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S v Meiring (39/2018) [2018] ZAGPJHC 587; 2019 (1) SACR 227 (GJ) (7 November 2018)

80 Reportability
Civil Procedure
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Brief Summary

Contempt of Court — In facie curiae — Accused convicted of contempt for muttering foul language and allegedly shoving an orderly during trial postponement — Accused's conduct did not constitute contempt under section 108 of the Magistrates Courts Act or at common law — Sentence of R5000 fine imposed, exceeding statutory limit — Magistrate's failure to follow procedural requirements and misapplication of contempt law deemed irregular — Conviction and sentence set aside, fine refunded, and directions issued for education of court officials on contempt law.

Comprehensive Summary

Summary of Judgment


Introduction


The matter was an automatic review from the magistrates’ court concerning a summary conviction for contempt of court (contempt in facie curiae). The presiding magistrate had convicted the accused of contempt and imposed a fine of R5 000 or three months’ imprisonment.


The parties were the State and George Meiring (the accused). The review was triggered by the operation of section 108(2) of the Magistrates’ Courts Act 32 of 1944, which requires transmission of a certified statement to the registrar for review when a person is committed or fined for contempt under that section. The reviewing court recorded, however, that the magistrate did not submit the required statement, and that the sentence imposed exceeded the statutory limit applicable to the summary contempt power.


The dispute concerned whether Meiring’s conduct, arising from frustration after repeated postponements of his trial, constituted contempt of court, and whether the magistrate’s handling of the incident and sentence was legally permissible under section 108 and the relevant common-law principles governing contempt in facie curiae.


Material Facts


Meiring appeared in the magistrates’ court for what was described as the third appearance in his matter, and the case was again postponed. After the postponement was announced, he expressed frustration and uttered the word “Fuck” once, possibly twice. It was undisputed that he used foul language, and that he apologised promptly and repeatedly for doing so.


A disputed factual issue arose regarding an interaction with a court orderly. Meiring was accused of shoving the orderly, which he denied; he contended instead that the orderly grabbed him. The prosecutor later suggested an exchange occurred in which the orderly queried what Meiring had said, and Meiring responded “who are you?” The reviewing court noted that the exact facts about this interaction remained uncertain, and that the orderly was not called to testify.


The prosecutor also alleged that Meiring had said “this country is fucked”, which Meiring did not admit. The magistrate additionally took issue with Meiring’s physical manner in court, including the suggestion that he had leaned on the “bench” (apparently referring to the dock).


After the incident, Meiring was detained in the holding cells for some hours despite being on bail. The record did not provide a justification for this detention, and the reviewing court drew the inference that it was done spitefully.


When the matter resumed, Meiring testified and explained that he was under severe personal and financial strain, including the deterioration of his marriage, financial loss, and the expense of repeated court appearances. He stated that his utterance was not directed at anyone in court, and again expressed remorse. The prosecutor subjected him to extensive cross-examination, largely focused on the alleged exchange with the orderly. The reviewing court assessed this questioning as harassing and not yielding facts establishing contempt, particularly regarding wilfulness.


The magistrate convicted Meiring of contempt in an extempore judgment that, in the reviewing court’s assessment, consisted of generalised assertions and clichés without a factual foundation. In sentencing, the magistrate treated the matter as if it were a conventional crime and imposed a fine of R5 000, notwithstanding Meiring’s stated financial distress and despite the statutory framework governing summary contempt proceedings.


Legal Issues


The central legal question was whether Meiring’s conduct, viewed in context, constituted contempt of court, particularly contempt in facie curiae, either under section 108 of the Magistrates’ Courts Act 32 of 1944 or at common law.


Closely connected to this was whether the conduct occurred “in the presence of the court” and during court proceedings in a manner that could qualify as contempt in facie curiae, and whether the State established the required mental element, namely wilfulness and intention (as opposed to strict liability).


A further issue concerned the regularity of the magistrate’s exercise of the statutory contempt power, including compliance with section 108(2) (the obligation to transmit a certified statement for review) and the legality of the sentence imposed relative to the statutory limits for summary contempt jurisdiction.


These issues primarily involved the application of legal principles to the facts, including evaluative determinations about context, intention, and the relationship between the conduct complained of and any real interference with the administration of justice.


Court’s Reasoning


The reviewing court began with section 108 of the Magistrates’ Courts Act and treated the magistrate’s handling of the matter as irregular on its face. Two procedural and jurisdictional defects were highlighted. First, the magistrate imposed a fine exceeding the statutory maximum he was empowered to impose under the summary contempt provision relied upon. Second, the magistrate failed to comply with section 108(2) by not transmitting the required certified statement for review. The reviewing court regarded these defects as sufficient to demonstrate irregularity.


