words calculated to bring a court, a judge of a
court, or the administration of justice through the courts generally,
into contempt. It need not be an attack directed at any specific
case, either past or pending, or at any specific judge. It is
sufficient if it is a scurrilous attack on the judiciary as a whole,
calculated to undermine the authority of the courts and endanger
public confidence, thereby obstructing and interfering with the
administration of justice. See Chokolingo v Attorney General of
Trinidad and Tobago [1981] 1 All ER 244 (PC) at 248f per LORD
DIPLOCK.
See
also, Borrie & Lowe's Law of Contempt 2ed at 226-227; Snyman,
Criminal Law 3ed at 316; Milton, South African Criminal Law and
Procedure 3ed Vol II at 184.
At
one stage in England the continued existence of this branch of
contempt law was called into doubt by LORD MORRIS in McLeod v St.
Aubyn 1899 AC 549. After pointing out that committals for contempt
are ordinarily in cases where:
(i)
some contempt has been committed in the face of the court; and (ii)
comments have been made on cases pending in the courts, LORD MORRIS
dealt with a third form of contempt. Of this, he said at 561:
“Committals
for contempt of Court by scandalising the Court itself have become
obsolete in this country. Courts are satisfied to leave to public
opinion attacks or comments derogatory or scandalous to them.”
The
observation proved to be premature.
Nine
months later an application was made in R v Gray [1900] 2 QB 36 to
the Queens Bench Division to commit the editor of a Birmingham
newspaper for writing and publishing a scurrilous personal attack on
MR JUSTICE DARLING. It described him as an “impudent little man in
horse-hair - a microcosm of conceit and empty-headedness”, adding:
“No newspaper can exist except upon its merits, a condition from
which the Bench, happily for MR JUSTICE DARLING, is exempt.… MR
JUSTICE DARLING would do well to master the duties of his own
profession before undertaking the regulation of another.”
The
article did not deal with pending litigation; it was about the
conduct of a judge in a case in which a conviction had been recorded
and sentence passed.
After
defining the offence, LORD RUSSELL OF KILLOWEN CJ went on to say at
40:
“That
description of that class of contempt is to be taken subject to one
and an important qualification. Judges and Courts are alike open to
criticism, and if reasonable argument or expostulation is offered
against any judicial act as contrary to law or the public good, no
Court could or would treat that as contempt of Court. The law ought
not to be astute in such cases to criticise adversely what under such
circumstances and with such an object is published; but it is to be
remembered that in this matter the liberty of the press is no greater
and no less than the liberty of every subject of the Queen.
Now,
as I have said, no one has suggested that this is not a contempt of
Court, and nobody has suggested, or could suggest, that it falls
within the right of public criticism in the sense I have described.
It is not criticism, I repeat that it is personal scurrilous abuse of
a judge as a judge.”
Although
LORD RUSSELL did not mention McLeod v St. Aubyn supra, it was
referred to by the reporter of R v Gray in a footnote at the end of
the judgment. In the course of his note the reporter accurately
summed up the effect of R v Gray as follows:
“The
present case is reported as showing that in this country the Court
will still, where the circumstances demand its action, exercise its
jurisdiction to punish, on summary process, the contempt of
'scandalising the Court', although no contempt has been committed
ex facie of the Court, or in respect of a case pending.”
At
the present time prosecutions in England for scandalising the court
have once again become a rarity. However, there can be little doubt
as to the continued application of this branch of the law of
contempt. LORD HAILSHAM OF ST. MARYLEBONE made this clear in Badry v
Director of Public Prosecutions of Mauritius [1982] 3 All ER 973 (PC)
at 979 b-c in stating:
“(Whilst)
nothing really encourages courts or Attorneys-General to prosecute
cases of this kind in all but the most serious examples, or courts to
take notice of any but the most intolerable instances, nothing has
happened in the intervening eighty years to invalidate the analysis
by the first LORD RUSSELL OF KILLOWEN CJ in R v Gray.”
Yet
in Secretary of State for Defence & Anor v Guardian Newspapers
Ltd [1984] 3 All ER 601 (HL) at 605b, LORD DIPLOCK ventured the
opinion that contempt for publishing material that scandalises the
court was “virtually obsolescent”.
It
is well established that this form of contempt continues to exist in
other jurisdictions:
The
principle enunciated in R v Gray supra was adopted by the Supreme
Court of Canada in Re Duncan (1958) 11 DLR (2d) 616 (SC) at 618; see
also R v Kopyto (1988) 47 DLR (4th) 213 (Ont. CA) at 222 and 246-247.
In
New Zealand, reservations expressed by some judges were dispelled by
the Court of Appeal in Solicitor-General v Radio Avon Ltd [1978] 1
NZLR 225 (CA) at 237-238.
In
Australia, a number of prosecutions illustrate that this species of
contempt continues to be recognised. See R v Dunbabin; Ex parte
Williams (1935) 53 CLR 434 (HC); though the scope for its use seems
more limited following Attorney General for New South Wales v Mundey
[1972] 2 NSWLR 887.
Under
Hong Kong law scandalising contempt is accepted as an offence. See
Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293 (CA) at 307
B-C.
