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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No: 790/01

In the matter between

MBULELO CLEMENT ERASMUS MASHIYA Applicant

and

ROBERT MATSHIKWE First Respondent

(MAGISTRATE STUTTERHEIM)

THE DIRECTOR OF PUBLIC PROSECUTION Second Respondent

JUDGMENT

FRONEMAN, J:-

The applicant is a medical doctor. First respondent is a magistrate. At this

stage of the proceedings the applicant seeks an order for the first

respondent’s committal to prison for contempt of court. This matter started with

the applicant in prison and the first respondent in a position to determine

whether he should remain there awaiting trial. How it came about that a reversal

of roles is being sought, requires some explanation.

On Saturday 30 June 2001 applicant was arrested on a charge of alleged rape.

He was kept in custody at the Stutterheim police station over the weekend and

appeared in court on Monday 2 July for the first time. The case was postponed

to the following day. On that day, Tuesday 3 July, applicant sought bail. The

prosecutor applied for the bail application to be postponed for a period of seven

days in terms of s.50(6)(d) of the Criminal Procedure Act 51 of 1977. The

first respondent, the presiding magistrate, refused the application. Both the

applicant and the investigating officer testified in the bail application. Without

hearing argument the first respondent postponed the matter to Wednesday 11

July (more than seven days hence) for argument and judgment.

Not surprisingly the applicant was dissatisfied by these turn of events. He

launched an urgent application in the High Court which resulted in a rule nisi

being issued on Thursday 5 July, returnable at 12h00 the next day, Friday 6

July, calling upon the first respondent to show cause why he should not be

ordered to hear argument on the bail application by not later than 15h00 on 6

July, and why he should not be directed to give judgment on the bail application

by not later than 16h00 on the same day.

No response was forthcoming from the first respondent and the rule was made

final on Friday 6 July.

The first respondent did hear argument, as prescribed by the final order, on 6

July, but declined to give judgment in terms of the order. He postponed the

matter, again, to Wednesday 11 July for judgment. This meant that the

applicant was back to where he started, in prison, until the next week.

The applicant persisted in his efforts to be released. Another urgent application

was brought in the High Court, this time before two judges. It proved to be more

effective: the applicant was released on bail on Saturday 7 July, and the

first respondent was called upon to explain why he should not be committed

for contempt of court for not complying with the court order of 6 July, and why

he should not be directed to pay the costs of all the application proceedings out

of his own pocket, on an attorney and client scale.

Those are the issues still alive at this stage. Their determination, however, is

complicated by the very fact that the applicant was released on bail by the High

Court order on Saturday 7 July 2001.

(In addition, the order made on 6 July 2001 is now on appeal, on the ground

that the order impinged on the independence of the first respondent. That

point, however, was never raised by the first respondent in these proceedings

as justification for not complying with the order).

The form of contempt of court referred to as ‘civil contempt’ is primarily a means

of ensuring compliance with court orders not sounding in money, where parties

are ordered to do, or not to do, certain things (orders ad factum praestandum).

A party in breach of such an order is usually brought before court by his

opponent by way of application proceedings in order to get that party to do, or not

to do, the thing ordered by the court; to purge his or her contempt, in words.

Where this does not happen, the sentence imposed on the recalcitrant party is

usually designed to effect compliance with the original order, in addition to any

other, purely criminal, sanction (compare, for example, Protea Holdings v

Wriwt and another 1978(3) SA 865(W) at 868 B – H; 872H – 873A). Put

differently, civil contempt comprises both a private aspect (as a form of

execution for certain civil judgments), as well as a public one (that of protecting

the authority of the courts) (compare S v Mamabolo (E TV and others

intervening) 2001(3) SA 409(CC) para’s [16] - [20]).

The order releasing the applicant on bail indirectly, but very effectively, satisfied

that private interest of the applicant in these contempt proceedings. Of course,

as a citizen and a complainant, he also retains an important interest in the public

aspect of the proceedings. If the second respondent did, in fact, wilfully disobey

the court order of 6 July 2001 he should not be allowed to get away with the

crime, even if it is not murder but only contempt.

But should that remaining, public, issue be determined in these proceedings? In

my view, it should not, for the reasons that follow.