On the merits, the reviewing court accepted the State’s submission (made by senior and junior counsel for the prosecution on review) that the facts did not constitute contempt of court at all, still less a contravention of section 108. In doing so, the court traversed established authority that contempt is not generally a crime of strict liability and that intention is an element of the offence. The reviewing court emphasised that, for a conviction, the State must show that the accused acted wilfully and with the intention to bring the administration of justice (or the authority and dignity of the court in its institutional sense) into disrepute.


The reviewing court also addressed the specific doctrine of contempt in facie curiae. It stressed that such contempt must occur in the presence of the court while the court is engaged in proceedings (“in open court”). On the record before it, the reviewing court found that the critical conduct occurred at a time when the court was not in session or the proceedings were no longer dealing with Meiring’s matter, which meant the jurisdictional premise for contempt in facie curiae was absent.


Contextual factors were treated as decisive. The reviewing court noted that the utterance was a once-off expression of exasperation triggered by repeated postponements, that it was not aimed at the presiding officer or the court as such, and that Meiring was immediately contrite, apologising repeatedly. The court further noted that, even under intense cross-examination, no information was elicited that could establish wilfulness or intention to undermine the administration of justice. The unresolved factual dispute about the alleged physical interaction with the orderly was treated as another reason the incident could not properly have been disposed of through a summary contempt procedure; on the reviewing court’s approach, such disputed factual issues would point away from in facie curiae summary punishment and toward ordinary processes (if any were warranted).


In evaluating the magistrate’s judgment and sentence, the reviewing court held that the magistrate misdirected himself by treating the matter as an ordinary crime for sentencing purposes and by importing broad rhetorical themes (such as “order and anarchy”) without grounding them in the proven facts or the legal requirements of contempt. The reviewing court also considered the objective impact of the punishment imposed, including the magnitude of the fine relative to Meiring’s stated financial strain, as illustrating the impropriety of the approach adopted.


Finally, the reviewing court made an evaluative finding about institutional consequences. It regarded the incident as an example of court officials being insufficiently acquainted with the scope and limits of contempt powers and concluded that the handling of the matter risked bringing the courts into disrepute rather than protecting the administration of justice. This led to the additional remedial step of referring the judgment to relevant oversight bodies for education and corrective action.


Outcome and Relief


The reviewing court set aside the magistrate’s finding of contempt and the sentence in full.


It ordered that the fine already paid by Meiring be refunded within 30 days, failing which it was to be paid with interest at the prescribed rate from the date of mora until payment.


The court further directed that the judgment be referred to the National Director of Public Prosecutions and to the Magistrates’ Commission for the taking of appropriate steps aimed at educating court officials on the lawful scope of powers in relation to unseemly behaviour in and around court. The judgment did not make a separate costs order.


Cases Cited


S v Van Niekerk 1970 (3) SA 655 (T)


S v Harber and Another 1988 (3) SA 396 (A)


S v Kaakunga 1978 (1) SA 1190 (SWA)


S v Molapo 2004 (2) SACR 417 (T)


S v Mitchell 2011 (2) SACR 182 (ECD)


S v Bresler and Another 2002 (2) SACR 18 (C)


S v Mamabolo (ETV and Others Interviewing) 2001 (1) SACR 686 (CC)


S v Magerman 1960 (1) SA 184 (O)


R v Butelezi 1960 (1) SA 284 (N)


S v Ntsane 1982 (3) SA 467 (T)


S v Poswa 1986 (1) SA 215 (NC)


S v Silber 1952 (2) SA 475 (A)


S v Nel 1991 (1) SA 730 (A)


S v Van Staden 1973 (1) SA 70 (SWA)


S v Mbaba 2002 (1) SACR 43 (ECD)


Rex v Rosenstein 1943 TPD 65


State v Nel [1990] ZASCA 145; 1991 (1) SA 730 (AD)


Legislation Cited


Magistrates’ Courts Act 32 of 1944, section 108


Magistrates’ Courts Act 32 of 1944, section 5(3)


Constitution of the Republic of South Africa, 1996, section 35(3)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The reviewing court held that, on the facts as they emerged from the record, Meiring’s conduct did not constitute contempt of court, whether under section 108 of the Magistrates’ Courts Act 32 of 1944 or at common law. It held further that the incident did not qualify as contempt in facie curiae, because the impugned conduct occurred when the court was not in session or not dealing with Meiring’s matter, and because the requisite wilfulness and intention to undermine the administration of justice were not established.


