Maripe

Criminal Law Forum (2016) 27:291–329 Springer Science+Business Media Dordrecht 2016
DOI 10.1007/s10609-016-9284-5
BUGALO MARIPE*
CONTEMPT OF COURT IN FACIE CURIAE; PROBLEMS OF

JUSTIFICATION, APPLICATION AND CONTROL WITH
REFERENCE TO THE SITUATION IN BOTSWANA
ABSTRACT. The existence and exercise of the power to order summary punish-
ment for contempt of court is a much contested terrain. Its antiquity and ubiquity
pervade many states across the globe, and in particular in the Anglo-American legal
system. This state of affairs has much to do with its very nature and justification. The
procedure itself potentially compromises time honoured requirements and practices
of due process of law, and also potentially sanctions the fusion of characteristics of
an aggrieved person, prosecutor and judge in the same person. Notwithstanding
these misgivings, it has continued to be practiced in many parts of the world. Given
these exceptions to norms, its scope has been very difficult to delineate, to an extent
that although attempts have been made to lay down general principles for its
application, the range of conduct necessary for its invocation is so amorphous,
malleable and indefinite as to present a difficulty in justification. This has raised
many questions both as to its legality and or justification. This article is just but one
attempt to answer the questions raised, to the extent possible, and later on to survey
its exercise in the context of the jurisdiction of Botswana.
I INTRODUCTION
The rule of law demands legality for all actions taken by state
authorities especially where those affect one or other person nega-
tively.1 This is especially the case where the person against whom the
action is directed suffers some loss, whether patrimonial, status or
even liberty. Legality requires that such action be founded on law or
that it must have some basis in law.2 Imprisoning a person must
* Associate Professor of Law, University of Botswana, Gaborone, Botswana.

E-mail: Maripeb@mopipi.ub.bw.
1
Joseph Raz, The rule of law and its virtue, 177 LQR 195.
2
Student Representative Council of the University of Botswana v University of
Botswana [1989] BLR 396.
292 BUGALO MARIPE
therefore not only find some basis in law but must be justified. In
other words the existence of a power alone is not sufficient. It must be
shown that the power has justifiably been exercised, and that it has
been exercised within the parameters of the law.3 Imprisoning a
person through the summary procedure is quite a drastic measure, for
it subjects one to loss of liberty without going through the formal
processes of a trial. It is a significantly intrusive procedure that needs
to be properly justified. In many Constitutions across the world,
provisions exist that secure the protection of an individual who
stands to lose his liberty on account of a sentence of court. Since the
procedure for summary punishment for contempt is described as a
species of criminal proceedings, the general scheme for prosecution of
crimes has to be brought in context. Generally the criminal prose-
cution scheme requires that any person charged with a criminal of-
fence be afforded a fair hearing within a reasonable time, that he be
tried by an independent and impartial court, that they be presumed
innocent until proved otherwise, that he be informed of the nature of
the offence charged, that he be given adequate time and facilities to
prepare for his defence, that he be permitted to defend himself, or at
his own expense, by a legal representative of his own choice among
others. This vast panoply of rights inuring to an accused person is
recognized under general international law as it is provided for in
regional and international human rights instruments4 and in almost
all constitutions of states across the globe. Since the procedure seems
to violate these ideals, exceptions are made in the same constitutions
to accommodate it. One of those is the power to summarily punish
for contempt of court.
This article will start by discussing the rationale or reason for the
existence of the power to punish for contempt of court summarily;
then it will discuss the objections that have been levelled against the
practice; then it will discuss the justifications presented; then it will
locate the source or basis of the power to commit for contempt in
facie curiae. Thereafter some practical examples, by way of case law
from Botswana will be discussed and lastly there will be a conclusion
which will embody proposals for reform.
3
Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another
1988 (3) SA 132; Sorinyane v Kanye Brigades Development Trust [2008] 2 BLR 5.
4
Art 11 of the Universal Declaration of Human Rights; Art 14 of the Interna-
tional Covenant on Civil and Political Rights; Art 7 of the African Charter on
Human and Peoples Rights among others.
PROBLEMS OF JUSTIFICATION, APPLICATION AND CONTROL 293
II THE RATIONALE FOR THE SUMMARY PROCEDURE
Almost every jurisdiction allows for courts of law to punish conduct