This
is not the law in the United States of America. In Bridges v State of
California 314 US 252 (1941) all the members of the Supreme Court
were agreed that there is no such offence in the United States (see
at 273 and 287). JUSTICE FRANKFURTER referred to the scandalising of
the court as an offence as “English foolishness”. He considered
criticism of the courts, no matter how unrestrained, made after a
decision has been rendered, to be an exercise of the right of free
discussion and free speech.
Nearer
to home, in South Africa the authority to punish scandalisation
contempt, summarily or otherwise, was given in 1874 by the Cape
Supreme Court in In re Neethling (1874) 5 Buch 133. Three years later
KOTZE CJ in In re Phelan (1877) Kotze 5 at 7 explained the nature of
this form of contempt thus:
“No
principle of law is better established than this: that any
publications or words which tend, or are calculated, to bring the
administration of justice into contempt, amount to contempt of court.
Now, nothing can have a greater tendency to bring the administration
of justice into contempt than to say, or suggest, in a public
newspaper, that the Judge of the High Court of this territory,
instead of being guided by principle and his conscience, has been
guilty of personal favouritism, and allowed himself to be influenced
by personal and corrupt motives, in judicially deciding a matter in
open court.”
Anything
spoken or written imputing corrupt or dishonest motives or conduct to
a judicial officer in the discharge of official duties, or reflecting
in an improper or scandalous manner on the administration of justice,
has been held to fall within the ambit of this species of contempt.
See R v Torch Printing & Publishing Co (Pty) Ltd & Ors 1956
(1) SA 815 (C) at 819G-820B; S v Oliver 1964 (3) SA 660 (N) at 664A;
S v Tobias 1966 (1) SA 656 (N) at 660 G-H.
In
S v Van Niekerk 1972 (3) SA 711 (A) it was held that this type of
contempt is even committed by exhorting the judiciary to embark on a
course of action which is in clear conflict with its duties, for
example, by asking that it refuse to give credit to a certain class
of evidence irrespective of its intrinsic merit (see at 721 in fine –
722G).
The
issue of whether scandalising the court is an offence in Zimbabwe has
not been addressed directly by the courts.
Nonetheless
the general case law on the law of contempt in this country, the
weight of the authorities referred to and the principles they
enunciate, satisfy me that a refusal to recognise scandalising as a
species of the offence of contempt of court is not warranted.
Indeed
Mr Nherere, who appeared for the applicant, did not seek to argue the
contrary.
Consequently
it is unnecessary that the conduct complained of does not relate to
pending legal proceedings.
Having
said that, it is plain that the line between scandalising comment and
fair and legitimate criticism is not always easy to draw. As a
general rule, as alluded to by OGILVIE THOMPSON CJ in S v Van Niekerk
supra at 720H:
“genuine
criticism, even though it be somewhat emphatically or unhappily
expressed, should, in my opinion… preferably be regarded as an
exercise of the right of free speech rather than as 'scandalous
comment' falling within the ambit of the crime of contempt of
court.”
Much
the same thought, though in slightly stronger language, was expressed
earlier by LORD DENNING MR in R v Metropolitan Police Commissioner,
Ex parte Blackburn (No.2) [1968] 2 All ER 319 (CA) at 320 F-G:
“Let
me say at once that we will never use this jurisdiction as a means to
uphold our own dignity. That must rest on surer foundations. Nor will
we use it to suppress those who speak against us. We do not fear
criticism, nor do we resent it. For there is something far more
important at stake. It is no less than freedom of speech itself. It
is the right of every man, in Parliament or out of it, in the Press
or over the broadcast, to make fair comment, even outspoken comment,
on matters of public interest. Those who comment can deal faithfully
with all that is done in a court of justice. They can say that we are
mistaken, and our decisions erroneous, whether they are subject to
appeal or not. All we would ask is that those who criticise us will
remember that, from the nature of our office, we cannot reply to
their criticisms.”
In
the same case SALMON LJ stated the position even more succinctly at
321 A-B:
“… no
criticism of a judgment, however vigorous, can amount to contempt of
court, provided it keeps within the limits of reasonable courtesy and
good faith.”
It
should not be overlooked that some legal writers, and a few judges,
have been vehement in their criticism of the recognition of
scandalising the court as an offence. They argue that the basic
assumption embodied in the offence of scandalising the court, namely,
that public confidence in the administration of justice would be
undermined by comments that tend to lower the authority of the court,
is highly speculative. They contend that an intelligent and
sophisticated public should evaluate the merits of the comments
rather than the judiciary which, in effect, acts as both prosecutor
and judge. They take the position that the courts, like other public
institutions, should be open to lively and constructive criticism and
do not need, and should not have, specific rules for their
protection. See for instance Borrie & Lowe's Law of Contempt
op. cit. at 244; Walker, Scandalising in the Eighties (1985) 101 LQR
359 at 378.
In
the Australian case of Attorney-General for New South Wales v Mundey
supra at 908, HOPE JA said:
“There
is no more reason why the acts of courts should not be trenchantly
criticised than the acts of public institutions, including
parliaments. The truth is of course that public institutions in a
free society must stand upon their own merits: they cannot be propped
up if their conduct does not command respect and confidence of a
community; if their conduct justifies the respect and confidence of a
community they do not need the protection of special rules to shield
them from criticism.”
