IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

REPORTABLE
High Court case number: 317/2025
Magistrates’ Court case number: C906/2022

In the matter between:
THE STATE



and

SONWABO MDLIKIVA


Coram: Van Zyl, AJ (Henney, J concurring)
Delivered on: 21 November 2025

Summary: Criminal jurisdiction of magistrates’ court – common law crime of con-
tempt of court of a High Court order – magistrates’ court has requisite criminal juris-
diction by virtue of section 89(1) of the Magistrates’ Courts Act 32 of 1944
___________________________________________________________________

ORDER

The proceedings in th e Magistrates’ Court for the district of the Garden Route (held

at George) under case number C906/2022, including the accused’s conviction and
sentence on 23 April 2024, are confirmed.

JUDGMENT ON SPECIAL REVIEW
UNDER S 304(4) OF THE CRIMINAL PROCEDURE ACT 51 OF 1977

VAN ZYL, AJ:

Introduction

1. This case concerns the criminal jurisdiction of the magistrates’ court in respect
of charges of contempt of orders granted by the High Court.

2. The matter servers before this Court in chambers as a special review u nder
section 304(4) of the Criminal Procedure Act 51 of 1977 (the CPA). The sec-
tion reads as follows:

“If in any criminal case in which a magistrate's court has imposed a sentence which is
not subject to review in the ordinary course in terms of section 3 02 or in whic h a re-
gional court has imposed any sentence, it is brought to the notice of the provincial or
local division having jurisdiction or any judge thereof that the proceedings in which
the sentence was imposed were not in accordance with justice ,1 such court or judge
shall have the same powers in respect of such proceedings as if the record thereof
had been laid before such court or judge in terms of section 3032 or this section.”

1 My emphasis.
2 “303 Transmission of record The clerk of the court in question shall within one week after
the determination of a case referred to in paragraph (a) of section 302(1) forward to the regis-
trar of the provincial or local division having jurisdiction the record of the proceedings in the
case or a copy thereof certified by such clerk, together with such remarks as the presiding ju-
dicial officer may wish to append thereto, and with any written statement or argument which
the person convicted ma y within three days after imposition of the sentence furnish to the
clerk of the court, and such registrar shall, as soon as possible, lay the same in chambers be-
fore a judge of that division for his consideration.” (My emphasis.)

3. The accused was convicted in the George Magistrates’ Court on 23 Apr il 2024
on a charge of contempt of court . The charge arose from the accused’s
breach of the provisions of an interdict 3 granted in th is Court during May
2022,4 the Honourable Judge President Hlophe (as he then was) presiding.

4. The charge sheet set out th e content of the High Court order, indicated the
manner in which it had been served, and concluded as follows:

“That the accused is charged with the crime of Contempt of Court.

IN THAT upon (or about) 18.08.2022 and at (or near) CRADOCK STREET, TAXI
RANK, in the SUB-DISTRICT OF GEORGE, within the DISTRICT OF THE GARDEN
ROUTE, the accused did OPERATE A ROAD -BASED PUBLIC TRAN SPORT SER-
VICE FOR COMPENSATION / AWARD as a result of which he unlawfully and inten-
tionally impaired the dignity, repute or authority of a judicial officer, to wit HONOUR-
ABLE J. P. HLOPHE, or the body, to wit HIGH COURT SA, WESTERN CAPE DIVI-
SION, CAPE TOWN, or as a result of which he interfered with the legal proceedings
in a sub judice case.”

5. The accused had legal representation at the time of his trial, and he pleaded
guilty to the charge. He was sentenced to payment of a fine of R3 000,00 (de-
ferred over a period of 5 months), or 3 months’ imprisonment.

6. That was the end of the matter until, during a quality assessmen t undertaken
in the magistrates’ court in August 2025, the matter was flagged as suffering
from “an issue with judgment and sentence”. It was thus submitted to the High
Court for special review under section 304(4) of the CPA. In correspondence
addressed to this Court th e magistrate who had presided over the accused’s

3 Under case number 21709/2021. It is not necessary, for present purposes, to consider the
provisions of the High Court order in any detail.

trial stated that it had been brought to her (the magistrate’s) attention during
August 2025 that “the district court does not have jurisdiction to deal with such
cases”. The magistrate indicated that, at the time of the proceedings, she was
“of the incorrect view that the district court had jurisdiction”.

7. It was not entirely clear to me what exactly the problem with the district court’s
jurisdiction was, and I accordingly telephoned the magistrate who had presid-
ed over the case to discuss the reasons for the submission of the matter for
review. The magistrate confirmed that those conducting the quality assess-
ment were of the view that the district court lacked the necessary criminal ju-
risdiction to find the accused in contempt of a High Court order. She, as mag-
istrate, had always been under the impression that, as far, as criminal con-
tempt was concerned, the district court did have jurisdiction (on the bases that
I discuss below). The issue was not raised at all in the course of the trial pro-
ceedings, as the accused’s legal presentative never objected to the court’s ju-
risdiction.

8. The issue that arises is thus whether the magistrates’ court enjoyed the requi-
site criminal jurisdiction to determine the char ge of contempt against the ac-
cused.

The common law crime of contempt of court: t he criminal jurisdiction of the
magistrates’ court

Contempt of court as a crime

9. Contempt of court is the unlawful and intentional violation of the dignity, repute
or authority of a judicial body, or interfering in the administration of justice in a

4 The charge sheet was formally amended in the course of the proceedings, but the amendment
is not material to the issue under consideration in this judgment.

matter pending before it. 5 It has also been described as the deliberate, inten-
tional (i.e., wilful), disobedience of an order granted by a court of competent
jurisdiction.6

10. It is trite that proceedings arising out of an alleged contempt of court may take
either a civil or a criminal route. First, it is a crime unlawfully and intentionally
to disobey a court order. This type of contempt of court is part of a broader of-
fence, which can take many forms, but the essence of which lies in violating
the dignity, repute or authority of the court. The rule of law requires that the
dignity and authority of the courts, as well as their capacity to carry out their
functions, should alwa ys be maintained. 7 Second, in the hands of a private
party, a civil action or application for committal for contempt may be brought,
invoking a criminal sanction, or the threat thereof. While the litigant seeking
enforcement has a manifest private interes t in securing compliance, the court
grants enforcement also because of the broader public interest in obedience
to its orders, since disregard sullies the authority of the courts and detracts
from the rule of law.8

11. In Fakie NO v CCII Systems (Pty) Ltd ,9 the Supreme Court of Appeal re-
marked that, before the decision S v Beyers ,10 it was not clear whether diso-
bedience of a civil order could lead to a public prosecution, s ince prosecutions
were not commonly pursued. Beyers’s case, which involved the alleged vi ola-
tion of an interdict granted in civil proceedings, ended the uncertainty.

12. What happened in Beyers was that after the alleged violation of the interdict,
and while Beyers’s appeal against its grant was pending, he and his opponent

5 See the definition in Burchell Principles of Criminal Law (5ed, Juta, 2016) p. 864, and see S v
Beyers 1968 (3) SA 70 (A) at 76E-G.
6 Consolidated Fish Distributors (Pty) Ltd v Zive and others 1968 (2) SA 517 (C) at 522C.
7 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) para 6.

7 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) para 6.
8 Fakie NO supra para 7.
9 Supra para 11.
10 Supra at 81F.

reached a settlement i n which the latter abandoned the interdict with retro-
spective effect “as if it had never been granted ”. The State nevertheless pro-
ceeded, and the Appellate Division (as it then was) held that the private aban-
donment did not preclude the public prosecution. 11 The court emphasised that
while mere non-compliance did not necessarily constitute contempt, sustained
disregard and flouting of a court order could be calculated to injure and dimin-
ish the authority and status of the court. The court described the procedure in
terms of which a litigant could in his or her own interest seek punishment of an
opponent for contempt of court to enforce compliance with a court order as
ambivalent (“tweeslagtig”) in nature because, while it followed the rules of civil
procedure, it did not forfeit its criminal dimension. South African case law re-
peatedly treated the civil infraction as a crime, with no indication that it was re-
garded as anything other than common law contempt of court. This appear ed
most clearly from the fact t hat an ordinary punishment was imposed if the ap-
plication succeeded since the imposition of punishment without a crime being
committed, would be something repugnant to (“onbestaanbaar in”) our law.

The magistrates’ court’s civil jurisdiction in relation to contempt

13. One must be careful not to confuse the civil jurisdiction of the magistrates’
court with its criminal jurisdiction insofar as it relates to contempt of court. The
magistrates’ court is a creature of statute. Its civil jurisdiction in relation to
causes of action is set out in section 29 (“Jurisdiction in relation to causes of
action”), read with section 46 (“Matters beyond the jurisdiction ”), of the Magis-
trates’ Courts Act 32 of 1944 (the MCA).

14. In Dreyer v Wiebols and others 12 the Court held as follows in relation to civil
proceedings for contempt:


11 See the discussion in S v Beyers supra at 77E-80F.
12 2013 (4) SA 498 (GSJ) para 9. Emphasis supplied.

“Proceedings for committal for contempt of court ought to be brought in the court that
made the order which the respondent is alleged to have disobeyed. When a high
court entertains an application in civil proceedings for committal for contempt of court,
it does so in the exercise of its inherent jurisdiction to ensure that its orders are com-
plied with. Process-in-aid is a remedy by means whereof a court enforces a judgment
of another court which ca nnot be effectively enforced through that court's own pro-
cess and it is also a means whereby a court secures compliance with its own proce-
dure. Although it is sometimes sanctioned by a statutory provision or a rule of court, it
is an incident of a superior court's ordinary jurisdiction.”

15. Section 29 of the MCA does not confer any civil jurisdiction on the magistrate’s
court in relation to civil proceedings for contempt of court. It has no inherent ju-
risdiction to entertain a civil complaint relating to the contempt of a High Court
order. Such civil complaint must be brought in the High Court.

What, however, is the position in respect of contempt addressed by way of a criminal
charge?

16. The breach of a court order will quite obviously not give rise to crimin al prose-
cution in every case. A party in whose favour an order was granted may be
satisfied with civil relief provided, and the purging of any contempt following
civil proceedings. In cases where a criminal complaint is lodged, the decision
to prosecute lies in the hands of the prosecuting authority. This authority de-
cides, too, where such prosecution is to take place.

17. The magistrates’ court’s criminal jurisdiction depends , broadly, on four as-
pects, namely the nature of the offence, the court’s territori al jurisdiction, and
the sentencing and compensation limits imposed on the magistrates’ court by
the relevant legislation, including the MCA and the CPA.13


13 Kriegler et al Hiemstra: Suid-Afrikaanse Strafproses (6ed, Butterworths, 2002) at p. 292.

18. Section 89(1) of the MCA determines the magistrates’ court’s jurisdiction in re-
lation to the nature of the crime in question:

“The court, other than the court of a regional division, shall have jurisdiction over all
offences, except treason, murder, rape and compelled rape as contemplated in sec-
tions 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act, 2007, respectively.”14

19. Section 90(1) of the MCA determines that the court’s jurisdiction in relation to
its territory:15

“Subject to the provisions of section eighty-nine, any person charged with any offence
committed within any district or regional division may be tried by the court of that dis-
trict or of that regional division, as the case may be.”

20. As to punishment, section 276 (“Nature of punishments”)16 of the CPA lists the
various forms that sentencing may take. Section 92 of the MCA, in turn, delin-
eates the magistrates’ court’s jurisdiction as follows:

14 My emphasis.
15 My emphasis. Section 90(2) to 90(9) make additional arrangements which do not have to be
considered for present purposes.
16 ”(1) Subject to the provisions of this Act and any other law and of the common law, the follow-
ing sentences may be passed upon a person convicted of an offence, namely -
(a) ......
(b) imprisonment, including imprisonment for life or imprisonment for an indefinite period
as referred to in section 286B (1);
(c) periodical imprisonment;
(d) declaration as an habitual criminal;
(e) committal to any institution established by law;
(f) a fine;
(g) ......
(h) correctional supervision;
(i) imprisonment from which such a person may be placed under correctional supervi-
sion in the discretion of the Commissioner or a parole board.
(2) Save as is otherwise expressly provided by this Act, no provision the reof shall be con-
strued-
(a) as authorizing any court to impose any sentence other than or any sentence in ex-

strued-
(a) as authorizing any court to impose any sentence other than or any sentence in ex-
cess of the sentence which that court may impose in respect of any offence; or

“92 Limits of jurisdiction in the matter of punishments
(1) Save as otherwise in this Act or in any other law specially provided, the
court, whenever it may punish a person for an offence-
(a) by imprisonment, may impose a sentence of imprisonment for a
period not exceeding three years, where the court is not the court
of a regional division, or not exceeding 15 years, where the court is
the court of a regional division;
(b) by fine, may impose a fine not exceeding the amount 17 determined
by the Minister from time to time by notice in the Gazette for the
respective courts referred to in paragraph (a);
(c) ......
(d) by correctional supervision, may impose correctional supervision
for a period as contemplated in section 276A(1)(b) of the [CPA]).
(2)(a) The court shall have jurisdiction to impose any punishment prescribed in re-
spect of an offence under an ordinance of a province or the territory which re-
lates to vehicles and the regulation of traffi c on public roads, notwithstanding
that such punishment exceeds the jurisdiction referred to in subsection (1).
(b) Where a person is convicted of culpable homicide arising out of the driving of
a vehicle as defined in any applicable ordinance referred to in paragraph (a),
the court shall have jurisdiction to impose any punishment which the court
may impose under that paragraph in respect of the offence of driving a vehicle
recklessly on a public road.”

21. The court’s jurisdiction in relation to compensation is prescribed in section
300(1) of the CPA:18

“(1) Where a person is convicted by a superior court, a regional court or a magis-
trate's court of an offence which has caused damage to or loss of property (including

(b) as derogating from any authority specially conferred upon any court by any law to im-
pose any other punishment or to impose any forfeiture in addition to any other pun-
ishment.”
17 Currently R120 000,00 in respect of the district court.
18 Emphasis supplied.

money) belonging to some other person, the court in question may, upon the applica-
tion of the injured person or of the prosecutor acting on the instructions of the injured
person, forthwith award the injured person compensation for su ch damage or loss:
Provided that- (a) a regional court or a magistrate's court shall not make any such
award if the compensation applied for exceeds the amount19 determined by the Minis-
ter from time to time by notice in the Gazette in respect of the respective courts.”

22. I suspect that what might have muddied the waters f or those undertak ing the
quality assessment in the present matter was the magistrates’ court’s lack of
civil jurisdiction in relation to contempt, coupled with t he provisions of section
106 of the MCA. Section 106 provides specifically as follows in relat ion to
contempt ex facie curiae:

“Any person wilfully disobeying, or refusing or failing to comply with any judgment or
order of a court or with a notice lawfully endorsed on a summons for rent prohibiting
the removal of any furniture or effects shall be guilty of contempt of court and shall,
upon conviction, be liable to a fine, or to imprisonment for a period not exceeding six
months or to such imprisonment without the option of a fine.”

23. Section 106 creates a st atutory offence that should be charged an d tried as a
criminal offence.20 The “court” referred to in section 106 is, in terms of section
121 of the MCA, a magistrates’ court for any district or regional division. A
magistrates’ court may therefore visit cases of contempt in relation to its own
orders with the sanctions prescribed in the section. Section 106 does not ,
however, address the magistrates’ court’s jurisdiction to determine a criminal
charge of contempt in relation to an order of the High Court.

24. Section 108 of the MCA, in turn, provide s for specific relief - summary convic-
tion and sentencing - in cases of contempt in facie curiae during a sitting of the

tion and sentencing - in cases of contempt in facie curiae during a sitting of the

19 Currently R300 000,00 in respect of the district court.
20 See M v M [2017] ZAGPJHC 279 (28 March 2017) para 19.
21 The definitions section.

magistrates’ court.

25. A contextual consideration of all of these provisions does not offer any reason
for the exclusion of the crime of contempt of court from the magistrates’ court’s
criminal jurisdiction. On the contrary, the magistrates’ court has the necessary
jurisdiction to deal with the common law crime of contempt ex facie curiae, ir-
respective of and in addition to its powers under section 106 of the MCA. This
is clear from section 89(1) of the MCA, which I have quoted earlier. The court
is expressly empowered to deal with all offences except murder, treason, and
rape. The crime of contempt is not excluded.

26. This has, in fact, been the approach in the relevant case law over the years.

27. In R v Mans22 it was held that contempt of court ex facie curiae is a crime un-
der the common law, and if it is not excluded, it falls within the boundaries of
the MCA. The Court considered various o lder authorities in which the same
approach had been taken, including Die Staat v Innes Grant,23 in which the full
court stated:24

“But why it should be said that the provision of this summary method of dealing with a
particular form of contempt should limit the magistrate's jurisdiction in question of con-
tempt generally I am at a loss to understand.”

28. In Die Staat v van Wyk25 the same point was made:26

“In the course of the argument the point was raised whether the magistrate's court
had jurisdiction to try this charge; though this ground was not set forth in the notice of
appeal. In Rex v Ncapai (1937, J.C., sec. 439), GANE, A.J ., held that a magistrate's

22 1950 (1) SA 602 (C) at 604-605.
23 1923 NPA 425.
24 At 428.
25 1934 CPD 308.

court had no power to try the criminal offence of contempt of court committed ex facie
curiae, and Rex v Cadi (1930 TPD 99) is to the same effect. The Natal Provincial Di-
vision, however, in Innes Grant v Rex (1923 NPD 425) took the opposite view. I agree
with the last-mentioned decision, ….”27

29. In R v Van Rooyen 28 the court reiterated that, i n terms of se ction 89 of the
MCA, a magistrate's court is given jurisdiction in respect of all offences except
treason, murder and rape. It held:29

“It is clear that contempt of court is under our common law an offence; …. Contempt
of court as an offence may be punished i n the same way as any other offence, i.e. in
a criminal case initiated by way of summons. The Supreme Court, it has been held,
has inherent jurisdiction to punish contempts summarily. A magistrate's court, as a
creature of statute, must seek its jurisdicti on in the statute creating it. … It however
contains no express provisions which remove from the normal scope of the words
employed in sec. 89 of the Act the offence of contempt of court. Prima facie a magis-
trate's court in terms of the Act therefore would have jurisdiction to try a charge of
contempt of court committed ex facie curiae if the matter be brought before it in the
ordinary way by means of a summons in a criminal case. … In principle and on au-
thority I can see no basis for holding that the commo n law offence of contempt is not
justiciable by a magistrate's court under its criminal jurisdiction conferred by sec. 89
of the present Act.”

30. R v Van Rooyen was decided before the introduction of section 106 and sec-
tion 108 in their current form into the MCA, but the approach taken in that case
was confirmed by the Appellate Division (as it then was) in Argus Printing and
Publishing Co Ltd and others v Esselen's Estate:30

“A magistrate's court has, in addition, jurisdiction to try a contempt of court comm it-

26 At 312.
27 See also Die Staat v Spilkin 1944 EDL 55.

26 At 312.
27 See also Die Staat v Spilkin 1944 EDL 55.
28 1958 (2) SA 558 (T) at 560ff.
29 At 560H-561G. My emphasis.

ted ex facie curiae brought before it by way of an ordinary criminal summons (see R v
Van Rooyen 1958 (2) SA 558 (T)). The only difference between the magistrate's court
and the Supreme Court in this sphere is that the latter can also deal with
a contempt ex facie curiae by the summary procedure (see Jones and Buckle The
Civil Practice of the Magistrates' Courts in South Africa 8th ed 376).”

