CASE NUMBER: CCT44/00
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
In the matter between
RUSSELL MAMABOLO Appellant
and
THE STATE Respondent
FILING NOTICE OF RESPONDENT’S HEADS OF ARGUMENT
FILED BY: The Director of Public Prosecutions Church Square 28, Church Square, PRETORIA
TO: The Registrar of the Constitutional Court
AND TO: Ms R P Tee & Adv H J Fabricius S C The State Attorney Advocate Chambers Fedsure Forum, 4th Floor South Tower cnr Pretorius & Van der Walt Streets PRETORIA
AND TO: Jacobsen, Robin & Wright 45 Oxford Road, Forest Town JOHANNESBURG
0
i.
INDEX:
PAGES:
A. Introduction 1 - 5
B. South African Case Law 5 - 26
C. Foreign Case Law 26 - 34
D. Section 108 - inherent Supreme Court power - 34 - 43 in facie or ex facie curiae - Judges or institutions
E. Procedure 43 - 58
F. Freedom of Expression - Rule of Law - Limitations 59 - 69
G. Defences and Final Submissions 69 - 73
1
CASE NUMBER: CCT44/00
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
In the matter between
RUSSELL MAMABOLO Appellant
and
THE STATE Respondent
RESPONDENT’S HEADS OF ARGUMENT
A.
INTRODUCTION:
1.1 In Argus Printing and Publishing Co. Ltd and Others v Esselen’s Estate
1994(2)SA 1 A at 25F-26b, it was remarked that since Lord Atkin in the Ambard
case made the remarks that justice was not a cloistered virtue, attitudes towards
bounds of criticism of the judiciary have changed; comment in this sphere being
less inhibited. And discussion of matters formerly tabooed must be taken into
account. And that: 2
“Judges, because of their position in society and because of the work which they do, inevitably on occasion attract public criticism and that it is right and proper that they should be publicly accountable.” (at 25E-F)
1.2 Contempt proceedings have been described as hybrid in nature, salutary and
dangerous, draconian, arbitrary and liable to abuse.
2. In view of the necessity that any balancing process previously undertaken be
reconsidered in the light of the possible incompatability of scandalous comment with free
speech on the one hand and of summary procedure with fair trial rights or proceedings on
the other hand, it would be helpful to have special regard to other proceedings where
there are deviations from the normal trial procedures as well as the historical
development of contempt of law in general, including statutory contempt. It will be
submitted that in regard to the latter wrong, artificial and unnecessary restrictions on the
power of a court to act summarily crept in - in respect of “summons” and in facie or ex
facie curiae.
2.1 In an attempt to provide some view of the development of contempt of the court in South
Africa and in order to facilitate later reference, dicta of some South African case law are
set out in a more or less chronological order in paragraph B. Some foreign law is
contained in paragraph C.
2.2 The interpretation by courts (and the implications thereof) on the question of what
constitutes contempt and under what circumstances and by whom proceedings may be 3
instituted, has not been consistent. The development at this stage appears to be a
recognition of it as being a crime which can summarily be dealt with and of procedural
restrictions being allowed; the question being under what circumstances and to what
extent.
3. Semantics also play a role. Vide: “summary” or “more summary still” and the different
meanings it has acquired, summary may mean a procedural “short cut” or
“instantaneous” or “near instantaneous”, “instanter”, “summons”, notice of motion and
notice (of citing for contempt).
Reference has sometimes been made to the “ordinary procedure” as meaning the referral
procedure” - where the Criminal Procedure Act applies - in contrast to the summary
procedure. In practice however, the summary procedure was ordinarily or usually
followed for contempt proceedings and a referral to the prosecuting authority was
regarded as exceptional.
3.1 It appears that the assessment and balancing process will to a great extent depend on
whether this Court regards contempt of court as a crime in the conventional sense, the
prosecution of which belongs in the exclusive domain of the prosecuting authority to be
determined during an “ordinary” criminal trial or whether it is an enquiry flowing from a
remedy at the disposal of a court where the prosecuting authority should not trespass or
as overlapping or interacting in certain circumstances.
3.2 If it is regarded as flowing from a court’s power, the following is suggested: According 4
to some authority the matter must be referred to the prosecuting authority in
circumstances where the summary procedure is undesirable, e.g. in the case of personal
embroilment or where the contempt is not clear and unambiguous. It is submitted that the
latter may not necessarily be the (only) answer: where a Judge is disqualified to act as an
arbiter, arrangements can be made for another Judge, preferably from another division
and where further investigation is needed, the assistance of the prosecuting authority may
be enlisted - the procedure remaining summary, albeit delayed. A prosecutor - without
being dominus litus as in the case of inquest proceedings - may also be appointed.
4. Contempt is defined by Snyman in Strafreg, 4th ed., p329 as:
“Minagting van die hof is die wederregtelike en opsetlike (a) aantasting van die waardigheid, aansien of gesag van ‘n regterlike amptenaar in sy regterlike hoedanigheid, of van ‘n regsprekende liggaam, of
(b) publikasie van inligting of kommentaar aangaande ‘n aanhangige regsgeding wat die strekking het om die uitslag van die regsgeding te beïnvloed of om in te meng met die regsadministrasie in daardie regsgeding.”
4.2 Milton: Hunt: in South African Criminal Law and Procedure, Vol II, Third Edition at
p 164:
“Contempt of court consists in unlawfully and intentionally violating the dignity, repute or authority of a judicial body, or interfering in the administration of justice in a matter pending before it.”
5
and describes it as overlapping with the wider crime of defeating or obstructing the
administration of justice, of which it is a species. Attempts to do so suffice (at p166).
B.
SOUTH AFRICAN CASE LAW:
1. In re Phelani 1877 K 5 at p8:
“... amounts to contempt, for which the offender may be summarily dealt with and punished.”
2. In re Dormer 4 SACR 64(1891)
The accused was “called on” by the Judge with regard to contempt ex facie curiae. Under
Roman Dutch law the Supreme Court in certain circumstances had an inherent power to
try contempt summarily (p70), both in facie and ex facie curiae (p73, 75 - 77).
“It exists and is recognized both in South Africa and other countries... the Superior Courts ... possess and have excercised summarily jurisdiction... that the particular Court concerned and it alone, is the proper tribunal to take proceedings and to punish (p78). ... the punishment in such summary cases is extraordinary (p79) ... It should not “be left to the discretion of the Attorney- General ... to decide whether there should be a prosecution.” (at p81)
“Contempts ... are certainly in some respects analogous to criminal offences, but they are a distinct species (p85)... not... an ordinary criminal offence... in which all the ... steps... indicated by our criminal procedure have to be strictly followed, but... sui generis, ... although... we should take care that... the party... has due and proper notice of the charge... sufficiently clear... and an opportunity of ... replying thereto.” (at p 86)
6
The Court has this power in the following cases:
“ 1. Where the Judges have been insulted, or threatened, or interfered with in the discharge of their duties. 2. Where cases pending are discussed in public. 3. Where Orders of the Court are treated with contempt. 4. Where motives are ascribed to a Judge.”(at p70)
... amounting to “a contempt of the dignity or office of the Judge, or of the administration
of justice” (p79); not personally, “non in suo sed alieno negotio” (p79) or “qua iudici”
(p85) with the tendency to attack the independence, integrity and character of the Judges
(p88-89).
3. It was recognized as an offence in Attorney -General v Crockett 1911 TPD 893 at p
915.
“... they should be taken cognisance of at once by the court without awaiting any formal charge or complaint, and, if necessary, they should be immediately punished.”
4. In R v Mnyongo 1931 EDL 157 it was held that summary action would have been
justified if the contemnor persisted despite an appropriate warning.
5. R v Keyser 1951(1)SA 512 AD: During the trial of mr. Excell the presiding Judge
directed the Deputy Sheriff to procure the presence of the accused, who was the manager
of a witness and summarily dealt with the contempt on the same day (p514-515).
7
“... in a proper case, contempt of Court may be punished summarily without an ordinary criminal trial. But counsel for the Crown fairly and properly admitted that in every case of contempt ex facie curiae dealt with by our courts without a criminal trial, the proceedings were commenced by an order, served upon the offender, containing particulars of the conduct alleged to constitute the contempt of court complained of, and calling upon the offender to appear before the court and to show cause why he should not be punished summarily for the alleged contempt of court. Sometimes the order has been issued on the application of the Attorney- General, sometimes it has been issued by the court mero motu, but in every case is has informed the offender of the case he has to meet, and in every case it has allowed him sufficient time to consult counsel, to prepare his defence and to decide whether he will give evidence on oath or not.” (at 518E-G)
6. “The power to commit summarily for contempt in facie curiae is essential to the proper administration of justice... But ... caution ... although ... protecting his office..., the facts that he is personally involved and that the party affected is given less than the usual opportunity of defending himself make it necessary to restrict the summary procedure to cases where the due administration of justice clearly requires it. There are many forms of contempt in facie curiae which require prompt and drastic action to preserve the court's dignity and the due carrying out of its function.” - R v Silber 1952 (2)SA 475 AD (s.108) at p 480 F-H.
7. Cape Times v Union Trades Directories and Others 1956(1)SA 105 NPD: “One
peculiarity ... is that a court can ... be ‘judge in its own cause’, e.g. ... in facie
curiae and summarily dealt with there and then...” Another peculiarity is that
whilst it can be dealt with by ordinary criminal proceedings upon indictment,
because it is a criminal offence at common law, it can also be dealt with by way 8
of summary procedure, despite the provisions of the Criminal Procedure and
Evidence Act for criminal prosecutions at the instance of the Attorney-General or
prosecutor. The reason ‘for the summary’ procedure for contempt in facie curiae
appears to be because the court is itself a witness to the contempt. - At p 124H-
125B, 125D-E and at 125E-F
8. R v Torch 1956(1)SA 815 C where the prosecuting authority charged the accused
arising from a newspaper article, it was held that contempt is an improper reflection upon
the Judges and magistrates” ... or “to lower his authority”, rendering the administration
of justice ineffective (at p819G-820B) and
“Where the attack complained of is directed, not merely against a single Court or Judge, but against Courts generally, with the consequence that the authority of all tribunals are undermined and impaired, then it appears to me that a fortiori a case of contempt is made out.” (at p820E-F).
“... the punishment for contempt is designed, not for the protection of the court against repetition of the attack, but for the protection of ‘the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from the mischief they will incur if the authority of the tribunal is undermined or impaired.” (at 820D-E)
9. Makiwame v Die Afrikaanse Pers Bpk en ‘n ander 1957(2)SA 560 W at p 562F-H:
“Twee vorme waarin sogenaamde minagting gepleeg kan word, word deur LORD RUSSELL in R v Gray, 1900(2)QB 36, as volg gestel: “It cannot be doubted that the article does constitute a contempt of the Court; but as theses cases are happily of an unusual character, we have thought it right to explain a little more fully than is perhaps necessary 9
what does constitute contempt of Court, and what are the means which the law has placed at the disposal of the Judicature for checking and punishing contempt of Court. Any act done or writing published calculated to bring a Court of a Judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which LORD HARDWICKE, LC, characterised as ‘scandalising a Court of a Judge’. That description of that class of contempt is to be taken subject to one and an important qualification: Judges and Courts are alike open to criticism.”
10. S v Tobias 1966(1)SA 656 N at p660G-H (Ex facie - just after the magistrate left
the bench):
“... a criticism of ... a judicial officer.. If wilfully uttered, is contemptuous ... if it is calculated to bring the court, or the member of it, into contempt or disrepute and thereby to impair the administration of justice and lower the respect in which the public hold that function”.
11. It was held in R v Van Rooyen 1958(2)SA 558 T that although a magistrate’s court has
jurisdiction to try contempt ex facie curiae, it has no power to deal with it summarily in
contrast to the summary powers in s. 108 (at p 560H-561G). The court also interpreted
“summons” in s. 108 as “a criminal charge in the ordinary way by summons” (at p561A-
B and 561F-G).
