IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO)
Case No. CA&R 46/2025
OF INTEREST
In re contempt proceedings against LUVUYO MELANI in the Whittlesea
Magistrate’s Court
REVIEW JUDGMENT
HARTLE J
[1] A magistrate of the Whittlesea Magistrate’s Court referred half -completed
contempt of court proceedings to this court as a “special review”.
[2] The pretext of the review was that although she believed that the actions of
the alleged contemnor - a Legal Aid practitioner who in bail proceedings had
addressed her in isiXhosa (whereas the official language in court is English)
amounted to contempt of court, she wanted to be assured that she was correct in
her handling of the matter before continuing. The reason advanced for this
approach is that a similar matter (concerning a different Legal Aid practitioner)
was pending in the Makhanda High Court, the outcome of which review (so I was
led to believe) would settle in her mind whether Mr. Melani’s behaviour under
consideration had been properly vindicated as contempt of court.
[3] The provisions of section 108 (2) of Magistrate’s Court Act, No. 32 of 1944
(“MCA”), contemplate a matter -of-course review to this court of completed in
facie curiae contempt proceedings initiated in a magistrate’s court under the ambit
of section 108 (1), but this is not the typical situation that resorts under such a
category.1 This is so because the supposed contemnor, Mr. Melani, was never
convicted, the magistrate having reserved her judgment pending this so -called
special review. This notwithstanding, she is confident that she had every reason
notionally to have invoked con tempt of court proceedings against Mr. Melani in
the unique circumstances of the matter which I relate below.
1 Section 108 (2) of the MCA provides in this respect that:
“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 registr ar 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 o f such
statement.”
It is not clear if Mr. Melani was served with a copy of the present review application. Absent the proceedings having
culminated in him having been convicted and a penalty imposed, the peremptory obligation on the judicial officer to
have provided the statement indicated for a review would not have been triggered. It would have been useful
however to have known the magistrate’s grounds and reasons for the proceedings taken (as far as they were), and to
have heard the attorney’s views in response, rather than to have grappled with hypothetical notions.
[4] Her equivocation that she was on the right track however drove her to seek
the “advice” of a reviewing judge. In her first covering letter to th e Registrar she
wrote as follows:
“I am sending this matter on review to request the Honourable Reviewing Judge for
advice.
I believe the actions of the Attorney amount to Contempt of Court. However since I am
still awaiting a decision from the Grahamstown High Court on an Application to stay a
conviction and sentence on my previous findings I made for Contempt of court, I believe
it prudent to therefore seek your valued advice in this current matter.”
[5] After directing certain queries to the cler k of the Whittlesea Magistrate’s
Court for clarification (the record was deficient and I was uncertain as to both the
status of the contempt proceedings and the relevance of the pending matter before
the Makhanda High Court), the magistrate amplified her referral as follows:
“Mr Melani wasn’t convicted nor sentenced.
I stated previously I believe his actions to be contemptuous. However due to a previous
and unrelated incident, where I did convict a different legal Aid attorney of contempt of
court but wh ich legal Aid South Africa brought an application to the High Court in
Makanda to set aside the conviction, the decision of the Makanda High Court (is) still
pending, and has delayed the district court matter for more than 6 months.
I therefore thought it prudent to rather send this matter on review for guidance and
advice. Thus being in an attempt to save time and to ensure my understanding of
contempt of court behaviour is not lacking.” (sic)
[6] Asked to clarify how the pending decision of the Makhanda High Court
related, she replied as follows:
“The decision awaited by the Makanda High Court is not related to this matter. I only
mention it to explain my motivation and justify my need to send this current matter on
special review. I believe this was fully answered under 2 above. I would value the High
Courts assessment of the incident and any opinion and advice the court may have to
ensure my understanding of what may or may not amount to contempt of court behaviour
is correct.” (sic)
[7] The matter co-incidentally came before me again as a chamber review when
I had my clerk request direct particulars of the pending High Court matter. 2 In
response the magistrate amplified its relevance and again put forward her ultimate
basis for the review:
“The matter referred to which created my confusion in respect of what amounts to
contemptuous behavior before court is Case B 60/2024 in which I found a legal aid
practitioner, a Mr J…., guilty of contempt of court on the 23rd of July 2024.
At his request I postponed the matter for sentencing purposes as he wanted to appoint an
attorney to mitigate on his behalf. A meeting between his manager and my senior
magistrate was held in chambers in which it was agreed that sentencing should take place
2 Since the offending behaviour of the other Legal Aid attorney under scrutiny in the Makhanda High Court was not
mentioned, I was interested to ascertain if a true language issue had been in contention in that matter as well and if
the High Court had pronou nced thereupon. The 2017 Directive of the then Chief Justice, which sets the tone for an
English-only-language-in-court Policy for reasons of practicality has posed certain challenges in our courts and
faces criticism for not reflecting our country’s lingu istic reality or meeting the constitutional imperative of
promoting the status and use of all 12 official languages (which includes the recent addition of sign language). See
A handbook on Legal Languages and the quest for linguistic equality in South Afr ica and beyond, Docrat, Kaschula
and Ralarala, 2021, at 95 – 127 especially, read together with Chapter 7 which highlights certain South African
cases on the subject. The trend of our reviewing courts in recent years has been to promote, rather than sancti on, the
usage of indigenous languages in courts where it has been constitutionally apt to do so, and/or to enforce accused
persons’ constitutional rights to interpretation as an adjunct right to the implementation of language rights in a
multilingual court context.
when next t he main matter was on the roll and thereafter the entire contempt finding
would be sent on review.
However despite this undertaking and before sentence, Legal Aid South Africa proceeded
with an application the High Court of Makanda to set aside the guilty verdict of
contempt. Their papers cited bias and the fear that Mr J… would receive a term of
imprisonment as a sentence. I as the magistrate didn’t oppose the application nor did I
present or was I asked to present any reasons for my finding. I let the tr anscribed record
speak for itself.
This entire procedure has and is creating a delay in the main matter.
The case number in the high court is C.A & R 13/2025 (in respect of the contempt
conviction of Mr J…) was argued as far as I have been able to establ ish in my absence
before the Honourable Acting Judge (Molony).
Legal Aid filed their application in respect of Mr J… in August 2024.
The current matter in respect of Mr Melani and placed before Honorable Judge Hartle
occurred after this incident on the 24th of October 2024.
Due to the confusion created by the matter involving Mr J…, I decided to prevent a
recurrence of the same happening and despite my belief that Mr Melani’s behavior on
the 24th of October by addressing court in vernacular amounts to contempt of court , had
it not been for the experience I endured by the matter with Mr J…, I would have found
Mr Melani Guilty of contempt of court.
