Are some politicians scandalising the court?

posted in Contempt of court, Court reporting, Fair comment, Musings on Media, Openness, Scandalising the court on by

In recent weeks, following the Al-Bashir scandal, some of our most powerful politicians have made provocative statements highly critical of aspects of our judiciary.

It is now notorious that the government is alleged to have breached a clear court order: that Al-Bashir not be allowed to leave South Africa until such time as the court had rendered its final ruling in the case. (For a good summary of this low point in our constitutional history, see this Mail & Guardian article and the Johannesburg Bar Council’s media release on the issue).

Gwede Mantashe, the Secretary General of the ruling party, never one to mince his words, got the ball rolling on 21 June 2015, saying to the television programme Carte Blanche:

There is a drive in sections of the judiciary to create chaos for governance. And we know, that if it doesn’t happen in the Western Cape High Court it will happen in the Northern Gauteng. Those are the two benches where you always see that the narrative is totally negative and create a contradiction.”

SA Communist Party secretary and Minister for Higher Education and Training, Blade Nzimande, quickly followed suite stating on 7 July 2015 that the judiciary was interfering with the state through its overreaching judgments (see News24 article).

In the same week it was also reported that Minister of Police Nkosinathi Nhleko had allegedly made a statement previously that “some elements of the judiciary meet with characters to produce certain judgments.” (see EWN article).

These statements led to an unprecedented show of force by the leaders of our judiciary, which released a statement on 8 July 2015 emphasizing the importance of respecting court orders and taking issue with what they called “general gratuitous criticism” and “repeated and unfounded criticism of the Judiciary.” Continue reading

Democratic Alliance v African National Congress – The Nkandla SMS case

posted in Defamation, Electoral Act, Fact v opinion, Fair comment, Freedom of expression, Media law on by

Ben Winks and I penned an article for the Mail & Guardian last week on the Constitutional Court’s complex and important case involving the DA’s pre-election SMS.  You can read the case here.

Our M & G article, “SMS ruling muddies the waters”, is here.

You’ll see we argue that the minority judgment of Zondo J is right on the facts (so the ANC should have won), and the concurring majority judgment of Van der Westhuizen J is right in principle.  We love the writing and sentiments expressed in the majority judgment of Cameron, Froneman and Khampepe JJ, but we think they got the case wrong on the facts.  However, there are some important and welcome implications of the majority judgment for media law, which I’ll explore in a later blog.