12. In re Clark 1958(3)SA 394 A: whilst the Court was in session, the accused interrupted 10
the proceedings (p395F). The Judge ordered his arrest, had statements taken and had
them affixed to a summons commanding him to show why he should not be committed
for contempt. At the hearing the accused admitted the contempt and apologized. On
appeal it was held that it was not surprising that the accused decided to throw himself on
the mercy of the Judge and that “his plea of guilty was or... may have been motivated by
other considerations than a consciousness of guilt...” (at 399A-B).
13. R v Hawkey 1960(1)SA 70 S.R. at 71 G-H:
“There is no doubt that the court in a proper case, when an obvious act of contempt of court is committed in its presence, may summarily fine and punish the offender without conducting, as it were, a minor trial to satisfy itself that there was a contempt of court. But there are cases where the action of the person concerned may not be so unequivocal as to justify the assumption that the person undoubtedly intended to be contemptuous; and in such cases the audi alteram partem rule should be observed...”
and at 71I the Court sounded a warning that
“An apology grudgingly given may even aggravate the contempt.”
14. S v Beyers 1968 (3) SA 70 (A) - arising from civil contempt. At p 80 D-F:
“Dit is egter ewe duidelik dat hierdie vorm van minagting nie deurgaans 'n strafregtelike inhoud ontsê is nie. Dit word telkens beskryf en behandel as 'n misdaad met geen aanduiding dat dit anders as die gemeenregtelike minagting van die hof beskou word nie. Of dit in ooreenstemming met die Engelse reg is, is minstens te betwyfel, maar na my oordeel weinig ter sake, omdat die omskrywing vandie misdaad in ons reg nie deur die Engelse reg bepaal word nie. Die opvatting dat dit inderdaad 'n misdaad is, blyk ten duidelikste uit die feit dat 'n gewone straf opgelê word as die 11
aansoek slaag. Strafoplegging sonder dat 'n misdaad gepleeg is, sou in ons reg iets onbestaanbaar wees. Al is afdwinging van 'n burgerlike verpligting die hoofdoel van die straf, dan word dit nogtans nie opgelê bloot omdat die verpligting nie nagekom is nie, maar uit hoofde van misdadige minagting van die Hof wat daarmee gepaard gegaan het.”
and at p 81D-E:
“Dat die gesag en aansien van ons Howe doeltreffend beskerm moet word, is onontbeerlik vir regsordelike verkeer... siviele minagting .... Dit besluit om op te tree al dan nie, sou dan by ‘n privaat instansie berus, wat hom na willekeur deur sy eie belang kan laat lei, en wat nie oor dieselfde middele as die Staat beskik om die aangeleentheid te ondersoek en voor te lê nie.”
15. In S v Gibson 1979(4)SA 115 D&CLD the State prosecuted as a result of a newspaper
article. It was held that is was contempt to say there has been a failure of justice
attributable to the Court of judicial officer. It was also held that the criterion for contempt
was the same as in the case of defamation viz whether a normal, balanced, right-thinking
and reasonable person would regard it as an attack on dignity or authority of the Courts
(at p121 C-E), whether (newspaper) readers will regard it as the final oracle of truth (at
135E). Vide also p 147D-E with regard to ambiguity or doubt.
16. In S v Ntsane 1982(3)SA 467 T at 472G-H it was held with regard to s.108:
“Afgesien daarvan dat die Wetgewer klaarblyklik bedoel het dat die gebruiklike incidentalia van ‘n verhoor (bv klagstaat, getuienis onder eed, ens) nie deel uitmaak van summiere optrede nie (hoewel aan die audi alteram partem reël gehoor gegee moet word) blyk dit ook duidelik dat die bevoegdheid onmiddellik 12
en daar en dan uitgeoefen moet word... onmiddellik opgetree moet word ten einde die waardigheid van die hof en die behoorlike administrasie van die regspleging te beskerm en te handhaaf in die oë van die algemene publiek.” (at 473a-b)
17. In S v Hartmann and Another 1984(1)SA 300 ZSC, which concerned the sub iudice
rule, a real risk of interference with the due administration of justice was regarded as the
proper test (at 312E and 313C).
18. According to S v Sokoyi 1984(3)SA 935 NPD (s.108 - accused failed to accept the
court’s ruling) It was held that it was necessary for a judicial officer to have at his
disposal a remedy for maintaining the court’s authority. (at p937G-H)
19. The “tendency” test in sub iudice matters was reaffirmed in S v Harber and Another
1988(3)SA 396 A at 421E.
20. S v Mabaso 1990(1)SACR 675 T at 677a-b and 677h-678b: Whilst magistrate’s
courts have jurisdiction to try cases of contempt ex facie curiae, either at
common law or by statute (s.106), it has no power in either case to act
summarily. Whilst this can be done in the magistrate’s court by summons either
by the magistrate mero motu or by the Attorney-General with proper notification
of the charge and opportunity for defending it, in the Supreme Court an order on
the contemnor “to show cause why he should not be committed” is sufficient.
21. According to S v Sonququ 1990(2)SACR 246 Tk (s.108) the rationale for the crime is
not the protection of the court as a whole or the individual Judges from a repetition, but
of protecting the public. The audi alteram partem rule in respect of s. 108 was recognized 13
(at p 247b-c and i-j).
22. In S v Nel 1991(1)SA 730(A) the Court dealt with the different requirements applicable
for the normal procedure and the summary procedure where “less than the usual
opportunity of defending himself” applied - the former procedure is appropriate if there is
no necessity for prompt action in order to maintain the authority or orderliness of the
Court (at p 748e-749i). At 750A-F:
“Die gedagte om iemand skuldig te bevind aan 'n strafregtelike oortreding sonder dat hy 'n kans gegun is om vertoë te rig dienaangaande, is so 'n drastiese afwyking van die fundamenteelste beginsels van ons regstelsel
dat dit nie gedoog kan word nie, behalwe in uitsonderlike omstandighede. Alhoewel daar geen onwrikbare reël is dat 'n persoon eers aangehoor moet word voordat hy regsgeldig skuldig bevind kan word aan minagting nie, is dit 'n heilsame uitgangspunt dat hy 'n geleentheid gegun behoort te word om die hof toe te spreek alvorens hy skuldig bevind word. Of 'n skuldigbevinding regtens geregverdig is sonder 'n voorafgaande geleentheid om vertoë te rig, hang af van die besondere omstandighede van elke geval ... ‘n skuldigbevinding aan minagting, sonder 'n voorafgaande geleentheid om vertoë daaroor aan die Hof te rig, geregverdig sou wees alleenlik as dit duidelik uit al die omstandighede sou blyk dat die betrokkene die Regter willens en wetens beledig het, dws doelbewus en met kennis daarvan dat hy 'n oortreding pleeg waarvoor hy tot verantwoording geroep kon word by wyse van skuldigbevinding en straf. “
And at 752h the Court emphasized that the main purpose of sentence was not
punitive in nature, but to enforce the authority of the Court.
23. S v Nqwenani 1991(1)SACR 553 Ck at 555b: the opportunity of being heard (testifying 14
and calling witnesses) is a requirement for s.108.
24. Whilst the court in S v Nyalambisa 1993(1)SACR 172Tk found it difficult to accept the
restriction placed on the audi alteram partem rule in the Nel case (at 176j), it remarked as
follows:
“Furthermore, a magistrate must bear in mind that when he acts in terms of s 108(1) he is the ‘witness, prosecutor and Judge’ - Duffey v Munnik and Another 1957(4)SA 390 T at 391F - and that this is an undesirable state of affairs. This situation can be avoided by ordering that the offender be tried in the normal course, in which event the magistrate involved will
testify, but another magistrate will adjudicate over the matter. A magistrate should also satisfy himself, especially when he has been the butt of personal insults, that he is in a fit emotional state to try and sentence the perpetrator. If there is any doubt in his mind on this issue, the magistrate should either stand the case down till later on the same day, or order that the offender appear in his court on the following day, or order that the offender be arrested and charged with contempt of court in the normal course.” (at 176b-d)
25. In In Re Muskwe 1993(2)SA 514 ZHC (statutory contempt in facie of a magistrate) the
Court i.a. referred to s 18 of the Zimbabwe Constitution, viz. the right to be tried by an
independent and impartial tribunal and concluded that the fact that the contemptuous
conduct was directed at the magistrate, disqualified her from residing at the contempt
proceedings (at 526 G-I).
26. In S v Memani 1994(1)SA 515 W (s.108) a distinction is made between statutory and
common law contempt; at p517H-518C: 15
“It will at once be seen that the subsection caters for conduct which could fall short of the common-law concept of contempt. It includes wilfully insulting the judicial officer in a manner which could be contempt in the conventional sense but it also includes such lesser conduct as 'misbehaving'. It also includes conduct which is directed not only at the judicial officer himself but also a clerk or a messenger. It is in other words designed to provide for a sort of disciplinary proceedings to take care of a wide variety of misbehaviours from contempt of court downwards. It is accordingly not useful to apply the common-law definition of contempt in an effort to decide what is contemplated by s 108. One of the elements of contempt is an intention to violate the dignity of the court. It is conceivable that misbehaviour within the meaning of that word as used in s 108 could include conduct not necessarily designed to insult a judicial officer, but still serious enough to justify the invocation of the discipline created by s 108. At the same time, it has been held by this Court that the element of wilfulness is a feature of the offence created by s 108. Accordingly, while it is conceivable that in a proper case the judicial officer may find the person concerned guilty of misbehaving without necessarily conducting himself contemptuously to the court, that misbehaviour should be wilful.”
With regard to the audi alteram partem rule it was remarked that there was “no
immutable rule” (at p518E) . It was further held that the judicial officer concerned
is best equipped to decide on the invocation of s. 108 and that a Court of Appeal
should not readily differ (at p 518E-H). In the case of a practitioner the conduct
could also be reported to the Bar Council (at 518H).
27. In S v Mushongo 1994(2)SACR 782 ZS the court preferred the view that generally
speaking it is unlawful to disobey an invalid court order - its adherence ensuring that the
authority, dignity and respect of courts are not demeaned or prejudiced (at 786f-787j), ...
forgetfulness, ignorance, absentmindedness, inadvertence, excitement or a genuine belief 16
in the invalidity of the order would negate intent (at 788b-d). In casu “it would have been
more prudent for the learned Judge to have referred the matter to the Council of the Law
Society...” (at 790g-h).
28. Argus Printing and Publishing Co Ltd and Others v Esselen’s Estate 1994(2)SA 1
AD at 29E-F:
“The purpose which the law seeks to achieve by making contempt a criminal offence is to protect ‘the fount of justice’ by preventing unlawful attacks upon individual officers or the administration of justice in general which are calculated to undermine public confidence in the court. The criminal remedy of contempt of court is not intended for the benefit of the judicial officer concerned or to enable him to vindicate his reputation or to assuage his wounded feelings...”
29. S v Lizzie 1995(2)SACR 729W (court interpreter - s.108) at 733b-f:
”Die bevoegdheid, wat deur hierdie artikel aan 'n landdros verleen word, om daar en dan teen 'n persoon, wat hom skuldig maak aan die gedrag in die artikel genoem, op te tree, is aan die landdros verleen om die waardigheid van die amp en die hof en die ordelike verloop van die hofverrigtinge in die belang van die behoorlike administrasie van die regspleging te beskerm. Die bevoegdheid behoort gevolglik net uitgeoefen te word wanneer die behoorlike administrasie van die regspleging dit vereis ... Dit sal die geval wees indien daar nie 'n meer gepaste wyse is om met die oortreder te handel nie en dit noodsaaklik is om dadelik teen die oortreder op te tree ter wille van die beskerming van die aansien of die gesag van die hof of die handhawing van die ordelikheid van die verrigtinge... In die onderhawige geval was daar 'n meer gepaste wyse om die probleem te hanteer. 'n Voorsittende beampte wat van mening is dat 'n ander 17
amptenaar van die hof sy pligte nie na behore uitvoer nie behoort privaat en nie in die openbaar so 'n persoon aan te spreek. Indien dit nie help nie behoort deur administratiewe kanale teen so 'n persoon opgetree te word. Slegs in baie uitsonderlike gevalle kan dit aangewese wees om in so 'n geval die persoon in die hof voor die publiek aan te spreek...”