I however decided to instead refer the matter to the High Court on review to determine if
my opinion as to what I believe amounts to contemptuous behavior is indeed correct and
if I should therefore proceed under case number B130 A/2024 to hold Mr Melani Guilty
of contempt of court or not.” (sic)
(Emphasis added)
[8] Section 108(1) of the MCA gives a magistrate ’s court3 the power to invoke
summary proceedings to vindicate certain forms of contempt committed in facie
curiae. The sub-section provides as follows:
“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 4 or upon summons to a
fine not exceeding R2 000 or in default of payment to imprisonment for a period no t
exceeding six months or to such imprisonment without the option of a fine.”
[9] A lower court, unlike the high court, has no inherent right to punish an
offender summarily for contempt of court. Its powers in this respect are derived
from and limited to th e three categories of contempt offences provided for in
section 108(1) of the MCA.5
[10] The common law crime of 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.6
[11] Section 108 (1) of the MCA caters for conduct which could fall short of the
common-law concept of contempt. Hence the caution has been sounded that is not
3 The section establishes statutory offences that apply only to magistrate courts. In re Clark 1958 (3) SA 394 (A) at
399C.
4 The summary type of procedure envisaged in section 108 (1) of the MCA that permits a contemnor to be
“sentenced summarily” to the penalty provided for, is in contradistinction to the alternative option of vindicating his
offending conduct through the issue of a summons, that is by way of the ordinary process of law.
5 S v Lavhengwa 1996 (2) SACR 453 (W), at 474I-475A.
6 Hunt South African Criminal Law and Procedure Vol II Revised Edition (1990) at 185.
useful to apply the common -law definition of contempt in an effort to decide what
is contemplated by the section.7
[12] The section by obvious import deals only with contempt committed in facie
curiae.
[13] Whilst a magistrate's court has jurisdiction to try the offence of contempt
committed ex facie curiae, its summary jurisdiction provided for in section 108 (1)
is limited to the three possible situations of unlawful conduct specified therein. The
court has no jurisdiction to summarily punish the common -law offence of
contempt of court, even if committed in facie curiae.8
[14] While the section includes conduct which could be contempt in the
conventional sense, such as wilfully insulting a judicial officer, it also includes
such lesser conduct as “ misbehaving”, and also conduct which is directed not only
at the judicial officer himself but also at an officer of the court during the latter’s
attendance at a court sitting.9
[15] The subsection envisages three categories of statutory contempt:
(a) wilfully insulting the judicial officer (or other officer of the court)
during his sitting (or the other officer during the latter’s attendance at a court
sitting);
(b) wilfully interrupting the court proceedings; and
7 S v Memani 1994 (1) SA 515 (W) at 517H–J. See also S v Lavhengwa, supra, at 465H.
8 Duffey v Attorney-General, Transvaal 1958 (1) SA 630 (T); R v Van Rooyen 1958 (2) SA 558 (T).
9 S v Memani 1994 (1) SA 515 (W) at 517H–J; Pheko v Ekurhuleni City 2015 (5) SA 600 (CC) at 617B and 617C.
(c) (wilful) misbehaviour committed in the place where the court is held.10
[16] There must be evidence, given the element of wilfulness indicated in each of
the possible situations above, that the insult or interruption as the case may be is
intentional or deliberate. It must, therefore, be shown that the accused acted in the
knowledge that what he was doing, or was about to do, could amount to contempt
of court. Intention in the form of dolus eventualis however suffices.11
[17] When it comes to the generic “ in any other respect ” misbehaviour
contemplated, such offending conduct must also have been committed
intentionally in the context of interfering with the proper functioning of a
magistrate’s court. Looking at it from an opposite perspective, the conduct
warranting the unique remedy to summarily punish a person for contempt under
the section for “other misbehaviour” entails an actus reus connoting impropriety or
a departure from the established mode of conduct of legal proceedings in the
magistrate's court which tends to undermine or interfere with such proceedings,
with an intention to cause the disruption or disorder.12
[18] In S v Lavhengwa13 the court conducted a useful investigation into the proper
interpretation of section 108 (1) of the MCA as follows:
10 S v Lavhengwa, supra , at 465G. See also Jones & B uckle, The Practice of Magistrate’s Courts in South Africa
(Volume I & II) The Act/ Act with Commentary/ MCA 32 of 1944/108 Custody and Punishment for Contempt of
Court, RS31, 2024 Act – page 669.
11 S v Lavhengwa, supra, at 467D. Jones & Buckle Commentary, Supra, at 669 -70 and the cases cited therein on the
issue of wilfulness and intention.
12 S v Lavhengwa, supra, at 466F-H. It makes logical sense that read in context, not every misbehaviour in the place
where the court is held constitutes a statutory offence under the third category. What is denoted is impropriety that
undermines or interferes with proceedings, o r detracts from the proper functioning of the magistrate’s court, not just
up-in-the-air misbehaviour. Of course such actus reus must be associated with the necessary mens rea for the
contravention.
13 1996 (2) SACR 453 (W).
“It will at once be seen that this subsection establishes statutory offences which in certain
respects renders criminal certain conduct which falls short of the common -law concept of
contempt of Court. Common-law contempt is directed more at the judicial office than the
particular judicial officer (See R v Silber supra at 480G). It is conceivable that conduct
falling within the three categories of the statutory offences created in s 108(1) need not
necessarily be contumacious conduct under the common law, but could very well
constitute a contravention of this section. In S v Memani 1994 (1) SA 515 (W) Eloff JP
and Le Grange J said at 517I-518C:
'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 offenc e 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.'
I respectfully agree with this interpretation of the parameters of s 108. The provision
broadens the scope of punishable conduct which otherwise may not have constituted the
common-law crime of contempt of court. In particular the third category of
'misbehaviour' created by s 108(1) establishes a wide range of conduct which may not
'misbehaviour' created by s 108(1) establishes a wide range of conduct which may not
otherwise be indictable. As far as I could ascertain, the range of misbehaviour falling
within the scope of this third category of statutory contempt, has never been judicially
defined. In trying to do so, much will depend upon the wide and uncertain meaning of the
words 'otherwise misbehaves himself'. What is the meaning of the word 'misbehave' in
this context? The Oxford English Dictionary 2nd ed at 847 defines the word 'misbeh ave'
as 'to behave wrongly; to conduct oneself improperly'. The words 'otherwise misbehaves'
as used in the section must be interpreted eiusdem generis (Duffey v Attorney -General,
Transvaal and Another (supra at 635A); S v Shapiro 1987 (2) SA 482 (B) at 48 9A)
because these words follow the provisions relating to: (i) wilful insults of a judicial
officer 'during his sitting', and(ii) the wilful interruption of the proceedings 'of the court'.
