Dear Corruption Watch,
The public protector, like so many political figures, endures name-calling and occasionally vicious attacks. Is she able, like a judge, to charge her detractors with contempt?
The legislature has given public protector statutory protection against such attacks.
Contempt of the public protector is an offence. The Public Protector Act of 1994 provides that no person shall insult the public protector – or her deputy – in connection with an investigation, with the stipulation that if the investigation had been proceedings in a court of law, the insult would have been deemed contempt of court.
So the public protector has the same kind of protection from contempt as that enjoyed by the courts.
Our law places limits on the kinds of criticism that can be made of judges. It is a criminal offence to make statements that tend or are calculated to bring the administration of justice into contempt.
An example of such a statement would be a newspaper article that accuses a judge of being influenced by personal favouritism or corruption rather than impartial legal principle in deciding a case.
Where people make statements that cross this line, they can be convicted of contempt of court, known as “scandalising the court”.
But why should the judges receive special protection? The Constitutional Court answered this question as follows:
“In our constitutional order the Judiciary is an independent pillar of State, constitutionally mandated to exercise the judicial authority of the State fearlessly and impartially. Under the doctrine of separation of powers it stands on an equal footing with the executive and the legislative pillars of State; but in terms of political, financial or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential. Having no constituency, no purse and no sword, the Judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of State and, ultimately, as the watchdog over the Constitution and its Bill of Rights – even against the State.”
The offence is a limited one: it is not aimed at protecting the reputation, status or feelings of a court or judicial officer, but only the moral authority of the court. However insulting, a statement will not constitute contempt unless it has the effect of undermining the administration of justice.
This doesn’t protect the courts from criticism, even robust criticism, of their judgments and reasoning. It only precludes critics of the courts from saying that the cause of any faulty reasoning was bias or prejudice. Public debate of court decisions is to be encouraged and protected.
The language of the Public Protector Act indicates that the public protector has the same kind of protection, for the same kinds of reasons. Like the courts, the public protector is an independent institution whose functioning depends on its legitimacy.
It is vital for the rule of law that the legitimacy and credibility of the public protector is preserved. Without legitimacy and the confidence of the public, she would not be able to do her work effectively.
The difficulty with all of this is that it criminalises expression. This is clearly a limitation of the right to freedom of expression in the Bill of Rights.
But, as with the offence of scandalising the court, the credibility and legitimacy of the institution of the public protector is so important that, in our view, the limitation on expression is probably justified.
However, it must be used judiciously and only where absolutely necessary to protect the administration of justice. Judges and the public protector should err on the side of being thick-skinned to avoid unduly chilling free expression.
• This article was first published in Sunday Times: Business Times