The court also held that the magistrate acted irregularly by imposing a fine in excess of the statutory jurisdiction and by failing to comply with the review mechanism in section 108(2). The conviction and sentence were accordingly set aside, the fine was ordered to be repaid with interest if not refunded timeously, and the matter was referred to prosecutorial and magistracy oversight structures for remedial education.


LEGAL PRINCIPLES


The judgment applied the principle that contempt of court, including contempt under section 108 of the Magistrates’ Courts Act 32 of 1944, is subject to strict substantive and procedural constraints, and that courts should exercise the summary contempt power within narrow bounds. The reviewing court treated non-compliance with the statutory procedure in section 108(2), and the imposition of punishment beyond the statutory limit, as material irregularities.


It reaffirmed that contempt is not ordinarily a crime of strict liability, and that the State must establish intention (including wilfulness) where contempt is alleged. The assessment of intention must be contextual, having regard to what was said or done, where it occurred, to whom it was directed, what triggered it, and its likely impact on the administration of justice.


The judgment applied the requirement that contempt in facie curiae must occur in the presence of the court and in circumstances that interfere with or threaten the proper functioning and moral authority of the judicial process. Where the alleged contempt does not occur during proceedings in open court, or where there are material disputes of fact requiring ordinary evidential ventilation, summary punishment for contempt in facie curiae is not appropriate.


It further applied the principle that the purpose of contempt proceedings is to protect the administration of justice and the moral authority of the judicial process, rather than to vindicate the personal dignity or feelings of judicial officers or court staff. The judgment aligned with the constitutional caution that the summary contempt procedure can be unfair and should be reserved for exceptional circumstances consistent with section 35(3) of the Constitution.

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[2018] ZAGPJHC 587
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S v Meiring (39/2018) [2018] ZAGPJHC 587; 2019 (1) SACR 227 (GJ) (7 November 2018)

REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Review
Case No: 39/2018
In
the matter between
THE
STATE
and
GEORGE
MEIRING                                                                                              ACCUSED
J U D G M E N T
(ON REVIEW)
Headnote
An
Accused was convicted of contempt
in facie curia
by a
magistrate – the accused had in exasperation at the third
postponement of his trial left the dock muttering foul language
and
had also supposedly, but unproven, exchanged words with the orderly –
Accused was spitefully held in custody for some
hours awaiting an
enquiry into the alleged contempt
Held:
the conduct, on the facts, did not remotely constitute contempt of
court whether in terms of section 108 of the Magistrates
Court or at
common law; the law on contempt
in facie curiae
traversed and
set out
The
sentence included a R5000 fine which exceeded the limit of R200
prescribed in section 108
Conduct
of both the prosecutor and the magistrate a disgrace and calculated
to bring Courts into disrepute
Order
made to set aside the conviction and sentence and refund the fine and
a direction issued to NPA and Magistrates’ Commission
to
educate Court officials about the law on unruly behavior in Court
SUTHERLAND
J:
Introduction
[1]
A Magistrate held that the Accused, Meiring, was in contempt of court
and fined
him
R5000 or three months’ imprisonment. This matter comes before
this court by way of automatic review pursuant to the provisions
of
section 108(2)
of the
Magistrates Courts Act 32 of 1944
. The
provisions of
section 108
read:
“
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 to a fine not
exceeding R2 000 or in default of payment
to imprisonment for a
period not exceeding six months or to such imprisonment without the
option of a fine. In this subsection
the word “court”
includes a preparatory examination held under the law relating to
criminal procedure.
(2)
In any case in which the court commits or fines any person under the
provisions of this section, the judicial officer shall
without delay
transmit to the registrar of the court of appeal for the
consideration and review of a judge in chambers, a statement,

certified by such judicial officer to be true and correct, of the
grounds and reasons of his proceedings, and shall also furnish
to the
party committed a copy of such statement.”
(Underling
supplied)
[2]
It is immediately apparent that the magistrate was unaware of the
provisions of this section. That is evident from the sentence
of
R5000 exceeding the maximum sum permissible. The magistrate, in
addition, failed to submit the statement prescribed by
section
108(2).
On those grounds alone, the magistrate’s conduct is
irregular.
[3]
I have received a helpful and constructive submission from the Deputy
Director of Public Prosecutions, Johannesburg, Adv Z J
Van Zyl SC
who, with Adv A M Persad, a State Advocate, recommends the judgment
and sentence be set aside. I agree, the events which
took place, as
addressed by the magistrate, do not constitute contempt of court at
all still less a transgression of
section 108.
A
critique of the facts
[4]
The circumstances are described in a transcript of exchanges that
took place after the critical events and occurred whilst the
court
was either not in session or was no longer dealing with Meiring’s
matter. That, too, is a ground why the events could
not constitute
contempt
in facie curia
as
held by the magistrate.
[5]
Meiring was appearing for a third time in the matter.  It was
again postponed. He evidently was aggrieved by this turn
of events.
He gave expression to his frustrations. Meiring used the word “Fuck”
once, perhaps twice. The Prosecutor
claimed to have heard Meiring say
“this country is fucked”, which Meiring did not admit to
saying. The prosecutor later
in cross-examination declared that this
was an act of disrespect not only to the court but to the country.
Meiring admitted using
foul language after he had heard it announced
that the case was postponed yet again. He apologised at once, and
repeatedly apologised.
[6]
Meiring was also accused of shoving an orderly. He denied this
accusation; he claims that the orderly grabbed him. It was later