The words are also used in conjunction with the words 'in the place where such court is
held'. In this context the 'other misbehaviour' which the Legislature intended to render a
statutory offence, must therefore be restricted to wilful improper conduct which tends to
interfere with the proper functioning of the magistrat e's court. As used in s 108(1) it
would seem to me that the word 'misbehave' connotes impropriety which undermines or
interferes with such proceedings. Thus a mere departure 'from the established mode of
conduct of legal proceedings' in the magistrate's co urt which is wilfully perpetrated (as
in Zungo's case supra at 271D) will be a contravention of the third category of statutory
contempt contemplated in s 108(1) provided of course that it is not de minimis . For
example, smoking in court may not necessaril y be contumacious conduct entitling a
conviction in terms of the common -law crime of contempt of court but it could very well
result in improper behaviour justifying a conviction under the third category of
misbehaviour contemplated in s 108(1). In In re D e Bruyn 1939 NPD 1 at 3 Feetham JP
said the following:
'No doubt most people are perfectly well aware that they should not smoke in court, and any
person who smoked in court, when he was aware that he ought not to smoke, or who persisted in
smoking in court after being told not to smoke, might properly be dealt with under the section.'
The section with which Feetham JP was concerned was s 103 of the old Natal
Magistrates' Courts Act 32 of 1917 which for all intents and purposes was the same as the
present s 108(1) of the Magistrates' Courts Act of 1944. Other examples of misbehaviour
which need not amount to common-law contempt or conduct contrary to categories 1 and
2 of s 108(1), but may contravene category 3 are: giving evidence in a state of
intoxication (R v Lloyd (1905) 22 SC 347); appearing in court improperly dressed ( In re
Camrodeen (1894) 15 NLR 335; R v Mnyongo 1931 EDL 157; H R Hahlo 'Judge and the
miniskirt' 1970 SALJ 244/5; shouting in court ( Q v Rocke (1884) 4 EDL 274; R v
Benson 1914 AD 357); singing in court ( R v Khupelo 1961 (1) PH H92 (E)). It would
therefore seem possible that conduct in a magistrate's court which is neither insulting nor
disruptive but merely improper could very well constitute misbehaviour under the third
category of puni shable conduct set out in s 108. To satisfy the prerequisites for a
conviction under s 108(1) such improper conduct must of course be associated with the
necessary mens rea in the form of dolus directus or dolus eventualis. (See In re De Bruyn
necessary mens rea in the form of dolus directus or dolus eventualis. (See In re De Bruyn
(supra); S v Foley 1968 (1) SA 694 (T) at 696A; S v Sekoyi (supra at 942C).)”14
[19] A magistrate’s court possesses the authorization through the statutory
empowerment aforesaid to self -protect and guard against the disruption of the
orderly progress of proceedings before it. The power permits it to restore its
authority promptly, and to allow the administration of justice to continue
unhindered. By its very nature the kind of transgressions envisaged by the section
require “ swift intervention”, that is quick and effective judicial intervention that
serves the purpose of nipping the disruptive conduct in the bud so that both the
14 At 465H-467D.
dignity and authority of the court is restored, and its capacity to carry out its
function is maintained.15
[20] The primary objective of any conviction for contempt of court is to maintain
the reputation and dignity of the court and the orderliness of its proceedings and it
achieves that object through the power to summarily punish the offender. 16 Thus
the most important function of the imposition of punishment for such offence is to
enforce the court’s authority.
[21] Summary jurisdiction under this section should be exercised only when the
case (of possible statutory contempt) is clear beyond reasonable doubt and when
immediate action is necessary to vindicate the dignity of the court. 17 If an
indictment will meet the case, the summary jurisdiction should not be resorted
to. Contraventions of court etiquette or interferences of court procedure which are
of a trivi al nature should be ignored or dealt with by the presiding magistrate in a
restrained manner. 18
[22] Importantly, in S v Ntshwence, 19 a Full Court of this Division held that the
summary procedure does not limit the rights of an accused set out in section
35(3)(a), (b), (f), (g), (h), (i) and (j) of the Constitution of the Republic of South
15 S v Mamabolo (E TV & Others Intervening) 2001 (3) SA 409 (CC) at [51- 52]. See also Coetzee v Government of
the Republic of South Africa; Matiso & Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4)
SA 631 (CC) at [61] on the nature of the instituti on of contempt of court proceedings and its critical importance in
upholding the rule of law.
16 S v Nel 1991 (1) SA 730 (A), reading from the English translation of the headnote at 733 A -F with specific
emphasis on the uniqueness of the offence, its distin ct procedure whereby the offender can there and then be found
guilty and sentenced, and the unique characteristics of the punishment. See also S v Lavhengwa, supra , at 464G -I
and 474F-I and S v Ntshwence 2004 (1) SACR 506 (TkD) at [11].
and 474F-I and S v Ntshwence 2004 (1) SACR 506 (TkD) at [11].
17 See S v Ntsane 1982 (3) SA 467 (T) at 473A–B; S v Nyalambisa 1993 (1) SACR 172 (Tk) at 175i.
18 See generally the summary in Jones & Buc kle Commentary concerning section 108 of the MCA (s upra) and the
myriad authorities cited therein.
19 Supra. Also reported as 2004 (1) All SA 328 (Tk). See also S v Nel 1991 (1) SA 730 (A) (albeit concerning
contempt in facie curiae committed in the High Co urt) on the salutary starting point of applying the audi alterem
partem principle before convicting a person of contempt in summary proceedings.
Africa, 1996. The limitation (by the summary procedure) on the right to a public
trial before an ordinary court as set out in s 35(3) (c) is, further, justifiable in terms
of s 36(1) of the Constitution.20
[23] Accordingly, in summarily dealing with an offender under s 108 (1) of the
MCA, the court must have regard to the fact that the offender has the following fair
trial rights:
(i) The right to be informed of the charge with sufficient detail to
answer it.
(ii) The right to have adequate time and facilities to prepare a
defence.
(iii) The right to legal representation.
(iv) The right to adduce and challenge evidence.
(v) The right to be presumed innocent, to remain silent and to testify
during the proceedings.21
[24] It has been emphasized that a court of appeal or review should be slow to
interfere with the measures which a lower court considers necessary to take in self-
protection and in order to secure the decorum of its own proceedings, for it is
difficult for the court of appeal 'to realise the atmosphere in which the incident
took place and all the circumstances surrounding it, which are so essential for a
right estimate of its real character'. 22
20 At 334e-340b and 340c-341e.
21 Buckle & Jones , Commentary, supra, read with corresponding footnotes indicating related authorities. Both S v
Lavhengwa and S v Ntshwence provide useful analyses of the consideration of each fair trial right in the context of
summary contempt proceedings.
22 R v Benson 1914 AD 357 at 359; R v Silber 1952 (2) SA 475 (A) at 481B–C; S v Pitje 1960 (4) SA 709 (A) at
710D; S v Ngcemu 1964 (3) SA 665 (N) at 668A; S v Sokoyi 1984 (3) SA 935 (NC) at 942A; S v Poswa 1986 (1) SA
215 (NC) at 221D; S v Memani, supra, at 518F–G.
