BHEKI MAKHUBU WINS APPEAL

MBABANE – The Nation Magazine and its Editor Bheki Makhubu have won their appeal for contempt of Court.

The two had been found guilty of two contempt of court charges in respect of two editorial articles that appeared in the November 2009 and February 2010 publications, respectively and were sentenced to pay E400 000 collectively.
Half of the fine was suspended for a five year period, but it was directed that should the parties fail to pay, Makhubu would be jailed for two years forthwith.

This meant that Makhubu and the Nation Magazine would pay E50 000 each for the two offences.
Supreme Court Judge Stanley Moore, sitting with Judges Ahmed Ebrahim and Dr Seth Twum, yesterday found that the Nation Magazine and Makhubu were not guilty of contempt of court for the February 2010 article and set aside the order that each should pay a fine.

Dismissed

However, in respect of the count for the November 2009 article, the appeal was dismissed, but the sentence was reduced.
Judge Moore directed that the Nation Magazine should now pay E30 000 fine within three months and may ask for extension of the period.
Makhubu was sentenced to a wholly suspended three months jail sentence.
The suspension, the Supreme Court held, would be for a period of three years on condition Makhubu is not found guilty of an offence of scandalising the court within that period.

In reference to the February 2010 article titled; ‘Will the Judiciary come to the party?’
Judge Moore said Makhubu used a bland and eminently permissible language, within the context of the country’s constitutional freedom of the press guarantees.
He said Makhubu critiqued a judgment of the High Court in a language that was particularly mild.
He noted that Makhubu had used terms such as criminal, rubbished and treasonous in the article.
However, Judge Moore said, the expressions were merely reflective of the author’s view that the judgment he was criticising did not uphold the fundamental rights entrenched in the Constitution and was unduly critical of academics.

“Such expressions of opinion, or of disagreement with the views set out in a judgment of this court, do not in my respectful view, satisfy the requirements of scandalising the court in terms of the various definitions liberally set out in this judgment,” Moore said.
In the 81 page judgment, Judge Moore quoted a plethora of cases defining scandalising the courts and the extent at which they could be criticised.
He said contempt of court charges were pressed in order to avoid injuring the public’s confidence in the Judiciary or that individual judicial officer, not to protect the hurt and tender feelings of the judge.

Defamation

Judge Moore  said the charges were not aimed at granting that judicial officer protection against defamation other than that available to any person by way of civil action for damages.
“The real offence is the wrong done to the public by weakening the authority and influence of a tribunal which exists for their good alone.
“The consensus of the cases cited so far and other which I have read hurriedly, is that freedom of the press and freedom of expression are freedoms guaranteed by nearly every written constitution to which reference has been made.

“The cases underscore the right of full, ample, vigorous and candid criticisms of the judgments of the courts and of the opinions expressed by the judges.
“Such is the entitlement of journalists in a free and democratic Swaziland,” Moore said.
For the second article that appeared in the November 2009 publication, Judge Moore said it was a very full scale attack upon Chief Justice Michael Ramodibedi who was acting at the time.

Attack

He also said the article further mounted an unwarranted and scurrilous attack upon the judiciary in its entirety and the administration of justice within the country.
“Having plunged his contemptuous knife into the heart of the Judiciary to its inglorious hilt, the author, as if infused with fiendish glee, could more resist the almost sadistic urge to give it one final twist by twice addressing the Chief Justice, whose office lies at the pinnacle of the Judiciary of this Kingdom, by the tile of ‘Your Worship,’ which is the fitting form of address for judicial officers who are members of what Lord Diplock described as the lower Judiciary,” Moore said. 

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