THE HIGH COURT OF SWAZILAND
the matter between:
ESTATES LIMITED 1st Respondent
ASHWORTH CRABTREE 2nd Respondent
ASHWORTH CRABTREE 3rd Respondent
O R A M : DUNN J.
THE APPLICANT : MR P.W. KEYTER
THE 1ST RESPONDENT : MR J.G. VILAKAZI
THE 2ND RESPONDENT : IN PERSON
THE 3RD RESPONDENT : IN PERSON
applicant approached the court on Notice of Motion seeking an order
in the following terms -
That the 1st, 2nd and 3rd respondents be and are hereby interdicted
and restrained from interfering with or attempting to obstruct the
course of justice in relation to the conduct of case no. 681/90
before this Honourable Court by way of the delivery of letters to the
Honourable Chief Justice or otherwise howsoever.
That the 1st, 2nd and 3rd respondents be and are hereby interdicted
and restrained from defaming the applicant.
That the 2nd and 3rd respondents be and are hereby
to prison for contempt of this Honourable Court and that an
appropriate penalty-be imposed upon the 1st respondent in respect
the papers in this matter be referred to the Director of Public
Prosecutions to take such actions as he may deem proper.
That the 1st, 2nd and 3rd respondents be ordered jointly and
severally to pay the costs of this application on the scale as
between an attorney and his client scale.
application was served on the respondents in the afternoon of the
19th August 1993 and was set down for hearing at 9.30 a.m. Friday
circumstances leading to the application are clearly set out in the
applicant's founding affidavit and centre upon a letter which was
written by the 3rd respondent to the Chief Justice on the 24th July
1993. The letter was addressed to the Chief Justice in his personal
capacity, through the British High Commission, Mbabane. The letter
dealt, in the main, with the need as seen by the 3rd respondent for
the Chief Justice to remove the applicant as the liquidator of
Tonkwane Sawmills Company Limited (in liquidation). A scathing,
scurrilous and clearly defamatory attack was made on the applicant in
the letter, in support of the plea for his removal as liquidator. The
letter was written by the 3rd respondent with the full knowledge that
there was a pending case before the Chief Justice involving
case has apparently been set to continue on the 26th August 1993. The
3rd respondent explained in the letter that he was not a litigant in
the afore-mentioned case but that he had a personal interest in the
the instructions of the Chief Justice and through the office of the
acting deputy registrar, copies of the 3rd respondent's letter were
forwarded to attorneys P.W. Keyter and J. Vilakazi who represent the
respective parties in case no. 681/90. The covering letter by the
acting deputy registrar is dated 29th July 1993 and reads -
TONKWANE ESTATES LIMITED v. HAYTER
Chief Justice has directed me to bring to your attention immediately
a letter dated 24th July 1993 which has been addressed to him
personally and signed by David Crabtree. This letter was brought to
the High Court yesterday afternoon.
and on the 14th August 1993 a letter was addressed to the Registrar
by the 2nd respondent for and on behalf of the 1st respondent in the
following terms -
COMMENTS REQUESTED BY THE CHIEF JUSTICE ON THE LETTER OF DAVID
CRABTREE TO MR D. HULL IN RE CASE 681/90 TONKWANE ESTATES V. J.
the Registrar informed our attorney that the Honourable Chief Justice
had asked for comments from both Tonkwane Estates Limited and Mr J.
Hayter on the contents of the letter written by one
Crabtree to Mr D. Hull.
gave our attorney a copy of a letter with annexures dated 24th July
1993. We herewith enclose a copy of Tonkwane Estates Limited's
comments on the letter of David Crabtree dated 24th July 1993 as
requested by you.
"comments" referred to run into 7 typed pages and are a
scurrilous abuse of the Chief Justice and constitute, without any
doubt, a clear contempt of court. Counsel for the applicant quite
properly kept the 3rd respondent's letter and the comments thereon
separate from the notice of motion in order to avoid their further
publication. It is not necessary nor desirable to traverse the
contents of the documents which I direct should continue to be kept
separately from the other papers in the application.
A.J. before whom the application was brought issued the following
order on the 20th August -
Interdicts are granted in terms of prayers 2 and 3.
2nd and 3rd respondents are to show cause on Monday 23rd August why
they should not be committed for contempt, and why first respondent
should not be appropriately punished thereof.
Costs of the day to be paid by the respondents jointly and severally.
The court hearing the matter on the 23rd may determine whether any
special order as to the scale of the costs should not be made.
matter is before me purely for purposes of dealing with order no.3.
The three respondents filed answering
on the morning of the 23rd August and as I required time to read the
papers, I stood the matter down to 2.30 p.m. When the matter was
called Mr Keyter indicated that the applicant would proceed with the
application without filing replying affidavits.
affidavit of the 2nd respondent whose contents are adopted by the 1st
and 3rd respondents deals at some length with the proceedings before
Sapire A.J. leading to the interdicts issued under order no.2 and the
order calling on the respondents to show cause why they should not be
committed for contempt. Sapire A.J. found that prima facie, the
documents constituted a contempt of court and it was on that basis
that order no.3 was issued. The respondents have raised the point
that they have not had enough time within which to obtain legal
advice. The urgency and serious nature of the complaint against the
respondents cannot be over-emphasised. The two documents in question
were made available to Mr Vilakazi and I would be most surprised if
the respondents remained totally ignorant of the effect of those
documents prior to this application. The fact that Saturday 21st
August was a public holiday does not assist the respondents. The
application was brought about by the conduct of the respondents and
the duty fell on them to obtain whatever advice they sought, within
the time ordered by Sapire A. J. I have little sympathy for the
submissions that the respondents required legal advice from South
Africa. No reasons were advanced why legal advice could not be
obtained in Swaziland over the week-end, in what appears to be a
straight forward matter.
1st and 2nd respondents advanced the obviously unsatisfactory
explanation that they understood that the comments they made had been
requested by the Chief Justice. The 3rd respondent who had not signed
or appeared as a party
the comments, associated himself with the comments by-incorporating
them in his affidavit. The respondents make no attempt to show what
led them to believe that they were called upon to comment on the
letter of the 24th July. The self-explanatory letter from the acting
deputy registrar and. addressed to the mentioned attorneys did not
invite any comments from the respondents. If the respondents were in
any doubt they should have consulted the attorneys to whom the letter
had been addressed.
attempt was made by the 2nd and 3rd respondents to give statements
and explanations from the bar in support of their understanding of
the acting deputy registrar's letter, and the law dealing with
contempt of court. I refused to allow these explanations as they did
not constitute evidence, the respondents having elected not to go
into the witness box. The respondents have failed to show cause why
they should not be committed. The letter and comments constitute a
clear contempt of court for which the respondents have given no
will proceed to hear any submissions the respondents may wish to make
relevant to the question of sentence.
is a serious case of contempt of court The respondents are no
strangers to litigation in the High Court and have always had the
benefit of counsel. They should have known better. They chose to
persist in the attack on the Chief Justice with no reference to their
legal advisers. This case calls for a severe punishment which will
serve as a deterrent not only to the respondent but to other
litigants who might decide to adopt the tactics of the respondents to
achieve their own ends.
1st respondent is sentenced to a fine of E1,000.00.
2nd and 3rd respondents are each sentenced as follows -
months imprisonment. The whole of the sentence is suspended for 2
years on condition that the respondent is not convicted of contempt
of court, for which he is sentenced to a term of imprisonment without
the option of a fine, committed during the period of suspension.
have considered the submissions made on behalf of the applicant for
an order as to costs on the attorney and client scale. I am not
inclined to make such an order in the circumstances of the
application. I order that the costs of the application from Monday
23rd August 1993 be paid by the respondents jointly and severally.