[25] The present review concerns incomplete proceedings. Since no ground s or
reasons have been provided to this court which may be of assistance in determining
the matter, it is necessary to consider as best as it can, through the prism of the
particular atmosphere that pertained in court at the relevant time, the circumstances
under which the highlighted conduct came to be recognized by the magistrate as
notionally contumacious.
[26] It appears that, in an attempt to be heard in court over the noise of the air
conditioner at an appearance before her on 24 October 2024, instead of meeting the
magistrate’s expectation of speaking up as requested by her (in English, which is
regarded as the official language of record), Mr. Melani resorted to speaking in
isiXhosa. Before embarking on this route, however, he requested to rather be
assisted by the interpreter if the magistrate could not understand him. Evidently he
perceived that the reason she could not hear him was because he might not be
arguing sensibly in a language that is not his mother tongue. 23 An exchange ensued
thereafter, with Mr. Melani speaking in the vernacular. The magistrate warned him
that he was “now bringing (the) court into disrepute”, no doubt because he insisted
on addressing the court in isiXhosa on the premise that it was one of the official
languages that he was entitled to use. The magistrate corrected him, indicating that
he knew very well that the only language in court is English. After surmising that
23 In Cultural and Linguistic Prejudices Experienced by African Language Speaking Witnesses and Legal
Practitioners at the Hands of Judicial Officers in South African Courtroom Discourse: The Senzo Meyiwa Murder
Trial, Zakeera Docrat & Russell H. Kaschula, International Journal for the Semiotics of Law (2024) 37:1309–1322
(https://doi.org/10.1007/s11196-023-10071-6) the authors list three types of linguistic prejudice in a courtroom
discourse context: Linguistic inequality where a communicative participant lacks lexical items - as in having
sufficient English vocabulary, communicative inequality where a participant lacks semiotic appropriateness (the
goal of achieving "appropriateness" in a semiotic sense is to enable effective and ethical communication where the
meaning intended by the sender is succes sfully and respectfully interpreted by the receiver within a given context),
and subjective inequality where value judgments are based on an interlocutor’s statements. In this instance Mr.
Melani from his perspective certainly imagined a void in communicat ion, but the magistrate on the other hand
appears to have been oblivious to his perceived linguistic prejudice.
Mr. Melani was “going to continue on this trajectory”, she announced that she was
going to resort to contempt proceedings.
[27] It is necessary to outline what happened in the court in the figurative
twinkling of an eye before things got messy:
“MR MELANI : As it pleases the Court, Your Worship. I am informed the Honourable
Court dealt with the bail applicati on in respect of one of the accused. This falls in line
with the previous matter. Your Worship.
COURT : Okay. Are you going to bring an application for my recusal?
MR MELANI : Yes.
COURT : Is that what you’re saying?
MR MELANI : Yes.
COURT : On the 29, a written application?
MR MELANI : Yes
COURT : Good. Right.
MR MELANI : In fact, Your Worship, it would have been preferred that I will make my
legal submissions … [intervenes]
COURT : Pardon?
MR MELANI : Relating to all these cases that I’m referring to.
COURT : You want to do what? You want to?
MR MELANI : I’m not sure … [intervenes]
COURT : Sorry, I’m, I can’t hear you.
MR MELANI : Maybe you can interpret for me, sir. Unfortunately.
COURT : No, no. Maybe you need to speak up Mr Melani with all due respect. Please
speak up. I’ve got an aircon behind me … [intervenes]
MR MELANI : I’m not, I’m not speaking softly. That’s one thi ng I do not do. You are
constantly not hearing me. Hence maybe it’s a problem with the English language. Of
course it’s not my mother tongue. Hence I will then I will use the services of the
interpreter. Unfortunately.
COURT : No, you won’t have … [intervenes]
MR MELANI : I will … [intervenes]
COURT : Something about … [intervenes]
MR MELANI : [speaks in vernacular]…[intervenes]
COURT : Excuse me?
MR MELANI : [speaks in vernacular]…
INTERPRETER : Your Worship?
COURT : Oh, my goodness.
MR MELANI : [speaks in vernacular]…
INTERPRETER : Hmm.
COURT : Mr Melani … [intervenes]
MR MELANI : [speaks in vernacular]
COURT : You are now speaking isiXhosa
MR MELANI : Mm-hm.
COURT : And you are now bringing this court into disrepute. Do you want to continue
on this trajectory Mr Melani?
MR MELANI : isiXhosa is one of the official languages.
COURT : Oh, absolutely but … [intervenes]
MR MELANI : [speaks in vernacular]
COURT : Mr Melani stop right now. You know very well that the only official language
in court is English. Not any other language. There has been a constitutional court
decision to that regard. If you now wish to address in isiXhosa you are now bringing this
court into disrepute. So, you are going to continue on this trajectory?
MR MELANI : [speaks in vernacular]…[intervenes]
COURT : Fine. Mr … [intervenes]
MR MELANI : [speaks in vernacular]
COURT : Mr Pukwana, please place case B130/2024 on record. Actually, it’s the lunch
hour. Court adjourns.
PROSECUTOR : I’m keeping the charge sheet.”
[28] It is not clear from the record provided what transpired after the lunch hour
or indeed why not, with the ben efit of the customary one hour break in between,
any imagined threat to the administration of justice could not have been resolved
by trying again without the air conditioner running to hear Mr. Melani’s
submissions on behalf of his clients. In fact there is no indication in the record
provided to this court at all that supports any suggestion that the bail application
which before the lunch interval was underway was hindered from being continued.
[29] When Mr. Melani appeared to face the charge of contempt a week after the
fracas on 5 November 2024,24 the following exchange occurred in the court:
“COURT : Right this is case B130A. I’ve separated it from the main count which is
obviously B130. And last week, sorry, the week before Mr Melani seemed to ta ke
extreme umbrage to the court’s request to repeat what he had said, because I hadn’t heard
what he’d said, and he then decided that he would no longer address Court 25 and would
only be speaking to the Court through the use of the interpreter and proceeded to address
Court in a most hostile fashion in isiXhosa.26 And after that happened I asked Mr Melani
to please address this Court on why he shouldn’t be held in conte mpt of court. He
requested Court to explain why he would be held in contempt of court, on what grounds.
24 There is no indication in the record why, what began with a flurry as an ostensible summary procedure, was then
deferred to be dealt with a w eek later. The mere fact that the magistrate saw no compunction to deal with it
forthwith probably suggests that it had been unnecessary to invoke the summary procedure at all. As was held in S v
Nel, supra, at 732F -G, even assuming that in the magistrate’ s estimate of things the conduct under scrutiny was of
such a nature that it could not be overlooked, she could have referred the matter to the Director of Public
Prosecutions to decide whether Mr Melani should be prosecuted in the ordinary course. That wo uld 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 .” It is only when there is such a nee d
that the judicial officer should “there and then attend to it.”