surmised by the prosecutor that when Meiring uttered the word “Fuck”
the orderly asked what he had said, and Meiring
had replied “who
are you?’ The magistrate also took umbrage at Meiring having
the audacity to lean on the ‘bench’
– I presume
this refers to the dock.
[7]
Meiring was then detained in the cells. He had been released on bail.
Why the magistrate thought this was necessary is not explained
on the
record. The only inference to draw is that it was done out of spite.
Whether or not this gratuitous incarceration for some
hours founds a
civil claim, I express no view.
[8]
Upon resumption, Meiring testified. He explained that he was
experiencing many frustrations. He described his personal
circumstances
as losing everything. His marriage was crumbling, he
was losing his house, he had to care for his parents, and he was in
financial
trouble, which was exacerbated by paying for his attorney
for each appearance when nothing happened again and again. He said: “

…the word that I uttered was not pointed at anyone in this
court, I am truly sorry for the word that I used and ….I
am
just frustrated with life at this moment ….”
[9]
The prosecutor then subjected Meiring to an extensive cross
examination. The bulk of the questions dealt with the exchange
between Meiring and the orderly. It was a harassing attack calculated
to humiliate rather than to extract facts. That approach is
at
variance with the ethical obligations of counsel, whether for the
defence or the prosecution. Despite the intensity of the cross

examination, not one iota of information was elicited that could
found a basis upon which to contend that an act of contempt of
court
had occurred, not least of all that any wilfulness was present.
[1]
[10]
Notwithstanding that, the magistrate in his judgment purported to
find that Meiring had committed contempt of court. The judgment
is no
more than a sanctimonious plethora of clichés unsupported by
reference to facts. It is a disgrace. I cite the transcript
in full:
“
Alright. These are contempt of
court proceed in
facie curia
and this shall be
extempore
.
The behaviour or conduct of this particular accused, Mr Meiring, is
disturbing and I say that with the greatest of respect, the
word, I
cannot find appropriate English term to describe the conduct this
court witnessed, blatant, (indistinct), careless behaviour
on his
part, showing no regard for this court, its institution or its
personnel that uphold its sanctity and gives it the respect
it
requires. He displayed it right in front of the public gallery, much
to their dismay and the court had to call him back. And
I do not have
to repeat it, because he knows what he did and understa… he
understood (indistinct) the gravity of his conduct,
which is
completely unacceptable. And his attitude that he exhibited, the way
he carried himself, completely unacceptable. And
his attitude that he
exhibited, the way he carried himself, completely, completely showing
disregard to this court.
After the matter was adjourned, giving
him an opportunity to explain himself, it became pretty clear, there
is no justification,
all he has is excuses for his outbursts, which
were derogatory and placed the court’s system, this court’s
reputational
or integrity in disrepute and that cannot go unnoticed
or unpunished. And I cannot find any reason why this court can
condone or
accept the explanation as provided. I find him GUILTY of
contempt.”
[11]
When the case moved onto sentence, the prosecutor got properly stuck
in. He belaboured the point that Meiring had been disrespectful

towards the orderly. The orderly was not called to testify. The
prosecutor elided the exchange between Meiring and the orderly
into
disrespect for the court. Furthermore, the prosecutor, as alluded to
earlier, was especially excited about the remark that
“the
country is fucked”, an alleged utterance not admitted. The
prosecutor concludes with a contention that a suspended
sentence
would be inadequate, and says this:
“ …
if need there should
be a sentence that is meted out to him that will make him tomorrow to
respect the [decorum] of this court with
sanctity and every
individual that [he?] come across.”
[12]
The Judgment on sentence was approached as if sentence was being
imposed after conviction of a conventional crime, a clear
lack of
awareness that such a perspective is inappropriate.
[2]
The “offence” is said to be serious. Again, the
Magistrate, like the prosecutor, elides the exchange with the orderly

