Should Survé be held in contempt of court?

‘The manner in which attacks on the judiciary have become fairly commonplace is disturbing in that – whatever the lack of merit in this kind of criticism – the legitimacy of a key pillar of constitutional democracy is weakened each time this occurs.’ The anonymous legal expert ‘Professor Balthazar’ says this in response to Dr Iqbal Survé claims that the judge who had granted the Financial Sector Conduct Authority (FSCA) an order to search the premises of Sekunjalo Investment Holdings had acted in a flagrantly biased fashion. Survé also claimed the FSCA first approached another judge who refused to grant the interim order before they went to Judge Patrick Gamble – whom Survé claimed was a friend both of the DA and Minister Pravin Gordhan, who, with President Cyril Ramaphosa, are claimed by Survé to be the driving force behind the raid. In an analysis on the Daily Maverick site, the author says ‘lurking behind this is the question whether the claims of Survé amounted to scandalising the court’. He notes that in State v Mamabolo, the Constitutional Court dealt with the issue of whether the judiciary, as with all public institutions, can be held accountable by way of criticism, which – given the constitutional guarantee of freedom of expression – ‘can take on a very robust tone’. ‘Professor Balthazar’ notes the court held there are limits to such speech. Survé’s remarks – particularly if there is a failure to substantiate his claims – stand to fall within what Justice Kriegler had in mind when he ruled: ‘Scandalising the court is not concerned with the self-esteem, or even the reputation, of judges as individuals, although that does not mean that conduct or language targeting specific individual judicial officers is immune. Ultimately the test is whether the offending conduct, viewed contextually, really was likely to damage the administration of justice.’ ‘Professor Balthazar’ says an unsubstantiated claim that a judge made an order after his judicial colleague had refused to grant the same order – and when he acted ‘out of friendship to the amanuensis of the entire litigation’ – is a most serious attack on the integrity of the judiciary as an institution. Gamble, he says, could have demanded that Survé appear and explain why he was not in contempt of court.