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[1988] ZASCA 34
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S v Harber and Another (341/1986) [1988] ZASCA 34; [1988] 4 All SA 496 (AD) (30 March 1988)
LL
Case No 341/1986
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
ANTON PAUL HARBER
First Appellant
JO-ANN BEKKER
Second Appellant
and
THE STATE
Respondent
CORAM
: RABIE ACJ, JANSEN, VAN HEERDEN, VIVIER JJA et VILJOEN AJA
HËARD
: 11 MARCH 1988
DELIVERED
: 30 MARCH 1988
JUDGMENT
/
VAN HEERDEN JA
...
2.
VAN HEERDEN JA
:
In the issue of Weekly Mail of 2 May 1986 there appeared a number of articles
concerning a criminal trial in the Transvaal Provincial
Division. This trial, in
which 22 accused were arraigned on charges of high treason, had then been in
progress at Delmas for more
than 3 months.before Van Dijkhorst J and assessors.
One article appeared under the heading "A Judge's Own Notes on Police
Activities"
and read as follows:
"Notes made by a judge while watching video footage shown by lawyers for the
treason trialists in Delmas throw a remarkable light
on police action during the
September 1984 unrest. Lawyers submitted the film to sup-port their contention
that violence after a
mass funeral in Evaton was the result of police action.
What follows is presiding judge Justice J. van Dijkhorst's record of the
video
footage:
'A group of people are seen running to the
side of the road presumably trying to get away from their bus which has been
stopped. One
of the Hippos veers right to cut them off. The cameraman then
records the fol-lowing incidents:
Police sjambokking through windows, no obvious reason. The Brigadier (G.
Viljoen, in oharge of riot control in the Vaal during
/September....
3.
September 1984) is seen, his back facing the camera. He is waving his arms
and presumably says something to the police sjambokking
at the windows because
they stop. He then turns and walks out of view at which stage police continue
sjam-bokking at the windows.
A person is then struck in the face by a policeman.
A policeman is seen sjambokking perhaps three people in the top of the bus. They
talk to him and he stops. However when he sees another policeman climbing up he
suddenly starts sjambokking again. You then see a
person being kicked on the
ground. You then see a youth running away, jumping over a fence and being hauled
back. You then see the
aforesaid two policemen on top of the bus forcing a
person off the top and taking a swipe at his hands with batons as he is about
to
drop. You then see a per-son in grey pants and a white shirt in the custody of a
policeman. A black policeman comes up and starts
to assault him. You then see
the Colonel on the top of the Land Rover.
His smile is questionable
. You
again see the person in the grey pants and. white shirt being taken to where a
number of people have been grouped on the side
of the road, seated. On his way
you see him being struck on the head by the butt of the rifle. On reaching the
group he is tripped
and almost immediately thereafter he is again struck by a
baton.
What did this poor fellow do to deserve all this attention
?'"
(My underlining.)
/In ...
4.
In a second article the following was stated:
"The Van der Walt Commission into the Septem-ber uprising in the Vaal townships
could have major implications for the 22 men facing
charges of high treason in
Delmas."
And:
"The report was submitted to the government in March 1985 but was only tabled in
parliament a fortnight ago. The reason for the delay
is a mystery. One wonders
if the protracted Delmas trial might have taken a different route had the
findings been made available
earlier."
A third article contained
the following:
"New evidence which could shake the state's case includes the following:
The tabling of the offical Van der Walt Com-
mission's findings on the causes
of the Septem-
ber 1984 uprising. The report found grievances
against rent
increases and corrupt councillors,
and not 'agitators', were responsible for
the
revolt.
Brigadier G Viljoen, the policeman in charge of the riot units in the Vaal
during the uprising, conceded under cross-examination
that he had re-ceived no
briefing on the situation in the Vaal before taking
control.
Esau Mahlatsi, mayor of the Lekoa Town
Coun-cil, seemed to give substance to allegations of
/corruption ...
5.
corruption in the councils when he admitted that councillors had divided liquor
outlets amongst themselves."
On 5 May 1986 Van
Dijkhorst J issued a rule
nisi
calling upon the editor of Weekly Mail
(the first ap-pellant) and the reporter concerned (the second appellant) to show
cause why
they should not be convicted of contempt of court. As regards the
first article, he placed on record that the notes quoted were not
his, that he
did not make any notes on the video film available to anyone, and that nobody
had access to his notes.
On the return day of the rule
nisi
the appel-lants and an attorney, mr
Dison, gave evidence. The latter, a partner in a firm of attorneys which
represented some of
the accused in the treason trial, said that he had seen the
video film prior to its screening in court. His partner, Sutherland,
was present
when the film was shown. Subsequently they spoke about the trial and Sutherland
handed him a set of notes.
/He ...
6.
He read through the notes and it seemed to him "as if they had been the
observations of the Court, very much as if a Court makes observations
after it
goes on an inspection in
loco
and certain notes are recorded".
At a later stage the witness was approached by the second appellant. She was
particularly interested in the video film and he gave
her the notes, saying that
they were made by the court at the time when the film was shown. He also gave
her some transcripts of
the court record and one or two documents pertaining to
the trial. It was only after the publication of the articles that it was
pointed
out to him by other legal representatives of the accused that the notes were in
fact not the judge's notes. (It would appear
that Sutherland was the author
thereof.) Dison immediately approached the judge, furnished him with a copy of
the newspaper, and
gave an explanation of the error.
The first appellant testified that he requested
/the
...
7.
the second appellant to do a feature article on the trea-son trial and
suggested that she speak to Dison. He regarded the appellant,
whose services as
a free lance reporter he had previously used, as "an experienced, com- petent
and very reliable reporter". He read
the articles written by her prior to their
publication, discussed them with his colleagues and was satisfied with the
contents. As
regards the article dealing with the notes, he said that he had no
reason to believe that they were not the judge's notes; on the
contrary, he
firmly believed that
they were. Asked by the court whether he had ever come
across a case
where a judge's notes had been published,
he replied: "Only when those notes
have been made part
of the record."
The first appellant also testified that he was satisfied that the sections of
the other articles to which the rule
nisi
related, were reasonable
summaries of the
proceedings at the trial. When asked by Van Dijkhorst J
/whether ...