with notions of the Court’s role as a ‘gatekeeper’
between “order and anarchy”. He expresses the
view that
the sentence must act as a deterrent to others in society.
Ultimately, the magistrate concludes with this statement:
“ …
I have concluded
the following as a suitable sentence to cater not only for the
seriousness of the offence and give you another
opportunity to
reintegrate into the society and hopefully there will be an evolution
of your mindset not only mindset but it also
contaminate your
behaviour in a positive manner. You are hereby fined R5000 or three
months imprisonment.” (sic)
[13]
The judgment is quite manifestly an utter misdirection. A point to
emphasise, is that not only does the magistrate impose a
sentence two
and half times the maximum jurisdiction, but he imposes a fine of
R5000, an objectively large sum, on a man who had
told him he is
already under financial stress.  The judgment is a disgrace.
[14]
There is extensive case law on what constitutes contempt of court. It
is plain that the magistrate was unacquainted, not only
with section
108 of the Magistrates’ Court Act but also with the case law.
[15]
I can do no better than cite the Memorandum composed by Advocates Van
Zyl and Persad:
“
5. The power of the court to
convict and sentence a person for contempt of court is
ordained by s 108 of Act 32 of 1944.
However, this power is to be applied by the court within very strict
guidelines. In
S v Van
Niekerk
1970 (3) SA 655
(T)
the Court held at 657F that:
‘
(B)efore 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’.
Similarly, in
S
v Harber and Another
1988
(3) SA 396
(A) the Court held at 413H that:
‘
Apart from the so-called
newspaper cases, I am not aware of any South African authority for
the proposition that contempt is a crime
of strict liability. On the
contrary, in the last two decades it seems to have been generally
accepted that intention is an element
of the offence’.
In
S
v Kaakunga
1978 (1) SA 1190
(SWA) at 1193G the Court held that:
‘
(A)lvorens ‘n person
skuldig bevind kan word aan minagating van die hof, die Staat moet
aantoon dat hy deur sy optrede, hetsy
deur sy handeling, hetsy deur
die woorde wat gebruik is, inderdaad die opset gehad het om die
waardigheid, eer of gesag van die
hof in diskrediet te bring of te
minag’.
See also
S
v Molapo
2004 (2) SACR 417
(T) at 417g – 418a where the above case law was quoted with
approval per Grobbelaar J, Jordaan J concurring.
5.1 The full bench of the ECD (per
Schoeman J, Chetty J concurring) found in
S
v
Mitchell
2011 (2) SACR 182
(ECD) at 185 a –
b that contempt is inter alia
committed:
(a) where a judicial officer, or other
officer of the court, is wilfully insulted during
a
sitting; or
(b) where the court proceedings are
wilfully interrupted; or
(c) where the person otherwise
misbehaves himself in the place where the court is held, and thereby
interferes with the proper functioning
of the magistrates’
court.
5.2 Satchwell J …..stated as
follows in
S v Bresler and Another
2002 (2) SACR 18
(C) at 25
a – b:
“
It is necessary to delineate
the scope of the offence. Firstly, the interest to be served is not
the private interest of the member
of the court. Secondly, it is not
sought to protect the self-esteem, feelings or dignity of any
judicial officer, or even the reputation,
status or standing of a
particular court. The interest served and protected is ‘the
moral authority of the judicial process
as such”:
‘
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 judicial officers of the administration of justice in
general which are calculated
to undermine public confidence in the
court’.
(Per Corbett CJ in Argus Printing and
Publishing (supra at 29E – F)
5.3  Satchwell J then, at 35h –
36i applied some of the considerations identified by the
Constitutional court in
S v
Mamabolo
(ETV and Others
Interviewing)
2001 (1) SACR 686
(CC)
(a) Who is the author?
(b) What was done?
(c) When did such action take place?
(It is of some import to note that
Satchwell J here finds “This was not a once-off loss of temper
or expression of distress
or dissatisfaction” We pause to note:
as is obviously the case in the present matter).
(d) Where did the action take place?
(e) To whom were these actions
directed?
(f) What triggered the action?
(g) What was the underlying motive?
5.4 The Constitutional Court had dealt
extensively with this offence in the matter of
S v Mamabolo
supra at paras 44 – 46.
We can do no better than quoting
extensively from that judgement, with some own emphasis added:
“…
.Ultimately, whether
the test is worded this way or that, the real question is whether the
trier of fact has been satisfied, with
the requisite preponderance
depending on the nature of the case, that the publisher of the
offending statement brought about a
particular result. In the case of
scandalizing the court that result must have been to bring the
administration of justice into
disrepute.
[45] In any event and moreover, now
that we do have the benefit of a constitutional environment in which
all law is to be interpreted
and applied, there can be little doubt
that the test for scandalizing, namely that one has to ask what the
likely consequence of
the utterance was, will not lightly result in a
finding that the crime of scandalizing the court has been committed.
Having regard
to the founding constitutional values of human dignity,
freedom and equality, and more pertinently the emphasis on
accountability,
responsiveness and openness in government, the scope
for a conviction on this particular charge must be narrow indeed if
the right
to freedom of expression is afforded its appropriate
protection. The threshold for a conviction on a charge of
scandalizing the
court is now even higher than before the
superimposition of constitutional values on common-law principles;
and prosecutions are
likely to be instituted only in clear cases of
impeachment of judicial integrity. It is a public injury, not a
private delict;
and its sole aim is to preserve the capacity of the
Judiciary to fulfil its role under the Constitution. Scandalizing the
court
is not concerned with the self-esteem, or even the reputation,
of Judges as individuals, although that does not mean that conduct
or
language targeting specific individual judicial officers is immune.
Ultimately the test is whether the offending conduct, viewed