“Wanneer aan ‘n persoon 'n geleentheid gegee word om redes aan te voer waarom hy nie aan 'n misdaad skuldig bevind moet word nie moet hy klaarblyklik weet welke misdaad en welke gedrag van hom ter sprake is. Indien dit nie die geval is nie word daar in werklikheid geen geleentheid aan hom gebied om redes aan te voer waarom hy nie skuldig bevind moet word nie... Al sou die landdros die korrekte artikel genoem het is daar geen rede om te dink dat die beskuldigde sou weet welke gedrag ingevolge daardie artikel strafbaar gemaak word nie en wat die gevolge van 'n oortreding ingevolge daardie artikel is nie. Onder die omstandighede moes die landdros na my mening aan die beskuldigde die implikasies van die artikel verduidelik het. By gebrek aan so 'n verduideliking kan nie gesê word dat die beskuldigde geweet het watter misdaad haar ten laste gelê word nie. Die beskuldigde kon ook nie geweet het watter gedrag van haar ter sprake was nie.”
30. Coetzee v Government of the Republic of South Africa 1995(4)SA 631 CC at par 61:
“If we are truly dealing with contempt of court, then the need to keep the committal proceedings alive would be strong because the rule of law requires that the dignity and authority of the court, as well as their capacity to carry out their functions, should always be maintained.”
“... contempt of court, which is a well-recognized legal institution of manifest virtue if properly utilised ... The proceedings lack the essential elements of criminal contempt of court in that the imposition ... is dependent on the will of the 18
... creditor and not the court.” (par 66)
31. Executive Council of the Western Cape Legislature and Others v President of the
Republic of South Africa and Others 1995(10) BCLR 1289 CC at par 122:
“In my view an ordinary person attending a political gathering such as that described in Die Burger, and the ordinary reader of its report, would have understood the statement attributed to the Third Applicant in the manner suggested by the Respondents. It undermines not only this Court, but constitutionalism itself, of which this Court is a guardian. Having regard to the high political office held by the Third Applicant, the consequences of a statement impugning the integrity of this Court might have been particularly harmful. All citizens are free to attend Court, to listen to proceedings, to comment on them and on the judgments given and to criticize such judgments, even vigorously, where it is appropriate to do so, but it is irresponsible to make unfounded statements which impugn the integrity of the Court. I leave the matter there. “
32. In S v Phomadi 1996(1)SACR 162E, where the accused insulted the magistrate in crude
language, it was found not to have been an exceptional case where the audi alteram
partem rule could be dispensed with. (at 163i and 167g-h)
33. S v Lavhengha 1996(2)SACR 453 W (s.108 - attorney disobeyed court ruling):
common-law contempt is directed more at the judicial office than the particular judicial
officer ... conceivable that conduct falling within ... s 108(1) need not necessarily be
contumacious conduct under the common law (at 465h-i). Lawful orders of a court must 19 be obeyed especially by legal practitioners (p468h-469f).
“In instances where no court ruling has been made, and where the individual magistrate was personally insulted, it may indeed be preferable to refer contumacious conduct to the Attorney-General for investigation and prosecution before another judicial officer. But where flagrant dis-obedience to a court order has occurred in facie curiae, immediate response is normally required with the view to restoring order and to deterring the offender from similar conduct. The court’s authority is paramount in civilised societies. Without it, anarchy will reign supreme. Immediate action by the court to remedy wilful disobedience to its orders is normally a better option than a time-consuming referral to the Attorney-General. In such instances prompt action is needed to protect the authority of the court and the enforceability of its rulings otherwise the public’s confidence in the administration of justice might be eroded.” (at 470c-f)
“The weight of authority, however, seems to justify the existence of the crime of contempt of court and the right of a court in certain circumstances to summarily convict and punish, provided the safeguards of the rules of natural justice are complied with.”(at 473d-f)
“It is not ‘whether’ such powers should exist but ‘how’ they are to be implemented... Under the new constitutional dispensation the important role of the courts is strongly underscored by their role as the watchdogs of constitutional rights.” (at 474g-j)
“As in the case of common-law contempt (as indicated above by Botha JA), s 108(1) also legislates for two possible options, i e a normal procedure by way of summons or a summary procedure.” (at 475 b - c)
“All the fundamental rights enshrined in s 25(3) of the Constitution would 20
normally be complied with when the referral procedure is adopted in the enforcement of any contravention of s 108(1). The accused would be given the benefit of a charge-sheet setting out the nature of the contempt; he will be charged before an independent and impartial tribunal; he will have the right to obtain legal representation; he will be presumed innocent; he will not be required to be a compellable witness against himself, etc.” (at 475 f-h)
At 477d-479a the Court found that the summary proceedings infringed on fairness on
account of the equality of arms principle and not the right to equality. ( According tot
Cameron J the situation in court is necessarily hierarchical - at 496d-e). It was found to
be reasonable and justifiable in an open and democratic society on account of the referral
system not catering for all instances necessitating immediate and summary remedial
measures for maintaining the authority and procedural integrity of lower courts and the
judicial recognition thereof in the USA and Canada. (at 479e-481h).
As long as the accused is informed of what misbehaviour the magistrate has in mind, the
provisions of section 25(3)(b) are complied with. (at 484e-j) The Court concluded that
the fact that the accused is in terms of section 108 immediately put on his defence, does
not create a reverse onus, but is analogous to the position of the prosecution having
established a prima facie case and to the application of a rule nisi merely shifting the
burden of adducing evidence - ultimately proof beyond reasonable doubt is required. (at
485f-486i)
It was found that the fact that the magistrate was a witness does not per se render the
magistrate partial (at 492h-493g).
34. S v Moseki 1997(2)SACR 325 T (s.108) at 331a-c: 21
“Moes die landdros die beskuldigde gewaarsku het van die moontlike klag teen hom voordat vrae aan hom gestel is?... In die onderhawige geval het die landdros 'n aantal vrae gestel ten einde hom ten staat te stel om prima facie te oordeel of 'n ootreding van art 108(1) begaan word. Dit is in orde. Daarna het hy die beskuldigde 'n geleentheid gegee om sy saak te stel in die lig van moontlike optrede onder art 108(1). Ook dit is in orde.”
At 331e-i:
“Die beskuldigde bekla hom dat die landdros nie onpartydig was nie. Nie op grond van enige persoonlike voorkeure aan die kant van die landdros nie, maar bloot omdat hy aanklaer, getuie en regter in dieselfde saak geword het. Dat dit 'n nadeel is in die summiere proses onder art 108(1) is duidelik. Dit is egter inherent in die proses dat die landdros mag staatmaak op sy sintuiglike waarnemings wanneer die geval van so 'n aard is dat die summiere proses aangewese is. “
The Court found in casu that immediate action was not necessary and that he could have dealt with the prosecutor extra curiam (at 331i-332a).
At 329g-j:
“... moet die landdros toesien dat sy optrede daarvolgens nie die waardigheid van die hof skaad nie. Dit stel hoë eise in dikwels moeilike omstandighede wat weinig tyd laat vir besinning. Tog mag die basiese stelreëls nooit uit die oog verloor word nie: bly koelkop en bly uit die arena uit... Die hele proses was onwaardig...is die dekorum van die hof geskaad.”
22
35. S v Maghuwazuma 1997(2)SACR 675 C: There was a previous history of problems
between the magistrate and the accused, an attorney, with regard to his failure to appear
in court. His application for recusal was refused as well as his subsequent request for a
postponement in order to obtain legal representation (at 678b-f). It was held that the
magistrate should have afforded the accused the opportunity of dealing with certain facts
on which he relied (at p679i-680f).
“Veral in ‘n saak, soos die onderhawige, waar die aangeklaagde se verklaarde - en nie onredelike - vrees was dat die landdros nie onbevooroordeeld is nie, moes die landdros deeglik besin of summiere verrigtinge werklik nodig was. Sodanige besinning sou hom, na my oordeel, tot die slotsom lei dat dit beter is om die saak na die Prokureur-generaal en/ of Vlok se professionele liggaam te verwys. Hierdie was eenvoudig nie ‘n geval waar die handhawing van die hof se waardigheid of die voortsetting van die hofproses optrede daar en dan teen Vlok vereis het nie.”
36. S v McKenna 1998(1)SACR 106 C: the facts appear at p 110-111. The conviction
arising from s.108 was set aside on inter alia the following grounds:
• Denial of legal representation and the finding that a delay would not have
had a detrimental effect on the administration of justice (at p 113).
• Reliance by the magistrate on his own investigation and failing to afford
the accused an opportunity of dealing with it (at 118c-f).
• The conduct could have been dealt with administratively (at 115f-g; 118h).
• Reference is also made to the Maasdorp case where failure to tender an
acceptable explanation or apology in chambers or in court was
contemptuous. 23
37. Uncedo Taxi Service Association v Maninjwa and Others 1998(2)SACR 166 ECD at
167h-j:
“It would appear from cases ... that the object of this type of procedure is the imposition of a penalty in order to vindicate the Court's honour consequent upon the disregard of its order ... and to compel the performance thereof... “
“The maintenance of the independence and authority of the Courts requires that they be free to deal with such offences in a summary fashion. One of the chief objects of this kind of procedure is to compel performance of the Court's order as expeditiously as possible. The institution of criminal proceedings with all the attendant delays would in many cases hamper the achievement of this object. Furthermore, once a matter has been referred to the Attorney - General it is removed from the court's control.” (at 177 e-g)
“It does not, in my view, lend any support to Mr Matthee's contention that the summary procedure for contempt committed ex facie curiae is unconstitutional... the judgments in Coetzee's case ... ‘cannot be read as rendering unconstitutional in all cases the imposition of imprisonment for the failure to comply with an order of court'.” (at p171 e-f)
“In my view the right contained in s 35(3)(a) is amply afforded to an alleged offender in summary proceedings instituted by way of notice of motion. The founding affidavit of the applicant will of necessity set out in some detail the averments in support of the application for committal and will specify the respect in which the offender allegedly committed contempt of court ex facie curiae. The fact that these averments are contained in a notice of motion and affidavit and not in a charge sheet seems to me to be of no consequence whatsoever. If anything, the 24
offender would in the normal course of events be afforded a great deal more particularity concerning the alleged contempt in an affidavit than in a charge sheet. A wide range of conduct may fall within the ambit of contempt of court ex facie curiae... It does not follow therefrom, however, that the `charge' against the offender cannot be formulated with sufficient clarity and certainty in the affidavits filed in support of the summary procedure. Once the details of the alleged contempt have been so specified the requirement entrenched in s 35(3)(a) will have been met ...” (at p172b-f)
“...Lord Denning said ... `The notice which is given to the accused must give with it the charges against them with all the particularity which this Court or the High Court here ordinarily requires before depriving a person of his liberty. He must be given notice of any new charge and the opportunity of meeting it... “(at p175b-d)
“In the result it is clear, in my view, that the fact that contempt proceedings are brought summarily by way of notice of motion does not mean that they cannot be conducted fairly in consonance with the provisions of s 35(3) of the Constitution Act. As in R v Cohn (supra), it will be the responsibility of the Court hearing the matter to ensure that the procedure adopted complies with the principles of fundamental justice measured against the yardstick of the provisions of s 35(3).” (at p 177a-c)
38. De Lange v Smuts NO and Others 1998(3)SA 785 CC the procedure was not
disapproved - at par 152:
“Our common law concerning contempt of court has long recognised the power of courts of law to imprison people at least in part to coerce them to comply with court orders. As Steyn held in S v Beyers 1968(3)SA70(A) at 80C-E...” 25
C.
FOREIGN CASE LAW:
Contempt proceedings are recognized in i.a. India, The United States of America, the United
Kingdom and Canada.
