WE WERE THERE: Members of the public sitting at the gallery before the start of the trial
The Swaziland Independent Publishers and the Nation Editor Bheki Makhubu won the appeal against the contempt of court matter, where they were ordered to pay a ‘startling’ E200 000 with Makhubu expected to spend two years imprisonment if such an amount was not paid within three days of the order.
The Nation Magazine published by Swaziland Independent Publishers and it’s editor -Makhube were both found guilty on two charges of contempt of court and scandalising the court.
The High Court Judge Bheki Maphalala’s judgment read thus: “The first and second respondents are found guilty of contempt in respect of both counts.
“The first and second respondents will each pay a fine of E100 000 in respect of the first article published in November 2009 within three days of this order.
“The first and second respondents will each pay a fine of E100 000 in respect of the second article published in February 2010 within three days of this order. Half of the E400 000 in respect of both respondents will be suspended for a period of five years on condition that they are not found guilty of a similar offence within the period of suspension.”
Makhubu approached the Supreme Court to appeal the decision of Judge Maphalala. The matter was heard by Supreme Court Judges-Justice Ebrahim, Justice Twum and Justice Moore.
In their conclusion of the matter, the three Supreme Court judges noted that the two articles in the Nation Magazine illustrated the ancient principle that all good things must be enjoyed in moderation.
The judges noted that no freedom was totally and absolutely free.
The judges highlighted that all freedoms were subject to two principal qualifications; the rights of others and the public interest.
“These two articles, written by the same person illustrate the kind of searching and critical comment which represent the legitimate exercise of freedom of the press on the one hand and the kind of article which strays into impermissible terrain of scandalising the court,” the judges noted.
The judges said no one would want to see the little company which publishes The Nation Magazine go to the wall.
They felt all lovers of freedom and democracy would want to see it continue to comment vigorously upon matters of public interest and concern.
The judges highlighted that The Nation must do it though on the right side of the laws in relation to scandalising the court.
“The penalties which this court is obliged to award are designed to encourage all members of the press to enjoy their freedoms within the law.
“Hopefully, it has struck the correct balance: consistent with what is fair and just to the appellants, and to the public in whose name these prosecutions were brought,” Judges Moore, Ebrahim and Twum noted.
The judges made it clear that those who levelled criticism at the courts, and at members of the judiciary at all levels, must bear in mind that personal attacks upon individual members of the judiciary, upon the courts, and upon the system of justice within this kingdom, carry with them the potential oferoding the foundations of the very institutions which they care so earnestly about.
“It is to be hoped that the freedoms of speech and of the press will continue to flourish in this land, in an atmosphere which does not necessitate the adjudication of the courts,” the judges ended their observation. They then ordered that the appeal against conviction and sentence on count one be allowed and they were both set aside. On the other charge, the sentence and convictions were dismissed. The Swaziland Independent Publishers were ordered to pay a fine of E30 000 within three months from yesterday. Makhubu was sentenced to three months imprisonment. This sentence was wholly suspended for three years on condition, he is not found guilty of a similar offence during this period.
.............CJ issues strong warning to media
Chief Justice Michael Ramodibedi gave the media a strong warning about the way they write and criticise the judiciary.
Speaking after the delivery of the much anticipated judgment of the Independent Publishers (The Nation Magazine) appeal case yesterday at the High Court, Justice Ramodibedi warned that people should consider deeply when contemplating speaking about the judiciary as it was a protected entity.
Makhulu Baas, as the law chief is affectionately known, said freedom of expression was a right but it was not an absolute right.
“This judgment is very important especially to lawyers, the media and the general public. People should consider deeply when dealing with the judiciary. This body is protected from freedom of expression,” the CJ said.
He then quoted section 24 (3) (c) (iii) of the constitution of Swaziland.
This section stipulates that nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision maintaining the authority and independence of the courts.
The Independent publishers won an appeal against a judgment issued by Judge Bheki Maphalala yesterday.
The publishers and their Editor Bheki Makhubu were sentenced to a total of E400 000 fine with Makhubu expected to spend two years behind bars if such amount was not paid.
The Supreme Court ruled in favour of the company. Judges Moore, Twum and Ebrahim set aside the first count in the matter, where Makhubu was expected to pay E100 000 and his company to also pay the same amount.
In the last charge, Makhubu who was suppose to spend two years imprisonment was given three months imprisonment which was wholly suspended for three years on condition, he is not found guilty of a similar offence during the suspended period. His company was ordered to pay E30 000 to the government of Swaziland.