contextually, really was likely to damage the administration of
justice.
[46] It would be unwise, if not
impossible, to attempt to circumscribe what language and/ or conduct
would constitute scandalizing
the court. Virtually the only
prediction that can safely be made about human affairs, is that none
can safely be made. The variety
of circumstances that could arise, is
literally infinite and each case will have to be judged in the
context  of its own peculiar
circumstances: what was said or
done; what its meaning and import were or where it happened; to whom
it was directed; at whom or
what it was aimed; what triggered the
action; what the underlying motivating factors were; who witnessed
it; who witnessed it;
what effect, if any, it had on such audience;
what the consequences were or were likely to have been”.
6 Contempt in facie curiae
6.1 Contempt in facie curiae is
committed when a person who is in court insults the presiding
judicial officer or otherwise misbehaves
in a manner calculated to
violate the dignity of the court or judicial officer while the court
is engaged in its proceedings or,
as it is sometimes said, ”in
open court”.
S v Magerman
1960
(1) SA 184 (O)
[3]
R v Butelezi
1960
(1) SA 284 (N)
[4]
6.2. The acts of swearing at the
magistrate and laughing at a magistrate have been
held
to constitute the offence of contempt in facie curiae.
S v Ntsane
1982 (3) SA 467 (T)
[5]
S v Poswa
1986 (1) 215 (NC)
[6]
6.3. The crime of contempt in facie
curiae exists and is essential in order to uphold the
dignity
and authority of the court.
S v Silber
1952 (2) SA 475 (A)
[7]
S v Nel
1991 (1) SA 730 (A)
[8]
6.4. In order to ascertain whether an
accused had the necessary intention his words
must
be considered in the context in which they were employed.
S v Van Staden
1973 (1) SA 70
(SWA)
6.5. The offence of contempt in facie
curiae must occur in the presence of the court. The court in the
matter of
S v Mbaba
2002 (1) SACR 43
(ECD) at 49 b – c found that even though the
accused was warned the day before to be in court, his absence in
court did not
constitute contempt in facie curiae. The court held
that the magistrate should have dealt with the accused’s
conduct as an
instance of contempt of court ex facie curiae and to
have prosecuted the accused in the ordinary course. This was because
there
clearly was a dispute of fact.
7 While there is case law to the
effect that courts should be supported in their quest to uphold the
dignity of a court, (
S v
Mitchell
supra at 185g) the
other side of the coin is certainly that courts should guard against
being unduly zealous in doing so.
7.1 The Constitutional Court
emphasized in the
Mamabolo
case supra (at paras 54 – 56)
how unsatisfactory the summary procedure is in a number of material
respects, that it is irreconcilable
with the standards of fairness
called for by section 35(3) of the Constitution and that it should be
reserved for the most exceptional
cases only.
The Court then remarked (at para 5.9)
that Justice would have been better served if the presiding officer
had rather reported the
matter to the Director of Public Prosecutions
to deal with.
See
S
v Mbaba
supra at 49 c –
d for similar sentiments
8 Having regard to the facts that:
•
This was a once-off occurrence
triggered by the third postponement of a relatively insignificant
case;
•
The conduct was clearly not
aimed at the presiding officer or the court as such;
•
The accused was immediately
repentant and apologized profusely and repeatedly;
•
The conduct had no effect on
any court proceedings or on the capacity of the judiciary to fulfil
its role;
•
The court was not in session
when the conduct occurred, there was therefore no need for swift
intervention (
Mamabolo
,
at para 52);
•
The conduct was the result of
frustration with the repeated postponement of the case;
•
The court’s findings that
there is no justification for the conduct is, at the very least,
questionable;
•
The fairness of the proceedings
is likewise questionable, as the presiding officer had even before
the beginning of the enquiry
suggested to the prosecutor that he
should apply that the accused’s bail be cancelled and also made
comments beforehand giving
the impression that he had pre-judged the
matter.
•
The offending conduct was not
really likely to damage the administration of justice.
9 It is therefore respectfully
submitted that the utterance of the accused in the present matter
does not constitute contempt in
facie curiae as it did not occur in
the presence of the court. Further, the words and actions of the
accused did not bring the
administration of justice by or in the
courts into disrespect and disrepute. Due to the factual disputes
this matter should much
rather have been left to be dealt with ex
facie curiae.
Lastly,
in terms of Section 108(2) of the Magistrate’s Court Act 32 of
1944 a statement should have been made by the magistrate
which should
be submitted to the reviewing judge and a copy thereof to the
accused. This was not done in the present instance.
S
v Mitchell
, supra, at 186e
– 187a.”
[16]
Accordingly, the finding and sentence must indeed be set aside. This
case is an egregious example of both a judicial officer
and a
prosecutor being dangerously ignorant of the relevant law and
approaching an incident of relative unimportance in a wholly