that is disrespectful of the court and its processes, or is calculated to
bring the court proceedings into disrepute. It has been said that the
power of a court to commit summarily for contempt in facie curiae is
essential for the proper administration of justice.5 The raison d’etre
for the existence of contempt of court as a punishable offence is often
traced to the old English case of R v Almon, where it was said;
The arraignment of the justice of the Judges, is arraigning the King’s justice; it
is an impeachment of his wisdom and goodness in the choice of his Judges, and
excites in the minds of the people a general dissatisfaction with all judicial
determinations, and indisposes their minds to obey them; and whenever men’s
allegiance to the laws is so fundamentally shaken, it is the most fatal and most
dangerous obstructions of justice, and, in my opinion, calls out for a more
rapid and immediate redress than any other obstruction whatsoever; not for
the sake of the Judges, as private individuals, but because they are the channels
by which the King’s justice is conveyed to the people. To be impartial, and to
be universally thought so, are both absolutely necessary for the giving of justice
that is free, and uninterrupted current, which it has, for many ages, found all
over this Kingdom, and which so eminently distinguishes and exalts it above all
nations upon the earth.6
In Morris v Crown Office, Lord Justice Salmon said that Ôthe sole
purpose of proceedings for contempt is to give our courts the power
effectively to protect the rights of the public by ensuring that the
administration of justice shall not be obstructed or prevented.’7 It is
also said that the exercise of the power has a two-fold rationale; that
there is no need for a hearing since the judge is personally aware of
the relevant facts, and that it is necessary to punish for contempt
without delay which normally results in giving notice and a hearing in
order to immediately vindicate the court’s authority and dignity and
prevent further obstruction of the course of justice.8 It is a procedure
meant to protect the dignity of a court and to restrain conduct, in
summary fashion, which may interfere with or obstruct the smooth
administration of justice or of intentionally violating the dignity of the
5
Almost all the cases and articles referred to herein accept this standpoint.
6
[1765] 97 ER 94, 100 per Wilmot J.
7
[1970] 2 QB 114, 129.
8
United States v Wilson, 421 U.S. 309 (1975). See also Richard B. Kuhns ÔThe
Summary Contempt Power: A Critique and a New Perspective’ Vol 88 No.1 Yale
Law Journal (1978) 39–123, at 42.
294 BUGALO MARIPE
court.9 It is meant also to remove the offending conduct and allow the
proceedings to flow normally.10 However, the courts have overtime
cautioned that it is a procedure to be used very sparingly, with great
caution and only in serious cases.11 It is not meant to protect the
personal idiosyncrasies or to assuage personal egos of the presiding
officer but to guarantee the smooth administration of justice and the
dignity of the court. Although it is stated in somewhat objective terms,
the assessment as to the circumstances calling for the need to exercise
the power is necessarily subjective as it rests on the view of the pre-
siding officer at any point in time. It is a value judgment. As such it can
only be deprecated on the basis that it was unreasonably exercised or
that its exercise is reviewable on one or other ground.12 In order to
properly exercise such power, a presiding officer must ascertain at least
three things: firstly; whether s/he is empowered by law to exercise such
power; in other words whether the law has conferred upon him/her
such power as to commit an offender to prison summarily; secondly,
and in the event such power exists, whether there is conduct that
interferes with the smooth administration of justice that warrants
punishment in summary fashion, and thirdly; whether the circum-
stances necessitate the exercise of the power. Only then would it pass
the test of legality, hence the inquiry on legality, justification and
control.
III OBJECTIONS TO THE SUMMARY PROCEDURE TO