8.
whether a journalist is entitled to speculate on the influence a piece of
evidence may have on the court, he said:
"I think it is the reporter's job to indicate the importance of this evidence
and that is what Miss Bekker has done, she has said
it is important evidence
because it will affect the state's case."
The second appellant testified that she approached Dison to obtain material
on the treason trial. Reference was made to the video
film and Dison furnished
her with certain notes saying: "These are the Court's notes." She understood
that the document contained
"notes that somebody had taken of what the Judge had
read into the re-cord". When she wrote the articles she was consequently under
the impression. that the notes had been incorporated in the record of the
proceedings.
She said that she was not responsible for the head-line of the article
relating to the judge's notes, and that a sub-editor would
have been the author
thereof. Her
/comment ...
9.
comment preceding the quotation of the notes had also been slightly
rewritten. She could not remember whether she used the word "notes"
or "record"
but said that she in-tended to convey that the contents represented the judge's
formal observations. She also could not
remember using the phrase "a remarkable
light". Eventually she said that she did not use the words "Notes made by a
judge while watching
video footage" and that her words were: "What follows is
presiding Judge J van Dijkhorst's record of the video footage".
With regard to her comment that the report of the Van der Walt Commission
"could have major implications for the 22 men facing charges
of high treason at
Delmas", she said that she had in mind that the Commission had been
investigating the causes of the September
unrest which was "a primary aspect of
the case".
She also dealt with her comment "one wonders if
the protracted Delmas triál might have taken a different
/route ...
10.
route had the findings been made available earlier". She
stated that she intended to suggest that the findings were pertinent and may
have changed "the direction of the
state's prosecution". Asked by the court whar she meant
by writing that the Commission "could have major implica-tions" for the 22
accused, she replied that she thought that if the court
accepted the findings of
the Commission it might find that. . individual agitators had not played a major
role in the unrest.
As regards the comment that new evidence "could shake the State's case", she
said that "it just seemed that it was dramatic evidence
which might have
implications for the State's case."
Van Dijkhorst J found that the article relating to the judgels notes was
contemptuous in that:
"(a) It falsely leads the public to believe that the judge acted irregularly
by making his own notes which are not part
of the record and which purport to set out his impressions of and his
comment
/upon ...
11.
upon the evidence available to the press.
(b) It falsely leads the publicto believe
that the judge did this while the case is still being tried and without
having
given counsel an opportunity to address
the court on the
correctness of the ob-
servations.
(c) It prejudges an issue in the case."
The learned judge remarked that he was not
satis-
fied with the explanations placed before the
court but re-
frained from finding that the appellants did not
genuinely
believe that the notes had been made by him and had been
entered
into the record of the proceedings. He consequent-
ly did not find that the
appellants intentionally committed
contempt of court but went on to consider
whether intent is an element of that offence. His conclusion was that
the
proprietor, publisher and editor of a newspaper in which
contemptuous
matter appears is liable even in the absence
of
mens rea
. In the view
of the judge this strict liabili-
ty does not, however, apply to the
reporter responsible
for the publication of the matter. In the result only
/the ...
12.
the first appellant was found guilty of contempt of court in regard to the
article about the judge's notes.
As regards the other articles, Van Dijkhorst J applied the test whether the
comments in question tended
to interfere with the administration of justice
in pending proceedings. He concluded that there is an absolute rule against the
media
prejudging issues in pending cases and that the sections of the articles
in question contained "speculative comment on the evidence,
the weight thereof
and the effect which it may or may not have on the outcome of the case which is
an unwarranted and unacceptable
inter-ference with the due administration of
justice". Since the appellants wilfully caused the comments to be published,
both were
found guilty of contempt of court in regard there-to.
The first appellant was sentenced to a fine of R750 or three months'
imprisonment and ordered to publish
in the next issue of The Weekly Mail an apology approved of
/by ...
13.
by the judge. The sentence of the second appellant was a fine of R200 or one
month's imprisonment which was, however, conditionally
suspended. Subsequently
the appellants were granted leave by Van Dijkhorst J to appeal to this court
against their convictions.
As regards the article concerning the judge's notes, counsel for the
respondent submitted that the first appellant foresaw the possibility
that the
notes had not been read into the record of the treason trial and that he
reconciled himself with that possibility when authorising
the publication of the
article. In support of the submis-sion counsel argued that there is nothing in
the article which. suggests
that the judge read the notes into the re-cord; that
the heading of the article reads "A Judge's Own Notes ..."; that the
introductory
paragraph refers to "notes made by a judge while watching video
footage", and that it is inconceivable that the judge would have
read into the
record the comments underlined by me.
/To...
14.
To some extent the argument presupposes, of
course,
that the first appellant read the sub-edited article and not the original report
written by the second appellant. Counsel
for the respondent also
submitted,
however, that that is indeed what had happened, and relied
exclusively on an affirmative reply by the first appellant to the question:
"Did
you notice in particular the portion dealing with the Judge's notes on police
activities?" This answer, it was argued, was a
reference to the heading of the
report. I cannot agree. The notes which were quoted in the second appellant's
original report clearly
dealt with police activities and the heading merely
highlighted that fact. Hence it cannot be inferred from the mere reference to
such activities that either the questioner or the witness had the heading in
mind. Moreoever, the preceding questions related solely
to the report submitted
by the second appellant.
But even if it is assumed that the first appellant
/read ...
15.
read the sub-edited report, I am not persuaded that he con-
templated the possibility that the notes were the judge's private notes
which
had not been incorporated in the re-cord 2. When asked by Van Dijkhorst J
whether he had any experience of a reporter having
access to a judge's notes by
virtue of their being handed to the reporter, the first appellant replied: "No,
the Judge's notes are
only made available to the reporter once they are read
into the record". This, of course, accords with common
sense and experience.
It is therefore improbable that
the notion that the second appellant might have obtained
the judge's private notes ever entered the first appellant's mind. Nor, in my
view, is it a necessary inference that he must have
suspected that the notes
were in fact not the judge's notes. In particular I do not think that the use of
the word "notes" instead
of a more formal word such as "observations", or the
fact that the notes, if recorded, would have contained some highly unusual
comments,
must
/necessarily ...