25 Without a proper translation of the vernacular provided to the court, such an attitude cannot be discerned.
26 In the correspondence underpinning the so -called special review the only offending action by Mr. Melani was
supposedly constituted by his addressing the court in the vernacular against the stream of English being the
mandated language of record in the cou rt. The words “ umbrage” and “ hostile fashion” related by the magistrate to
Mr. Melani when she was summarizing the tenor of the prior proceedings (which have a hubris of their own,
especially when narrated with superlatives), however suggest something of a n undercurrent denoting disrespect. As
can been seen though, Mr. Melani when confronted with the accusation refuted any hostility on his part. He also
refuted the alleged umbrage, explaining that it had rather come down to exasperation on his part for the fact that the
magistrate could not properly hear him on the day in question, or understand what he was trying to convey.
And I advised that it would be because he had brought the court into disrepute. Thank
you, Mr Melani, you may proceed.
MR MELANI : Just before I may proceed, Your Worship, I just wanted to confirm
whether Court is acting in terms of common law or in terms of Section 108?
COURT : I am acting in terms of common law.
MR MELANI : Firstly, I would submit that no conduct of mine in speaking isiXhosa,
which is a constitutionally guaranteed right, is contemptuous to the dignity of the court.
It is my submission that this is not a subjective but rather an objective test. I will start off
by quoting the words of now current Chief Justice Maya, in the interview of the judge
president of the Western Cape which is Boqwana, wherein she stated that other official
languages should be encouraged in spite of the challenges with the translation of the
records. Further, it is not out of the ordinary that I had to resort to speaking isiXhosa. It
was on more than four occasions on that day that the honourable Court could not hear me.
As such I submitted that indeed there’s a problem then with my command of the English
language to an extent I elected to address the Court in isiXhosa in the presence of the
interpreter who then in turn interpreted for the Court. 27 The Court in its introduction
indicated that (it was) in the most hostile fashion. One now wonders where the hostility
comes into play, in that on the previous date the Court had indicated that that record
should be made available to the Court and I’m quite certain whoever would have
interpreted to the Court would not sense any hostility there. Be that as it may, in this
regard it is my submission that these sum mary proceedings are no longer appropriate in
that they are not, as they are happening now, meant to restore the dignity of the court
which may have been impaired at the time. So, the most appropriate way to deal with a
current situation would be for the NPA, the honourable Court to give a statement, the
current situation would be for the NPA, the honourable Court to give a statement, the
NPA to decide whether to prosecute or not. But now those summary proceedings are no
longer applicable in that even if we were to say the dignity of the court was impaired in
way, that is no longer the cas e to restore the dignity of the court. But rather it is my
submission that this is a draconian inquiry which only seeks to feed the ego of the
honourable Court. This is my submission.
27 As can be seen from the record, the interpreter did not translate any of the vernacular on 24 October 2024. It is
essential that the record fully reflects what transpired so that an independent assessment can be made of the
proceedings by the reviewing court. See S v Ntshwence supra at [43].
COURT : Thank you very much, Mr Melani. Matter postponed then to the same date, the
11 November for my judgment, and my decision. Thank you.
MR MELANI : Is the State not given an opportunity to address Court.
COURT : No, the State does not need an opportunity. This is solely on you to address
why you should or shouldn’t be held in contempt of Court.
MR MELANI : Pleases Court.
COURT : As you said, it’s common law, and I’m doing it sui motu .28 Right, are we
going to adjourn then?”
[30] The matter was postponed initially to 11 November 2024. Mr. Melani was
absent on this date. The matter was postponed to 18 November 2024 for its
continuation to a date when he was expected to be present at court for other
matters.29 It was on this date that the magistrate seems to have begun to have
reservations. She explains that: “ Judgment being that although I found his actions
amount to contempt of court (I didn't convict Mr. Melani) I would rather send the
matter on Special review, for reasons related hereunder, instead.” (sic).
[31] On the court’s time sheet the magistrate noted on this date under the column
of the official outcome of the case: “ Judgement- out of time to listen to the record
to have what was said interpreted - p/p 27/ 11/ 2024 for such purpose - Matter to
be transcribed and sent on special review, to determine if a guilty finding is
necessary or not. Postponed sine die for such.”
28 “Suo moto” was probably meant. The adverb indicates an action taken by a court without any prior application or
request by the parties involved.
29 It is of concern that whereas Mr. Melani was now an “ accused” entitled to fair trial rights, his next appearance in
his capacity as a Legal Aid practitioner should be considered as a convenient opport unity to continue the contempt
proceedings against him.
[32] The court’s related appearance sheet dated 18 November 2024 bears an entry
to the following effect:
“Matter sent on special review but postponed to have the vernacular interpreted.”30
[33] The record was supplemented with reference to later proceedings held on 28
November 2024 when a translation of the vernacular spoken by Mr. Melani in
court on 24 October 2024 was attempted. (The related time sheet indicates that
“recording heard and interpreted for record purposes.”) The supposed translation,
however, hardly provides any assistance. It is not clear that the person who assisted
her in this exercise was an official interpreter of the court. The person is referred
to indiscriminately in the latter transcript as both Ms. and Mr. Jikolo and there is
also the hint of a Mr. Joyi having been involved in the process. 31 The exercise was
ostensibly undertaken in open court and in the presence of Mr. Melani but many of
the prior “speaking in the vern acular” notes highlighted in the transcript of the
defining events of 24 October 2024 were ultimately not translated. From one of his
objections voiced in isiXhosa that was indeed translated, the gist of what Mr.
Melani had been trying to communicate to the court at the relevant time however is
that if the magistrate was not “ hearing” him - a fear that many second language
speakers hold that what they are trying to convey in the target language is not
30 This would have been the correct next step for the court to have taken in the context of an anticipated review or
appeal. In Mathebula v S (A31/2017) [2019] ZAMPMHC 1; 2020 (1) SACR 534 (ML) (22 July 2019), the court
pointed out that in view of the policy that the court language of record is English and should be adhered to
uniformly, if the trial is conducted in any language other than English, the presiding officer has a duty to see to it
that the record that is submitted to the High Court is translated into English. This same sentiment was expressed by
this Division in Oosthuizen and Another v S (Appeal) (CA&R 248/2021; CA&R 45/2023) [2024] ZAECMKHC
101; 2024 (2) SACR 600 (ECMk) (19 September 2024).
31 On 28 November 2024 a separate appearance record states as follows: “ Mr Joyi assists to interpret the vernacular
on record by Mr. Melani.” Reading between the lines, Mr. Joyi is also a Legal Aid practitioner, but his involvement
in the latter regard is not explained.
being meaningfully communicated or understood, he would ask someone
(evidently the interpreter) to “help (the magistrate) out.”