PUNISH CONTEMPT
As observed earlier, the major objection against the procedure to

summarily punish a contemnor is the tendency for derogation from
the fair trial process. An accusation that a person has committed an
act which compromises the judicial process must be made immedi-
ately, and in full view of the court.13 That would mean that the court
must witness it, or at the very least feel it immediately. It has to be
dealt with immediately, in circumstances where the Ôsuspect’ does not
have the time to prepare his defence, if any, or to seek legal advice.
9
Rugwaro v The State [1996] BLR 660 (CA).
10
Sacher et al. v United States 343 U.S. 1 (1952).
11
Rugwaro note 9.
12
Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C 147; Leipego v
Moapare and Others [1993] BLR 229.
13
Sacher note 10.
The fair trial guarantees or due process are significantly abridged. As

a derogation from protective provisions, it comes across as a serious
limitation on individual rights. In law, any trial that occurs in vio-
lation of the constitutional protective provisions is a nullity and
stands to be set aside.14 The fair trial guarantees in favour of accused
persons are an integral component of the whole mix of human rights.
This is evidenced by their recognition in human rights instruments
and location in the Bill of Rights of domestic constitutions. As a
general practice, an abridgement of a human right must be justifiable
on grounds only of necessity, or as many constitutions in the Com-
monwealth would provide, where the abridgment is Ôreasonably jus-
tifiable in a democratic society’.15 Although the right to a fair trial is
deemed sacred in many instances, as it has the potential to deprive an
accused person of other fundamental rights such as liberty, the right
of movement, and in Botswana the right to vote,16 it is also subject to
several exceptions such as that of imprisonment for contempt of
court,17 with its apparently discordant implications.
The manner in which contempt proceedings of the kind that leads
to summary punishment is conducted is objectionable again on fair
trial requirements of impartiality of the tribunal in question. The
court is the complainant, the witness, the prosecutor and judge. The
fusion of all these significant powers in one person would cause many
a student of law in all modern legal systems of the world to squirm at
it as a direct affront on fair trial guarantees. In all the international
legal instruments alluded to above, as well as in modern constitutions
the requirement is for trials to be adjudicated upon by an Ôindepen-
dent and impartial court’.18 The notion of impartiality in adjudica-
tory bodies is a salutory one. It requires detachment from the issues,
and the parties before the forum, and insists on an adjudication free
of influences linked to the parties, the issues or from whatever source
of relation. It is expressed in the maxim nemo judex in causa sua which
14
Motshwane and Others v The State [2002] BLR 368;
15
The claw back constitutions of most commonwealth countries. E.g. section 12
of the Constitution of Botswana.
16
Thomas Sibanda v Attorney General and Another MAHLB-000347-09(yet
unreported).
17
Section 10(8) of the Constitution of Botswana. Other exceptions are created at
s10(11).
18
Section 10 of the Constitution of Botswana. See also Article 14 of the Inter-
national Covenant on Civil and Political Rights.
296 BUGALO MARIPE
translated means no one may be a judge in his own cause.19 It

requires consideration of issues in a fairly and objectively dispas-
sionate manner. In contempt proceedings however, the judge is the
person against whom the offending conduct is directed, whose
authority has been flouted, and he is the person aggrieved by the
conduct complained of, lays down the charge and determines the guilt
or otherwise of the contemnor and then imposes the sentence. This is
in stark contrast to the requirements of fair trial as demanded by the
impartiality rule. This objection is succinctly stated by Chesterman as
follows;
This manner of proceeding denies to the accused major safeguards that have
become the hallmark of criminal proceedings: notably, the assurance that the
court hearing the case will be free, as far as may reasonably be achieved, from
any appearance or risk of bias or partiality; the opportunity, save in excep-
tional circumstances, to be legally represented; and the right to confront and
cross-examine every prosecution witness.20
In European Asian Bank AG v Wentworth, the court expressly noted

its discomfort with the procedure, with Kirby P observing that;
For when a judge deals summarily with an alleged contempt he may at once be a
victim of the contempt, a witness to it, the prosecutor who decides that action is
required and the judge who determines matters in dispute and imposes punishment.
The combination, in the judge, of four such inimical functions is not only unusual. It
is so exceptional that, though it may sometimes be required to deal peremptorily
with an emergency situation, those occasions will be rare indeed. Especially will they
be rare where, as in this State, a facility is provided in the Court of Appeal to relieve
the judge of such an embarrassing concatenation of functions.21
It has also been said that in such proceedings, the accused is required
to meet a case which is presented against him not by evidence, but
one which exists in the mind of the judge. It is said this means the
tribunal commences with a presumption of guilt rather than inno-
cence, and therefore Ôsuch procedures are not easily reconcilable with
fundamental principles of justice.’22 The most potent objection in my
view is the apparent disregard of the fundamental principle of legality
19
R v Sussex Justices Exp McCathy 1924(1) KB 256; Ali Khan v The State [1968–
1970] BLR 4.
20
Michael Chesterman, ÔDisorder in the Court: The Judge’s Response’, 10 UNSW
Law Journal (1987) 32–46, 34.
21
(1986) 5 NSWLR 445, 452.
22
Keely v Brooking (1979) 143 CLR 162, 186 per Justice Murphy.
in criminal law. The fundamental principle in criminal law rests on