16.
necessarily have put the first appellant on his guard. These factors would no
doubt have struck most lawyers, but could well have
escaped a layman not
conversant with legal niceties. Moreoever, although saying that he was not
satisfied with the explanations proffered
by the witnesses, Van Dijkhorst J did
not disbelieve the first appellant. It must therefore be accepted that the
latter did not know,
and did not foresee the possibility, that the notes had not
been read into the record.
I turn now to the question whether intention is an element of contempt of
court. I shall deal later with a number of early cases in
which those
responsible for the publication of contemptuous matter in newspapers were held
liable for contempt in the absence of
intention. Apart fróm the so-called
newspaper cases, however, I am not aware of any South African authority for the
proposition
that contempt is a crime of strict liability. On the contrary,
during the last two decades it seems to have been generally
/accepted ...
17.
accepted that intention is an element of the offence. In
S v Van
Staden en 'n Ander
1973 (1) SA 70
(SWA), Trengove J pertinently held that
intention is a requisite of that form of contempt consisting of an interference
with the
administration of justice and, indeed, of all manifesta-tions of the
offence. And in
S v Van Niekerk
1970 (3) SA 655
(T) 657, and
S v
Kaakunga
1978 (1) SA 1190
(SWA) 1193, it was held that an accused cannot be
found guilty of contempt merely because his conduct constituted a vio-lation of
thé dignity, repute or authority of a court; he must also have intended
to bring about that consequence. Reference may also
be made to
S v Gibson N 0
and Others
1979 (4) SA 115
(D) 121, in which Milne J expressed agree-ment
with a submission that contempt of court is a crime of intention.
In
S v Van Niekerk
1972 (3) SA 711
(A), this court found that the
appellant had addressed an exhorta-
tion to all judges that, contrary to their duty to consider
/all ...
18.
all evidence on its merits, they should, in effect, ignore
the testimony
of all witnesses previously detained under the
Terrorism Act (83 of 1967),
and that his remarks had been
made with reference,
inter alia
, to the
then current pro-
ceedings in
S v Hassim and Others
. It was alleged in
the
relevant count that the appellant had made his exhortation
with intent
to prejudice and influence the judgment in
S v Hassim and Others
.
Although, in finding that the
appellant had committed' contempt of court,
Ogilvie Thompson
CJ did not in so many words deal with the question of
mens
rea
, it seems to be, implicit in his reasoning that he
re-
garded intention as an element of contempt of court, or
at any rate of
the form'of contempt of which the appellant
had been convicted.
In
S v Beyers
1968 (3) SA 70
(A) 77, Steyn CJ quoted with apparent
approval M de Villiers' definition of contempt of court according to which
an
intentional violation of
inter alia
the administration of
/justice ...
19.
justice is required.
In
Makiwame v Die Afrikaanse Pers Bpk en 'n Ander
1957 (2) SA 560
(W),
Hiemstra J took a different view. In
that case it was conceded by the
respondents that impermis-
sible comment had been published in a newspaper in
regard
to pending criminal proceedings. Hiemstra J found (at p
562) that
"daar geen opset was om die strafverhoor te be-
Invloed nie", but added that
the absence of intention or
mens rea
was no defence. In the result he
made a decla- ratory order to the effect that the respondents had com- mitted
contempt of court.
What is not clear, is whether he was of the view that the
question of
mens rea
was irre- levant because it was a newspaper case, or
whether he in-
tended to hold that contempt is in every instance a crime of
strict liability.
The only authority on which the learned judge relied, was
R v Odham's
Press Ltd and Others
(1958) 3 All
E R 494. In that case it was not in dispute that an
/article ...
20.
article published in a newspaper was calculated to preju-dice the fair trial
of pending criminal proceedings. The only defence raised
was that the
respondents had no know-ledge of the pending proceedings. After referring to two
cases decided in 1742 and 1806, Lord
Goddard CJ said the following in regard to
this defence (at p 497):
"These cases clearly show that lack of in-tention or knowledge is no excuse ...
and in our opinion they dispose of the argument that
mens rea must be present to
constitute a con-tempt of which the court will take cognisance and punish. The
test is whether the matter
complained of is calculated to interfere with the
course of justice, not whether the authors and printers intended that result,
just
as it is no defence for the person responsible for the publication of a
libel to plead that he did not know the matter was defamatory
and had no
intention to defame. It is obvious that if a person does not know that
proceedings have begun or are imminent, he cannot
by
writing or speech
be
said to intend to influence the course of justice or to prejudice a litigant or
accused person, but that is no answer if he publishes
that which in fact is
calculated to prejudice a fair trial." (My
underlining.)
The first and second respondents were
respectively
/the ...
21.
the proprietor and editor of the newspaper concerned, but one notes that Lord
Goddard CJ did not hold that the strict liability rule
applies only to those
responsible for the publication of a newspaper or another form of the media. On
the contrary, that he intended
to formulate a principle of general application
is made clear by his use of the underlined words and by the fact that the third
respondent,
the reporter who wrote the offending article but had no say as to
what appeared in the newspaper, was also found guilty of contempt
of court.
Until the harsh-ness of the strict liability rule was ameliorated first by s 11
of the Administration of Justice Act, 1960,
and later more comprehensively by
the Contempt of Court Act, 1981, the position in English law was therefore that
the rule applied
in regard to any publication, in the wide sense of the word,
óf cohtemptuous matter. See also Borrie and Lowe,
Law of Contempt
,
2nd ed, pp 70-72.
In my view there are sound reasons why the
strict
/liability ...
22.
liability rule, as a principle of general application, should not be followed
in our law. Firstly, that form of contempt of court
which is most prevalent, viz
conduct which tends to interfere with the administration of justice in pending
proceedings, is the same
crime as defeating or obstructing the course of justice
or an attempt to do so. As was said by Steyn CJ in
Afrikaanse Pers-Publikasie
(Edms) Bpk en 'n Ander v Mbeki
1964 (4) SA 618
(A) 626:
"Hierdie vorm van minagting is tegelyk ook 'n stremming of belemmering van die
regspleging, of a poging daartoe. Dit is dieselfde
mis-daad onder 'n ander
naam."