1. Balogh v Crown Court [1974] 3 ALL ER:
“What then is the jurisdiction at common law to commit for contempt? In the 18th century it was a jurisdiction in which the judges of ‘all courts of record generally... may proceed in a summary manner, according to their discretion’:... By summary manner, Hawkins meant ‘without any Appeal, Indictment, or Information’. It is clear both from Hawkins and Blackstone that this summary jurisdiction was not confined to cases where the contempt occurred in the court itself. From the way these authors expounded the law (and they did so in similar terms) the inference is that at the time they wrote there was no doubt whatsoever about the existence and extent of the jurisdiction and that it was no innovation...” (at 294e-g)
“... in the ordinary way the High Court does not act of its own motion. An application to commit for contempt is usually made by motion either by the Attorney-General or by the party grieved... All I find in the books is that the court can act on its own motion when the contempt is committed ‘in the face of the court’. Wilmot CJ in his celebrated opinion in R v Almon said: ‘... it is a necessary incident to every Court of Justice... to fine and imprison for a contempt to the Court, acted in the face of it...’ Blackstone in his Commentaries on the Laws of England said: ‘If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges...’ 26
Oswald on Contempt said:’...upon contempt in the face of the Court an order for committal was made instanter’ and not on motion. But I find nothing to tell us what is meant by ‘committed in the face of the court’. It has never been defined. Its meaning is, I think, to be ascertained from the practice of the judges over the centuries. It was never confined to conduct which a judge saw with his own eyes. It covered all contempts for which a judge of his own motion could punish a man on the spot. So ‘contempt in the face of the court’ is the same thing as ‘contempt which the court can punish of its own motion’. It really means ‘contempt in the cognizance of the court’.” (at p287b-f)
“This power of summary punishment is a great power, but it is a necessary power. It is given so as to maintain the dignity and authority of the judge and to ensure a fair trial. It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately - so as to maintain the authority of the court -... It is, of course, to be exercised with scrupulous care, and only when the case is clear and beyond reasonable doubt:... But properly exercised, it is a power of the utmost value and importance which should not be curtailed... From time to time anxieties have been expressed lest these powers might be abused... As I have said, a judge should act of his own motion only when it is urgent and imperative to act immediately. In all other cases he should not take it on him to.... move. He should leave it to the Attorney-General...” (at p288e-h)
“The power which the judge exercised is both salutary and dangerous: salutary because it gives those who administer justice the protection necessary to secure justice for the public, dangerous because it deprives a citizen of the protection of safeguards considered generally necessary to secure justice for him. This appeal gives an opportunity to make clear that it is a power to be used reluctantly but fearlessly when, and only when, it is necessary to prevent justice being obstructed or undermined - even by a practical joker. That is not because judges, jurors, witnesses and officers of the court take themselves seriously: it is because justice, whose servants they are, must be taken seriously in a civilised society if the rule 27
of law is to be maintained. It must be left to the common sense of judges... to decide when they must resort to this power.” (at 293d-f)
2. R v Cohn 1984 - 10 CRR:
2.1 “The code does not define contempt. Resort must be had to the common law... contempt of court is a common law offence... Historically, at least since R v Almon... three procedures were available to prosecute the offence of criminal contempt: the summary process, criminal information; and indictment... Criminal contempt has been considered historically and indictable offence... In practice the process of trying criminal contempt on indictment was never often used “and now seems to have fallen into desuetude... procedure by indictment was sometimes formerly used, it appears to have been limited to cases of contempt committed outside the court. In R v Parke [1903] 2 K.B. 432 at 442, Wills J. said: “It is said... that there is a remedy by criminal information or indictment. The latter remedy is unsatisfactory on account of the necessary delay, though it has been made use of...” Procedure by way of criminal information has been abolished in Canada by s. 506 of the Code. With respect to contempt committed in the face of the court, case law indicates that there are three methods for the initiation of summary proceedings: (1) orally citing for contempt and dealing with the matter at once or after allowing the alleged contemnor a short period of time to obtain counsel; (2) orally directing the alleged contemnor to appear in court at a specified time to show cause why he should not be cited for contempt.... (3) sending a letter to the alleged contemnor directing him to appear in court to answer the charge...” (at p147-148)
28
2.2 “This court has held that contempt in the face of the court is an offence which is criminal in nature with respect to the proof of which all of the usual principles of law relating to proof of offences under the Criminal Code are applicable... Other courts have reached a similar conclusion with respect to contempt committed outside of the court.... “(at 151)
“It was held, however, in A.-G. Que. v Laurendreau ..., that the exercise by a superior court of criminal jurisdiction of contempt of court powers with respect to contempt of court not in the face of the court is merely an aspect of the exercise of inherent powers essential to the administration of justice in any criminal case, but it does not result in the accusation of a person having committed an offence within the ordinary meaning of that word and accordingly a person cited for such an offence is not a person charged with an offence within the meaning of s. 11 of the Charter. It is my opinion that, whatever may be the case with respect to contempt outside of court, contempt in the face of the court consists of conduct which deliberately and in most cases publicly flouts the law and interferes with the due administration of justice. It has the characteristics of a criminal offence and constitutes a criminal matter. In my view a person cited for contempt is charged with an offence within the meaning of s.11.... Even if contempt proceedings are not properly characterized as criminal matters, there can be no doubt that they must, at the very least, be characterized as penal matters.” (at p152)
“The critical issue in the present case, however, is whether the provision of s. 11(f) giving a person a right to trial by jury is applicable to this case where summary proceedings have been used... It is clear that the courts, in exercising their inherent jurisdiction to punish criminal contempt by the summary process of committal have recognized the arbitrary and unlimited power historically associated therewith and their obligation to exercise it with the greatest of caution.” (at p153)
“It is open to serious doubt whether procedure by way of indictment for the common law offence of criminal contempt is still available. In R v Vermette..., Belzil JA had occasion to consider this matter and said at pp. 102-3 CCC: Section 8 does not purport to preserve indictment for the common law offence of 29
criminal contempt. By preserving “the power, jurisdiction or authority... to impose punishment for contempt of court”, this section was intended to preserve the power of the courts to punish contempt by the summary procedure. It is only within the framework of this procedural power that the offence of criminal contempt in its broadest common law definition is preserved.” (at p162)
“Although procedure by way of indictment may no longer be available to prosecute a charge of contempt, it undoubtedly still remains an offence in the nature of an indictable offence with respect to which the courts in the exercise of their inherent jurisdiction have made summary procedure applicable... where the circumstances are so compelling and the need for action on the part of the presiding judge so urgent to preserve the order and protect the authority of the court that come limitation on such rights, particularly with respect to time, may be justified. Where such circumstances exist, the limitations sought to be imposed will have to be considered in the light of the provisions of s.1 of the Charter. Simply put, it is a matter of the common law continuing to evolve as it has done for centuries but henceforth, in Canada, it must evolve within the framework provided by the Charter to safeguard individual rights. Each case will have to be decided on its own particular facts...”(at p164)
“It cannot be said that the common law with respect to the offence of contempt of court and the procedure for the prosecution of the offence would be on its face unreasonable when measured against the rights and guarantees in the Charter relied upon by the appellant... It is accordingly the responsibility of the court of first instance to ensure that the procedure adopted in the prosecution of a contempt of court charge complies with such principles and that it does not have the effect of violating the right of an accused under the Charter. These proceedings are of course in cases of summary convictions for contempt of court either in the face of or outside of the court subject to appeal to the Court of Appeal of the province in which the proceedings take place pursuant to the provisions of s.9(1) and (2) of the Code. In my view, it is entirely appropriate that this be done on a case-by-case basis.” (at p159-160)
30
2.3 “Although the charge was tried by the same judge before whom the alleged contemptuous behaviour took place, such behaviour was not disorderly, contemptuous or insolent toward the judge in a manner which might bring into question the ability of the judge to remain impartial or create a reasonable apprehension of bias in the accused... “ (at p147)
“...it cannot be said that the trial of the contempt proceedings by such judge would reasonably create in the mind of the alleged contemnor an apprehension of bias or lack of impartiality on the part of the judge... There is no basis for a finding that the presiding judge in the present case was other than independent and impartial.” (at p156-157)
“... there are undoubtedly cases where the judge before whom the alleged contempt is committed should not be the judge presiding at the contempt proceedings, for example, where the act complained of consists of insulting or insolent behaviour towards such judge.” (at p158)
3. Naunchek v Naunchek (Conn) 463 A 2d 603, 37 ALR 4th 995 at p1001 and 1002:
“... Mayberry v Pennsylvania, held... that the fair administration of justice disqualifies a judge from sitting in judgment on a contempt charge if he has become so personally embroiled with a contemnor that it is unlikely for him “to maintain that calm detachment necessary for fair adjudication”... We are mindful of the oft-quoted statement ... that “[s]ummary punishment always, and rightly, is regarded with disfavor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes.”... “[T]he inquiry must be ... whether there was ‘such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused”.”
4. The following are contained in the Annotations of the latter case:
“... held that it was unnecessary for the trial judge here to disqualify himself from 31
ruling on the contempt despite the fact that it had been directed against him personally, the court pointing to the traditional rule of the inherent power of a court to defend its own dignity. The court upheld the trial court’s characterization as contemptuous the contemnor attorney’s language to the effect that the court “obviously” did “not want to apply the law,” considering it to be just such an attack on the court’s integrity as would justify a summary punishment for contempt, and found from the circumstances available in the record that the judge had not become so personally embroiled as to cast doubt on his objectivity. Holding it unnecessary for the trial judge, whose knowledge of the law had just been impugned in open court by an attorney before him, to recuse himself from any adjudication of contempt against that attorney, and this upholding the judge’s summary judgment of contempt against the attorney in question, the court in Smith v Adams (1982) 161 Ga App 820,288 SE2d 775, declared that the power to punish for contempt is inherent in every court of justice, and that it is absolutely necessary that a court should possess this power in order to carry on the administration of justice and preserve order and decorum in the court. It was settled doctrine in the jurisprudence both of England and America, the court continued, that for direct contempt committed in the face of the court, the court might, in its discretion, instantly apprehend and immediately imprison the offender without trial or issue, and without other proof than its actual knowledge of what occurred. Although arbitrary in its nature and liable to abuse, the court said, such power is absolutely essential to the protection of the courts in the discharge of their functions.” (at p1013)
“...the Supreme Court of the United States and a number of other courts have held in cases involving such contempts before state judges that disqualification of the contemned judge is necessary, or at least highly desirable, where the judge has, as a result of the contempt, become emotionally involved or “embroiled” to a point where his or her objectivity is reduced or reasonable questionable ... although a judge clearly free from such bias may continue to preside over the contempt proceedings... The rationale for this position appears to be that, absent 32
the exigencies of the instantaneous proceeding, the due-process rights of the contemnor to a completely impartial tribunal have a relatively higher position as against the right of the courts to be free from the administrative burden and delay resulting from the necessity of bringing in a different judge to replace one whose objectivity may reasonably be questioned... on the theory that no normal person, even one so trained to self-discipline as a judge, could fail to be affected thereby, some contempts, even though direct, in open court, and either actually or arguably “involving” the trial judge, have been seen by the reviewing courts as being of a nature so mild that exposure thereto should not affect the objectivity of an ordinary judge...” (at p1009)
D.
SECTION 108 - INHERENT SUPREME COURT POWER - IN OR
EX FACIE CURIAE - JUDGES OR INSTITUTIONS
1.1 Section 108(1) of Act 32 of 1944 reads as follows:
“108. Custody and punishment for contempt of court. - (1) If any person, whether in custody or not, wilfully insults a judicial officer during his sitting or a clerk or messenger or other officer 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...”
1.2 Although the headings refers to contempt of court, no specific mention is made in
the body of the section of:
1. The fact that the behaviour amounts to contempt of court
2. The administration of justice and the impact thereon 33
3. That the behaviour constitutes an offence
4. A trial or enquiry.
1.3 By contrast s.106 (disobedience of court judgments and orders, etc.) specifically
constitutes the offence of contempt of court. An ordinary criminal trial is clearly
intended; there being no provision for a summary enquiry.
1.4 It was in my view incorrectly decided in the Van Rooyen and Lavengha cases (referred
to in paragraphs B 11 and 33) that “upon summons” refer to “on indictment” or referral
to the prosecuting authority.
