The State v Russell Mamabolo

Russell Mamabolo, a spokesperson for the Department of Correctional Services, issued a media statement criticizing a bail order granted by Els J to Eugene Terre Blanche. The statement, reported in Beeld newspaper, said the judge had made a mistake and contributed to confusion. Els J read the newspaper report and summoned Mamabolo and Commissioner Mbete to appear before him to explain their statements. Mamabolo appeared with counsel and filed an affidavit denying intent to commit contempt. Els J conducted summary proceedings, convicted Mamabolo of contempt of court (scandalising the court), and sentenced him to a fine of R2,000 or 6 months imprisonment, plus 6 months conditionally suspended. Els J refused leave to appeal. Mamabolo obtained direct leave from the Constitutional Court to appeal. The Freedom of Expression Institute, e.tv, and Business Day were admitted as amici curiae.

• Whether the common law crime of scandalising the court unjustifiably limits the constitutional right to freedom of expression
• Whether the summary procedure used by a judge to deal with contempt of court violates fair trial rights under section 35(3) of the Constitution
• The scope and elements of the crime of scandalising the court in the constitutional era
• Whether the statements made by Mamabolo constituted contempt of court

The appeal was upheld. Mamabolo's conviction and sentence were set aside. The Constitutional Court declared that: (1) The crime of scandalising the court survives constitutional scrutiny but in a narrow form - it applies only where conduct objectively viewed is likely to damage the administration of justice; (2) The summary procedure used by Els J was constitutionally impermissible and violated section 35(3) fair trial rights; (3) Summary contempt proceedings for scandalising should only be used in the most exceptional circumstances where ordinary prosecution is impossible or highly undesirable; (4) Mamabolo's statements did not constitute contempt as they were expressions of opinion that did not impair judicial dignity or integrity.

The binding legal principles are: (1) The common law crime of scandalising the court is constitutional but narrowly circumscribed - it applies only where conduct, viewed objectively in context, is likely to damage the administration of justice as a whole, not merely affect individual judicial reputation; (2) The crime protects the public interest in maintaining judicial integrity and the rule of law, not private judicial interests; (3) In the constitutional era, the threshold for conviction is very high - given sections 16 (freedom of expression) and 165(4) (protection of judicial dignity), only egregious cases threatening the administration of justice will qualify; (4) Summary contempt proceedings for scandalising violate section 35(3) fair trial rights as they lack adversarial process, formal charges, right to silence, and ability to challenge evidence - they create an inquisitorial procedure incompatible with constitutional standards; (5) Summary procedures should be reserved for exceptional cases only (e.g., where ordinary prosecution is impossible) and a judge targeted by alleged contempt should not preside; (6) Criticism of judicial decisions, even if wrong or offensive, does not constitute contempt unless it objectively threatens the administration of justice; (7) Freedom of expression and judicial dignity must be balanced - neither is absolute, but freedom to criticize courts is fundamental to constitutional democracy and judicial accountability.

Kriegler J made several important observations: (1) The judiciary is the weakest of three branches of state, lacking constituency, purse or sword - it relies on moral authority derived from public confidence; (2) Judges speak only in court and cannot defend themselves publicly, making protection necessary but limited; (3) The openness of judicial proceedings and publication of reasoned judgments are key to maintaining public confidence; (4) The test for scandalising should not be modified to adopt a "clear and present danger" standard from American jurisprudence as it is incompatible with South Africa's constitutional framework where rights are balanced, not hierarchical; (5) Organs of state have special obligations under section 165(5) to obey court orders - defiance by executive officers strikes at the rule of law; (6) Els J appears to have been concerned about potential defiance of his bail order, which would have been serious, but Mamabolo lacked power to execute or frustrate the order. Sachs J (concurring) added important observations: (1) The terms "scandalising" and "disrepute" are archaic and potentially misleading - the focus should be on impact on administration of justice, not outrage to judicial sensibilities; (2) Many robust criticisms of the judiciary (by lawyers, politicians, disappointed litigants, media) are constitutionally protected even if they damage judicial reputation; (3) Historical abuse of contempt powers to suppress legitimate criticism during apartheid demonstrates dangers of excessive restrictions on speech; (4) He would require proof that speech poses "a real and direct threat to the administration of justice" - a more specific test than the majority's formulation; (5) Judicial respect must be earned through quality judgments and proper conduct, not commanded through contempt proceedings; (6) As guardian of free speech, the judiciary should show greatest tolerance for criticism of its own functioning.

This landmark judgment clarified the post-apartheid constitutional scope of contempt of court by scandalising in South Africa. It balanced freedom of expression (section 16) with protection of judicial dignity and the administration of justice (section 165). The Court affirmed that robust criticism of judges and judgments is constitutionally protected - freedom of expression requires protection especially when speech "hurts." The threshold for scandalising is now very high: speech must objectively be likely to damage the administration of justice itself, not merely hurt judicial feelings or reputation. The judgment rejected importation of the American "clear and present danger" test, finding it unsuited to South Africa's constitutional framework where rights are balanced rather than hierarchical. The Court confirmed that summary contempt proceedings violate fair trial rights except in exceptional circumstances, and that a judge should not normally preside over contempt proceedings arising from criticism of their own judgment. The case reinforced that in a constitutional democracy, judicial authority depends on earned respect through quality judgments and proper conduct, not commanded deference. It established important principles for media freedom, academic critique of the judiciary, and public accountability of judicial officers.