In S v Mamabolo, above, the summary procedure for dealing with the form of

contempt of court known as scandalising the court was found to be

unconstitutional (para’s [51] – [59]). Kriegler, J, however, made it clear in the

majority judgment that the enquiry was limited to the use of that procedure in

cases of scandalising the court (para [57]). In Uncedo Taxi Service

Association v Maninjwa and others 1998(3) SA 417(E) at 429 C – D,

Pickering J held that application proceedings for civil contempt involving the rule

nisi procedure is not unconstitutional. He also held that that “one of the chief

objects of this kind of procedure is to compel performance of the Court’s order as

expeditiously as possible” (at 429H). I read that as relating primarily to the

private aspect of civil contempt proceedings, in the sense of enforcing

execution: where a failure to act expeditiously will impact negatively on the

“orderly progress of judicial proceedings” and on the need for “quick effective

judicial intervention in order to permit the administration of justice to continue

unhindered” (Mamabola’s case, above, para [52]).

But where, as here, the applicant’s private interest in performance has been

satisfied, albeit indirectly, there is no remaining pressing need to preserve the

integrity of the judicial process which cannot be met by using the ordinary

mechanisms of the criminal justice system (compare Mamabolo’s case, above,

para [57].

Application proceedings do not comfortably fit the requirements of a fair criminal

trial, even though they may well be adapted to conform with those requirements

where expeditious action is necessary. (Compare Uncedo Taxi Service

Association, above, at 424 – 429). The present state of play in the present

matter illustrates some of these difficulties.

The second respondent’s defence to the alleged breach of the court order

seemed, initially, to be that he was not fully aware of the content of the order

but, also, that he immediately faxed his reasons for not complying fully with the

order to the registrar of the High Court. Both these factual issues are disputed

on the papers. In addition there are other, serious, allegations made on the

papers that the second respondent altered entries on documents; also factually

in contention.

Is the criminal issue of the second respondent’s guilt beyond reasonable doubt to

be determined solely on affidavit, in accordance with the normal rules relating

to opposed applications where there are disputes of fact? I think not.

During argument, Mr Quinn, appearing for the applicant, urged us to refer the

matter for the hearing of oral evidence on the disputed factual issues, and to

determine the criminal issue of contempt ourselves after hearing that evidence (if

we found these could not be determined on the papers alone). That would,

however, be a cumbersome way of holding a criminal trial and would, unfairly in

my view, place a burden on the applicant to incur further costs where his

private interest in the matter has effectively been satisfied. It may, also, expose

him to an adverse costs order at the end of the day. And to do it in any other

way, by allowing the applicant to withdraw from further proceedings but for the

court itself to call for and hear evidence, would be to revert to the procedure

“which rolls into one the complainant, prosecutor, witness and judge”, found to

be unconstitutional in Mamabolo’s case (see para [55]).

The proper way forward is thus to refer the matter to the Director of Public

Prosecutions for him to decide whether to prosecute the second respondent for

contempt of court and, perhaps, on other charges too, if there is evidence of

wrongdoing in the tampering of books and the like.

Costs remain a thorny issue. The applicant was forced, by the second

respondent’s conduct, to approach the High Court for relief which, in the end, he

succeeded in obtaining in the form of his release on bail. But ordinarily court

officials are not mulcted in costs, even less on an attorney and client scale,

unless they acted reprehensibly in one way or another. On the papers as they

stand such a finding cannot, at this stage, be made about the second

respondent’s conduct. But it may yet be made, if he is successfully

prosecuted. A provision to cater for that eventuality will be made in the order,

based on the principle underlying the costs orders made in cases such as

Quadrangle Investments (Pty) Ltd v Witind Holdings Ltd 1975(1) SA

572(A) at 582H – 583A and Sindani v Van Der Merwe 2002(2) SA 32

(SCA) at 38D – F.

The order made is as follows:

1. The rule nisi issued on 6 July 2001 is discharged.

2. A copy of this judgment, and a full set of the papers in matters no 790/01 and 904/01, are to be forwarded by the Registrar of this Court to the Director of Public Prosecutions, Grahamstown, for him to consider whether to prosecute the first respondent for contempt of court, or any other charges that may arise from these papers.

3. In the event of the first respondent being prosecuted as envisaged in prayer 2, above, the applicant may, within 30 (thirty) days of the termination of those proceedings set the matter down, on these papers, suitably amplified, for reconsideration of an appropriate costs order.

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J C FRONEMAN

JUDGE OF THE HIGH COURT

I agree

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L E LEACH

JUDGE OF THE HIGH COURT

Date of Delivery: 26 April 2002

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