It appears from the wording that a person is “liable to be sentenced” either “summarily”
in the sense of immediately, “there and then” or “upon summons” which may result in
proceedings on the same day or later - the summons is issued by the magistrate. In no
way is the intervention of the prosecuting authority envisaged; either way it proceeds at
the instance of the court. “Summons” refers to compelling the person’s presence in court
and not at whose instance or to the procedure in Court.
Vide: “Civil Summons” in section 1 of Act 59 of 1959
1.5 It is submitted that by enacting s.108 - it’s predecessor was section 103 of Act 32 of 1932
which contained no reference to a summons - the legislature endeavoured to ensure the
same degree of control in all levels of courts to a limited extent, viz. for lower courts
whilst in session.
34
1.6 It is improbable that the Legislature by introducing “summons” would so casually and
with such paucity of words have also specifically made it an offence so as to bring it
within the power of the Attorney - General to prosecute - a power which he in any event
for contempt in terms of the common law definition had.
2.1 It is interesting to note that section 9 of the Canadian Criminal Code abrogated English
law and common law, the authority of courts “to impose punishment for contempt of
court”.
2.2 My understanding of the Canadian law as set out in Watt and Fuerst, Tremeear’s
Criminal Code, the 1997 Annotated, is that: A court is entitled to proceed by
summary process, by citing for contempt committed not in the face of the court
where there is urgency; where there is no urgency procedure by way of notice of
motion is the proper manner.
Vide: Hamel v R and R v Froese, summarized at p39 and 40
2.3 In the latter case (notice of motion) it was held that the procedure can hardly be
described as “summary” except to distinguish it from procedure by indictment. It
appears that in both instances the process in court is “summary”; the different
procedure relating only to the manner of procuring the contemnor’s presence in
court.
2.4 It appears from the case, R v K(B), (referred to at p39), that the instanter
procedure refers to the urgent citing for contempt in contrast to a notice of motion 35
to secure the person’s attendance and not to the process / procedure in court.
3.1 In my view there should be no differentiation, procedurally and otherwise, on the
grounds that it happened in facie curiae or ex facie curiae. Although the former
more often occurs in the magistrate’s court, where it is punished under s. 108, it
should make no difference that a judicial officer takes cognisance of the act
immediately and through his “sintuiglike waarneming”: S v Moseki, at 331 e-i,
(par B35) or when e.g. he reads a newspaper article.
3.2 Contempt in court is usually more obvious, being witnessed by the magistrate
and requiring no further investigation. It results in prompt and summary - in the
sense of immediate - action, there being no need or place for a summons.
3.3 The integrity and authority of the courts etc., can be jeopardized irrespective of
place, time or circumstances - in some instances even more so when committed
ex facie curiae. It is irrelevant whether the judicial officer’s eyes are fixed on the
person. The distinction can become very artificial - vide S v Tobias (par B10).
3.4 The reported South African case law is mostly concerned with s.108 which differs
from the common law concept. The power of maintaining order during court
proceedings, is, apart from s.108 found in s.159(1) and s.178(2) of Act 51 of
1977, very important, especially with a view of finalizing the case in question.
However, orderliness of court proceedings is but a aspect of contempt.
36
3.5 Where it happens ex facie curiae, there should still be a summary, albeit
inevitably delayed committal procedure; the only difference being the manner of
securing the contemnor’s presence. If the Supreme Court’s power is recognized,
it is illogical that it is restricted to contempt in the face of the court. A court may
be scandalized in or out of court and it is sometimes fortuitous where exactly it
happens.
In S v Tromp 1966(1)SA 646 NPD at 653 it was remarked that it is just as much
an offence to terrorize a Judge after delivery of the judgement.
The possibility of personal embroilment or partiality on the part of a Judge is
more likely to occur in than outside court.
4.1 It was pertinently pointed out :
i. In re Dormer (at p81 - par B2) that it is the Judge who decides thereon and that
it should not be left to discretion of the Attorney-General.
ii. That it should be dealt with at once without awaiting formal charge: Attorney-
General v Crockett (par B3).
iii. That a court is in the best position or best equipped to decide on its invocation -
R v Silber (at 483 - par B6).
iv. In Makiwame v Die Afrikaanse Pers Bpk case (par B9), it was referred to as
the means at the disposal of the Judiciary.
v. That a court should have a remedy at its disposal - S v Sokoyi (par B18).
vi. It should be dependent on the will of the Court - Coetzee v Government of the 37
RSA (par B30 at p668).
vii. Courts must be free to deal with it - the Uncedo case, at p177e-g (par B37).
4.2 It appears that historically the power of the Supreme Court flowing from its inherent
power and at its own instance in, contrast to leaving it to the discretion of the Attorney-
General, was recognized. A view of “a wiser course for the court not to take into its own
hands the summary punishment...” was also expressed. (Cape Times v Union Trade
Directories, at 125D-E - par B7). For the reason set out in par 3 (supra) the view
expressed in the latter case that the proceedings are summary merely because the Court is
a witness is with respect not correct.
4.3 The inherent power of the Supreme Court is recognized in the Constitution of 1996.
“173. Inherent power. - The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.”
4.4 Furthermore s.165 of the Constitution provides that the functioning, dignity and
effectiveness of Courts be ensured.
“165 Judicial authority. - ... (3) No person or organ of state may interfere with the functioning of the courts. (4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.”
4.5 “Organ of state” does not include a court or a judicial officer in terms of s.239. 38
Whilst s.165(4) places an obligation on organs of State, it does not exclude
authority or discretion - even the public must or should comply with it.
4.7.1 Vide with regard to Canadian Law D Watt and M Fuerst Tremmeear’s Criminal
Code (supra), at p 809:
“PRESERVING ORDER IN COURT. 48.4.[440] Every judge or provincial court judge has the same power and authority to preserve order in a court over which he presides as may be exercised by the superior court of criminal jurisdiction of the province during the sittings thereof... Commentary - The section confers upon judges and provincial court judges the same power and authority to preserve order in their respective courts as that which may be exercised by a judge of the superior court of criminal jurisdiction during the sittings of that court... It is indispensable to the due administration of justice that the presiding judicial officer have control of the proceedings. The section endeavours to ensure the same degree of control in each level of court and is most frequently engaged to found the authority to commit for contempt in the face of the court. It does not purport to incorporate the wider authority of the superior court of criminal jurisdiction to punish for contempt committed out of the face of the court.”
4.7.2 In respect of lower courts the latter section differs from our s.108 which includes
insulting a judicial officer.
5.1.1 It appears from R v Torch (at 820E-F - par B8) and the Argus / Esselen case
(at 29E-F - par B28) that contempt is committed where attacks are directed
against a single court or judge, courts generally or the administration of justice in 39
general.
Vide also: In re Dormer at p89 (par B1)
5.1.2 Vide: S v Van Niekerk 1970(3)SA 655 T concerning scandalous reflection on
Judges, at 657F-G:
“I think that before a conviction can result the act complained of must not only be wilful and calculated to bring into contempt but must also be made with the intention of bringing the Judges in their judicial capacity into contempt or of casting suspicion on the administration of justice.”
5.1.3 S v Van Niekerk 1972(3)SA 711 at 711F-H: Reference in a statement was inter
alia made to the inaction of the Judiciary.
The Court found with reference to a portion of his speech (which appears at
716F-I) that the “true basis ... for contempt of court lies in the interests of the
public, as distinct from the protection of any particular injured Judge or Judges”.
(at p720H-I)
5.1.4 Although the statement in question in the Executive Council case (par B31) was
directed at this Court the potential impact on the administration is very serious on
account of this Court’s different status alone. I am not aware of authority that
generalised criticism of institutions of courts in contrast to individual judge(s) and
judgment(s) is a requirement.
5.2. It is submitted that regard must be had to the following: 40
5.2.1 It’s object is not the personal vindication of a judicial officer; it must be in a
judicial capacity.
5.2.2 The courts are there for the sake of the public - S v Tromp (supra) - and
they must have respect for and confidence in judicial officer and courts to
ensure order to the extent that they are called upon to do so by the
application of law. Social order and security depends on confidence in
courts. Judges must be taken seriously in civilized society if the rule of law
is to be upheld - they are the instruments or servants of justice - Balogh v
Crown Court (par C1) - who act as watchdogs of (constitutional) rights -
S v Lavengha at p474 (par B33) - entrusted with upholding the authority
of law as administered in the courts. The proper administration of justice
is not adequately maintained by laying down the law without control.
5.2.3 The public’s respect and confidence ultimately pertains to the
administration of justice or upholding of the rule of law, but they do so by
having respect and confidence for individual judicial officers who are the
human symbols or embodiment thereof.
5.2.4 In the end the question is what the impact is. Usually the more
generalised the transgression is the more likely this right of the public will
be breached. If this right is not enforced on a (more) individual level, the
cumulative effect (of non-enforcement) will have the said impact. There 41
must also be deterrence from transgressions. The gravity of the impact
may be reflected in the sentence.
E.
PROCEDURE
1.1 If the proceedings are regarded as ordinary criminal trials or some other form
where s.35(3) fair trial right must or should be applied, generally speaking
potential infringements thereof are in respect of the following:
• to be sufficiently informed of the charge - ss (a)
• to a trial before an ordinary court, especially bearing in mind the multiple
“caps” that can be worn by a judicial officer - ss (c)
• adequate opportunity to defend, including legal representation - ss (b), (f),
(g) and (i)
• to be presumed innocent, to remain silent, and not to testify during the
proceedings - ss (h).
1.2 It will be submitted that none of any possible (injustifiable) infringements
mentioned infra occurred in casu.
2.1 Although not consistently applied, the importance of ensuring that a contemnor
fully realises what case he has to answer was recognised in i.a. In re Dormer
(par B2), R v Keyser (par B5), S v Shapiro 1987(2)SA 482 BGD and S v 42
Mabaso (par B20).
This should be so irrespective of the nature of the proceedings.
2.2 A conventional charge sheet is not a prerequisite. The format is not important -
setting it out in e.g. an order is sufficient.
Vide: Uncedo Taxi Service Association v Maninjwa and Others (par
B37 - at p172b-f)
2.3 Oral citation is sufficient, as always happens at s.108 proceedings.
2.4 At contempt proceedings there is no formal plea - unless his replies or
explanation or argument is regarded so - somewhat analogous to the situation at
a criminal preparatory examination where the accused pleads at the end of the
proceedings.
Pleading to a charge sheet at the beginning of a criminal trial defines or limits the
lis. It appears that not only past but also further possible future transgressions
could be and were punished.
Vide: The provisions of s.86 of Act 51 of 1977:
Uncedo Taxi Service Association v Maninjwa and
Others (par B37)
43
S v Zungo 1966(1)SA 268 NPD at 269D-E:
“Then, it seems, the appellant was given the opportunity of addressing in regard to sentence on that verdict, and out of that arose a further conviction of contempt of court.”
S v Sokoyi at 937A-F; 944 (par B18)I:
“Die oplegging van meerdere strawwe ... het bloot neergekom op ‘n futiele magsvertoon....”
R v Hawkey at 711H (par B13):
“An apology grudgingly given may even aggravate the contempt.”
3. THE RIGHT TO A TRIAL BEFORE AN ORDINARY COURT:
3.1 In the sense that the court is not a special court, the court in question is a normal court
having been previously established by law “in the ordinary legal manner” and required
to apply duly established procedures. It may be not so on account of the identity (or
“identities”) or composition of its members.
3.2 It appears that, although there is no specific mention thereof in s.35(3) and although s.34
does not apply to criminal trials, an independent and impartial court would a fortiori at
criminal trials be a requirement, being a general or residual fair right trial; it may also in
the context be implied by “ordinary court”.
Vide: also s. 12(a) and (e)
Van Dijk and van Hoof, Theory and Practice of the European
Convention on Human Rights, 2d ed, p319, 3rd par. 44
4.1 The wearing of an additional cap as investigating judge as was the case in S v
McKenna (par B36) especially where the contemnor is not afforded an opportunity of
dealing with it, may pose problems.
