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You may find yourself in a bind if you fail to comply with a court order. Do you know the consequences, implications and penalties? What recourse do you have if you are prosecuted for contempt? What are the gaps in our laws? How can they be remedied? Insights from Me Devina Ramsami (attorney).

What does contempt of court mean?

  • Disobedience of a Court Order
  • If a person refuses to comply with a court order
  • Contempt of court is also considered an act of contempt or disrespect towards the court, its members or its authority.
  • An offence aimed at protecting the integrity and proper functioning of justice.
  • The aim: to discourage any behaviour that could disrupt the course of legal proceedings.

Who is authorized to file such an action?

What the law says: Section 18C of the Courts Act 1945 speaks of contempt of court.

  • The judge presiding over a case may initiate contempt proceedings if the person has flouted a court order or obstructed the administration of justice.
  • Any party involved in a case who believes that another party has violated a court order or acted in a contemptuous manner may bring a motion for contempt of court.
  • The State may bring contempt proceedings, particularly in cases of public interest or where an individual's contemptuous conduct has an impact on the justice system generally. In such cases, the contempt action is brought by the Director of Public Prosecutions (DPP).

The consequences and implications

  • A person found guilty of contempt of court may be fined.
  • If the Court imposes a prison sentence, its length will vary depending on the nature of the contempt.
  • The Court may also impose non-monetary sanctions, such as community service or other specific obligations. It may also issue remedial orders, including ordering the person to take specific steps to repair their behaviour. This may include complying with the original court order or taking certain remedial actions.
  • The person may face a license suspension or revocation
  • A contempt conviction may appear on an individual's criminal record, which may affect their future opportunities.

For professionals

A conviction for contempt of court may result in professional sanctions, such as suspension or revocation of professional licenses or accreditations.

What recourse does a person have if they are prosecuted for contempt?

  • The person must demonstrate to the Court that he or she will comply with the judgment rendered against him or her in order to avoid being prosecuted for contempt.
  • File a lawsuit in court to challenge the judgment or request a modification of the judgment she was accused of violating.
  • She can simply defend herself to demonstrate that she did not disregard the judgment or agreement issued by the court.
  • The defendant may choose to defend himself or to be assisted by a lawyer to represent him and plead his case before the court.

Sanctions: …For a company

  • The law authorises the Court to impose either a maximum imprisonment of one year or a fine of up to Rs 50,000.
  • A company as a “corporate body” can be ordered to pay fines and also damages to the person who sued it for the contempt.
  • The plaintiff may apply to the court for an order of committal against the director of a company if he is the sole director and representative of the company.

The penalties provided for: a maximum sentence of one year or a fine not exceeding Rs 50,000.

Gaps

  • The terms of the judgment must be clear and unambiguous
  • Proper notice of the conditions must be given
  • The current contempt of court law is vaguely worded, leaving room for subjective interpretation and potential abuse.

If the request has been made beyond a reasonable doubt, the person may fail in his request if he is unable to meet all of the criteria mentioned above.

There is a distinction between contempt of court in a civil case and a criminal case.

What she must establish…

Insufficient evidence

She must present clear and convincing evidence that there was no violation of a court order.

Vague or incomplete allegations

Vague, general or incomplete allegations may result in dismissal.

Failure to prove will

Contempt usually requires proof that the violation was intentional. If the person can show that the violation was unintentional or due to circumstances beyond his or her control, the claim may fail.

Failure to comply with procedures

Failure to follow proper service procedures may result in dismissal.

Procedural error

Failure to comply with procedural requirements, such as filing deadlines, court rules, or providing necessary documents, may invalidate the application.

Jurisdictional questions

In the absence of jurisdiction over the parties and the subject matter, the court cannot dismiss the application.

Can a person contest this procedure?

Yes, she can appeal the decision to the Court of Appeal.

File a request for review of the procedure before a higher court if it is believed that errors of law or procedure have been made.

What do you propose ?

The criteria for success in a contempt of court application must be simplified and modernised to create a regime that responds fairly and proportionately to those who undermine the judicial process.

It is necessary to amend our law, because it is archaic, dating from 1945 with amendments in 1994.

To raise public awareness of what contempt of court actually constitutes and the consequences of such action

Provide mechanisms for regular review of the law to ensure that it remains relevant, effective and consistent with evolving legal and ethical standards
It is essential that the law be drafted clearly and precisely to avoid any subjective interpretation or ambiguity.

What was said…

“If a court is unable to enforce its orders and its orders are disobeyed, not only will the individual parties suffer but the whole administration of justice will be called into question.” Khednee. D & Ors v Khednee 1992 SCJ 336

Distinction between a civil and criminal case

There are two categories of contempt of court: civil and criminal.

In a criminal case, contempt of court occurs when someone deliberately disrupts the court proceedings. There is also the case of “scandalising the court”, where a person makes false allegations against a court, magistrate or judge.

In a civil case, contempt of court occurs when someone refuses to comply with a judgment. The court may then sentence the person to indefinite imprisonment, which will end only when the person agrees to comply with the court order. The purpose of this imprisonment is not punitive, but coercive, aimed at forcing the person to comply with the court's judgment.

The observation…

In practice, in a civil trial, the person has waited a long time for relief. During this time, they have spent money to hire a solicitor and a barrister and will now have to take an additional contempt action. This will result in additional costs and a further wait for a judgment. This may discourage them and undermine their confidence in the justice system, leading them to abandon their contempt proceedings against the other party.

This trend is particularly evident in family law disputes, where one party often agrees to abide by a judgment to avoid continual court appearances. Once the agreement or judgment is reached, that party frequently disregards the decision. Yet the goal of legal action is not only to obtain a judgment, but also to ensure that it is respected.

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