There is no doubt that intention is an
element of the crime of defeating or obstructing the course of justice. See
R
v Zackon
1919 AD 175
, 182;
R v Port Shepstone Investments (Pty) Ltd and
Another
1950 (4) SA 629
(A) 639; and
R v Bekker
1956 (2) SA 279
(A)
281. It would therefore be highly anomalous if the requirement of intention
could be circumvented by charging an accused with
/contempt ...
23.
contempt instead of, say, an attempt to obstruct the course of justice.
Secondly, this court has stated that the prin-ciple that
actus non facit
reum
,
nisi mens sit rea
i.s a fundamental principle of our criminal
law:
S v Bernardus
1965 (3) SA 287
(A) 296, and
S v Qumbella
1966
(4) SA 356
(A) 364. Eor this reason it has repeatedly been pointed out that
mens rea
is an element of all common law crimes. And it is hardly
necessary to say that as a rule the re-quired form of
mens rea
is
intention.
The court a
quo
, of course, did not decide that contempt of court is a
crime of strict liability. It did, however, hold that the proprietor, publisher
and editor of a newspaper are liable even in the absence of intention. In this
regard reliance was placed on a number of cases, most
of which were decided
during the last century ánd the first decade of this century.
It is not clear to me that in all the cases re-ferred to by the court a
quo
the respondent was held liable
/for ...
24.
for contempt even though he had no intention of committing contempt. In
R
v Drew
1907 0 R C 111, the editor of a newspaper appeared in person and
explained that he had no intention to interfere with the course
of justice in
writing certain articles, but the judgment contains no reference to his
explanation, and it would appear that whatever
the editor's motive may have
been, he must have foreseen that the publication of the articles could prejudice
pending pro-ceedings.
In
Dunston, N O v Transvaal Chronicle, Ltd and
Sampson
1913 TPD 557
, the court was satisfied that "there" was no special
malicious intent in the respondents" (ap-parently the proprietor and editor
of a
newspaper), but found that they had made a patent error of judgment. What the
nature of this error was, was not explained. It
is accordingly not possible to
determine whether the respon-dents were held liable in the absence of intent, as
dis-tinguished from
"special malicious intent".
In
In re Dormer
4 S A R 64, the editor of
a
/newspaper ...
25.
newspaper was fined for contempt of court. Van Dijkhorst
J correctly pointed out that the question of
mens rea
was not argued
in
Dormer
's case, but then added that all con-cerned obviously accepted
that the press was strictly liable. I do not think that this inference
is
justified. It is as possible that all concerned accepted that if the matter
published was contemptuous the editor intended to
commit contempt.
In the following cases, however, it would appear that the proprietor,
printer, publisher or editor of a news-paper was found guilty
of contempt of
court on the basis of strict liability:
In re Cooke v Davis
1893 'N L R
13;
Hershensohnn v Davis
1894 N L R 160
;
Fromberg v Halle and
Another
1904 T H 54
;
In re Norrie v Consani
19332 CPD 313;
In re
Blanch and Richardson
1882 H C G 83;
Dempster and Others v Robinson and
Others
1907 N L R 128
; and
Clerk of the Peace v P. Davis
1908 N L R
20.
It is not apparent from the judgments in the first four cases whether the
courts
/were ...
26.
were of the view that
mens rea
is not an element of con-tempt of
court, or that specifically those responsible for the publication of a newspaper
are strictly liable.
As has been seen, the same can be said of
Makiwame
's
case,
supra
. In the other three cases there are some indica-tions that
the respondents were held strictly liable be-cause they were the editors,
proprietors, etc of the news-paper concerned. In
Blanch
's case Buchanan
JP remarked that the publisher of a newspaper occupies a responsible position
and that it is his duty to exercise
careful super-vision over matter inserted in
it; in
Dempster
's case it was said that ignorance of the fact that
proceedings are pending does not exculpate the editor or publisher of a
newspaper,
and in
Clerk of the Peace v P Davis
the proprie-tor, printer
and publisher of two newspapers was apparently held vicariously liable for
contempt committed by an em-ployee
of his in causing a contemptuous article to
be published.
In none of the seven cases was the question of
/
mens
...
27.
mens rea
pertinently raised by the respondents. Nor did the courts
cite any authority in regard to that question. It seems a fair assumption,
however, that the courts were to a large extent influenced by the strict
liability rule of English law.
In re Mackenzie
1933 A D 367
is the only case in which a person
responsible for a newspaper was found guilty of contempt by this court. A letter
relating to a
decision to hear an appeal in Cape Town had been pub-lished in a
newspaper and thereafter a rule was issued calling upon the editor
of the
newspaper to show cause why he should not be committed for contempt of court. In
his judgment Stratford ACJ stated that the
only questions be-fore the court were
whether the expressions in the letter amounted to contempt of court and, if so,
what order
should be made. It would therefore appear that the question whether
the editor could be held liable in the absence of
mens rea
was not raised
by his counsel and was therefore not
/pertinently...
28.
pertinently considered by this court. Having found that
the letter was contemptuous, and when dealing with the ap-
propriate penalty, Stratford ACJ did, however, refer to an
explanation by
the editor that he had not realised the
import of the letter. He said that it
was difficult to
accept this explanation but added (at p 370) "the
least
we can say is that he [the editor] ought to have appre-
ciated the
import of the letter".
Hunt,
South African Criminal Law and Procedure
, 2nd ed, vol 2, p 191,
n 107, submits that the decision is to be explained on the basis that the editor
was found to have acted with
dolus eventualis
. I do not think, however,
that this court came to the firm conclusion that the editor actually foresaw the
possibility that the letter
contained contemptuous matter. On the other hand,
the court was
clearly of the view that the editor acted negligently and it
may be that he was found guilty because of the presence of that form
of
mens
rea
. The decision is accordingly not
/clear ...
29.
clear authority for the proposition that an editor is strictly liable for the
publication of contemptuous matter in his newspaper.
The above survey shows that in a number of cases decided since the last
century the proprietor, publisher, printer or editor of a
newspaper was held
liable for con-tempt of court in the absence of intention, and apparently also
negligence, but that this court
has not unequivocally decided that "the press"
is strictly liable. The decisions of the lower courts are, no doubt, in conflict
with
the aforesaid fundamental principle of our common law, and the question
arises whether there are compelling reasons for recognising
an exception to the
general requirement of in-tention as an element of contempt of court.
