Recent Case: Criminal law

• Jurisdiction: South Africa
• Published date: 04 July 2019
• Date: 04 July 2019
• Citation: (2019) 32 SACJ 86
• Pages: 86-103
• Author: Adriaan Anderson

Criminal law

ADRIAAN ANDERSON

University of Limpopo

1 Contempt of court

The high court recently considered the elements of contempt of court

in facie curiae pursuant to two special reviews from the magist rates’

courts in S v James 2019 (1) SACR 95 (ECB) and S v Meiring 2019 (1)

SACR 227 (GJ). The crime of contempt of court is de ned as ‘unlawfully

and intentionally violating the dignit y, repute or authority of the court’

(see CR Snyman Criminal Law 6ed (2014) 315) and gives the court the

power to take appropriate measures against violations of its dignit y,

or its ability to function properly. The common-law offence, which

can apply only in superior courts, originates from (ancient) English

law (see JMT Labuschagne ‘Minagting van die hof: ’n strafregtelike

en menseregtelike evaluasie’ 1988 TSAR 329) whereas s 108 of the

Magistrates’ Courts Act 32 of 1944 gives magistrates’ courts the power

to invoke summary proceedings for contempt where the contempt is

committed in faci e curiae. The subsect ion provides as follows:

‘Custody and punishment for contempt of court.

(1)  If any person, whether in custody or not, wilfully insults a judicial

ofcer during his sitting or a clerk or messenger or other ofcer during

his attendance at such sitting, or wilfully interrupts the proceedings of the

court or otherwise misbehaves himself in the place where such court is

held, he shall (in addition to his liability to being removed and detained as

insubsection (3)ofsection 5provided) be liable to be sentenced summarily

or upon summons to a ne not exceeding R2000 or in default of payment to

imprisonment for a period not exceeding six months or to such imprisonment

without the option of a ne. In this subsection the word “court” includes a

preparatory examination held under the law relating to criminal procedure.’

Subsection (2) compels the court, upon a nding of contempt, ‘without

delay’ to transmit the matter for the consideration and review of a

judge in chambers, which must include grounds and reasons of his

proceedings.

Both the common-law offence and s 108 require the offender to

have acted intentionally and make provision for summary procedures

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(2019) 32 SACJ 86

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to deal with the matter immediately. The common-law offence

demands intentional violation of the dignit y, repute or authority of the

court. Section 108 also includes misbehaviour which is not necessarily

designed to insult a judicial ofcer but is still seriously disruptive

to the extent of justifying the invocation of the sanction created by

section 108.

Over the years, numerous judgments have sought to determine the

type of conduct which indeed violates the dignity of a judicial ofcer.

The courts have further sought to dene which type of conduct is of a

sufciently serious nature to just ify the drastic measure of an i mmediate

trial and the imposition of a sanction. Many of these judgments were

delivered in the pre-constitut ional era. It is important to approach cases

which ‘tend to overprotect’ the judiciary with caution in the context

of the human rights dispensation created by the Constitution (Snyman

op cit 316). Section 35(3) of the Constitution now stipulates that every

accused person has a right to a fair trial, which includes (inter alia)

the right to be informed of the charge with sufcient detail to answer

it, to have adequate time and facilities to prepare a defence, to a public

trial before an ordinar y court, to choose, and be represented by, a

legal practitioner, and to have a legal practitioner assigned by the state

at state expense, if substantial injustice would otherwise result, and to

be informed of this right promptly.

The constitutionalit y of the summary procedure was tested in S v

Mamabolo 2001 (3) SA 409 (CC) regarding a conviction for ‘scandalising

the court’ ex facie cur iae and various unsatisfactory aspects of the

summary procedure were pointed out, with the court concluding

that such procedure is unconstitutional except in highly exceptional

circumstances in respect of ex facie curia e conduct and only when it

will be necessary i n order to preserve the dignity or authorit y of the

court or to permit the adm inistration of justice to continue unhindered.

The purpose of this of fence is to protect and uphold the dignity

and authority of the court. In S v Nel 1991 (1) SA 730 (A) 733B Botha

JA held that ‘the primary objective of the application of the contempt

procedure is to maintain the reputation and dignity of the court and

the orderliness of its proceedings’. Similarly, in S v Lavhengwa 1996 (2)

SACR 453 (W) at 464 the court stated that the contempt procedure in a

court ‘is designed to have three protective objects: the reputation of t he

court, the dignity of the court and the orderliness of its proceed ings’

and that there is indeed a need for the court being able, to apply a

summary procedure i n suitable cases.

When it comes to this type of offence there are several factors to

consider: Does the conduct indeed amount to contempt/disruption

requiring judicial response? D oes the offender have the required intention

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