inappropriate manner, ostensibly because they took umbrage at an
exchange between an Accused and a Court Orderly, the exact facts

about which incident, remaining uncertain. In the manner they went
about the matter they have achieved what Meiring was accused
of
doing; ie bringing the courts into disrepute. Mature persons do not
approve of foul language being used, especially in any formal

setting. However, the reality of life is that people who experience
exasperation will spontaneously use swear words. An overreaction
is
unwarranted.
[17]
Appropriate steps should be taken by both the National Prosecuting
Authority and the Magistrates’ Commission to educate
officers
of the Court in the scope of the Court’s powers when unseemly
behaviour occurs in and about a court.
Order
[18]
(1) The finding and sentence are reviewed and set aside.
(2)
The fine paid by the accused shall be refunded within 30 days of the
date of this judgment, and if not paid within that period
shall be
paid with interest at the prescribed rate of interest
a tempore
mora
until date of payment.
(3)
The
judgment is referred to the National Director of Public Prosecutions
and to the Magistrates’ Commission for the taking
of
appropriate steps.
_______________________________
SUTHERLAND
J
I
agree.
_______________________________
MUDAU
J
Date
of Judgment:   7 November 2018
[1]
The presence of wilfulness is essential. As long ago as
Rex v Rosenstein
1943 TPD 65
,
that had been established. In that case, an attorney was held to
have insulted a magistrate by accusing him of keeping an inaccurate

record and justifying his interruption of the prosecutor’s
cross examination. He refused to apologise when called upon
to do
so. The wilfulness was established by his persistence therein.
[2]
See: State  v  Nel
[1990] ZASCA 145
;
1991 (1) SA 730
(AD) at
753H – 753B.
[3]
The magistrate wrongly held a latecomer as having
committed contempt.
[4]
An Accused failed to attend a hearing of a Tribal
Court. The Chief fined him in his absence. This outcome was set
aside.
[5]
A Court Orderly was held to be in contempt. He made a
lot of unnecessary noise in speaking to the prisoners in the cell
blow the
courtroom so that he disturbed the proceedings.   The
court directed him to stop doing so. He then stood in a spot that