With reference to the decision of this court in Pa
kendorf en Andere v De
Flamingh
1982 (3) SA 146
(A), Van Dijkhorat J expressed the view that the
reasons for holding the press strictly liable for defamation apply with
equal
/force ...
30.
force in cases of contempt of court. In that case Rumpff
CJ quoted a passage from his judgment in
Suid-Afrikaanse
Uitsaaikorporasie v O'Malley
1977 (3) SA 394
(A) 404-5,
where he
said:
"Na my mening sou daar egter goeie redes bestaan waarom hierdie klas van persone
[i e the owner, printer, publisher and editor of
a newspaper] skuldloos
aan-spreeklik behoort te wees, by wyse van uitsondering. Die uitsondering sou
wesenlik gegrond kon wees op
beskerming van die gewone burger teen 'n klas van
per-sone wat by 'n medium betrokke is, wat van so 'n aard is, dat in geval van
laster ge-pleeg in die medium, dit moeilik is om die opset by 'n bepaalde
persoon tuis te bring."
If contemptuous matter is
published in a news-paper it may likewise be difficult to prove that a
parti-cular person intended to commit
contempt of court. I do not think,
however, that this is a sufficient reason for holding the owner, printer,
publisher and editor
of a newspaper criminally liable in the absence of any form
of blameworthiness. If a defamatory statement appears in a
/newspaper ...
31.
newspaper, considerations of equity and policy require that the person
defamed should be able to obtain satisfac-tion from those responsible
for the
publication of the newspaper, but in my view the due administration of justice
does not require that there should be a conviction
for a criminal offence merely
because of the publication of con-temptuous matter in a newspaper. In most cases
it will appear that
the author of the objectionable article, letter etc intended
to commit contempt of court, and his convic-tion will no doubt have
a powerful
deterring effect on others who contribute to the contents of a newspaper. On the
other hand, the press is so powerful,
influences public opinion to such an
extent and is in such a unique position to disseminate matter which may tend to
interfere with
the administration of justice, that it canvalidly be required to
exercise due care to avoid the publication of such mat-ter. As was
stated in the
Phillimore Report in regard to the English law of contempt of court (Cmnd 5794,
para 74):
/"A ...
32.
"A liability which rested only on proof of intent or actual foresight would
favour the reckless at the expense of the careful. Most
publishing is a
commercial enterprise undertaken for profit and the power of the printed ...
word is such that the administra-tion
of justice would not be adequately
pro-tected without a rule that requires great care to be taken to ensure that
offending material
is not published."
It therefore appears to me that there are
sound
policy considerations for holding at least the
editor of
a newspaper, or another form of the media, liable for con-
tempt
of court if he acted either intentionally or negli-
gently. Such a rule will
on the one hand serve to
safeguard the due administration of justice and on
the
other be consonant with the general principle that there
should be no
criminal liability in the absence of blame-
worthiness. The question whether
the proprietor, printer
and publisher of a newspaper, or those responsible
for
radio and television programmes, should be similarly liable,
does not
arise in this appeal and therefore need not be
considered.
/Counsel ...
33.
Counsel for the respondent submitted that even if the newspaper cases were
wrongly decided, this court should not now depart from
a principle which has
been ap-plied for more than a century. It is true that where decisions of lower
courts have been regarded for
a long period of time as being correct, this court
should not lightly disturb them. An important consideration, how-ever, is that
persons acting on such decisions may be pre-judiced were they to be overruled:
Holmes' Executor and Others v Rawbone and Others
1954 (3) SA 703
(A) 711.
This consideration does not arise in
casu
. Moreover, and as already
pointed out, it is by no means clear that in decid-ing the cases in question the
courts were not of the
view that in all cases contempt of court is a crime of
strict liability, and there can be no justification for recog-nising such
a wide
strict liability rule in our law. And in any event the principle that criminal
liability should not attach to an innocent
act was not yet firmly
/established ...
34.
established when the early newspaper cases were decided. Hence I am of the
view that those cases should not be fol-lowed in so far
as they may be said to
establish a rule that contempt of court is a crime of strict liability, whether
generally or only in regard
to the press.
In view of certain submissions made by counsel for the appellant it is
convenient at this'stage to. con-sider the test to be applied
in determining
whether con-duct constitutes that form of contempt which consists in an
interference with the administration of justice.
It will be recalled that in
Van Niekerk
's case,
supra
, the appellant's exhortation had been
made with reference to
inter alia
pending criminal proceedings. Ogilvie
Thompson CJ assumed that the presiding judge in those proceedings and his
assessors would in
fact not have beeh in any way influenced by the exhortation,
even if that had been brought to their attention, and on this
/assumption ...
35.
assumption considered a submission that the appellant had been wrongly
convicted of contempt of court. In making this submission counsel
for the
appellant relied upon English cases. Having referred to the distinction drawn in
English law, relative to the form of contempt
under discussion, between jury
trials and other trials or appeals where no jury is concerned, Ogilvie Thompson
CJ pointed out that
as regards non-jury proceedings the Eng-lish courts have
adopted a less strict attitude than our own courts. He quoted various
dicta
from the decisions in
R v Hardy
1904 N L R 359
at 366, 369
and 372;
Tennant and Another v Bisset and Another
1932 CPD 124
at 126; In
re
Norrie v Consani
1932 CPD 313
at 316; and
Maeder v Perm-Us (Pty)
Ltd
1939 CPD 208
at 212, and concluded as follows (at p 724):
"Even postulating a statement clearly capable of influencing the administration
of justice in a pending proceeding, it is manifestly
impossible to determine
whether that state-
/ment ...
36.
ment would in fact influence the particular tribunal. To mention merely one
aspect, much would obviously depend upon the indi-vidual
or individuals
constituting the par- ticular tribunal concerned. Accordingly, and bearing in
mind the rationale cf the type of contempt
of Court presently under
consider-
ation, I am of opinion that the principle adopted, over a considerable period of
time, by the above-cited cases is a salurary one
which should be maintained. I
acccrdingly
hold that the test to be applied is whether
the statement or document in issue tends to prejudice or interfere with the
administration of justice in a pending
proceeding."
