In re: Patrick Anthony Chinamasa

Three American nationals were convicted in the High Court for attempting to place dangerous goods aboard an aircraft and unlawful possession of arms. Justice Adam sentenced them to an effective six months' imprisonment. On 15 September 1999, the Attorney-General (applicant) issued a public statement published in The Herald newspaper criticizing the sentence as shocking, outrageous, and a betrayal of civilized notions of justice. He stated that Justice Adam had trivialized serious offences and that the leniency eroded confidence in the administration of criminal justice. On 28 September 1999, Justice Adam caused a citation for contempt of court to be issued against the applicant. The matter was assigned to Blackie J, who appointed an amicus curiae. The applicant requested that constitutional questions be referred to the Supreme Court under section 24(2) of the Constitution. Blackie J referred some questions but refused to refer others, leading to this application.

• Whether the common law offence of scandalizing the court continues to exist in Zimbabwe
• Whether the statements made by the Attorney-General are protected by freedom of expression under section 20(1) of the Constitution
• Whether the common law offence of scandalizing the court is a constitutionally permissible limitation on freedom of expression under section 20(2)(b)(iii) - i.e., whether it is reasonably justifiable in a democratic society
• Whether a charge of contempt of court (scandalizing the court) is a criminal offence entitling the accused to protections under section 18 of the Constitution
• Whether the procedure whereby the court which was allegedly scandalized tries the contempt violates the right to an independent and impartial tribunal under section 18(2)
• Whether the citation requiring the accused to show cause violates the presumption of innocence under section 18(3)(a)

The constitutional questions referred were answered as follows: Question 1 (whether contempt is a criminal offence entitling to section 18 protections) was answered affirmatively. The remaining questions were answered in the negative - the procedures did not violate the applicant's constitutional rights. The proceedings remained alive and the hearing was to resume before Blackie J in the High Court to determine whether the Attorney-General was actually guilty of contempt.

The binding legal principles are: (1) The common law offence of contempt of court by scandalizing the court exists in Zimbabwe as contempt ex facie curiae, committed by publications calculated to bring a court, judge, or administration of justice into contempt and undermine public confidence; (2) Such statements, even if critical of judicial officers, prima facie fall within the protection of freedom of expression under section 20(1) of the Constitution; (3) However, the offence of scandalizing the court is a constitutionally permissible limitation on freedom of expression under section 20(2)(b)(iii) as it is reasonably justifiable in a democratic society for maintaining the authority and independence of courts, applying a three-part test: (a) the objective is sufficiently important to warrant overriding freedom of expression, (b) the measures are rationally connected to that objective, and (c) the means used are no more than necessary; (4) The offence is narrowly defined - it does not extend to criticism of a judge's conduct unrelated to judicial performance, and it exists solely to protect administration of justice where there is a real or substantial risk (not merely a remote possibility) of undermining public confidence; (5) Genuine criticism, even emphatic or unhappily expressed, should be regarded as exercise of free speech rather than scandalous comment, and fair comment within reasonable courtesy and good faith is protected; (6) Although contempt by scandalizing is sui generis and not part of ordinary criminal law, persons charged are entitled to the constitutional protections afforded to accused persons under section 18; (7) Trial by a judge other than the one whose judgment was criticized does not violate the right to an independent and impartial tribunal - judges are presumed capable of impartiality despite institutional connection; (8) A citation requiring the accused to show cause does not violate the presumption of innocence - it shifts only an evidential burden while the prosecution retains the burden of proving guilt beyond reasonable doubt.

Gubbay CJ made several significant obiter observations: (1) He disagreed with the Privy Council's suggestion in Ahnee v DPP that small island jurisdictions or small countries have more vulnerable justice systems requiring greater protection through contempt laws, noting this echoed outdated racist colonial attitudes and that Zimbabwean courts are strong enough to withstand criticism; (2) He expressed preference for the minority judgment of Dubin JA in R v Kopyto over the majority's adoption of American jurisprudence, noting that the 'serious risk' test is more appropriate than the 'clear and present danger' test because the latter wrongly focuses on protecting judicial dignity rather than public confidence in justice; (3) He observed that prosecutions for scandalizing have become rare in England but continue in other Commonwealth jurisdictions, and noted the American rejection of the offence as inconsistent with the First Amendment; (4) He commented that unlike other public figures, judges have no proper forum to reply to criticisms without jeopardizing their impartiality, which justifies some protection not given to politicians and public servants; (5) He noted that the applicant mistakenly attempted to appeal the refusal to refer certain questions, overlooking section 24(3) which requires waiting until final determination before raising such constitutional questions on appeal; (6) He emphasized that courts should not be 'astute' to criticize adversely what is published with the object of reasonable argument or expostulation against judicial acts, and that reasonable justifiable criticism should preferably be regarded as exercise of free speech.

This landmark judgment comprehensively addresses the constitutional validity of the common law offence of scandalizing the court in post-independence Zimbabwe. It establishes the framework for balancing freedom of expression against maintaining judicial authority, adopting a 'serious risk' test rather than the American 'clear and present danger' standard. The decision affirms that while freedom of expression is fundamental and must be given broad protection (including offensive and critical speech), the narrow offence of scandalizing the court survives constitutional scrutiny when properly limited to statements that create a real risk of undermining public confidence in the administration of justice through imputing corrupt or improper motives to judges. The judgment emphasizes that the offence protects the administration of justice, not judges' personal dignity, and that fair criticism remains protected. It also clarifies important procedural protections: contempt proceedings must comply with criminal procedure protections under section 18, but assignment to a judge other than the one criticized does not violate impartiality requirements, and show cause procedures do not reverse the burden of proof. The case represents a careful calibration between protecting judicial independence and preserving robust public discourse about the judiciary in a democratic society.