COURT DIARY: BHEKI MAKHUBU APPEAL HEARING

Salc : Caroline James

23 MAY 2014

MBABANE, SWAZILAND

On 23 May 2014, Judges Moore, Ebrahim, and Twum of the Supreme Court of Appeal heard Bheki Makhubu’s appeal to last year’s conviction and sentence for contempt of court.

Alec Freund SC from the Cape Bar represented Makhubu, and the Attorney General, Majahenkhaba Dlamini, appeared for himself.

At the outset, Freund emphasised that the Constitution’s impact on the application of the common law needed to be taken into account by the Court, and because, in a constitutional democracy, the right to freedom of expression is protected, the threshold for what constitutes scandalising the court should be high. He said that regard should be made to comparative jurisdictions which have confirmed that while contempt of court is a legitimate restriction of the right to freedom of expression, it must be narrowly interpreted.

Freund focussed on four grounds of appeal. The first was that the summary procedure followed in this case was irregular and infringed on the accused’s fair trial rights. Freund questioned whether applying a summary procedure in this situation was permissible under common law, and if so, whether the common law needed to be brought in line with the Constitution. He explained that there were two types of contempt of court proceedings: one where a judge hearing a case decides that behaviour within the court is contemptuous and initiates proceedings immediately; and another, where the contemptuous behaviour takes place outside the court and the prosecution service initiates proceedings as in any other criminal trial. The argument was that as the facts in this case were of the second variety, it was incorrect for summary proceedings to have been adopted, as the case should have proceeded by way of trial and not on motion. The distinction is important because in motion proceedings the accused is required to provide his version upfront in a replying affidavit, whereas in a trial, the accused could object to the indictment, and then apply for a discharge of the case at the close of the state’s case, before having to provide a version. Proceeding by way of motion therefore infringes on an accused’s right to remain silent. Contempt of court, through scandalising the court, is a criminal offence and so all the protections afforded to criminal accused to should be present here.

Another question raised by Freund was whether the Attorney General was given a discretion to decide whether to proceed by motion rather than trial in contempt of court cases where the contempt occurred outside the court. He submitted that there is no such discretion and that there are only two processes: a court-driven summary proceeding; and prosecution-driven trial.

The second issue was that the as the Attorney General had initiated the prosecution, and because only the Director of Public Prosecution’s office has the power to prosecute in the name of the King, the procedure was irregular. Freund argued that as the Constitution explicitly separates the DPP and Attorney General’s office, and because the Attorney General cannot be considered to be exercising delegated power as the DPP’s subordinate, the Attorney General simply is not empowered to prosecute

The third issue was whether an offence had been disclosed, and so whether the accused should have been found guilty. Freund argued that the articles simply do not fall into the category of contempt because they do not refer to the comments made by judges on the bench, but that even if they do, they do not cross the line of permissible criticism. The intention of the offence is not to prevent criticism, but to protect the integrity of the courts, and so Freund explained that the main issue here was where the line between legitimate criticism and scandalising the court should be drawn. He said that the words used must have been likely to damage the integrity of the court, and that there must have been an intention to undermine the administration of justice (or recklessness of the likelihood of that happening). With reference to a number of foreign cases in which it has been confirmed that the presence of good faith is a complete defence, Freund argued that it is legitimate to criticise the decisions of judgments. Judge Moore compared this criticism to academic articles which constantly analyse and criticise judgments, and Freund said that the only difference between these magazine articles and academic criticism is that the language used here is intemperate – but said that the fact that the criticism is in strong language does not make it contemptuous.

At this point Judge Twum asked whether the cultural realities of a jurisdiction should be taken into account. He said that if a statement that was not objectively regarded as scandalous but was in the context of Swaziland’s cultural practices, it should be determined as contemptuous. Freund responded that when there is a risk of imprisonment it is not permissible to rely on cultural positions rather than objective tests.

The final issue raised by Freund was that the procedure followed after conviction and before sentencing was irregular. He said that the Attorney General seems to accept that it was improper, and so said that the court need only decide how to correct it. Freund said that the gross errors in the case in general mean that this court simply cannot send it back to the court below for a new sentence, and so this court must set aside both the conviction and sentence. In response to a question from the bench regarding whether the Court could substitute the sentence, Freund said that this would then deny the accused the opportunity of appealing the new sentence.

In response, the Attorney General said that there was no law that prohibited the use of summary procedures in any contempt of court cases. Furthermore, he argued that because the accused did not complain about the infringement of his rights by the use of the summary procedure in the court below, and as the summary procedure does not prevent an accused from doing anything that he would do in a normal criminal trial it cannot be said that the application of this procedure jeopardises an accused’s rights.

The Attorney General said that the defence’s reliance on comparative foreign jurisprudence is misplaced because Swaziland has a very different legal landscape to South Africa, Canada, or the United Kingdom. He also disagreed with Freund that the type of language used is irrelevant and said that criticism of the judiciary will only be justified when it is done so in a respectful manner.

The Court of Appeal has an opportunity in this case to give content to the constitutionally protected right to freedom of expression. At a time when various laws are being used by the authorities to suppress dissent, it is vital that the judiciary is seen to be upholding the Constitution and adopting narrow interpretations of offences that give the best possible protection to individuals’ rights to expression.

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