Vide: Van Dijk and van Hoof (supra) at p338-340
De Lange v Smuts (par B38) at par 63 which concerned intrusion
by the executive branch
4.2 The cap of a prosecutor
4.2.1 If it is regarded as the prosecution of a criminal trial in the conventional sense,
the fact that prosecution thereof is at the discretion or instance of the judicial
officer appears to be at odds with section 179 of the Constitution - although a
private prosecution is possible after the prosecuting authority’s discretion has
been exercised.
4.2. Apart from the power of courts of committal to prison after enquiries were held,
e.g. s.189 and 205 of Act 51 of 1977 and s.30 and s.32 of Act 59 of 1959, the
role of the prosecuting authority is absent where a conviction of “an offence”
occurs in terms of e.g. section 55 of Act 51 of 1977 and s.6 read with s.3(4) of
the Family Violence Act.
- S v Baloyi 2000(1)BCLR 86 CC
- Vide also s. 545, s.605(2) and s.708 of the Canadian Code.
45
However, apart form the “separation of powers” doctrine, the impartiality of the
judicial officer in the latter cases is not an issue.
4.3 The caps of witness / complainant and opponent
4.3.1 Merely by witnessing the conduct in court the judicial officer thereby takes
cognisance thereof to decide on the invocation of contempt proceedings -
otherwise he may take cognisance thereof when e.g. reading it in a newspaper.
4.3.2 Difficulties arise when:
4.3.2.1 The conduct is not conclusively or unambiguously contemptuous,
e.g. perceived intoxication where further investigation would be
necessary or where reliance is placed on facts and / or the
implications thereof are necessarily known to the accused - in
these circumstances it is even more imperative that the accused
exactly knows what is regarded by the judicial officer as
manifestations of contemptuous conduct.
Vide: S v Maghuwazuma (par B35)
S v McKenna (par B36)
4.3.2.2 Furthermore, concluding that an act and/ or consequences thereof
amount(s) to contemp, may to some extent be value based.
Usually the judicial officer is the (only) “other party”, i.e. the witness
“for the other side” or the opponent, which calls into question the 46
right (or desirability) to challenge the evidence by way of cross-
examination - not so much as to factual credibility but with regard
to the conclusions.
Vide: Van Dijk and van Hoof, (supra) p352-353 in respect
of article 6
s.35(3) (a) and (i)
s.87, 106, 161 and 166 of Act 51 of 1977
Adequate opportunity of a challenge while testifying or argument should be a
sufficient substitute.
4.4 The cap of a Judge
4.4.1.1 In some instances of ex facie curiae contempts not pertaining to
magistrate’s courts proceedings were initiated by the Attorney-
General - S v Torch (par B8), S v Harber (par B19), both S v Van
Niekerk cases (supra) and S v Gibson (par B13) . The
prosecuting authority have also always been involved in appeal
proceedings even concerning summary proceedings, as in casu.
4.4.1.2 For inter alia the reasons set out in par D3 of these heads and for
the sake of taking timely measures, a referral should not be a
requirement. Numerous authorities - some referred to in par B - are
concerned with the question of the need or desirability of a referral. 47
However, they pertain to magistrate’s courts, who have no
authority for summary proceedings ex facie curiae, their power
being circumscribed by s. 108 for contempt committed in and while
the court is in session.
4.4.2 If it is found that these proceedings are in the nature of ordinary criminal trials
and that the prosecuting authority is the sole authority to decide thereon, it
appears, with respect, that on a view of a rigid and absolute separation powers
doctrine, there may be an “interacting” by the judiciary.
However, it is submitted that the latter is not the case - the proceedings should
not be removed from the judiciary’s control. Alternatively, that they are
proceedings sui generis and that intrusions or restrictions are allowed. There is
no complete separation of powers.
4.4.3 In Re Certification of the Constitution of the RSA, 1996, 1996(4)SA 744(CC)
“The principle of separation of powers, on the one had, recognises the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another. No constitutional scheme can reflect a complete separation of powers: the scheme is always one of partial separation. In 48
Justice Frankfurter’s words, ‘(t)he areas are partly interacting, not wholly disjointed’ ... As the separation of powers doctrine is not a fixed of rigid constitutional doctrine, it is given expression in many different forms and made subject to checks and balances of many kinds...” (at par 109 and 111)
4.4.4 It appears that the areas are in fact interacting.
Vide paragraphs E 4.2 and D 4.1 of respondent’s heads.
What should rather be guarded against is the reverse situation viz. the
usurpation by the executive of the judiciary as was the case in De Lange v
Smuts (par B38) - there must be no “outside interference with a Judge.”
4.4.5 “For the impartiality it is required that the court is not biased with regard to the decision to be taken, does not allow itself to be influenced by information from outside the court room, by popular feeling, or by any pressure whatever, but bases its opinion on objective arguments o the ground of what has been put forward at the trial. Even when the reasons are included in a judicial decision , it is extremely difficult to ascertain by what motives a court has been led. It will therefore only be possible to conclude that a judge is biased when this becomes quite clear from his attitude during the proceedings or from the content of the judgment. Although a judge of course also has personal emotions, also during the proceedings, he must not allow himself to be led by them during the hearing of the case and in the formation of his opinion. “ Van Dijk and van Hoof (supra) at p336
4.4.6 It is submitted that the question in casu is rather one of potential impartiality than
independency. 49
Vide De Lange v Smuts (par B38 - at par 70 and 72)
4.4.7 The aspects of impartiality and open-mindedness are also found in inquisitorial
procedures (s.167 of the Criminal Procedure) and applications for recusal.
Vide: S v Gerbers 1997(2)SACR 601A at 606 and 607
S v Ngcobo 1999(3)BCLR 298(N)
“That, in turn, translates into the need to conduct a trial in a manner which makes it clear to everyone, especially the accused, that the presiding judicial officer is open-minded, impartial and fair. And while a court is obviously entitled to put questions to a witness, even the accused when giving evidence, and usually has to do so from time to time, these should not be put in such a way, or at such a time, or to such an extent, that it gives the impression that the court is not impartial or open-minded ....”(at 301G - I)
“Apart from the absence of any positive provision of that effect in the Constitution, statutory provisions, such as section 167 of the Code, plainly envisage a partly inquisitorial approach by a court in the criminal justice procedure. Such provisions have not been challenged as unconstitutional nor do I think they could be in view of section 36 of the Constitution, but they are the law, as this matter is presently decided, and they plainly permit judicial intervention in ....”(at 305H)
The need for an inquisitorial system was recognized in S v Baloyi (supra).
4.4.8 Vide: President of the RSA v South African Rugby Football Union 1999(4)SA
147 CC at par 42 and 48:
“Absolute neutrality on the part of a judicial officer can hardly if ever be 50
achieved, ...The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions.”
“Supreme Court Justices are strong-minded men” and in applying the test
for recusal, courts have recognized a presumption of impartiality”. (at par
40 and 44)
4.4.9 My understanding of the Muskwe and Lavengha decisions (par B25 and 33) are
that they are not authority for the proposition that these proceedings are in all
circumstances constitutional or unconstitutional - it was recognized in the
Lavengha case that some circumstances may render a judicial officer partial.
4.4.10 It is submitted that the test laid down in R v Cohn (par C2) at 147, 156- 157, viz.
whether the behaviour is such that it might bring into question the ability of
impartiality and whether there is a reasonable apprehension of bias, is the
correct one.
Vide also: Naunchek v Naunchek (par C3), viz. that a judge is
disqualified if he is so personally embroiled with a contemnor that
he is unlikely to maintain the necessary calm detachment or 51
“unable to hold the balance between vindicating the interests of the
court and the interests of the accused.”
4.4.11 Although court proceedings are by their nature hierarchical, in contempt
proceedings the arbiter is often not totally “disinterested”.
5. Although maintenance of effectiveness and respect for or confidence in the functioning
and authority of courts require prompt action, a reasonable time and opportunity should
be afforded an accused to mount a defence.
6.1 It is argued that there is no question of a reverse onus; the position being that the “state
case” in most instances will have been concluded and will have established a prima facie
case. According to the law of evidence pertaining to ordinary criminal trials, failure by an
accused to gainsay the state’s case can result in a prima facie case becoming conclusive
proof.
Vide: R v Cohn (par C2) at p157
“The accused is immediately put on his defence. It must be borne in mind, however, that in a case such as this there can be no doubt with respect to the facts which form the bases of the charge and they would in every such case be sufficient to prove the offence beyond a reasonable doubt. It therefore is incumbent upon the alleged offender to adduce some evidence in order to avoid a conviction. It is not a matter of the presumption of innocence being made inapplicable in contempt proceedings. In a case such as this it is simply a matter that the facts known to the presiding judge which took place in his court and with 52
respect to which there can be no doubt an no better proof adduced are such as to amount to prima facie proof unless the alleged contemnor calls evidence or gives evidence which affords to him a proper defence... At its highest, the application of a rule nisi by the presiding judge merely shifts the burden of adducing evidence as distinct from shifting the burden of persuasion to the accused. This court has already so held in R v Pereira(released September 22, 1983, as yet unreported) where Martin JA, speaking for the court, said: Summary proceedings for contempt in the face of the Court do not infringe the right of an accused to be tried before an impartial tribunal and his right to be presumed innocent. The burden on the accused is an evidential one only and if at the end of the proceedings there exists a reasonable doubt as to guilt, he is entitled to be acquitted... There may be cases where it is necessary for the prosecution to call evidence before there is any necessity for the alleged contemnor to adduce evidence, for example, where the act complained of is not apparent in the record, such as a gesture of a person perceived by the presiding judge as an insulting or insolent gesture towards him.”
Safcor Forwarding Ltd v NTC 1982(3)SA 654 at 676A:
“The objection that the issue of such a rule nisi places an unwarranted onus on the respondent is, in my view, unfounded, all that the rule does is to require the respondent to appear and oppose should he wish to do so. The overall onus of establishing his case remains with the applicant and the rule does not cast an onus upon a respondent which he would not otherwise bear.”
Vide also: R v K(B). The notion of citing in contempt ought not be used to express a finding of contempt, rather as a means to provide notice to D that he / she has been contemptuous and will be required to show cause why he / she should not be held in 53
contempt.
Treeamar’s Criminal Code (supra) at p39
Kriegler: Hiemstra: Suid-Afrikaanse Strafproses, 5th ed, p379-381
7.1 This Court has held that while the strict criminal procedure rules are not applicable to
recalcitrant witnesses (s.189 / 205), who are not accused persons resorting under s/25(3),
they are entitled to procedural fairness.
Nel v Le Roux NO and others 1996(3)SA 562CC at par 11, 14 and 22
“The nature of the fair procedure contemplated by this right will depend upon the circumstances in which it is invoked. The "trial" envisaged by this right does not, in my view, in all circumstances require a procedure which duplicates all the requirements and safeguards embodied in section 25(3) of the Constitution. In most cases it will require the interposition of an impartial entity, independent of the executive and the legislature to act as arbiter between the individual and the State.” (at par 14)
“... departures from criminal procedure applicable to ordinary criminal prosecutions are permissible and even in criminal contempt proceedings ‘procedure may vary somewhat from procedures applicable to ordinary criminal prosecutions’...” (at par 22)
7.2 In S v Baloyi (supra) this Court held with regard to a contravention of the Family
Violence Act:
“The form of proceedings is neither that of... an ordinary criminal trial, but
of a special enquiry involving elements of both ... the hybrid nature of the 54
process and the role given to the judicial officer...” (at par 19)
It was held that although a contravention of the interdict results in a conviction
and sentence for an offence (at par 22), it is necessary that the proceedings be
summary and inquisitorial in nature - at par 31:
“Fairness to the complainant in the special circumstances of the case necessitates that the proceedings be summary, that is, that they be speedy and dispense with the normal process of charge and plea. It also requires that they be inquisitorial, that is, that they place the judicial officer in an active role to get at the truth, which usually will be done through questioning the accused. Fairness to the accused, on the other hand, dictates, that within this format the general protection granted by the CPA should apply in measure similar to that available to a person charged under section 170.”