Counsel for the appellant submitted
that on an application of the "tendency" test a likelihood of pre-judice to the
administration
of justice must he proved. I am unable to agree. In
Van
Niekerk
's case this court
found tkat the exhortation was contemptuous
aithough it
was assumed that there was no risk of prejudice. The reason,
presumably, is that an attempt to interfere with the administration of
justice,
as well as an acrual inter-ference, falls within the ambit of the substantive
offence of contempt of court.
/In ...
37.
In the alternative it was submitted that the "tendency" test rests on
insubstantial foundations; that in adopting the test the courts
were largely
influenced by English law; that it is out of keeping with developments in that
legal system, and that it should be reconsidered.
It is true that the formulation of the applicable test in
Hardy
's case
and
Tennant
's case was not based on any authority and that in the other
cases referred to by Ogilvie Thompson CJ reliance was placed only on
Tennant
's case, decisions following that case, and English authori-ties.
It can also be accepted that in adopting the "ten-dency" test the
courts were to
some extent influenced by English law. The reason, no doubt, is that the
inclusion of an interference with the administration
of justice in the
definition of contempt of court was derived by our courts from English law:
Afrikaanse Pers-Publikasie (Edms) BpK en 'n Ander v Mbeki
1964 (4) SA 618
(A) 627. This does not mean, however, that our courts unhesitatingly
/followed ...
38.
followed English cases. In
Tennant
's case Watermeyer AJP, having
pointed out that there were English cases which seemed to lay down the rule that
any publication comment-ing
on pending proceedings was a contempt of court and
that this rule had on a number of occasions apparently been adopted in South
Africa,
went on to say (at p 126):
"I am not however prepared to hold that any public comment upon a pending civil
suit would constitute contempt of court; it seems
to me that the comment must be
of such a nature that it tends to interfere with the administration of
justice."
Moreover, in the practical application of
the "tendency" test our courts have evolved
inter alia
the following
criterion: whether, if the facts etc set out in the publication concerned were
to be accepted by the tri-bunal they
could influence the proceedings before it.
As will be seen,this criterion is not applied in English law in regard to
proceedings
before a judge.
Counsel for the appellant relied upon the decision
/of ...
39.
of the House of Lords in
Attorney-General v Times Newspapers Ltd
(1973) 3 All E R 54
, in support of his submission that English law now adopts a
less strict test for contempt of court in regard to pending proceedings
than was
previously the case. I do not find it necessary to analyse the speeches of the
Law Lords in that case in any detail. It
would ap-pear that they were all of the
view that, apart from a pre-judgment of issues, conduct does not constitute the
form of contempt
under consideration unless it presents a real risk of
interference with the administration of justice. Lord Reid (at p 63) required
a
real risk as opposed to a remote possibility, and said that this was an
application of the ordinary de
minimis
principle. In his view there was
there-fore no contempt,if the possibility of influence was remote. Lord Morris
of Borth-Y-Gest (at
p 67) stated that a court will only find contempt if the
risk of prejudice is serious or real or substantial, but did not indicate
that
he dis-agreed with Lord Reid's views. Lord Diplock said (at p 75)
/that ...
40.
that he agreed with Lord Reid that given conduct which pre-sents a real risk
as opposed to a mere possibility of in-terference with
the due administration of
justice, it is at the very least a technical contempt. Lord Cross of Chelsea (at
p 84) commented that it
is easy to see thar any publica-tion which prejudges an
issue in pending proceedings ought to be forbidden if there is any real risk
that it may in-fluence the tribunal or a prospective witness, while Lord Simon
of Glaisdale (at p 76) expressed concurrsnce with
Lord Diplock's elucidation of
the basis of the law of con-tempt of court and his analysis of its concepts.
It does not appear to me, however, that a new test was introduced by the
Times Newspapers
' case. In
Vine Products Ltd v Green
(1966) 1 Ch
484
, to which refer-ence was made by Ogilvie Thompson CJ in
Van Niskerk
's
case, Buckley J said (at p 499) that the risk that conduct will prejudice the
fair trial of an action must be a real risk, and
in
R v Duffy and Others, Ex
parte Nash
, (1960) 2 All E R
/891 ...
4l.
891 at 896, Lord Parker CJ thought that there had to be a real risk, as
opposed to a remote possibility, that the article concerned
was calculated to
prejudice a fair hear-ing. In both these cases it was accepted that a judge has
by his training no difficulty in
disregarding matter which is not evidence in
the case before him, and that there is therefore generally no real risk that a
judge
will be influenced by the publication of such matter. As was pointed out
by Ogilvie Thompson CJ in
Van Niekerk
's case, our courts have adopted a
different test, and in- -particular have refrained from enquiring whether
conduct would or would
not be likely to influence a judge's mind. The fact that
there was no risk that conduct would influence a judge, was consequently
regarded as irrelevant; it suf-ficed if the conduct had the tendency to
influence the pending proceedings. And,fully aware of the
less strict test
applied in English law,this court in
Van Niekerk
's case decided that the
principle adopted by the earlier South
/African ...
42.
African cases was a salutary one which should be maintained.
It should also be observed that the "real risk" test was not the only one
considered in the
Times Newspapers
' case. It is indeed clear that at
least the majority of the Law Lords were of the view that the prejudging of
issues in pending proceedings
constitute contempt of court even in the absence
of any risk of prejudice to those proceedings. Thus, Lord Reid (at p 65)
considered
that the law would be clearer and easier to apply in practice if it
was made a general rule that it is not permissible to prejudge
such issues,
whilst Lord Cross of Chelsea (at p 84) said that an absolute rule against
prejudgment is necessary in order to prevent
a gradual slide towards trial by
newspaper or tele-vision. And Lord Diplock (at p 72) concluded that conduct
which is calculated
to prejudice the requirement that once a dispute has been
submitted to a court of law there should be no usurpation of the function
of the
court to decide the dispute, is contempt of court.
/In ...
43.
In my view the application of the "tendency" test in South African law and
that of the "real risk" and "prejudgment" tests in English
law would in by far
the majority of cases lead to the same result. Indeed, it is difficult to
conceive of a case where a prejudgment
of a factual issue would not also tend to
interfere with the administration of justice in the proceedings con-cerned.