Despite
the strong objection levelled at scandalising contempt, I reiterate
that it remains an offence according to the common law of Zimbabwe.
Whether
the statements of the applicant fall within or outside the limits of
reasonable courtesy; whether they represented the expression of a
genuinely held belief; and whether, emanating as they did from the
country's chief law officer, being a person of high standing in the
community, they were intended or likely to bring MR JUSTICE ADAM into
disrepute, as reflecting upon his capacity as a judge, and to shake
public confidence in the manner in which justice had been
administered by the High Court in the case in question, are issues of
fact, the resolution of which is of no relevance to these
proceedings.
The
advent of the Constitution makes it necessary for this Court to
review the offence of scandalising the court in order to ensure that
it meets the requisite constitutional standards.
The
statements of the applicant touched on a matter of public interest –
the high profile and much publicised trial of the three Americans and
the punishment meted out to them.
They
concerned the functioning and operations of a public institution.
It
is necessary therefore to consider whether they attract the
protection of section 20(1) of the Constitution.
(2)
Are the words of the applicant protected by the freedom of expression
provision set out in section 20(1) of the constitution?
Section
20(1) of the Constitution protects the freedom of expression in the
following terms:
“Except
with his own consent or by way of parental discipline, no person
shall be hindered in the enjoyment of his freedom of expression, that
is to say, freedom to hold opinions and to receive and impart ideas
and information without interference, and freedom from interference
with his correspondence.”
This
Court has held that the provision is to be given a benevolent and
purposive interpretation.
It
has repeatedly declared the vital and fundamental importance of
freedom of expression to the Zimbabwean democracy - one of the most
recent judgments being that in United Parties v Minister of Justice,
Legal and Parliamentary Affairs & Ors 1997 (2) ZLR 254 (S) at 268
C-F, 1998 (2) BCLR 224 (ZS) at 235I-236C.
What
has been emphasised is that freedom of expression has four broad
special objectives to serve. The most significant, in the present
context, is the second, namely, “it assists in the discovery of
the truth”.
The
search for truth rationale has been articulated in terms of the
famous “marketplace of ideas” concept. This holds that truth will
emerge out of the competition of ideas.
In
his classic dissent in Abrams v United States 250 US 616 (1919) at
630, the redoubtable JUSTICE HOLMES said that:
“… when
men have realised that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of
their own conduct that the ultimate good desired is better reached by
free trade in ideas – that the best test of truth is the power of
the thought to get itself accepted in the competition of the market;
and that truth is the only ground upon which their wishes safely can
be carried out.”
It
is indeed difficult to imagine a more crucial protection to a
democratic society than that of freedom of expression.
Without
the freedom to express, interchange and communicate new ideas and
advance critical opinions about public affairs or the functioning of
public institutions, a democracy cannot survive.
The
use of colourful, forceful and even disrespectful language may be
necessary to capture the attention, interest and concerns of the
public to the need to rectify the situation protested against or
prevent its recurrence. People should not have to worry about the
manner in which they impart their ideas and information. They must
not be stifled in making such exchanges.
The
point is well made in the majority judgment of the European Court of
Human Rights in Handyside v UK (1979-80) 1 EHRR 737 at 754 (para 49)
that freedom of expression is applicable: “… not only to
'information' or 'ideas' that are favourably received or
regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb the State or any sector of the
population. Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no democratic society.”
See
also Garrison v State of Louisana 379 US 64 (1964) at 75 per JUSTICE
BRENNAN.
A
similar observation was made recently in Chavanduka & Anor v
Minister of Home Affairs & Anor (2000) 8 BHRC 390 (ZS) where,
after citing a dictum of MR JUSTICE HOLMES in US v Schwimmer 279 US
644 (1929) at 654, this Court said at 396a:
“Mere
content, no matter how offensive (save where the expression is
communicated in a physically violent form), cannot be determinative
of whether a statement qualifies for the constitutional protection
afforded to freedom of expression.”
With
particular regard to criticisms levelled at the courts, I can find no
more eloquent and pertinent expose than that of CORY JA in R v Kopyto
supra at 227:
“The
courts play an important role in any democratic society. They are the
forum not only for the resolution of disputes between citizens but
also for the resolution of disputes between the citizen and the State
in all its manifestations. The more complex society becomes the
greater is the resultant frustration imposed on citizens by that
complexity and the more important becomes the function of the courts.
As a result of their importance the courts are bound to be the
subject of comment and criticism. Not all will be sweetly reasoned.
An unsuccessful litigant may well make comments after the decision is
rendered that are not felicitously worded. Some criticism may be well
founded, some suggestions for change worth adopting. But the courts
are not fragile flowers that will wither in the hot heat of
controversy. Rules of evidence, methods of procedure and means of
review and appeal exist that go far to establishing a fair and
equitable rule of law. The courts have functioned well and
effectively in difficult times. They are well-regarded in the
community because they merit respect. They need not fear criticism
nor need they seek to sustain unnecessary barriers to complaints
about their operations or decisions.”