[34] In the absence of the interpreter having interpreted (or “ translated” as the
case may be) all the vernacular into English, whether on 24 October, or 28
November 2024, it serves to de monstrate how “ tone-deaf” courts have become to
other languages intruding into the monolingual court space. And how courts fail to
give voice to such interludes afterwards in official court records in a uniform and
regulated fashion so that meaning and nua nce important to the linguistically
prejudiced, who ought to have equal access to language and justice rights in court,
is not lost.
[35] A further curious incident occurred when the magistrate asked a Mr. Dyuwa,
a legal aid attorney ostensibly present in cou rt on 28 November 2024 (there is
nothing that suggests that he was appearing on behalf of Mr. Melani), whether
“listening to the record ” and “ being an isiXhosa speaking man ”, the words
expressed in the vernacular on 24 October 2024 had been correctly inter preted.
What his views were, I daresay, is hardly a substitute for an official translation of
the vernacular spoken in court for record purposes.32
32 The magistrate was on the right track to issue a directive that the vernacular spoken on 24 October 2024 be
translated. Indeed she should have insisted as the proceedings were underway, in real time as it were, that the
interpreter interpret what was being said by Mr Melani once he indicated that he was not understanding her. It is
unclear what the procedure is in the magistrate’s courts for a translation of vernacular spoken in court after the fact.
Presumably the function to translate ex post facto falls to official interpreters of the court according to an acceptable
and uniform process. It strikes me that the bizarre process followed in this instance cannot be the standard. A true
translation into writing should no doubt be undertaken by an interpreter after listening to the audio record, alone,
without the presence of the magistrate or original interpreter, both of whom are in effect witnesses to what was said
in court as well as possibly the demeanour with which th e words were said. See further S v Ntshwence supra at [43]
on the obligation of the court to give a proper record upon review of the cause of the complaint that led to the
charge, on the basis of S v Mongwe 1974 (3) SA 326 (T), which confirms the principle that the magistrate's court is
one of record.
[36] As emphasized above the jurisdiction of a magistrate’s court to summarily
try the offence of contempt committed in court is limited to the cases specified in
section 108 (1) of the MCA. It has no jurisdiction to punish summarily a common
law offence of con tempt of court, even if committed in facie curiae .33 As the
record suggests, the magistrate purported to act in terms of the common law (she
twice said to Mr. Melani that this was her approach), but at the same time evidently
employed facets of the summary procedure.34
[37] Without even going further this constitutes a gross irregularity in the
proceedings inasmuch as she purported to exercise a jurisdiction that the court did
not have.
[38] Further, even assuming that she was in effect trying Mr. Melani under t he
auspices of section 108 (1) of the MCA, the proceedings, for this reason also,
cannot be said to be in accordance with justice. As an accused, Mr. Melani was
entitled to be informed under what category his unlawful behaviour resorted and
why the magist rate considered it appropriate to summarily discipline him for a
supposed contravention of section 108 (1). 35 All that was said to him is that he had
brought the court into disrepute. One has to glean from the context that the
magistrate meant that it was because he had spoken in the vernacular well knowing
the English -only language policy in court. She also referenced a Constitutional
33 Duffey v Attorney-General, Transvaal 1958 (1) SA 630 (T); R v Van Rooyen 1958 (2) SA 558 (T).
34 Whereas a template charge sheet for the common law offence of contempt of court was added to the record of the
court’s proceedings (J15), marked Annexure A, a line ha s been drawn through it and the following words annotated
below it: “ Not referred to the prosecutor for prosecution - court holds enquiry for Mr. Melani’s disrespectful
conduct.”
35 S v Lavhengwa, supra , at 482F -483I concerning the court’s discussion of a c ontemnor’s right to be informed, in
terms of section 25 (3) (b) of the Constitution, with sufficient particularity of the charge he has to meet, especially
understood in the context of the provisions of section 108 (1) of the MCA. See also S v Ntshwence (supra) at [44] in
the context of the court’s obligation to explain to the accused how his conduct amounted to contemptuous
behaviour.
Court decision, the details of which she did not disclose. The fact that she later
offered that she was disciplining him u nder the common law suggests that she had
no clear basis in mind that his behaviour, which ostensibly offended her,
constituted a contravention under section 108 (1) of the MCA. Indeed, if she
imagined that his conduct could be brought within the ambit of the statutory
contempt envisaged in the subsection, she would have said so.
[39] On the issue of the case that he was told he had to meet, the magistrate
appears to have been under a misconception that speaking in the vernacular in
court is absolutely prohibi ted and contumacious in itself. This cannot be a correct
premise given the constitutional aspirations of the language provisions articulated
in sections 6 (1) and (2) of the Constitution, read together with the fair trial right
indicated in section 35 (3) (k) that every accused person has to be tried in a
language that he understands or, if that is not practicable, to have the proceedings
interpreted into that language.36
[40] In February 2003, the Heads of Court established a committee tasked with
preparing a report on the usage of the various official languages of the country in
the courts, to determine whether there are any issues with their usage and to offer
recommendations, if necessary.
[41] The Committee recommended that for reasons of practicality, English should
be regarded as the language of record for all courts but that this should not deny
the litigant, witness or legal practitioner (emphasis added) the right, where
practicable, to address the court in the language of his or her choice.
36 Although Mr. Melani was not the accused person, the linguistic benefit conferred on the persons represented by
him in the bail proceedings extended to him as the practitioner. (See paragraph [41] above).
[42] It reported further that in instances where a language other than English is
used during court proceedings, it must be “ translated” (sic) contemporaneously
into English. Where contemporaneous “translation” (sic) is not available, the court
record, or portions of the c ourt record in a language other than English, must be
translated into English.37
[43] In March 2017 the Heads of Court under the auspices of the Chief Justice
accepted the recommendation that English be the language of record at the
Superior Courts and passed its resolution accordingly which it indicated should be
implemented in the absence of a policy decision from the Executive in this regard.
[44] There has been no policy decision from the Executive regarding official
language to be used in courts since then.38
[45] Whilst the expectation is that legal practitioners should respect the
Judiciary’s directive that an English medium is to obtain in courts for reasons of
practicality, consistency in appeals or reviews, and accessibility of judgments, it
follows logically in a country of heterogenous language usage that there will be
37 A distinction is to be drawn between the functions of “ interpretation” and “translation”. Interpreters, such as we
are accustomed to in our courts facilitate live court conversation. They must process and render speech quickly and
accurately. This requires skills such as active listening, keen memory and a good command of both the source
language being interpreted as well as the target language which is the subject of the interpretation. In the context of
court proceedings in South Africa this entails the simultaneous translation or rendering of conversations from other
languages into English, or sign language, in real time. Translation, especially when required after the fact, however,
entails the conversion of written text or documents into the official court language, for now by interpreters as
opposed to linguistically trained translators. One translating would work with source documents, such as transcripts
in this ins tance, or court documents and exhibits. I would hasten to add that audio recordings might also require
scrutiny when there is a dispute or a lack of interpretation of the vernacular. Both functions require the specialist
skills or expertise of a linguist, but bring different objectives to the administration of justice and entail a different
use of expertise. A translator ought to have the advantage of time at his disposal, enabling the rendering of a more
precise result. In a situation like the present, th e interpreter was expected in real time, in terms of the Heads of Court
Resolution, to have promptly interpreted what Mr. Melani said in the vernacular into English. However no
translation of the kind envisaged by the Resolution (whether contemporaneously or after the fact), appears to have
been properly undertaken in this matter. (Also see fn 31 above).
