In a week that saw South Africa’s highest court order the country’s former President, Jacob Zuma, to serve a prison sentence for contempt of court, the second-highest court also had to deal with a litigant who expressed contempt, using language that must be unheard of in contemporary law reports. The five judges who heard this second matter said the litigant’s contempt would be referred to the national director of public prosecutions for action. The contempt took place in the context of a challenge to government anti-Covid-19 regulations, promulgated last year, and the litigant’s refusal to take part in a ‘virtual’ appeal hearing on the matter.
During the early days of South Africa’s lockdown and associated government regulations, a then little-known organisation, the Liberty Fighters Network (LFN), took the government to court, challenging the constitutionality of the regulations.
The LFN is a group of anti-vaxxers whose leader, Reyno de Beer, runs a website under the tag #LawyersMust Fall, describes LFN as a ‘contemporary fundamentalist voluntary association group’ and holds that the legal profession of SA ‘is the main culprit for all inequalities through its self-entitlement over our legal system and monopolizing access to our courts.’ It also claims to be a group concerned with evictions.
To the general surprise of the legal community at the time, the high court found in favour of LFN’s challenge to the lockdown regulations, and ordered the government to re-work the regulations to remove their ‘irrational’ element.
The government appealed in turn, and the supreme court of appeal this week handed down its decision in the matter. The five judges said the case raised issues of national and international importance and illustrated that courts should adopt a ‘disciplined and cautious’ response to such applications, ‘lest diffuse, rhetoric-laden, emotive and jurisprudentially unfocused litigation’ be encouraged.
Summarising the papers before them, the appeal judges explained the grounds of LFN’s original application against the lockdown regulations. They say that LFN submitted a ‘six-page invective, in generalised and dispersed terms, against the government’s Covid-19 response.’
‘It defies a concise summary,’ they say. However, it was clear to the court that the underlying theme was one of ‘Covid-19 denialism’.
The high court had found in favour of LFN, saying that the regulations amounted to an unjustified limitation of rights in the Bill of Rights. The judge granted leave to appeal in relation to some of its findings, but not against others and so the appeal included argument to permit a broader appeal.
Quite separately, after that orginal court finding, the Office of the Chief Justice explained that courts would join in taking action to protect people against the virus. Among other measures, a presiding judge could direct that a hearing would be by video conference. The Supreme Court of Appeal later issued its own statement saying that virtual hearings would be the default position until further notice.
When the appeal was set down, LFN objected to a remote virtual hearing and De Beer wrote that LFN would be attending court ‘for a physical hearing’ as was its constitutional right. This letter was followed by an email to the registrar’s office along the same lines. If the court refused to allow LFN to appear in person it would violate the organisation’s rights and it would challenge the validity of virtual court hearings in SA, he said. If this was found to amount to contempt of court, then LFN was ‘prepared to accept the associated punishments’.
Instructed by the judges, the registrar wrote back explaining, in some detail, why virtual hearings were now the default position. LFN said, however, that their right to an open hearing was ‘not negotiable’ and they would attend the court building for an ‘open hearing’ on the date stipulated. As the government’s anti-Covid-19 regulations had been set aside by the high court, the courts could not justify virtual hearings on the basis of complying with those regulations, LFN said. In fact, holding virtual hearings amounted to ‘knowingly … enforcing invalid Covid-19 measures’.
LFN then turned to the fact that the judges would hear the matter from different locations and sarcastically compared the situation to a game of Monopoly, attaching a copy of a Monopoly-Dollar to their letter, to say that at least this had an existence in reality.
A virtual hearing went ahead as scheduled, though both De Beer and LFN refused to participate.
In its decision, delivered this week, the appeal judges found that the high court had been incorrect in setting aside the regulations, and had misunderstood the ‘rationality’ test. The court had also gone further than the applicants in the original matter had asked.
‘A generalised disquiet that the regulations constrain liberty, lack coherence or may have been less restrictively formulated does not suffice to secure a declaration of invalidity. The high court struck down regulations that had not been challenged, on a case not properly pleaded, and on the basis of reasoning that the invalidity of certain regulations must contaminate all the regulations. In sum, neither the challenge brought, nor the high court’s reasoning for sustaining that challenge, can be allowed to stand.’
If this had been a conventional case, a reader’s focus might well have been on the grave inadequacies of the high court’s decision. However, those failings were eclipsed by the LFN and its correspondence, described by the appeal judges as ‘scandalous’ in places.
In their decision, the appeal judges dealt last with one of the organisation’s letters. Written to the President of the Supreme Court of Appeal after the hearing of the appeal, it referred to an apology conveyed by the registrar to the organisation: LFN had neglected to follow up an electronic letter to the court President, with a hard copy, as required by court rules, and there had thus been no response to LFN by the court President. The registrar, realizing what had caused the problem, apologised to LFN – even though it had not been the court's fault – that the President had not previously responded.
In reply, De Beer wrote to the court President: ‘After careful consideration of your official response, writer has decided to herewith inform you that the entire Supreme Court of Appeal may stick its fictitious “apology” to us in its arse.’
De Beer continued, still addressing the court President, ‘You have allowed the Covid-19 flimflam to take over the court’s judicial functionality and for it to desecrate the institution to the point of pure codswallop which it is today – nothing but a mere extension of Government’s narrative’.
Dealing with this letter and other aspects of the LFN documentation, the judges wrote that courts were not above criticism and that legal commentators, the media, academics and members of the public criticised judgments virtually every day. However, in this case it was necessary ‘to draw a judicial line in the sand’.
‘Our primary concern … is the baseless criticism levelled, in the last communication of Mr de Beer and the LFN, against the President of this Court, the deplorable denigration of the Court and the generalised contempt displayed towards all our colleagues, unconnected though they are to this case. We are concerned too about the scurrilous insults … directed at those who serve in the Registrar’s office.’
His last letter had been ‘crude, gratuitously insulting, clearly contemptuous and intended to denigrate this court,’ the judges said. Earlier that same week, the apex Constitutional Court had warned, in relation to a decision to send former President Jacob Zuma to prison for contempt, that unjustifiable defamatory and scurrilous utterances against judicial officers will not be tolerated.
Beyond the pale
With that case in mind, the appeal judges in the LFN matter believed there was no alternative but to refer their judgment to the National Director of Public Prosecutions for her attention. They reminded themselves that De Beer was, in legal terms, ‘a layperson’. However, ‘even for a layperson the statements are beyond the pale and there is no excuse for his conduct or that of the LFN. The registrar is thus directed to take the necessary steps to ensure that this judgment is brought to the attention of the NDPP.’