I
am thus firmly of the view that statements made on a matter of public
interest, even if intemperately or offensively worded, or in fact
false, so long as they are not obscene or criminally defamatory, come
within the protection of section 20(1) of the Constitution.
Undoubtedly
the comments of the applicant come within the parameters of that
protection.
It
remains to be determined whether the common law offence of contempt
by scandalising the court is a constitutionally permissible
restriction on the protection afforded the applicant's statements.
(3)
Is the limitation which the common law offence of scandalising the
court imposes on the right of freedom of expression saved by section
20(2)(b)(iii) of the Constitution?
Section
20(2)(b)(iii), in relevant part, reads:
“Nothing
contained in… any law shall be held to be in contravention of
subsection (1) to the extent that the law in question makes provision
…
(b)
for the purpose of –
…
(iii)
maintaining the authority and independence of the courts… except so
far as that provision … is shown not to be reasonably justifiable
in a democratic society.”
The
underlined portions of the subsection give rise to three specific
questions:
(a)
Is the limitation upon freedom of expression contained in any law?
The
term “law” is defined in section 113(1) of the Constitution to
include “any unwritten law in force in Zimbabwe, including African
customary law”.
The
common law in force in Zimbabwe falls within the definition.
And,
as I have endeavoured to show, the common law of scandalising the
court does limit the freedom of expression.
(b)
Is the limitation upon freedom of expression employed for the purpose
of maintaining the authority and independence of the courts?
Unquestionably,
the offence of scandalising the court exists in principle to protect
the administration of justice. It is thus a permissible derogation
from the freedom of expression.
(c)
Has the offence of scandalising the court been shown to be reasonably
justifiable in a democratic society?
This
is the crucial inquiry. From a procedural aspect, the burden of proof
is on the challenger to establish that the impugned law goes further
than is reasonably justifiable in a democratic society; and not, as
is common with the Constitutions of other countries, upon the State
to show that it does not. See Zimbabwe Township Developers (Pvt) Ltd
v Lou's Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S) at 382 in fine –
383A, 1984 (2) SA 778 (ZS) at 783H.
In
Nyambirai v National Social Security Authority & Anor 1995 (2)
ZLR 1 (S) at 13D-F, 1995 (9) BCLR 1221 (ZS) at 1231H-J, and Retrofit
(Pvt) Ltd v Posts and Telecommunications Corporation & Anor 1995
(2) ZLR 199 (S) at 220AC, 1995 (9) BCLR 1262 (ZS) at 1277G-I, this
Court, following Canadian jurisprudence, set out the three criteria
to be looked to in determining whether or not the limitation is
permissible in the sense of not being shown to be arbitrary or
excessive.
To
be answered are whether –
(i)
the objective which the limitation in the law is designed to promote
is sufficiently important to warrant overriding a fundamental right;
(ii)
the measures designed to meet the objective are rationally connected
with it and are not arbitrary, unfair or based on irrational
considerations;
(iii)
the means used to impair the right or freedom are no more than is
necessary to accomplish the objective.
In
Ahnee & Ors v Director of Public Prosecutions [1999] 2 WLR 1305
(PC) – an appeal from the Supreme Court of Mauritius – the
question arose as to whether the offence of scandalising the court
had been shown by the appellants not to be reasonably justifiable in
a democratic society (section 12(2) of the Constitution of
Mauritius).
Holding
that it had not, LORD STEYN, in delivering the opinion of their
Lordships, offered two main reasons for that view. He said at 1313 in
fine – 1314F:
“In
England such proceedings are rare and none has been successfully
brought for more than sixty years. But it is permissible to take into
account that on a small island such as Mauritius the administration
of justice is more vulnerable than in the United Kingdom. The need
for the offence of scandalising the court on a small island is
greater: see Feldman, Civil Liberties and Human Rights in England and
Wales (1993) pp 746-747; Barendt Freedom of Speech (1985) pp 218-219.
Moreover,
it must be borne in mind that the offence is narrowly defined. It
does not extend to comment on the conduct of a judge unrelated to his
performance on the Bench. It exists solely to protect the
administration of justice rather than the feelings of judges. There
must be a real risk of undermining public confidence in the
administration of justice.
The
field of application of the offence is also narrowed by the need in a
democratic society for public scrutiny of the conduct of judges, and
for the right of citizens to comment on matters of public concern.
There
is available to a defendant a defence based on the 'right of
criticising, in good faith, in private or public, the public act done
in the seat of justice'….
The
classic illustration of such an offence is the imputation of improper
motives to a judge.…
Given
the narrow scope of the offence of scandalising the court, their
Lordships are satisfied that the constitutional criterion that it
must be necessary in a democratic society is in principle made out.
The contrary argument is rejected.”
With
regard to the first reason, I must respectfully disagree with the
sweeping observation that in small islands the need to retain the
offence of scandalising the court is greater than in the United
Kingdom because the administration of justice is more vulnerable. By
alluding to “small islands”, I assume that the learned LORD OF
APPEAL IN ORDINARY was including comparatively small jurisdictions.