38 See Oosthuizen and Another v S (Appeal) , supra, which confirms this stalemate several years after the Heads of
Court Resolution.
that case where a recourse to the vernacular is justified, indeed permitted and
encouraged (provided a translation can be effected) no doubt so as not to
undermine critical linguistic or access to justice rights. Thus where a practitioner
necessarily has to resort to another language he should not be punished for
contempt for breaking the English as official language of record protocol. Indeed
the magistrate appears to have overlooked the proviso to the Judiciary’s language
directive.39 In not exploring why Mr. Melani thought it necessary to speak in the
vernacular, or having what he said in IsiXhosa interpreted contemporaneously by
the court interpreter who bears that duty to bring e verything said back to English
for practical record keeping purposes, justice was not served.
[46] As for the question whether Mr. Melani had otherwise misbehaved, this was
clearly not the type of situation provided by the example in S v Zungu40 where the
court held that there was wilful disobedience to a court’s ruling that a certain line
of
argument was irrelevant, 41 or in S v Lavhengwa 42 in which the magistrate was
found
39 The caution sounded t hat the monolingual language policy should not deny a person the right to address the court
in the language of his or her choice seems to have derived from the Committee’s observation that: “ An appropriate
balance must be struck among the various cultural interests by addressing the need for factors such as the
following: • Providing for our constitutional imperatives on official languages, whilst taking practicality and
expense into cognisance; • Developing and advancing the official indigenous languages , with particular regard for
the development of legal terminology in all official languages; • Ensuring fair trials and hearings to make sure
justice is served and access to justice is promoted, and • Accommodating reasonable and legitimate expectations o f
all language groups in our country, within the severe constraints of various resources .”
40 1966 (1) SA 268 (N).
41 In that matter the court remarked that an order made 'even though wrongly’, must be contested on appeal or
review and not by defiance in court. The court held at 271 D-E that:
'By persisting in pressing the point, notwithstanding the ruling, the appellant was departing from the established
mode of conduct of legal proceedings . He was obliged, for the present, to accept the ruli ng, once it had been finally
made; otherwise the conduct of legal proceedings would become chaotic . It cannot be open to a litigant to disregard
the rulings of a judicial officer and to persist in advancing contentions upon which the judicial officer has a lready
ruled against him. His remedy, if he considers the judicial officer to be wrong, is, … to raise the matter on appeal.'
42 Supra.
to have issued a lawful order dismissing the appellant’s objection to a charge
sheet.43 Mr. Melani was not accused of being in disregard of a procedural ruling
issued by the magistrate. Indeed if she had regarded his trend of continuing
(despite the single warning uttered before) on the supposed trajectory of bringing
the court into disrepute as contemptuous of a ruling which she had made (which
would have been an unlawful or invalid order because speaking isiXhosa in court
is not per se contemptuous), she did not warn him that it was his wilful
disobedience to that ruling or order th at she considered to be a contravention of
section 108 (1) of the MCA. Mr. Melani was indeed wise to the fact that he should
not be rebuked for speaking in the vernacular, which is his (and the clients who
were represented by him in the bail proceedings) c onstitutionally guaranteed
language right. Indeed leaving aside the provisions of section 6 of the Constitution
that provides that indigenous languages enjoy parity of esteem with English,
coupled with the import that courts may not treat vernacular use a s inherently
disrespectful or improper, section 6 of the MCA also underscores the duty on a
magistrate to have a competent interpreter fill the gap of insufficient language
conversancy by appropriate translation.
43 The court, at 468E-H, analyzed the appellant’s behaviour in the following terms:
“In the present instance the magistr ate issued a lawful order as he was entitled to disallow the appellant's
objection to the charge -sheet. The magistrate correctly interpreted s 85(1) whereas the appellant's
interpretation thereof was patently wrong. It is not in dispute that the appellant had failed to give notice of
his intention to object to the charge -sheet as he was obliged to do in terms of the proviso to s 85(1). Also,
the prosecutor did not waive the requirement of such notice. In these circumstances the magistrate issued a
lawful or der when dismissing the appellant's objection to the charge -sheet. The appellant's failure to
appreciate the significance of the fact that the provisos followed upon s 85(1)( e), and thus made all the
paragraphs including (d) subject to the provisos, is no excuse for his conduct. He should have known: (i) of
the existence of such provisos; and (ii) its significance in governing all the subsections of s 85(1). He could
not have been ignorant of the above interpretation. Also, his failure to comprehend that th e portion
from Hiemstra's book which was read to him was not comment, but a verbatim recordal of the Afrikaans
version of the relevant provisos, is also totally inexcusable for an officer of the court and a legal
practitioner such as the appellant. At no s tage was it suggested that the appellant did not understand the
Afrikaans which was read to him. Nor would such a defence have been credible, if it was raised. The only
inference which can be drawn from the appellant's conduct is that he wilfully chose to maintain his patently
erroneous understanding of the section and to disobey the magistrate's ruling merely because he disagreed
with it. Such conduct constitutes disobedience and undoubtedly undermined the authority of the presiding
officer in the magistrate's court.”
[47] Even for the moment assuming that Mr. Mel ani was objectionable in
insisting on his right to speak in the language of his own choice, a little forethought
and patience might have saved the day in this situation. What is abundantly
obvious is that neither magistrate nor practitioner could hear the other above the
noises and distractions of a typical South African court environment. 44 She had
asked him to repeat himself. He imagined that she was not understanding him.
One senses upon a reading of the transcript of the proceedings and mindful of th e
caution that one must bring oneself into the incendiary atmosphere of the
proceedings to understand what caused the fire, that that caused Mr. Melani to
stumble a bit and doubt the efficacy of his English language proficiency. He was
certainly not disre spectful in asking to be assisted by the interpreter. Though he
seemed to regain his confidence by expressing the sentiment that IsiXhosa is one
of the official languages, and pressing ahead in the vernacular after the magistrate
laid down the gauntlet to him to desist or else, I perceive no disrespect or insolence
in his comeback. In the moment when he advanced his position he was already the
judged, and the magistrate was the accuser and adjudicator on the basis that he had
crossed a line merely by spea king in the vernacular. If it was that behaviour she
considered actionable as contempt (as “other misbehavior” under the provisions of
section 108 (1) of the MCA)) she ought to have warned him clearly.
