The re-emergence of the arms deal saga and allegations of corruption are providing interesting fodder for the media. However, should any aspects of this debacle ever get to the point where judgment is granted after a trial, the manner in which the media will be allowed to cover the story will be somewhat different.
The media is not entitled to criticise the judiciary in any way it desires (in this discussion, ‘the judiciary’ refers to judges, magistrates and the judicial process itself). Obviously, the same limitations regarding what the media can say about ordinary members of the public apply to what can be said of the judiciary. For instance, unjustifiably defamatory comments about anyone, be they members of the judiciary or otherwise, are not permissible and will result in the publication of an apology and/or the payment of damages.
Aside from the above, there are additional limitations regarding what the media can say about the judiciary. Any public comments regarding the judiciary which violate the dignity, reputation and/or authority of the court in question will be classified as unfair or improper criticism. So comments that abuse a judge in his or her official capacity, criticise the judgment as a whole, or impute bias, partiality or improper motives to a judge or the courts in their administration of justice are improper. The feelings of the individual judicial officer are entirely irrelevant. Unfair or improper criticism of the judiciary is a criminal offence, falling under contempt of court or interference with the administration of justice.
Accordingly, in a certain case the allegation that a magistrate had deliberately posted a letter to the wrong address – with the aim of depriving a party to proceedings from the opportunity of appealing against a decision – was deemed impermissible criticism. The allegation resulted in a conviction for contempt of court.
But why should the judiciary be entitled to more protection than the rest of society regarding what the media can say about it? Our courts have said that if the media can cast doubt on the ability of the judiciary to fulfil its functions, the dignity and reputation of the judiciary as a whole, as well as that of the individual judicial officer, may be damaged. It is in the public interest to protect this dignity and reputation. So genuine criticism of the judiciary will usually be acceptable unless the public interest requires otherwise.
Also, our constitutional order provides for three arms of government: legislative, executive and judicial. Each of these independent arms functions as a counterbalance to the conduct of the other two. If the judiciary is unjustifiably criticised, it may be unable to fulfil its watchdog function in respect of the other two arms. In certain instances, therefore, criticism of the judiciary is both a necessary and effective tool, but not where it undermines its ability to function effectively.
Prior to criticising the judiciary the media should tread with caution. Even if it appears that a corrupt member of government is acquitted because of his or her position in government, the media is not entitled to comment unless it is in the public interest to do so and no allegations of bias or inability in respect of the administration of justice are made. If a judgment is truly unacceptable, the proper course is for the parties involved to appeal against the decision or take the judicial officer in question to review.
Toni Erling is an attorney with Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg.