THE HIGH COURT OF SWAZILAND
Case No. 197/94
the matter between:
MASUKU PHINEAS MAGAGULA DAVID MHLANGA DELIA TSHABALALA FREEDOM
DLAMINI SALADIN T.K. MAGAGULA POPPY PIPSTER HLATJWAKO MALACHI
MAKHUBELA MOSES M.C. GAMA
APPLICANT The Director of Public
is an application made to me in chambers by the Director of Public
Prosecutions in accordance with section 88 bis of the Criminal
Procedure and Evidence Act 1938.
seeks a direction from me for the summary trial on indictment of nine
persons on a charge of contempt of court.
alleged contempt has to do with events that occurred during a strike
by the Swaziland National Association of Teachers some months ago.
the strike the Minister for Labour and Public Service applied for and
obtained an interim interdict restraining the union from engaging in
strike action from 30th June 1994, pending an application by the
Minister to the High Court.
contempt of court which in respect of which this application to me is
now made relates to an alleged breach of that interim interdict -in
other words of a court order - by the nine persons whom the Director
now wishes to indict.
contempt of court is at common law in South Africa and Swaziland a
criminal offence, punishable by the High Court summarily of its own
motion or upon indictment by the Director of Public Prosecutions,
where it consists of an unlawful and intentional violation of the
dignity, repute or authority of a judicial body, or of interference
in the administration of justice in a matter pending before a
judicial body (See S. v. Kaakunga 1978 1 SA 1190 SWA). The High Court
of Swaziland is of course such a body.
England, a distinction is drawn between civil and criminal contempts
of court. Civil contempts consist of disobedience to court orders.
The object of proceedings in consequence of such disobedience, in
that country, in cases where the order that has been disobeyed has
been made in the course of a civil case, is to enforce compliance
with the court's order. It is left to the other party in the civil
case to apply the court, by way of a notice of motion -usually for
the committal of the offending party to prison, but in any event with
the aim of ensuring that that other party does, in the end, comply
with the order. The rationale for this, as I understand it, is that
in a civil case, the court itself is essentially the disinterested
arbitrator in a private dispute and it is for each party, as he sees
fit, to ask for whatever aid he requires from the court to achieve
his legal rights. A true criminal offence, on the other hand, is
prosecuted for reasons of public policy, regardless strictly of the
wishes of the individuals involved.
also has a concept of criminal contempt of court. This, however, is
confined to the case where someone calculatedly undermines the
standing of a court of justice or interferes with the administration
the common law of South Africa, and of Swaziland, the idea of a civil
contempt of court is also recognised. However, it is clear from the
case law that an act which is in the first instance a civil contempt
- i.e. disobedience of a court order - may also be a criminal
contempt, and punishable accordingly - if the person committing the
contempt actually intends to undermine the authority (in the broad
sense) of a court of law, or to interfere with the administration of
justice: see S.v. Beyers 1968(3)SA 70(AD).
logic of that conclusion in an appropriate case is in my view, with
respect, evident. But in the application of the theory to the facts
of a case, in practical terms, there are other considerations. I have
no doubt that in many if not most cases in which an alleged contempt
of court consists of disregard of a court order, made in the course
of a dispute between parties in a civil case, the side that infringes
the order does not consciously intend to bring the court itself into
disrepute but rather to continue its differences, or contest, with
the other party.
facet of the matter is that in procuring a court order, a litigant
enjoys a freedom, within the measure of parameters of the civil law,
in the way in which the order will be worded. In contrast to that,
before any person can be held criminally liable for an offence, that
offence must be defined in the law itself and it must exist in law
independently of the wishes or interests of the particular parties
rationale for the criminal offence of contempt of court, where it
consists of disobedience to a court order, rests not on the wording
of the particular order itself, but on proof of the fact that the
party disobeying it actually intends to undermine the courts or the
administration of justice. In practice, however, whether that is
the case will often be a difficult question - and often not the truth
of the matter. Hence, to my mind, the wisdom of a concept of contempt
that recognises that the real nature of some contempts is civil
rather than criminal; or to put it more sharply, the wisdom of
recognising that some contempts are really directed towards the
opposing party in a civil dispute rather than at a court itself.
process by which the Chief Justice can, on the application of the
Director of Public Prosecutions direct that a criminal charge shall
be tried summarily on indictment in the High Court, and may give
directions for trial, is an alternative way of proceeding to the
procedure - the traditional procedure, as it might be called -
whereby before a person could be prosecuted lor a serious offence in
the High Court, there had to be a preparatory examination before a
Magistrate to see whether he had any case to answer.
reality, in Swaziland in the nineteen - nineties, is that the best
way of ensuring that a person accused of an indictable offence (in
other words, one which has to be tried in the High Court, of which
the contempt now alleged is one example) will receive a speedy trial
is where the Chief Justice orders summary trial on indictment. In
almost every case these days and as a matter of course, as it has
been for some considerable time now, accused persons are tried in the
High Court on directions for summary trial on indictment under
section 88 bis.
is nevertheless entirely within the discretion of the Chief Justice
to decide whether or not to give such a direction.
the present case, exceptionally, I have very strong reservations
about doing so. Contempt of court, as a criminal offence, is an
unusual offence. The underlying reason for the offence is to
safeguard the efficacy of the judiciary as a branch of government.
Ultimately the question whether a person has committed a contempt of
court is the business of the courts themselves - in fact of the
superior courts themselves - as an independent branch of government.
is why the superior courts have jurisdiction, mero motu, to act
summarily to deal with contempts.
dispute here between the parties, as far as the courts are concerned,
was always of a civil nature. If, having obtained an interim
interdict against the union, the government was concerned to enforce
compliance with it, then on a proper view I think that it ought to
nave acted promptly. Nearly four months have now passed since the
alleged breach. It is well established that contempts of court should
be dealt with swiftly. If this court itself comes to a provisional
view in any case that its own process is being defied with an
intention to undermine the standing of the judiciary or to interfere
with the course of justice, it will act immediately and, where
necessary, summarily of its own motion. But I am not persuaded at
all, in the circumstances and on the papers, that it is shown that
this prima facie was the intention of the persons now accused. On the
contrary, unless it is shown prima facie to be otherwise at a
preparatory examination, the alleged contempt appears to me really to
relate to a difference that existed at the time between the
government and the union.
the matter proceeds to a criminal trial on indictment in the High
Court, I would wish to be satisfied, after a preparatory examination,
that prima facie there really are reasons for thinking otherwise.
application under section 88 bis of the Criminal Procedure and
Evidence Act, 1938, for summary trial before the High Court is
therefore refused. If it is desired to proceed on the allegation,
there will have to be a preparatory examination in accordance with