the notion that criminal sanctions must follow an infraction of prior
laid down rules, defined in precise language in written form, and
which indicate the range of penalties to which an accused person may
be subjected. This is the idea embodied in the twin principles of
Nullum crimen sine lege and Nulla poena sine lege, which are recog-
nized as constituting the basis for legality in criminal law.23A cata-
logue of the specific requirements for the principles of legality is
provided by Gallant24 to emphasize the essential building blocks for
the legality pillar. And he captures the basis for all these require-
ments, in the realm of the criminal law as follows;
First, of all branches of law, criminal law is the most obviously and directly
concerned with shaping and controlling human conduct. Second, the criminal
law enforces the most important behavioural values imposed by a state. Third,
the criminal law expresses the highest legal condemnation of acts in a society.
Perhaps most important, the criminal law applies the highest legal sanctions
available to a society; deprivation of freedom, confiscation of property, and in
some cases death. As a result, the need for fairness of both substantive and
procedural rules is at its greatest here.25
The nullum crimen sine lege requirements are so fundamental that they
are sometimes considered to be the bedrock for the principle of the rule of
law, which according to one author may be expressed as follows;
According to the ideal of the rule of law, the law must be such that those
subject to it can reliably be guided by it, either to avoid violating it or to build
the legal consequences of having violated it into their thinking about what
future actions may be open to them. People must be able to find out what the
law is and to factor it into their practical deliberations. The law must avoid
taking people by surprise, ambushing them and putting them into conflict with
its requirements in such a way as to defeat their expectations and to frustrate
their plans.26
23
See the works of Kenneth S. Gallant, The Principle of Legality in International
and Comparative Criminal Law, Cambridge University Press, New York, (2009);
Beth Van Schaak, Crimen sine lege: Judicial Law making at the Intersection of law
and morals, Vol 97 Georgetown Law Journal 119.
24
Ibid, at p 11.
25
Ibid, at pp 16–17.
26
J Gardner, ÔIntroduction’ to HLA Hart, Punishment and Responsibility (2nd
edition, 2008), also quoted in A Ashworth and J Horder, Principles of Criminal Law,
(7th edition, Oxford University Press, Oxford, 2013), 56.
298 BUGALO MARIPE
The imposition of criminal penalties through the exercise of summary

powers for contempt of court would seem to violate the principle of
legality. The Constitution of Botswana gives partial expression to the
principles of legality in its insistence on the requirement that ÔNo
person shall be convicted of a criminal offence unless that offence is
derived and a penalty therefor is prescribed in a written law’, and that
ÔNo person shall be convicted of a criminal offence unless that offence
is defined and a penalty therefor is prescribed in a written law.’27
Judicial expression was given to this provision by the High Court in
Bimbo v The State,28 where the High Court quashed a conviction by a
Customary Court on a charge of adultery on the basis that adultery
was not spelt out in any written law as a criminal offence. There is no
written law in Botswana that defines the offence of contempt of court.
The Penal Code provides;
Except where the context otherwise requires, expressions used in this Code
shall be presumed to be used with the meaning attaching to them in English
criminal law and shall be construed in accordance therewith.29
The relevant part of the Code is section 123 which refers to the power
of the High Court to punish for contempt of court. In terms of
section 2(2) Ôcontempt of court’ must be construed in accordance with
the construction placed upon the phrase in English criminal law. Like
in Botswana, the offence of contempt is neither defined under the
Penal Code nor in the Contempt of Court Act of 1981. In the cir-
cumstances, it seems that reference to English Criminal law will be to
the common law of England to the extent that the construction is
based on what the courts in that country decide at any point in time,
with all the changes applying mutatis mutandis. This is disturbing on
at least two fronts. First, should the legislature in England define
contempt of court, that definition will necessarily apply in Botswana.
This is a violation to the independence of Parliament in Botswana for
in constitutional theory, no legislature binds another. Section 2(2) is
some sort of cession of power to the English legislature, and does not
reflect what the society of Botswana desires. Second, it presents
challenges of application for the courts of Botswana as they will have
to ascertain at all stages what the law in England is, and this stifles
their capacity to develop their own jurisprudence shaped by the cir-
27
Section 10(8).
28
High Court Crim. App No.8 of 1980 (unreported).
29
Section 2(2).
cumstances of Botswana. Third, section 2(2) would seem to be a