[48] In S v Lavhengwa 45 the court set out guidelines when i mplementing the
provisions of section 108 (1) of the MCA urging that a conviction under the
section after a summary procedure would stand if the magistrate has adopted the
following rules and principles:
44 October brings its own hot weather challenges which are barely ameliorated by quiet air conditioners in courts.
45 Supra.
“1. The magistrate should first carefully consider w hether he/she should resort to the
normal procedure of referring the matter to the Attorney -General or the summary
procedure. Considerations which would become important at this stage are
whether or not he can disregard the accused’s conduct as unimportan t ( S v Nel
(supra at 749G) or merely stupid and not willfully contumacious ( R v Silber
(supra at 483 E) or whether the matter can be disposed of by merely removing the
accused from the court (Duffey v Munnik (supra at 395 E) or whether the conduct
is insul ting or insolent in its nature towards the magistrate personally. In the
instances mentioned above it would be better to take evasive action (such as e.g.
the removal of the accused from the court or an adjournment or requesting an
apology from the accused or reporting him to his professional body if the accused
is a practitioner) which would obviate the necessity to embark upon a trial under s
108 (1) or to take the normal route of referring the matter to the Attorney -General
rather than resorting to the summary procedure.
2. If, however, the circumstances are such that the summary procedure is called for
(e.g, in cases of disobedience to rulings, interruption of the proceedings etc.) he
should warn the accused of his intention to proceed with a summary trial under
the provisio ns of s 108 (1) of the Magistrate’s Courts Act. Depending on the
accused’s prior knowledge of the contents of s 108 (1), it would be advisable for
the magistrate to read out the section to the accused so as to inform him of the
provisions thereof and thus inform the accused of the nature of the offence with
which he is being charged.
3. The magistrate must then proceed to inform the accused of the latter’s conduct
which in his view contravened s 108 (1) and which of the three categories
mentioned in section 108 (1) his conduct is alleged to have transgressed.
4. The magistrate thereafter should inform the accused of his constitutional rights as
4. The magistrate thereafter should inform the accused of his constitutional rights as
set out in s 25 (3) of the Constitution and enquire from the accused whether he
wishes to remain silent, testify, give an explanation or call witnesses. If the
accused is a lay person he should be afforded the right to obtain legal
representation should he wish to do so, subject to such time and feasibility
constraints as may seem reasonable in the circumstances of t he case. Depending
on the decision of the accused, the magistrate should then afford the accused full
opportunity to exercise his rights in order to ensure that his constitutional rights
are not infringed nor that the rules of natural justice are transgressed.
5. After the accused has been given an opportunity to exercise these rights the
magistrate should then weigh up all the circumstances, evidence and arguments
and convict the accused only if the facts before him prove beyond a reasonable
doubt that the accused wilfully contravened any of the offences (sic) mentioned in
s 108 (1).”46
(Emphasis added).
[49] Clearly there was no such accommodation in this instance, evidently because
the magistrate imagined that Mr. Melani’s speaking in the vernacular per se
brought the judiciary into disrepute and constituted an offence under the common
law crime of contempt of court, which offence the court certainly had no
jurisdiction to try on a summary basis. In that respect she was clearly misdirected.
[50] Since the proceedings after the lunch break were not recorded, it is also not
clear that Mr. Melani was properly informed of any other of his fair trial rights in
anticipation of the 5 November 2024 proceedings. In that respect as well, leaving
aside the more glaring irr egularity, the proceedings seem not to be in accordance
with justice.
[51] I should add that, in the proceedings before the Makhanda High Court, the
outcome of which the magistrate believed co -incidentally might provide guidance
as to whether she was on the r ight track in casu, the conviction of the legal
practitioner concerned was set aside. It appears that in that matter the convicted
contemnor had expressly objected to the magistrate intervening during his cross
46 Supra at page 495 c – 496 a.
examination of a state witness. A verbal exc hange between the practitioner and
magistrate led to her holding him in contempt of the court. The alleged misconduct
at the core of her overreaction concerned the practitioner’s refusal to continue with
the trial and his being argumentative with her. In the reviewing court’s view the
magistrate unnecessarily escalated a fairly innocuous disagreement between
practitioner and court and threatened contempt of court at the first sign of
discontent with the practitioner. The effect of her threat to hold him i n contempt
was to distress him to such an extent that he felt he could not continue, but neither
was she prepared to excuse him from the trial, hence the underlying trial
proceedings remaining in limbo. The chief reason though for setting aside the
conviction was the fact that the magistrate found the practitioner to be in contempt
without permitting him time to prepare, seek legal advice, or invite submissions as
to why he should have been found to have been in contempt of court.47
[52] In the present instan ce, although the proceedings were at first hastily and
summarily commenced, but thereupon deferred, there is no indication in the record
that any recognition was given to Mr. Melani’s fair trial rights, assuming for the
moment that there may have been a st atutory basis to try him for contempt. Even
at the hearing there is an absence of any adherence to these important safeguards.
[53] Finally, I need to emphasize that it is not for this court to provide advice to
lower courts as to how they should conduct proc eedings. The magistrate was not
suggesting that she imagined that the proceedings were “ not in accordance with
justice”, neither it seems, had the thought occurred to her that Mr. Melani might be
entitled to an acquittal. Both reasons may provide a basis for a special review of
47 There is no transcript of the judgment. The case number as indicated above is CA & R 13/2025. The review was
heard before Lowe J and Molony AJ. T he decision was delivered ex tempore. These facts were however gleaned
from the court’s notes.
proceedings before sentence as provided for in section 304A of the Criminal
Procedure Act, No. 51 of 1977 (“CPA”). On the contrary, she seemed to want to
prove that she was right in her estimate that Mr. Melani’s conduct of speakin g in
the vernacular in an English language of record court is per se contumacious. The
special review process should not be invoked to merely eliminate doubt on the part
of a judicial officer that he or she is right in respect of a particular view taken.
[54] The further consequence of the irregular referral on review, in terms of
section 304A of the CPA, rather than in accordance with the provisions of section
108 (2) of the MCA, means that this review has come before us an exercise in the
abstract. Had the p roper process been followed, this court would have been
assisted by a proper statement of the magistrate’s grounds and reasons having been
provided rather than having to make its own estimate of the proceedings. Mr.
Melani was further denied an opportuni ty to make appropriate representations to
this court, which he would have been entitled to had the proper process been
implemented.
[55] Be that as it may, this court can assume review jurisdiction if the irregularity
that occurred in the lower court is of su ch a nature that the proceedings in that
court will eventually have to be set aside. I believe this to be such a case.
[56] In the result the following order issues:
1. The contempt proceedings commenced under case number B130A
against the alleged contemnor, Mr. Melani, are set aside as irregular.
________________
B. HARTLE
JUDGE OF THE HIGH COURT
I AGREE:
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I.T. STRETCH
JUDGE OF THE HIGH COURT
DATE OF JUDGMENT: 27 January 2026