obscured the view of the witness. He was asked by the Court to set
aside. He then expressed the word “Hell’. When
the Court
asked him to come forward to explain himself, he took a seat and say
with his back to the court. When ordered to come
forward he got up
and left the courtroom. The finding of contempt was upheld.
[6]
Counsel for the defence was held to be in contempt. He
chuckled after an adverse ruling was given. When interrogated he
refused
to explain himself and announced that he had been expecting
to be challenged on this score for some time. Prior to that there
had been a number of hostile exchanges with the prosecutor. He was
held that the pattern of behaviour taken together justified
the
finding of contempt. (This finding, on the facts, in my view, seems
suspect.)
[7]
The Accused persisted in an accusation of bias by the
magistrate because of a series of adverse rulings. On the 15
th
day of trial he applied for a recusal. The finding was upheld.
[8]
An unrepresented litigant persisted in sparring with
the judge, accusing the judge of playing cat and mouse with him an
also accused
the judge of being a coward. The finding of contempt
was upheld. The lengthy headnote gives, in English, an excellent
summary
of the Court’s findings given in Afrikaans:
“
A
presiding Judge or
magistrate who is of the opinion that someone has acted in
contempt of the court should first consider
whether it is necessary
and desirable for him to take action. Very often conduct which
strictly speaking constitutes contempt
of court can quite fittingly
merely be ignored without really impairing the dignity or the
authority of the court or the orderly
conduct of the proceedings.
Too liberal a use of the court's powers to punish persons for
contempt can undermine the very reason
for the existence of such
power. If a Judge or magistrate decides that the relevant
contemptuous conduct is not of such
a nature that it can merely be
overlooked, there are two avenues open to him. He can refer the
matter to the Attorney-General
to decide whether the person
concerned should be prosecuted in the ordinary course. That will be
the obvious choice if it is
not necessary to act more speedily
against the person concerned in protection of the reputation or the
authority of the court
or the maintenance of the orderliness of the
proceedings. On the other hand, if there is such a need the Judge
or magistrate
should there and then attend to it. If he decides
to do this he then acts 'summarily', in the wide sense of the word,
against
the person concerned, ie in contrast with the ordinary
process of law applicable in criminal proceedings. But in such a
case
he will generally still not act 'summarily' against the person
in the narrow sense of the word, ie by finding him guilty of
contempt
without first giving him the opportunity of being heard.
The idea of finding someone guilty of a criminal offence without
being
given an opportunity of making representations in regard
thereto is such a drastic deviation from the most fundamental
principles
of our legal system that it cannot be permitted other
than in the most exceptional circumstances. Although there is no
inflexible
rule that a person must first be heard before he can
validly be found guilty of contempt it is a salutary point of
departure
that he be given an opportunity of addressing the court
before he be found guilty. Whether a conviction has been validly
entered
without a prior opportunity for representations having been
given depends on the particular circumstances of each case. What

will be looked at
inter
alia
is
the run-up to the conduct which is contemptuous and the nature of
the contempt itself; and in addition thereto it is
of importance
whether the person is a legal practitioner or a layman and in the
latter case what his knowledge and experience
of court procedures
is.
In
the instant case the Court found on appeal that the appellant, who
had appeared in person in motion proceedings, had correctly
been
convicted of two counts of contempt of Court in that he had at
various times insulted the presiding Judge by accusing him
of
playing cat and mouse games with him and accusing him of being a
coward. The Court held that although the appellant was a
layman it
was clear that not only did he have the intention to insult the
Judge but was also fully aware that he was thereby
committing
contempt of Court which is committed
in
facie curiae
is
a unique offence; it is a distinct procedure whereby the offender
can there and then be found guilty and sentenced; and
the sentence
which is imposed also has unique characteristics. Someone who
commits contempt
in
facie curiae
is
not an ordinary criminal in the everyday meaning of the word
and he ought not to be treated as such. The reason
for the existence
of the summary procedure (in the wide sense) in terms of which the
offence can immediately be dealt with is
the necessity that a court,
as the axis on which the administration of justice turns, must be in
a position to protect its reputation
and dignity and to ensure the
orderly conduct of its proceedings. The primary objective of the
application of the contempt procedure
is to maintain the reputation
and dignity of the court and the orderliness of its proceedings. It
is to achieve that objective
that the court exercises its power
to punish the offender. The most important function of the
imposition of punishment in this
case is to enforce the court's
authority. There is no room whatsoever for any notion of
retribution. There can also be limited
scope for reformation: for
the most part (leaving aside exceptional cases) the purpose of the
punishment which is imposed is
to bring the offender to his senses
in the very proceedings in which the offence is committed.
Deterrence is by the same
token often and chiefly directed at
getting the offender to refrain from continuing with his
contemptuous conduct in the proceedings
which are underway. The
punishment is not meant to hurt the offender but to bring about an
end to the outrage to the court's
esteem and authority. The extent
of the punishment stays in the background; in the foreground is the
esteem and authority of
the court; and between the one and the other
there is no direct relationship. The authority of the court is too
precious to attempt
to measure it against any punishment which
may be imposed for conduct which harms it. Esteem for the court
cannot be achieved
by heavier punishments for insults to the court.
These considerations indicate why a heavy sentence in these sort of
cases is
generally inappropriate in the ordinary course of events.
This probably explains why our lower courts were in the past
moderate
in the punishment which they imposed for contempt
in
facie curiae
,
as appears from the reported cases. That is a salutary practice
which deserves encouragement and no good reason exists why the
same
approach should not be applied in the Supreme Court…..”

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