statutory enactment of the common law of England and this makes
nonsense of section 3(2) of the same Code which excludes what are
sometimes called common law offences. Against this argument, two
arguments may be raised which are plausible and appear reasonable
in the circumstances: first, that once the common law is enacted into
statute law, then the law is that embodied in the statute. In our case it
would then be a statutory offence and therefore in line with the
general principle of criminal law. In fact many statutes arise from the
common law. Second, in England common law offences no longer
exist anyway, having been abolished by judicial fiat.30 The reference
to English criminal law in the Botswana statutes would have to be
reference to the statute law. But these would have to derive their full
meaning from judicial interpretation and by extension this will, in
terms of section 2(2) have to apply in Botswana. The English Con-
tempt Act of 1981, deals primarily with the strict liability rule fol-
lowing publication and to that extent would not be applicable in
Botswana under section 2(2). Its relevance, for the purposes herein is
section 12 which grants the Magistrates’ Court the power to punish a
person who wilfully insults the justices or interrupts the proceedings
of the court or who misbehaves in court. Apart from demonstrating
that the Magistrates’ power is created by statute as will be argued
later on, it is the basis for section 123 of the Botswana Penal Code
and the powers therein are similar. In this event, there would be no
need to apply the English Act, apart from constructions placed on
that provision by the Superior courts in England from time to time.
The Act thus would not apply in Botswana but the English common
law. This is objectionable.
Not being defined, the nature or remit of the offence of contempt
of court is usually defined by reference to the purpose served by the
power to punish for its commission, and the purposes are usually
stated in broad outline and not exhaustively. For example in Rugwaro
the offence was defined generally as Ôan act calculated or intended to
cause an interference with or an obstruction to the smooth admin-
istration of justice or of intentionally violating the dignity of the
court’.31 It will then be left to the circumstances of each case what
conduct amounts to interference with, or the obstruction of, the
smooth administration of justice or of intentionally violating the
30
Knuller (Publishing, Printing and Promotions) v DPP [1973] AC 435; DPP v
Withers and Others [1975] AC 842. These cases are discussed further below.
31
Note 9 above, at 373. Per Aguda J.A.
300 BUGALO MARIPE
dignity of the court. As well, the intention necessary to accompany

such conduct will be determinable by reference to the circumstances
of each case. All these are malleable variables that cannot be subject
of a uniform definition. In each case it will be a value judgment. This
absence of a clear definition is not in consonance with general prin-
ciples of criminal law which require a person to know precisely the
kind of conduct proscribed so that he may be able to comply with the
law. This passes as an objection to the offence envisaged in this paper.
Another objection is that the summary judgment power offends
against separation of power principles. Since the notion was popu-
larized in the eighteen century by French philosopher Montesquieu, it
has come to be accepted in modern organized societies that the
important organs of the state must be separated both institutionally
and functionally, and that no organ of the state may exercise func-
tions that belong to the other. The proscription of conduct and its
classification as a crime or offence is generally a legislative function.
The incidence of allowing a judicial officer to create an offence on the
basis of circumstances that have arisen before him is an instance of
law making by the judiciary. Thus in this instance the judge is allowed
to make law, a function that belongs to the legislature. This comes
across as a usurpation by the judiciary of a power that vests in the
legislature.32 It used to be acceptable, from the judiciary’s point of
view in England that the judiciary wielded a residual power to create
offences if this achieved the objective of protecting public morals.33
However, in Knuller (Publishing, Printing and Promotions) v DPP,
the House of Lords disavowed the existence of this power, with Lord
Diplock taking the position that Shaw was wrongly decided, and
categorically stating that;
The constitutional setting in which judges in earlier centuries claimed the

