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.

_____________
J C FRONEMAN
JUDGE OF THE HIGH COURT

I agree

_________
L E LEACH
JUDGE OF THE HIGH COURT

Date of Delivery:	26  April  2002