7.3 S v Dzukuda and others; S v Tshilo 2000(2)SACR 443 CC at par 10 and 11:
“It should not be assumed that a fair trial, as required by s 35(3), can only be achieved by one specific system of criminal procedure. There may be more than one way of securing the various elements necessary for a fair trial and provided the Legislature devises a system which effectively secures such right, it cannot be faulted merely because it settles for a system which departs from part procedures. The norm prescribed by s 35(3), is a ‘fair trial’. The question to be determined in each case is whether the criminal procedure scheme, or the relevant part thereof, devised by the Legislature, whatever its form, conforms in substance to that norm.... The test is not whether the procedure is ideal, but whether it is fair. A deviation from the perfect does not by that reason alone result in the accused not being afforded a fair trial.”
7.4.1 Although an examination of and comparison with s.35(3) rights must be 55
undertaken, the ultimate question is not whether the procedure equates that in
s.35(3), but whether it is fair.
7.4.2 The question is not whether any alternative procedure, e.g. a conventional
criminal trial after a referral would have been more appropriate, or more
desirable, or more fair. In many instances it can be said that a trial could have
been more fair.
7.5.1 Imprisonment is a competent, although rarely, imposed punishment - S v
Senyane 1993(2)SACR 643 O. As Lord Denning remarked:
“A contempt of court is an offence of a criminal character. A man may be sent to prison for it.”
7.5.2 It is submitted that the most important reason for holding a criminal trial is
ensuring just cause i.e. that a person is not wrongly imprisoned, stigmatised etc.
Therefore a higher standard of proof is required than in civil matters. Enquiries
on the other hand, usually serve different purposed and “the prisoners carry the
keys of their prison in their own pockets.” The object of many of the safeguards
in s.35(3) are to make it necessary or “not easy” to have a charge proven beyond
reasonable doubt.
Whether or not the proceedings are termed as an enquiry, the position appears
to be that it is an “offence criminal in nature with respect to the proof of which all
the usual principles of law relating to proof... “ should apply - R v Cohn (par C2 - 56
at p151).
7.5.3.1 As long as the required safeguards to ensure the standard of proof
beyond reasonable doubt are complied with, the nature of the
proceedings are not relevant.
7.5.3.2 There is no reason for departure from the tradition of the Supreme
Court of being in control of invoking contempt proceedings and that
they be summary irrespective of the place and time of the breach.
Public order and policy require it. If the Judge’s impartiality is an
issue, the steps referred to in par. A 3.2 of these heads could be
taken.
F.
FREEDOM OF EXPRESSION - RULE OF LAW- LIMITATIONS
1. “...no politician should be permitted to silence his critics. It is a matter of the most
fundamental importance that such criticism should be free, open, robust and even
unrestrained. This is so because of the inordinate power and influence which is wielded
by politicians, and the seductive influence which these attributes have upon corrupt men
and women. The most appalling crimes have been committed by politicians because their
baseness and perversity was hidden from public scrutiny.” 57
Mandela v Falati 1994(4)BCLR 1 (W) at 9B-C.
It is submitted that the latter considerations do not apply in casu.
2.1 Intolerance with disagreeable ideas and the repression of more than is necessary should
be guarded against. The important role of the press to inter alia reveal ineptitude and to
promote accountability was once again recognized in Government of the RSA v
Sunday Times Newspapers and Another 1995(2)SA 221 T. Furthermore the concept of
the market-place of ideas also contribute to a tilt in favour of free speech. However, there
are competing rights.
2.2.1 “The purpose of making contempt a criminal offence is to protect ‘the fount of justice’ by preventing unlawful attacks upon individual judicial officers or the administration of justice in general which are calculated to undermine public confidence in the courts”. Argus Printing and Publishing Co Ltd and others v Esselen’s Estate (supra)
at p29E-F.
2.2.2 Although any competing rights are not provided for in Chapter 3, the right of freedom of
expression may be limited in terms of section 36(2) insofar as it is provided for in
another provision in the Constitution. As referred to in paragraphs 5.2.2 and 5.2.3 of
these heads, the dignity, effectiveness and authority of courts are important for the
public’s confidence. Courts also have (or should have) dignity and the public has a right
to the freedom of relying on respect for the authority of courts and its resultant
effectiveness. It was remarked in Du Plessis v De Klerk 1996(3)SA 850 CC, that our
law unlike that of the USA, recognizes dignity (of the individual). 58
2.2.3 Even if the notion of contempt of the court is possibly based on “articles of faith” and
“ancient concepts of governments” it does not mean it should be rejected because the
raison d’être has changed.
Vide: Van Niekerk: SALJ, Sept 1978, vol 95, Part III. The Uncloistering of
the Virtue: Freedom of Speech and the administration of Justice.
2.2.4 It is submitted that the fact that Judges because of their position attract public criticism
and the fact that they should be accountable, do not mean that people have carte blanche.
The idea of “he who enters the list...” does not apply. Judges and courts can not
be allowed to fall under a “disability sphere”. It should not be left to public opinion
to protect the fount of justice.
3. Although Holomisa v Argus Newspapers Limited 1996(6)BCLR 836 W dealt with
defamation, the following, at 860D - 861B are apposite:
“Secondly, Sullivan imposed an inhibition on public officials’ defamation claims against a First Amendment background that seems to me to differ greatly from even our post-Constitution understanding of free speech. Thus, in Bridges v California 314 US 252(1941), the Supreme Court on First Amendment grounds severely curtailed the courts’ contempt jurisdiction. This is a field where, so far as I know, few have suggested that American jurisprudence should be followed... But the “most fundamental” reason for approaching the Sullivan rule with reservation “is that it gives wholly insufficient weight to an individual’s right of reputation”: “A person who goes into public life must expect robust and often unfair criticism. That is part of the price of going into public life. But it does not follow that it is necessary to deprive him or her of any right to reputation. 59
There are surely some libels so gross and offensive that they should be punishable only on condition that they are proved to be true.”
4. The right of the public to proper and effective administration of justice and confidence to
rely thereon is not a lesser right than freedom of speech. The administration of justice
requires that a judicial officer in appropriate circumstances “shrieks” instead of “shrugs”
and that he does not “grin and bear” it.
Vide also: Executive Council of the Western Cape Legislature and
Others v President of the RSA and others (par B31)
5.1 The provision in the Indian Constitution has internal limitations.
5.2 German basic law does not recognize absolute freedom of speech.
Kauesa v Minister of Home Affairs and Others 1994(3)BCLR 1 NmH at 29F-
31D
5.3 In the latter case it was remarked that it was even recognized in the USA that freedom of
expression had been subject to certain “well-recognized exceptions arising out of the
necessities of the case” (at 22E-G), and that restrictions are narrower in the USA than in
other modern constitutions.
And at 24A-E with regard to “clear and present danger”:
“The learned author Eric Barendt had this to say about the nature and place of this requirement in his book Freedom of Speech at 32: “... the Court has never taken literally the injunction ‘shall make no law... 60
abridging the freedom of speech...’ The objection to the absolutist position... is not only that it is difficult to sustain in the real world, when courts are necessarily conscious of the vital interests that may be threatened by unrestricted speech... What is left is the process of balancing, a technique developed by the United States Supreme Court over the last fifty years without constitutional guidance. Other interests, such as public order, national security... are weighed in the scales with free speech, and found ‘compelling’ or perhaps ‘substantial’ may justify the restriction. One form of balancing test is the famous ‘clear and present danger’ formula... This limitation has been placed in perspective in the judgment in.... where it is stated: “‘Clear and present danger’ was never used by Mr Justice Holmes to express a technical legal doctrine or to convey a formula for adjudicating cases. It was a literary phrase not to be distorted by being taken from its context. In its setting it served to indicate the importance of freedom of speech to a free society, but also to emphasis that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our constitution. When those other attributes of a democracy are threatened by speech the constitution does not deny power of the States to curb it”. (at 24A-E)
“In view of the differences with our constitution, the frustration of some judges in the USA, particularly the frustration of some dissenting judges, can be better understood in Namibia. And example is Jackson J said in a dissenting judgment in Terminiello v Chicago: “This Court has gone far towards accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into 61
a suicide pact.... most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixed its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society’s need for public order. An old proverb warns us to take heed lest we ‘walk into a well from looking at the stars’... I think the Court is in some danger of doing just that....” (at 24I-25C)
6. National Media Ltd and Others v Bogoshi 1999(7)BCLR 1 (SCA) at p11C-e:
“In the Church of Scientology case supra at 159-160 Cory J said: ‘False and injurious statements cannot enhance self-development. Nor can it ever be said that they lead to the healthy participation in the affairs of the community. Indeed they are detrimental to the advancement of these values and harmful to the interests of a free and democratic society... False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre.’ In similar vein is Gertz v Robert Welch, Inc 418 US 323 at 339-340 where the point is made that there is no constitutional value in false statements of fact, but that an erroneous statement of fact is nevertheless inevitable in free debate.”
7. The definition of contempt complies with the ius acceptum and ius certum principles.
Vide: Snyman, Strafreg, 4th Edition p36-48
7.1 Contempt of court has been an offence in South African Law for a considerable time.
Legal provisions have to be formulated in general terms. The definition of contempt is
not vague, on account of difficulties in some instances to determine whether the facts
constitute contempt. 62
Vide: S v Friedman 1996(1)SACR 181W at 192f-g. 194b-h, especially at 194f-h:
“... ‘indecent’, ‘immoral’ or ‘scurrilous’ ... are nowhere defined... It is within the role of the judiciary to attempt to interpret these forms. If such interpretation yields an intelligible standard, the threshold test... is met.” S v Lavengha (supra) at 484H
7.2.1 Realistically speaking human beings in general can never be absolutely objective or
consistent. There may be differences amongst judicial officers about what constitutes
contempt and the manner of dealing with it. This phenomenon is also present amongst
prosecutors in deciding whether to prosecute and if so, how. Law is not an exact science,
e.g. determination of “beyond reasonable doubt”, what constitutes “mitigating
circumstances”, “equal”, “fair”, etc. They must be interpreted by judicial officers. That
some acquittals result or that decisions are overturned on appeal does not mean that there
can be no prosecutions or convictions.
7.2.2 The “alternative procedure” for contempt proceedings, e.g. for attorneys, should in my
view not be the test - it would result in more arbitrariness in that there will be inequality
vis à vis persons with regard to which there is no other remedy. It would then also not be
a law of general application. Apart from the inevitable delays it should not be left to
private parties, in casu mr. Terreblanche, to initiate contempt proceedings or other action
to enforce the court order. Private parties do not have the same remedies at their disposal,
it has cost implications and it should not be left to the will of anyone else than the Court -
S v Beyers, at p81 (par B14).
63
7.3 It is submitted that the offence of contempt constitutes a “just cause” for punishment and
is not regarded as constitutionally offensive in other open and democratic countries.
7.4 Public confidence in and the effectiveness of the administration of justice are important
objectives. Contempt proceedings, including the summary procedure, are reasonable
measures for achieving this goal. The fact that it has sometimes been abused is no reason
for rejecting it - as long as the procedure is fair and due recognition is given to the right
of freedom of speech which is responsibly exercised.
7.5 There are not less restrictive means to achieve the purpose. Extra curiam measures are
not available in all instances. The alternative to the summary procedure, viz. a referral to
the prosecuting authority, will not adequately achieve the goal on account of the
inevitable delays... and no guarantee of prosecution in all cases - a fortiori where the
proceedings are regarded as an inherent power of courts alone. Contempt proceedings
serve a compelling and indispensable public purpose in adequately maintaining the
authority and dignity of the courts.
Vide: Uncedo (par B37)
Lavengha (par B33)
De Lange v Smuts (par B38 - par 23, 25, 40, 121-122)
7.6 Accepting that judicial officer are not influenced by statements made sub iudice there is a
potential perception on the part of the accused and / or the public that the judicial officer
will or may be influenced. It is submitted that a general approach of regarding the latter
as more or exclusive justification for restricting rights than in cases of scandalizing the 64
court and / or disobeying court orders or rulings defiantly, thereby compromising the
confidence in and authority of the court, should not be followed.