Conversely
in most cases in which the "tendency" test is satisfied the conduct
in question will "tend to interfere" precisely because it expressly
or
implicitly constitutes a prejudgment of an issue. Hence I do not think that in
the result there is a substantial difference between
the single test adopted in
Van Niekerk
's case and the dual test favoured in the
Times
Newspapers
' case.
Counsel for the appellant rightly pointed out, however, that the
"prejudgment" test was in effect abolished by the Contempt of Court
Act (1981
Chapter 49). S 1 of the Act defines "the strict liability rule" as the rule of
law
/whereby ...
44.
whereby conduct may be treated as contempt of court as tend-ing to interfere
with the course of justice in particular legal proceedings
regardless of an
intent to do so. S 2 (1) and (2) reads as follows:
"(1) The strict liability rule applies only in relation to publications, and for
this pur-pose "publication" includes any speech,
writing, broadcast or other
communication in whatever form, which is addressed to the public at large or any
section of the public.
(2) The strict liability rule applies only to a publication which creates a
substantial risk that the course of justice in the proceed-ings
in question will
be seriously impeded or prejudiced."
Sections 3, 4
and 5 further delimit the ambit of the strict liability rule, but for present
purposes it suffices to draw attention
to the fact that the Act has no
application if a person commits an act with the intention of prejudicing the
administration of justice
in pending pro-ceedings. This is made clear by s 6 (c)
which provides that nothing in the foregoing provisions of the Act shall
/restrict ...
45.
restrict liability for contempt of court in respect of conduct intended to
impede or prejudice the administration of justice. It is
therefore only in the
absence of intent that conduct cannot constitute contempt unless it creates the
substantial risk reguired by
s 2 (2).
As has been pointed out,
mens rea
is not an element of contempt of
court in English law, or at least not of that form of contempt under
consideration. On the other
hand, an act done with the intention to interfere
with the administration of justice is apparently regarded as con-tempt even in
the absence of any risk of such interference; for instance, if a bribe is
offered to a judge. See Borrie and Lowe,
The Law of Contempt
, 2nd ed, pp
64-5. Since in our law intention is generally an element of the offence, it
would therefore appear that, even having
regard to the "real risk" test, the
English common law of contempt of court casts its net at least as wide as does
South African
law. The adoption of a stricter statutory test for contempt
/in ...
46.
in England - but only within the context of the strict liability rule - can
therefore offer but little guidance for the development
of our own law.
The major reason for the enactment of the Con-tempt of Court Act was the
decision of the European Court of Human Rights in
The Sunday Times v The
United Kingdom
2 E H R R 245, which, by a majority of 11 votes to 9, ruled
that the injunction restored by the House of Lords in the
Times
Newspapers
' case constituted a violation of Article 10 of the European
Convention on Human Rights. In the majority judgment the main difference
between
the approach of the House of Lords and that of the European Court is expressed
as follows (at pp 280-281); The House of Lords
thought that a proper balancing
of conflicting interests, viz the freedom of expression and the due
administration of justice, required
an absolute rule that it is not permis-sible
to prejudge issues in pending cases. The European Court, on the other hand, was
not
faced with a choice
/between ...
47.
between two conflicting principles, but with an overriding principle of
freedom of expression that was subject to a number of exceptions
which had to be
narrowly construed. The protection of that principle was therefore the main
concern and in order to safeguard it
against undue encroach-ment any
restrictions, including those pertaining to the administration of justice, had
to be justified on
the basis of a pressing social need.
South African courts are obviously free to strike a balance between the
dictates of freedom of expression and those of the due administration
of
justice, and are not enjoined to regard freedom of expression as the superior or
even primary principle. Hence I do not think
that the decision of the
Européan Court, and the resultant enactment of the Contempt of Court Act,
afford a compelling reason
for a reconsideration of the "tendency" test adopted
by this court in
Van Niekerk
's case.
In passing it
may be
said that it seems to
be
/implicit ...
48.
implicit in that test that the conduct concerned should im-properly tend to
interfere with pending proceedings. Thus, a discussion
in a law journal of.
legal issues decided in a case on appeal, would generally not constitute
contempt of court. The same may be
true of even factual discussions in
scientific journals. See the Phillimore Report,
supra
, para 111.
I turn now to the question whether the articles which appeared in the Weekly
Mail contained contemptuous matter, and I shall deal
first with the article
concerning the judge's notes. It will be recalled that the main ground upon
which Van Dijkhorst J held that
the article constituted contempt of court was
that it falsely led the public to believe that he had acted irregularly by
making his
own notes available to the press, and that he had done so while the
case was still being heard and without giving Counsel an opportunity
to address
the court on the correct-ness of the observations concerned. It appears,
therefore,
/that ...
49.
that the learned judge was of the view that the article constituted that form
of contempt which is often called scandalising the court.
I am unable to agree.
In my view an ordinary reader of the article would simply not have entertained
the notion that the judge had
acted irregularly, and in particular that he had
privately made his notes available to the press. At most such a reader with some
knowledge of legal procedure may have considered the possibility that the press
had surrepti-tiously obtained access to the notes.
Notwithstanding the few
unusual comments to which reference has already been made, most readers would,
however, have assumed that
the notes had in a regular manner become part of the
record of the proceedings.
Van Dijkhorst J also found that the article was contemptuous in that it
prejudged an issue in the case. Counsel for the appellants
submitted that this
finding was not substantiated and pointed out that the learned judge did not
explain which issue he had in
/mind ...
50.
mind. The opening paragraphs of the article state, however,
that the video film was shown by lawyers for the treason trialists in
support of
their contention that violence after a mass funeral in Evaton was the result of
police action, and it would therefore
seem that this contention became an issue
in the case. There is no doubt that the notes portray the police in an
un-favourable light
and that they contain adverse comment on police activities
during the September 1984 unrest in the Vaal townships. The article could
consequently have had a profound influence on a prospective witness who read it.
It is indeed not unlikely that the article may have
discouraged such a person
from giving evidence to the effect that police acts did not contribute to the
unrest, or, more specificaily,
that the police did not commit unnecessary
violence at the time of the funerai in Evaton. And I am in agreement with the
view of
Buckley J in
Vine Products v Green
(1966) Ch 484
, 496,
/that ...