In
supporting the proposition by reference to academic writings it may
well be that the Board wished to be spared the embarrassment of
citing LORD MORRIS's racist comment in McLeod v St. Aubyn supra at
561 that:
“in
small colonies, consisting principally of coloured populations, the
enforcement in proper courts of committal for contempt of Court for
attacks on the Court may be absolutely necessary to preserve in such
a community the dignity of and respect for the Court”;
yet,
like LORD ATKIN in Ambard v Attorney-General for Trinidad and Tobago
supra at 708 in fine, believed it necessary to pronounce, somewhat
condescendingly, a modern non-racist justification of McLeod to small
countries.
Whether
the administration of justice in Mauritius was correctly perceived to
be more vulnerable than in the United Kingdom appears to me to be a
contentious proposition. But one thing is certain; the same epithet
does not fit the situation in Zimbabwe.
I
am confident that our courts are strong enough to withstand criticism
after a case has been decided no matter how scurrilous that criticism
may be.
Communication
with a fair proportion of the population is easily achieved. Court
proceedings are widely publicised in the media. Most, if not all,
judges are known by name. Trust in the legal system and the authority
of the courts are matters of importance to the ordinary citizen. The
courts are looked upon as the ultimate refuge from injustice.
The
second reason, that the narrow scope of the offence of scandalising
the court makes its retention “necessary” in a democratic
society, is much more persuasive.
Criticism
which imputes improper or corrupt motives or conduct to those taking
part in the administration of justice, which “excites misgivings as
to the integrity, propriety and impartiality brought to the exercise
of the judicial office”, does create a real or substantial risk of
impairing public confidence in the administration of justice.
Unlike
other public figures, judges have no other proper forum in which to
reply to criticisms. They cannot debate the issue in public without
jeopardizing their impartiality. This is why protection should be
given to judges when it is not given to other important members of
society such as politicians, administrators and public servants.
The
other case to which reference must be made is that of R v Kopyto
supra, where, save for unanimity in the setting aside of the
conviction, the Ontario Court of Appeal was split three ways. CORY
and GOODMAN JJA were of the view that in order to accord with the
fundamental freedoms in the Canadian Charter of Rights and Freedoms,
the contempt must be shown to involve a real, substantial and present
or immediate danger to the administration of justice. Their view that
such a contempt could not be committed unless it interferes with the
fair trial of present or pending proceedings, was influenced by
American jurisprudence and its test of “clear and present danger”
to the administration of justice.
HOULDEN
JA went even further. He was of the opinion that no offence of
scandalising the court, however framed, would be consistent with the
Charter; therefore there could be no such contempt.
DUBIN
JA (with whom BROOKE JA concurred), on the other hand, considered the
offence to be a necessary exemption, provided that the statement
complained of is calculated to bring the administration of justice
into disrepute; and it is shown that there is a “serious risk that
the administration of justice would be interfered with”. Rejecting
the approach of the majority, he said at 285:
“In
other words, as I understand it, if the words complained of are
stated in court while the judge is still sitting in court, my
colleagues would hold the offence to be constitutional, but if the
words were stated after the judge had delivered his judgment and
withdrawn from the court-room, and the statement was made to the
press or to the public in his absence, the offence becomes
unconstitutional. The result of the majority ruling is that in this
jurisdiction there is, at present, no limit on what is permissible
with respect to comments made which are intended to interfere
seriously with the administration of justice and the rule of law
unless the comment is made in the face of the court, or would
interfere with the fair trial of pending proceedings. With respect, I
see no basis for such a distinction.”
The
learned JUDGE OF APPEAL then pointed out that the distinction had
been rejected by RICHMOND P in Solicitor General v Radio Avon Ltd
supra at 232-233 where LORD DIPLOCK's analysis in Attorney-General
v Times Newspaper Ltd [1973] 3 All ER 54 (HL) at 72 e-g, was cited
with approval.
In
dismissing the relevance of the American jurisprudence, DUBIN JA at
287 approved of another passage of the judgment in the Radio Avon
case at 234, namely:
“The
American courts appear to have directed their attention to the
existence of a clear and present danger of a court being influenced,
intimidated, impeded, embarrassed or obstructed in the administration
of justice. English law, on the other hand, has also attached great
importance to the need to preserve public confidence in the
administration of justice generally. This court should not depart
from that attitude subject, of course, in the type of contempt now
under consideration, to the public right of fair comment and
criticism, and to the possible defence of justification earlier
referred to in this judgment.”
Turning
to the merits of the appeal, DUBIN JA was satisfied that the
conviction could not stand as the requisite elements of the offence
had not been made out.
In
my respectful view the minority judgment is impressive.
The
serious risk test - preferred to the one adopted in American case law
in which the administration of justice must be imperiled immediately
- conforms with that applied in this country. See S v Hartmann &
Anor 1983 (2) ZLR 186 (S) at 195F, 1984 (1) SA 305 (ZS) at 312 E-F;
Banana v Attorney-General 1998 (1) ZLR 309 (S) at 318 FH, 1999 (1)
BCLR 27 (ZS) at 36I-37A.
