 |
Julius Malema ©Gary van der Merwe: Creative Commons Legal Code |
Julius Malema has opened himself to criminal charges of ‘scandalising the court. Malema’s claims outside the East London Magistrates’ Court were intended to delegitimise the trial and its outcome and to intimidate the court into ruling in his favour. Mr Malema claimed that the magistrate interrupted her judgment to take instructions from Pravin Gordhan, President Cyril Ramaphosa and Shamila Batohi about the ruling and that she thus produced a sponsored decision. He also insulted the magistrate by calling her a racist and incompetent magistrate who comes late to court, can’t get her papers in order, and can’t read her judgments.
Mr Malema’s claims are self-serving and unsubstantiated. The claim that the magistrate was told what to write by Gordhan, Ramaphosa and Batohi is also obviously false. Much like Donald Trump, who has railed against prosecutors, judges and even the clerk of a presiding judge in one of the criminal cases brought against him, Mr Malema has also suggested that he was being prosecuted for hampering his ability to campaign in the upcoming election.
Disgruntled rambling vs facts
Ideally, such criticism should be supported by reasons and based on facts. One finds excellent examples of this type of criticism in academic law journals, where academics often criticise judgments for their lack of rigour, muddled reasoning, or their interpretation and application of the legal rules and principles. But even when criticism is uninformed, intemperate, unfair, abusive or politically motivated, such speech will usually be protected by the right to freedom of expression in section 16 of the Constitution. While such criticism would have little value and could rightly be ignored by the rest of us, section 16 of the Constitution protects the right of everyone to make a fool of themselves, for example, by criticising a judgment they had not read or had not understood.
It is only in the most extreme and precise cases that criticism of presiding officers or court judgments will become a punishable offence. In Mamabolo, the court made clear that such criticism will only rise to the level of a criminal offence where a particular remark will tend to or is calculated to bring the administration of justice into contempt. This is so even though presiding officers are in the somewhat unique position of not being able to defend themselves against such criticism as they speak in court and only in court and are thus not at liberty to support or even debate their decisions in public.
Question of contempt
The magistrate presiding in Mr Malema’s criminal trial might well feel aggrieved that Mr Malema accused her of incompetence, suggested that she cannot read, and accused her of being a racist. But this is irrelevant when assessing whether Mr Malema made himself guilty of scandalising the court. While some of Mr Malema’s remarks were defamatory and in bad taste, and while they reflect poorly on Mr Malema’s character, I do not believe that they rise to the level of a criminal offence worthy of prosecution. That said, our courts may well hold that Mr Malema’s accusation of racism amounted to scandalising the court.
Mr Malema’s statement that the magistrate interrupted her judgment to take instructions from Pravin Gordhan, President Cyril Ramaphosa and Shamila Batohi about how to rule and that she thus produced a sponsored review is a different matter altogether. Instead, it accuses the presiding officer of corruptly taking orders from the president, a Cabinet minister and the NDPP, thus suggesting that the trial is a predetermined sham directed by Mr Malema’s political opponents and the current NDPP. To determine whether remarks like these made by Mr Malema were calculated to bring the administration of justice into contempt, a court will not only look at the words but also the larger context. The fact that Mr Malema is a powerful and influential politician, that he uttered these words outside the court to a large gathering of supporters who would mostly be highly susceptible to believe his claim, and that the motive was to discredit the criminal trial and its outcome, would all count against him if he were to be criminally charged for these utterances.
While I can imagine some citizens arguing that Mr Malema should not be prosecuted because it would bolster his claims of being persecuted and would be to his political advantage, this is not a permissible ground for non-prosecution. It would be somewhat ironic if an impartial and independent decision by the NPA to prosecute boosts the electoral fortunes of the EFF while exposing Mr Malema to possible imprisonment.
This article is republished from the Daily Maverick. Click here to read the original article.