7.7 It will be argued that, in contrast to the submission made in par. 14.2 of the appellant’s
heads, public policy and the administration of justice do demand that contempt of court
be dealt with and summarily so whilst at the same time ensuring that justice is done and
seen to be done.
8.1 Although the order did not make specific mention of contempt of the court, it was
thoroughly implied and it is clear from the affidavit made by the appellant that that is
how the defence understood it. The inference mentioned in paragraph 13 of the
appellant’s heads are correct. It is submitted that the appellant was sufficiently informed
of what facts were regarded as contemptuous and that he was afforded sufficient time and
opportunity of dealing with it. There was no objection on these grounds.
8.2.1 Although the question of independence and impartiality is argued in the appellant’s
heads, no objection was raised in the court a quo that it was or could not be independent
and impartial; neither was there an application for recusal. In fact no ground was
advanced why the procedure was objected to, other than on the ground that “the
Constitution has overtaken the court’s previous powers to summarily order people before
court to give an explanation and that the proper course should be a referral to the
Director of Public Prosecutions” (at p41 - p42). The contents of the order must not be
seen as a demand but an invitation to show cause why he should not be committed for
contempt if he so wished. The right to silence has been recognized long before the advent 65
of the Constitution.
8.2.2 That the court a quo was cautious and open-minded is evident from the wording of the
order, which was more in the nature of an allegation than amounting to a prima facie case
or rule nisi, and the fact that he kept open the option of a referral (p42 line 22). The
appellant had ample opportunity of motivating his objection.
8.2.3 The appellant could not have assumed or anticipated that the power of the Supreme Court
to cite a person for contempt and to deal with it summarily, which has a long-standing
tradition, is unconstitutional or that the proceedings in court could or would not be fair.
In fact the proceedings were fair.
8.2.4 The appellant then exercised his right to remain silent (at least in court) and handed in an
affidavit as a “matter of courtesy” to the court. Although the affidavit can not be ignored,
it does not carry the same weight as viva voce -evidence which can be tested. An accused
has a right to keep silent, but he does so at his own peril, viz. that he did not (sufficiently)
gainsay the case against him. The appellant can not have his cake and eat it.
Vide: Kriegler: Hiemstra: Suid-Afrikaanse Strafproses (supra), p379 - 381
S v Lavengha, at p 487 (par B33)
His ipse dixit that he did not have intention in the circumstances of the case can not be
accepted.
G. 66
DEFENCES AND FINAL SUBMISSION
1. Although the following concern the press and defamation, it will be submitted that it
applies to the appellant in some degree.
1.1 According to S v Gibson, at 121D (par B15), the criterion for contempt is the same as for
defamation, viz. the average reasonable man reading the statement.
1.2 It appears that the defences available for contempt are the same as for defamation. It
appears from Neethling v Du Preez 1994(1)SA 708 AD at 777E that there is no numerus
clausus of defences. The press is not strictly liable but must take reasonable steps to
verify - National Media Ltd and Others v Bogoshi 1999(1)BCLR 1 SCA. Reverting to
the Neethling case (supra) reference was made to the reciprocal duty to communicate
and to receive - by persons having a duty or interest in receiving it - and of no duty to
report if damaging reports are still under investigation or refuted. Public interest does not
mean interesting to the public.
1.3 It has also been remarked that while some deviation from total accuracy is sometimes
inevitable, a journalist in his capacity as a critic is required to bring to his work care,
reason and judgment.
2.1 Although the appellant as a liaison officer in general had a public duty to comment, his
duty did not relate to the statement in casu. If the Department of Correctional Services
was placed in a dilemma as a result of the court order, the appellant could and should 67
have attempted to resolve it. Other than possibly conveying to mr. Terreblanche and / or
his legal representatives that his view was that mr. Terreblance could despite the court
order not be released, he was under no duty to communicate to the public, and
reciprocally there was no interest to public to hear, what he thought of the court order. If
he felt obliged to make some comment, he could have alluded to “administrative
problems” and / or to the matter being “in the hands of the lawyers” and that he defers
further comment.
2.2 The situation clearly called for further investigation. The appellant should not have relied
on the legal opinion but should at least have attempted to clarify the position with the
court (through the Registrar) or Supreme Court of Appeal as was done by Mr.
Terreblache’s representative before making substantial comment.
2.3 He should not have prematurely embarked on unfounded criticism and he should not
have ventilated his grievances in public. It was remarked that Judges can not enter into
public controversy.
2.4 The appellant had no defence and at least dolus eventualis was present. His position is
different from a witness in court who hardly has an opportunity to reflect - Joubert v
Venter 1985(1)SA 1 AD - or from one who makes a statement in the heat of argument -
S v Poswa 1986(1)SA -.
3.1 The line between scandalous comments and fair and legitimate criticism is not always
easily drawn. - S v Niekerk 1972 (supra) at 720F-G. Saying a Judge is wrong is not per 68
se contemptuous. However, the offensive portions of his statements must be considered
in its proper context and with regard to its cumulative effect.
3.2 The appellant went further - he stated that by being wrong in the granting of bail, the
Judge caused confusion and that mr. Terreblanche would have to complete his sentence
for the conviction in respect of which bail was granted. It was reported in newspapers, at
least in Beeld.
3.3 Erroneously stating that a Judge is wrong is not the same as using a wrong premise to
publicly attribute a failure of justice to the Judge in that he caused confusion by making
the court order and that it would be defied.
The remarks - in its totality and setting - were not merely shocking, offensive or
disturbing and can hardly be construed as fair comment or legitimate criticism or made
for the sake of accountability only.
3.4 His remarks at least implied in the mind of the average reader that the Judge was inept,
incompetent and that he contributed to a failure of justice - most damagingly, that Mr.
Terreblanche would not be released on bail in respect of the attempted murder count.
These remarks were made very publicly and not e.g. inter-departmentally only. Although
he did not impute judicial dishonesty, dissatisfaction and mistrust of a judicial decision
were conveyed, impugning on the integrity of the court.
It is important that court orders be obeyed. 69
S v Mushongo (par B27)
Culverwell v Beira 1992(4)SA 490 W
S v Sokoyi, at p942 (par B18)
If court rulings are not accepted, legal proceedings would become chaotic.
Clement v Clement 1961(3)SA 764 WLD
S v Beyers - (par B14) - it can not be left to the parties.
S v Benatar 1984(3)SA 588 ZSC - disobedience with court order if accompanied
with disrespect.
3.5 The consequences of his remarks were that it created the perception on the part of the
public that at least some courts can not be relied on to apply the law and resolve disputes
and / or that court orders - irrespective of their correctness - may sometimes not be
effective, since they will not be adhered to.
3.6 The fact that a Court has with regard to comment which may have been more scandalous
than in casu, found that it was not contemptuous, does not ipso facto preclude this Court
from making a positive finding.
4. It is submitted that the finding or conviction is based not (only) on the “scandalous
comment”, but also the defiance or non-adherence of the court order. It is submitted that:
i. the offence of contempt of court, including in non-pending cases, is a reasonable
and justifiable limitation of the right to freedom of expression and that the
summary procedure does not infringe the right to a fair trial or process, 70
alternatively that it is a justifiable limitation; and
ii. the appeal is not allowed. alternatively
iii. if the finding is one of an unjustifiable limitation of the right to freedom of part of
the expression, that the appeal is still not allowed - on account of finding that
non-adherence of court orders also constitutes contempt.
E C J WAIT ADVOCATE FOR THE RESPONDENT
S C BUKAU ADVOCATE FOR THE RESPONDENT
SOUTH AFRICAN CASE LAW
Argus Printing and Publishing Co. Ltd and Others v Esselen’s Estate 1994(2)SA 1 AD
Attorney-General v Crockett 1911 TPD 893
Cape Times v Union Trade Directories and Others 1956(1)SA 105 NPD
Clement v Clement 1961(3)SA 764 WLD
Coetzee v Government of the Republic of South Africa 1995(4)SA 631 CC
Culverweil v Beira 1992(4)SA 490 WLD
De Lange v Smuts NO and Others 1998(3)SA 785 CC
Du Plessis v De Klerk 1996(3)SA 850 CC
Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others 1995(10) BCLR 1289 CC
Government of the RSA v Sunday Times Newspapers and 71
Another 1995(2)SA 221 T
Holomisa v Argus Newspapers Ltd. 1996(6) BCLR 836 W
In re Clark 1958(3)SA 394 AD
In re Dormer 4 SACR 64 (1891)
In re Muskwe 1993(2)SA 514 ZHC
In re Phelani 1877 K 5
Joubert v Venter 1985(1)SA 654 AD
Kauesa v Minister of Home Affaird and Others 1994(3)BCLR 1 NmH
Makiwame v Die Afrikaanse Pers Bpk en ‘n ander 1957(2)SA 560 W
Mandela v Falati 1994(4)BCLR 1 W
National Media Ltd and Others v Bogoshi 1999(7)BCLR 1 AD
Neethling v Du Preez 1994(1)SA 708 AD
Nel v Le Roux NO and Others 1996(3)SA 562 CC
President of the RSA v South African Rugby Football Union 1999(4)SA 147 CC
R v Hawkey 1960(1)SA 70 SR
R v Keyser 1951(1)SA 512 AD
R v Mnyongo 1931 EDL 157
R v Silber 1952(2)SA 475 AD
R v Torch 1956(1)SA 815 C
R v Van Rooyen 1958(2)SA 558 T
S v Baloyi 2000(1)BCLR 86 CC
S v Benatar 1984(3)SA 588 ZSC 72
S v Beyers 1968(3)SA 70 AD
S v Dzukuda and others; S v Tshilo 2000(2)SACR 443 CC
S v Friedman 1996(1)SACR 181 W
S v Gerbers 1997(2)SACR 601 AD
S v Gibson 1979(4)SA 115 D&CLD
S v Harber 1988(3)SA 396 AD
S v Hartmann and Another 1984(1)SA 300 ZSC
S v Kaokunga 1978(1)SA 1190 SWA
S v Lavengha 1996(2)SACR 453 W
S v Lizzie 1995(2)SACR 729 W
S v Mabaso 1990(1)SACR 675 T
S v Maghuwazuma 1997(2)SACR 675 C
S v McKenna 1998(1)SACR 106 C
S v Memani 1994(1)SA 515 W
S v Moseki 1997(2)SACR 325 T
S v Mushongo 1994(2)SACR 782 ZS
S v Nel 1991(1)SA 730 AD
S v Ngcobo 1999(3)BCLR 298 N
S v Nqwenani 1991(1)SACR 553 Ck
S v Ntsane 1982(3)SA 467 T
S v Nyalambisa 1993(1)SACR 172 Tk
S v Phomadi 1996(1)SACR 162 E
S v Pillay 1990(2)SACR 410 CKA 73
S v Poswa 1986(1)SA 215 NKC
S v Senyane 1993(2) SACR 643 O
S v Shapiro 1987(2)SA 482 BGD
S v Sokoyi 1984(3)SA 935 NPD
S v Sonququ 1990(2)SACR 246 Tk
S v Tobias 1966(1)SA 656 N
S v Tromp 1996(1)SACR 646 NPD
S v Van Niekerk 1972(3)SA 711 AD
S v Van Niekerk 1970(3)SA 655 T
S v Zungo 1966(1)SA 268 NPD
Safcor Forwarding Ltd v NTC 1982(3)SA 654 AD
Uncedo Taxi Service Association v Maninjwa and Others 1998(2)SACR 166 ECD
FOREIGN CASE LAW:
Balogh v Crown Court [1974]3 All ER
Naunchek v Naunchek (Conn) 463A 2d 603, 37 ALR 4th 995
R v Cohn 1984 - 10 CRR
74
PUBLICATIONS
Kriegler: Hiemsta, Suid-Afrikaanse Strafproses, 5th ed.
Milton: Hunt: South African Criminal Law and Procedure
SALJ, Sept 1978, Vol 95, Part III: The Uncloistering of Virtue
Snyman, Strafreg, 4th ed
Van Dijk and van Hoof; Theory and Practice of the European Convention on Human Rights
Watt and Fuerst; Treeamar’s Criminal Code, the 1977 Annotated