Furthermore,
the danger in adopting the American approach is that it is predicated
upon the conception that scandalising contempt is to “preserve the
dignity of the bench”.
This
is wrong.
The
recognition given to this form of contempt is not to protect the
tender and hurt feelings of the judge or to grant him 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.
I
pass now to the application of the three criteria, but would repeat
that the onus is upon the applicant of showing that the law of
contempt by scandalising the court is not a limitation that is
reasonably justifiable in a democratic society.
(i)
First, the primary objective of the impugned law of scandalising the
court must relate to concerns which are pressing and substantial and
of sufficient importance to override the constitutionally protected
freedom. See Chavanduka v Minister of Home Affairs supra at 402f.
The
objective of the law of contempt is well captured in the following
passage in Borrie & Lowe's Law of Contempt op. cit. at 226:
“The
necessity for this branch of contempt lies in the idea that without
well regulated laws a civilised community cannot survive. It is
therefore thought important to maintain the respect and dignity of
the court and its officers, whose task it is to uphold and enforce
the law, because without such respect, public faith in the
administration of justice would be undermined and the law itself
would fall into disrepute.”
The
same sentiment was neatly put by RICHMOND P in Solicitor General v
Radio Avon Ltd supra at 230, in these words:
“The
justification for this branch of the law of contempt is that it is
contrary to the public interest that public confidence in the
administration of justice should be undermined.”
I
do not therefore consider that this objective, which the limitation
in the law is designed to promote, can be said not to be of
sufficient importance to warrant overriding the fundamental right of
freedom of expression.
(ii)
It was conceded by counsel for the applicant, and correctly so in my
opinion, that the second criterion is satisfied, in that the measures
designed to meet the objective are rationally connected to it.
(iii)
With regard to the third criterion which the applicant must meet, two
points must be made.
(a)
First, as emphasised in Ahnee & Ors v Director of Public
Prosecutions supra, the offence of scandalising the court does not
extend to hostile criticism on the behaviour of a judicial officer
unrelated to his performance on the Bench. Any personal attack upon
him unconnected with the office he holds must be dealt with under the
laws of defamation. See McLeod v St. Albyn supra at 561; R v Fuleza
1951 (1) SA 519 (A) at 533 A-B; R v Robberts 1959 (4) SA 554 (A) at
557 in fine. The offence is narrowly defined.
(b)
Secondly, prompt action to preserve the authority of the court and
the due carrying out of its function, which are subject to being
undermined by scandalising contempt, is required.
The
institution of criminal proceedings at the instance of the
Attorney-General, with all the attendant delays, would be too
dilatory and too inconvenient to offer a satisfactory remedy. Once a
matter has been referred to the Attorney-General it is removed from
the court's control, and the Attorney General might well be
reluctant to prosecute. Moreover, criminal defamation is concerned
with personal reputations. And, in any event, it would not be
applicable to an attack upon an unspecified group of judges or upon
the court system in general.
In
sum, the applicant has failed to meet the criteria laid down. He has
not shown that the limitation placed on the right to freedom of
expression for the purpose of maintaining the authority and
independence of the courts is not one that is reasonably justifiable
in a democratic society.
V.
WHETHER A CHARGE OF CONTEMPT OF COURT (BY SCANDALISING THE COURT) IS
A CHARGE OF A CRIMINAL OFFENCE ENTITLING THE PERSON CHARGED TO THE
PROTECTIONS AFFORDED BY THE PROVISIONS OF SECTION 18 OF THE
CONSTITUTION
Subsection
(1) of section 18 of the Constitution recites that:
“Subject
to the provisions of this Constitution, every person is entitled to
the protection of the law.”
Subsections
(2) to (9) spell out the fundamental protections which a person
charged with, and tried for, any criminal offence must be afforded.
The
nature of contempt of court was correctly described by the learned
judge in the reported judgment supra, at 296F, as follows:
“Contempt
of court, although it may have a penalty attached to it similar to
that which is imposed in criminal cases, has never been treated as
crime strictu sensu. It is, and has always been, treated as sui
generis.”
Textbooks
are replete with discussion of the peculiarities of contempt law and
the extent to which proceedings for contempt defy classification
strictu sensu as criminal or civil, but are to be regarded as sui
generis.
So
far as contempt involving disobedience to the order or process of a
court is concerned, the offence is often treated as “civil
contempt”. This is because such contempts are, in reality, a form
of execution, pursuant to which the person of the defaulting party
may be attached in order to coerce compliance with the order. See
Cape Times Ltd v Union Trades Directories (Pty) Ltd 1956 (1) SA 105
(N) at 120F-121D; Wiley NO v M 1979 RLR 144 (GD) at 146 A-D; and
because proceedings to punish the contempt are almost invariably
initiated by the party in whose favour the civil order was made and
who may waive punishment.
Nonetheless,
such contempt is a criminal offence for which the contemnor may be
indicted at the instance of the Attorney-General. See Milton, op cit.
at 189; and particularly, S v Beyers 1968 (3) SA 70 (A) at 81C-E; S v
Benatar 1984 (1) ZLR 296 (S) at 303A-304C, 1984 (3) SA 588 (ZS) at
592H-593H.