power to create new criminal offences has long since passed away. To have
reasserted it in 1962 was in my view, an unacceptable judicial usurpation of
what has now become an exclusively legislative power.34
However, as shall become apparent later on this has significantly

been compromised by the window afforded to contempt cases in gi-
ven circumstances. To the extent that the requirements for contempt
32
ATH Smith, Judicial Law Making in the Criminal Law, Vol 100 LQR (1984) 42.
33
Shaw v DPP [1962] AC 220.
34
See Note 30 above. This was further cemented in DPP v Withers and Others,
also note 30.
have not been laid down in precise language in written form, the
argument may be maintained that its exercise is susceptible to abuse
as it falls to be defined in each instance by individual judges in
individual cases. It does not pass the test of uniformity which might
guide judicial discretion and present some measure of certainty to the
general public who may be subjected to the exercise of the power.35
The power also presents a constitutional conundrum. If the Con-
stitution is the basic standard to which every law must owe validity, is it
permissible that by some sort of delegated machinery, the constitution
could cede its status as the superior law? Yet this seems to be prescient in
the case of summary contempt! Sections 10(8) and 123 of the Consti-
tution and the Penal Code respectively, which will be discussed in more
detail later seem to achieve this result. By reserving the power of the
court to punish summarily for contempt, the Constitution has effec-
tively deferred to some law, the validity of which cannot be tested
against the Constitution itself. The Constitution does not provide the
parameters for the exercise of that power, does not provide the safe-
guards for its exercise. It leaves quite a wide minefield to the court to
police itself. This is inconsistent with the principles of constitutional
supremacy. In the latter, courts are subject to control by the constitu-
tion. Yet this is absent in the case of contempt. Further, it gives an
imprimatur to unorthodox rule making processes which lack consti-
tutional legitimacy in terms of societal organization based on separa-
tion of power principles. Two arguments may be presented here.
Firstly, in terms of rule-making processes in many Anglo-American
societies, the primary power to make law is reserved for the legisla-
ture.36 Parliament is the only body that has the constitutional mandate
to make law. However, in many of the laws that Parliament has made,
there is invariably a power given to certain individuals or institutions to
supplement the law in terms of proclamations, regulations, rules, rules
of court, orders, bye-laws, which are compendiously described as
statutory instruments37 and these are primarily to aid in bringing into
effect and implementing the objects of the primary legislation passed by
Parliament. They may therefore not be inconsistent with the Parent Act
nor the Constitution. Otherwise they will be void to the extent of the
35
See Joseph Raz, note 1.
36
Section 86 of the Botswana Constitution provides that ÔSubject to the provi-
sions of this Constitution, Parliament shall have power to make laws for the peace,
order and good government of Botswana’.
37
Statutory Instruments Act, Cap 01:05, section 2.
302 BUGALO MARIPE
inconsistency.38 The High Court and the Court of Appeal are generally
recognized as having the power to make law by interpretation, which
law usually concretizes by the incidence of precedent or the application
of the stare decisis doctrine of the common law legal tradition. This is
how the common law arises. This process of judicial law making is not
usually regarded as an affront to separation of power principles as a
check exists in that Parliament reserves the power to overturn a decision
of the High Court.39 Customary law, which is based on the traditions
and practices observed by various tribal groupings over a period of
time, is also a recognized source of law. It comes about as a result of
persistent general patterns of conduct, observed by the general mem-
bership to a tribal grouping and comes to be accepted as obligatory and
binding on those members.40 A contempt of court by nature does not
fall within any of the above recognized sources of law. It allows the
judge to make law outside the permitted and restricted parameters of
the common law. Secondly, to the extent that it is an offence coined by
the judge himself on the basis of existing circumstances, which are
themselves infinitely malleable, and without any definable limits as to
the exercise of such Ôlaw making powers’ it defies known standards for
legality. This could happen in circumstances where the alleged con-
temnor may be acting in perfect good faith and advancing his or her
client’s case, thus eliminating the dolus element, or the mens rea or
mental intention to commit a crime, which is a necessary ingredient in
criminal law.41 This would particularly be required to be satisfied if
contempt is taken to mean an act of wilful disobedience calculated to
embarrass, hinder or obstruct the court in the administration of jus-
tice.42 It does not afford the Ôaccused’ any opportunity of prior famil-
iarity with the law. The absence of controls and defined parameters for
38
Kruse v Johnson1898 (2) Q.B. 91; Botswana Motor Vehicle Accident Fund v
Marobela [1999] 1 BLR 21 (CA).
39
In 1982 Parliament amended the Criminal Procedure and Evidence Act in order
to render ineffective a High Court decision, in State v Dube [1981] BLR 175(HC)
which had held that evidence of pointing out by an accused person to a Police Officer
was inadmissible as it amounted to a confession. The same process occurred in
respect of the Tribal Land Act following a decision of the Court of Appeal in
Kweneng Land Board v Matlho and Another [1992] BLR 292(CA).
40
TW Bennett, Customary Law in Southern Africa, Juta & Co Ltd. Cape Town
(2008).
41
See JC Smith and B Hogan, Criminal Law, seventh edition, Butterworths
(1992), 29; S v Harper and Another 1988(3) SA 396(A), per Van Heerden JA at 413–
414.
42
Ex parte Holbrook 133 Me 276, 280.
determining what may be contemptuous conduct in any particular