51.
that a publication is contemptuous if it is:
"likely to interfere with the proper adducing of evidence in the case either
by discouraging witnesses from coming forward or by influencing
them in some way
in the kind of evidence that they are prepared to give."
I have already found that the first appellant did not know, and did not
foresee the possibility, that the notes had not been duly
read into the record
of the proceedings. It remains to be considered whether he was negligent. In
this regard it must be borne in
mind that when he commissioned the second
appellant he suggested to her that she should approach Dison who acted as
attorney for
some of the accused. When he received her articles he would
therefore have assumed that they
were based upon information obtained from
and transcripts
made available by Dison, as also on what was said in open court at the time
she attended the trial. Under these circumstances a reasonable
editor would have
been satis-
fied that the notes had been incorporated in the record
/of ...
52.
of the proceedings. The possibility that the judge had in an irregular manner
made his notes available to the second appellant, or
that she or anybody else
had obtained access to his private notes without his consent, would simply not
have occurred to a reasonable
man in the posi-tion of the first appellant.
Likewise, and again not-withstanding the comments underlined by me, he would not
have
given serious consideration to the only other possi-bility, i e that due to
some inexplicable mistake the notes were in fact not
the judge's notes. I am
according-ly of the opinion that the first appellant's belief that the notes had
been read into the record
was not unreason-able and that he was wrongly
convicted in regard to the article in question.
But even if the first
appellant should have bêen put on his guard, I do not think that his
failure to make enquiries was causally
connected to his decision to publish the
article. It is said that he ought to have
/entertained ...
53.
entertained a doubt whether the notes had been
incor-porated into the record and that he should have ap-proached Dison, which
would,
of course, have been the obvious course to adopt under those
circumstances. But it is clear from Dison's evidence that notwithstand-ing
what
he regarded as some "wry" comments (i e the comments underlined by me) he was
convinced that the notes had been read into the
record. It follows that had the
first appellant approached Dison, he would have received the assurance that the
notes were indeed
the judge's formal observations. That, after all, was what
Dison conveyed to the second appellant.
Van Dijkhorst J found that the relevant parts of the other two articles
constituted contempt of court because they prejudged issues
in the case and
there is an absolute rule prohibiting such prejudgment. In this
/regard ...
54.
regard he expressed the view that trial by newspaper is
intrinsically objectionable because it will lead to dis-respect for the law,
and
that speculation about the out-come of a case will tend to lower the esteem in
which courts are held. The learned judge concluded
as follows:
"The sections of the reports referred to by me are in my view the type of
specula-tive comment on the evidence, the weight thereof
and the effect which it
may or may not have on the outcome of the case which is an unwarranted and
unacceptable inter-ference with
the due administration of justice."
Although, as has been pointed out, an application
of the prejudgment test,
on the one hand, and the ten-dency test, on the other, will in practice in most
cases lead to the same conclusion,
I cannot agree that there should be an
absolute rule against the prejudging of is-sues in pending proceedings. For, as
I have already
said, a discussion in a law journal may prejudge such issues but
probably would not tend to interfere improperly with
/the ...
55.
the administration of justice. The real question there-fore is whether the
articles in question did tend to constitute such an interference.
In the article entitled "Commission Shuns 'Agitator' Thesis" mention was made
of the fact that the report of the Van der Walt Commission
was submitted, to the
Government in March 1985 but was only tablêd in Parliament towards the
middle of April 1986. Having stated
that the reason for the delay was a mystery,
the author of the article remarked: "One wonders if the protracted Delmas trial
might
have taken a different route had the findings been made available
earlier".
In my view this remark does not satisfy the tendency test. It seems to me
that the author was mere-ly posing the question whether
the State would have
prosecuted the accused in the same way and to the same extent as it actually did
if the report had been made
available earlier. In particular the remark could
not
/have ...
56.
have influenced the court or prospective witnesses even if its validity was
accepted by them.
It is convenient to consider the remaining two sections of the articles
together. In the first section it was said that the report
of the Van der Walt
Commission could have major implications for the 22 accused, and in the second
section, appearing in an article
head-lined "About Face from a Key State
Witness", the follow-ing remark was made : "New evidence which could shake the
State's case
includes the following". Then three aspects of the evidence given
at the trial were set out.
Although not without some hesitation, I agree with Van Dijkhorst J that the
comments were contemptuous. In my opinion they constitute
an improper
speculation on the detrimental consequences that the report of the Van der Walt
Commission and the new evidence may have
on the State's case, and in effect
suggest that the report and the evidence damaged that case. Applying the
criterion
/adopted ...
57.
adopted in
Van Niekerk
's case it appears to me that if Van Dijkhorst J
and his assessors were to accept that suggestion, it could influence the
proceedings
in the treason trial.
In his heads of argument counsel for the ap-pellant submitted that the
summary procedure followed by the court a
quo
was undesirable and in fact
prêcluded a fair and dispassionate trial. In this court it was not
contended, however, that the
proceedings were irre-gular and it is accordingly
unnecessary to consider the circumstances under which resort may or should be
had
to the summary procedure. But I may point out that this procedure was
adopted in a number of cases and also by this court in
MacKenzie
's
case.
Counsel for the appellants rightly refrained from contending that the
appellants did not intentionally commit contempt of court in
regard to the above
two sec-tions of the articles. In the result their convictions
/cannot ...
58.
cannot be disturbed. If the comment relating to the "different route" of the
"protracted Delmas trial" were contemptuous, it would
have been so technical
that the conviction of the appellants in regard thereto could not have had a
significant effect on their sentences.
It is clear, however, that Van Dijkhorst
J regarded the article on the judge's notes as the most offensive of the three
articles,
and that he would have imposed a lighter sentence on the first
appellant had he not applied the strict liability rule. Hence the
first
appellant's sentence should be altered as set out hereunder.
I would therefore dismiss the appealssave for substituting the following for
the sentence imposed on the first appellant:
"Mr Anton Paul Harber is sentenced to a fine of R400 or two months'
imprisonment. The whole of this sentence is suspended for
a
/period ...
59.
period of two years on condition that he is not found guilty of contempt of
court commit-ted during the period of suspension."
H.J.O. VAN HEERDEN JA