In
its most recent consideration of the matter, the Privy Council in
Ahnee & Ors v Director of Public Prosecutions supra at 1314G
described scandalising the court as a form of contempt that is not
part of the ordinary criminal law.
As
I understand it, that conclusion does not mean that such contempt is
not an offence for particular purposes. It is an offence against the
court rather than against the State. It is an injury committed
against a person or body occupying a public judicial office, by which
injury the dignity or respect which is due to such office, or its
authority in the administration of justice, is intentionally
violated. See Attorney General v Crockett 1911 TPD 893 at 911; Noel
Lancaster Sands (Edms) (Bpk) v Theron 1974 (3) SA 688 (T).
In
In re Muskwe 1992 (1) ZLR 44 (H), 1993 (2) SA 514 (ZH) ADAM J held
that the right of an accused person under section 18(2) of the
Constitution to be tried by an independent and impartial court
established by law, had been denied in a situation in which the
magistrate at whom the contemptuous conduct had been directed,
presided over the contempt proceedings which followed.
For
this involved the magistrate being arbiter in his own cause.
The
Canadian case of R v Cohn (1985) 10 CRR 142 (Ont. CA), cited by the
learned judge, is to the same effect (see at 156 per GOODMAN JA). See
also Uncedo Taxi Service Association v Maninjwa & Ors 1998 (6)
BCLR 683 (E) at 694 E-F, 1998 (3) SA 417 (E) at 429 C-D; Milton, op
cit. at 199.
I
respectfully agree with these decisions.
It
follows, in my view, that although contempt by scandalising the court
is an offence sui generis and is not part of the ordinary criminal
law, it is nonetheless the responsibility of the judicial officer
hearing the matter to ensure that the procedure adopted complies with
the constitutional protections afforded an accused person charged
with an ordinary criminal offence. After all the contemnor, like the
convicted accused, is liable to punishment in the discretion of the
court.
VI(A)
WHETHER THE PROCEDURE WHEREBY A PERSON CHARGED WITH CONTEMPT OF COURT
IS TRIED BY THE COURT WHICH COMPLAINS ABOUT THE CONTEMPT VIOLATES THE
RIGHT OF A PERSON, IN TERMS OF SECTION 18(2) OF THE CONSTITUTION, TO
BE TRIED BY AN INDEPENDENT AND IMPARTIAL COURT
The
contention advanced by the applicant is that the High Court which he
is accused of having scandalised, is the very one which is to
determine whether the statements he made were contemptuous of it; it
will thus be acting as judge in its own cause. Expressed differently,
the injured party is not, in the circumstances, an independent
judicial body. It cannot impartially adjudicate when it itself has
been offended against and has issued the citation. Consequently any
proceedings brought before the High Court would amount to a
contravention of the applicant's rights under section 18(2) of the
Constitution. A fair hearing would be denied him.
The
contention, which must be assessed against the factual situation and
not hypothetically, raises the question of whether there is a real or
substantial risk of BLACKIE J, or any judge of the High Court (other
than ADAM J, for there was never any prospect of him being chosen as
the adjudicator) being unable to disabuse his or her mind of
extraneous and prejudicial information or attitudes which they are
not entitled to consider in reaching a decision.
I
am satisfied that only the remotest possibility exists of a judge,
imbued with basic impartiality, legal training and the capacity for
objective and unemotional thought, being consciously or
subconsciously influenced by extraneous matter.
I
would repeat what was said in Banana v Attorney-General supra at 321
DE (ZLR) and 36I-37A (BCLR):
“To
accept that there is a real or substantial risk of a judge's mind
becoming so clogged with prejudice by what he has read or heard about
an accused, would mean that it would be impossible to find an
impartial judge for a high profile case; and that such an accused
could never receive a fair trial. The result would be nothing less
than judicial abdication. The proposition needs merely to be stated
to convince of its unsoundness.”
I
regard the decision to assign the matter to BLACKIE J as entirely
proper. He was not the author of the judgment criticised by the
applicant. He had not been involved at any stage of the proceedings
brought against the three accused. It was not his personal dignity,
respect and professional ability that had been injured. To suggest,
therefore, that BLACKIE J (or any other judge for that matter) is
incapable of dealing with the proceedings in an impartial and
objective manner since the criticism levelled directly at a colleague
affected the authority of the High Court in the administration of
justice, is wholly unconvincing.
(B)
WHETHER THE CITATION ISSUED ON 28 SEPTEMBER 1999, WHICH CALLED UPON
THE APPLICANT TO SHOW CAUSE WHY AN ORDER SHOULD NOT BE MADE AGAINST
HIM, VIOLATES THE PRESUMPTION OF INNOCENCE ON THE PART OF AN ACCUSED
PERSON IN CONTRAVENTION OF SECTION 18(3)(a) OF THE CONSTITUTION
The
citation instructed the applicant to appear before the High Court on
a certain day at a specified hour to indicate why he should not be
subject to an order of contempt following upon the statement he
caused to be published, or was published, in The Herald. A copy of
the publication was annexed.
