Freedom of Expression | The Mamabolo Case

In this matter, a senior government official had publicly criticised a certain decision by a judge. Without giving the official a hearing, the judge concerned had found him guilty of contempt of Court and imposed a penalty on him. The Constitutional Court was unanimous in holding that if someone insults a Judge during a court hearing, the Judge can indeed impose an appropriate penalty there and then. But if the critique is offered outside of the Court, the offender must be given a hearing before any penalty can be imposed. Where the Court divided was on whether the old common law offence quaintly entitled 'Scandalising the Court' still existed in our law. All the Judges agreed that freedom of expression allowed for the most robust criticism of judicial conduct. Justice Kriegler, however, stated that if the criticism had the effect of impugning the integrity of the judiciary to such an extent that the public would lose confidence in it, the offender could be prosecuted. Justice Sachs argued for a narrower position in which an offence would be committed only if the actual functioning of the Court without fear or favour would be placed in jeopardy.