31. On a proper interpretation, in any event, the purpo se of sections 106 and 108
is to provide for a penalty (summarily imposed in the case of section 108 ) in
the event of contempt of orders of the magistrates’ court itself. These provi-
sions appear in the “ Offences” section of the MCA, and do not purport to limit
the criminal jurisdiction of the magistrates’ court as pr ovided for elsewhere in
the MCA. As was stated in R v Van Rooyen31 in relation to section 108 of the
MCA:

“But for a possible inference to be drawn from the terms of sec. 103 of Act 32 of 1917
(the equivalent of the present sec. 108) there was no basis at all for holding that the
common law offence of contempt of court had to be added to the crimes of treason,
murder and rape specifically excluded from a magistrate's jurisdiction by sec. 86 [now
section 89]. And the fact that a special power was conferred on magistrates to deal
summarily with contempts committed in facie curiae under sec. 103 would not in my
view reasonably give rise to the inference that thereby jurisdiction to deal with con-
tempts committed ex facie curiae when made the subject of an ordinary criminal
charge was taken away. It is interesting to note that a contempt committed in facie
curiae can now clearly be dealt with by a magistrate's court also on a summons and
not only summarily; see the terms of sec. 108 (1) of the present Act as compared to
the terms of the old se c. 103 (1). The result is that in my opinion the question as to
the correctness of the decision in Rex v Cadi, supra, left open in the case of Rex v

the correctness of the decision in Rex v Cadi, supra, left open in the case of Rex v
Sachs, 1932 T .P.D. 201 at p. 203, must be answered in favour of the view that the
decision was clearly wrong and that in any event, under the provisions of Act 32 of
1944, a magistrate's court has jurisdiction to try the offence of contempt of court
committed ex facie curiae brought before it by way of an ordinary criminal summons.”

30 1994 (2) SA 1 (A) at 31B-C.

32. Further, whilst a civil remedy for contempt has to be sought in the court whose
order was breached (that is, the High Court pronounces on the breach of its
own orders), there is no such dis tinction in the case of the common law crime
of contempt. As long as the necessary elements for the criminal jurisdiction of
the magistrates’ court are present in relation to a criminal charge of contempt,
it matters not that the court order which forms t he basis of the charge was
granted by the High Court, as was the case in the present matter.

33. A useful illustration of this appears from the case of S v Bresler and another,32
where the converse occurred : the contempt in question related to the magis-
trates’ court, but the criminal prosecution for contempt took place in the High
Court. The first accused, Mr Bresler, had made racist and disparaging re-
marks about a magistrate who had presided over a criminal trial involving his
daughter, Ms Bresler. The magistrates’ court had found Ms Bresler guilty of a
traffic offence. The offending remarks were made in an application for leave to
appeal which had been prepared by Mr Bresler, as well as in the course of the
subsequent appeal . Although the remarks were aime d at , and constituted
contempt of, the magistrates’ court, Mr Bresler was prosecuted and convicted
in the High Court given the seriousness of the matter, and the social ramifica-
tions of his public outburst against the magistrate in question.

34. Samuels v S33 involved an appeal against the appellant’s conviction and sen-
tence in the magistrates’ court on a criminal charge of contempt . Notably, the
charge arose from the appellant’s breach of an interdict previously granted by
the High Court in civil proceedings . Whilst the High Court, on appeal, inter-
fered with the conviction and sentence, it did not question the prosecution of
the criminal proceedings in the magistrates’ court, or the magistrates’ court’s

31 Supra at 561H-562B. My emphasis.
32 2002 (2) SACR 18 (C).

31 Supra at 561H-562B. My emphasis.
32 2002 (2) SACR 18 (C).
33 2016 (2) SACR 298 (WCC).

jurisdiction to hear the matter.

35. Thus, the institution of a criminal prosecution for contempt of court is the pre-
rogative of the National Directorate of Public Prosecutions, and that office may
decide where the prosecution is to be instituted. The breach of a magistrates’
court order, and the ramifications of such breach, may be regarded as suffi-
ciently serious to warrant prosecution in the High Court. The breach of a High
Court order may, conversely, be deal t with in the magistrates’ court, as was
the case in the matter under consideration.

Conclusion

36. It follows that there is no reason why the matter should not have proceeded in
the mag istrates’ court , and there is no reason to interfere with th at court’s
judgment and sentence.

Order

37. In these circumstances, I suggest that the following order be granted:

The proceedings in the Magistrates’ Court for the district of the Garden
Route (held at George) under case number C906/2022, including the ac-
cused’s conviction and sentence on 23 April 2024, are confirmed.



___________________
P. S. VAN ZYL
Acting Judge of the High Court

I agree, and it is so ordered.

___________________
R.C.A. HENNEY
Judge of the High Court