Prior
to the hearing the citation was amplified, by referring specifically
to utterances in the publication which were relied upon. It informed
the applicant, with sufficient clarity, of the contempt he had
allegedly committed ex facie curiae.
Procedure
by way of citation is not uncommon. See R v Keyser 1951 (1) SA 512
(A) at 518 F-H; S v Mabaso 1990 (1) SACR 675 (T) at 678 a-c.
The
submission advanced by the applicant's counsel was this:
The
adoption of the summary procedure, which called upon the applicant to
show cause “why a contempt order should not be made”, violated
his constitutional right to be presumed innocent.
The
same argument has been tried in other jurisdictions without success.
In
R v Cohn supra GOODMAN JA said at 157:
“It
is not a matter of the presumption of innocence being made
inapplicable in contempt proceedings. In a case such as this it is
simply a matter that the facts known to the presiding judge which
took place in his court and with respect to which there can be no
doubt and no better proof adduced are such as to amount to prima
facie proof unless the alleged contemnor calls evidence or gives
evidence which affords to him a proper defence. In that regard he is
in no different position than a person accused of an offence under
the Criminal Code where the prosecution has established a prima facie
case.”
And
further at 158:
“At
its highest, the application of a rule nisi by the presiding judge
merely shifts the burden of adducing evidence as distinct from
shifting the burden of persuasion to the accused. This court has
already so held in R v Pereira (released September 22, 1983, as yet
unreported), where MARTIN JA, speaking for the court, said:
'Summary
proceedings for contempt in the face of the Court do not infringe the
right of an accused to be tried before an impartial tribunal and his
right to be presumed innocent. The burden on the accused is an
evidential one only and if at the end of the proceedings there exists
a reasonable doubt as to guilt, he is entitled to be acquitted'.”
These
remarks apply a fortiori to summary proceedings for contempt ex facie
curiae. South African decisions share this view.
Accepting,
as I think one must, that for all practical purposes, the form of the
citation is no different from that of a rule nisi, the words of
CORBETT JA (as he then was) in Safcor Forwarding (Johannesburg) (Pty)
Ltd v National Transport Commission 1982 (3) SA 654 (A) at 676A as to
its effect upon the onus of proof are apposite:
“The
objection that the issue of such a rule nisi places an unwarranted
onus on the respondent is, in my view, unfounded. All that the rule
does is to require the respondent to appear and to oppose should he
wish to do so. The overall onus of establishing his case remains with
the applicant and the rule does not cast an onus upon the respondent
which he would not otherwise bear.”
More
directly in point are S v Lavhengwa 1996 (2) SACR 453 (W) and Uncedo
Taxi Service Association v Maninjwa & Ors supra.
The
first case dealt with contempt of court committed in facie curiae
under the summary procedure provided in section 108(1) of the
Magistrate's Court Act. The issue debated was whether the accused's
constitutional right to be presumed innocent had been infringed.
After a close examination CLAASSEN J found that it had not. He
reasoned at 486 f-j:
“I
am also of the view that the summary contempt proceedings envisaged
in section 108(1) do not offend the presumption of innocence in
section 25(3)(c) of our Constitution. Firstly, this is so because the
summary proceedings do not create a duty to prove a defence or
excuse. Even if it had that effect, that in itself would not be
relevant, for the reasons stated in R v Whyte ((1988) 51 DLR (4th)
(SCC)). Secondly, the procedure triggered by section 108(1) does not
mean that the accused is liable to be convicted despite the existence
of a reasonable doubt. What is important is whether the summary
procedure maintains the accused's right to be convicted only upon
proof that he contravenes section 108(1) beyond a reasonable doubt.
It is manifestly so that when these summary proceedings are
implemented, the magistrate, after hearing the accused, is obliged to
convict only if he has been satisfied beyond reasonable doubt that a
contravention of section 108(1) is proved. The onus remains with 'the
prosecution' to prove this fact”.
In
the second case PICKERING J held that the summary procedure of
obtaining, by way of notice of motion, a rule nisi calling upon the
respondents to show cause why they should not be committed to prison
for contempt committed ex facie curiae, did not violate the
fundamental right of the respondents to be presumed innocent.
The
learned judge supported his decision by reference to R v Cohn supra
and S v Lavhengwa supra (see at 690 C-F).
He
went on to find, after an exhaustive review of the authorities, that
the civil standard of proof was inapplicable; that as contempt of
court is an offence of a criminal character, proof of its commission
beyond reasonable doubt was required (see at 692C-693B).
I
respectfully agree with these decisions, and would underline that at
the moment of being cited for contempt, the applicant was presumed to
be innocent. It follows that no valid complaint of prejudice lies
against the procedure adopted in bringing the applicant before the
High Court.
VI.
DISPOSAL
In
the result, save then for the first question referred (which is dealt
with in section V above), the remaining questions are answered in the
negative. The proceedings therefore remain alive. The hearing is to
be resumed before BLACKIE J.
McNALLY
JA: I agree
EBRAHIM
JA: I agree
MUCHECHETERE
JA: I agree
SANDURA
JA: I agree
Scanlen
& Holderness, applicant's legal practitioners