circumstances is objectionable viewed against notions of criminal lia-
bility.
Since there is a thin line between conduct that interferes with the
administration of justice and the conduct which offends the particular
presiding officer, the power is susceptible to abuse. This is because the
presiding officer in many instances is referred to as the court. The dis-
tinction between the court as an institution and the person of the judge
becomes blurred. It is not unlikely that the presiding officer could use the
power to assuage his injured feelings rather in the name of protecting the
dignity of the court.43 A survey of some of the cases from the United States
of America, in particular Cooke,44 Sacher45 and Mayberry v Pennsylva-
nia46 demonstrates that to a large extent the matter was beyond the mere
concern for retrieving the dignity of the court and preserving its smooth
processes but was a vindication of the injured personal feelings and egos of
the presiding officers. Where personal feelings are involved, it is seldom
that the purposes of the law would be employed objectively to suit the
legitimate purpose for which the law exists. This incidence of assuaging
personal feelings is an affront to the notion of the exercise of power for the
purpose of achieving a public good. For in my view, public power must at
all times be exercised for a public good and in the public interest. Any
exercise of power that does not fulfil these broad prescriptions will be
unlawful. In as much as the controls for the exercise of the summary power
to condemn alleged contemnors to penalties are not adequately spelt out,
it is a militating factor against its continued existence.
IV THE OFFENCE OF CONTEMPT OF COURT JUSTIFIED
I have above shown the major objections to the offence of contempt

of court. Yet its utility is still justified as overriding the core fair trial
rules. And in spite of the criticisms presented, it continues to be
applied. Even the sternest critics of the process by which summary
power of contempt is exercised still exhibit some veiled acceptance of
its justification in restricted circumstances.47 And the courts, while
43
see R C Brautigam, Constitutional Challenges to the Contempt Power, 60
Georgetown Law Journal (1971–1972) 1513, 1516.
44
267 U.S. 517 (1925).
45
Note 10.
46
400 U.S. 455 (1971).
47
See Kuhns, note 8; Brautigam, note 43; Walter Nelles, The Summary Power to
Punish for Contempt, 31 Columbia Law Review (1931) 956; Paul Evans, The power
304 BUGALO MARIPE
accepting its utility, still recognize the possible injustices that it may
engender48 and therefore requiring some measures of caution to be
satisfied before it can be exercised. It is for this reason that almost all
cases where the power has been invoked are characterized by some
discernible ambivalence. In Balogh v St. Albans Crown Court, Lawton
L.J., while accepting that it is necessary for the protection of the
administration of justice, described the summary power of the court
to punish for contempt as an Ôunsual’ and Ôdraconian’ jurisdiction.49
It is apt to reproduce herein the cautionary words of Chief Justice
Taft of the United States Supreme Court in Cooke, which are rou-
tinely referred to in the United States of America;
The power of contempt which a judge must have and exercise in protecting the
due and orderly administration of justice, and in maintaining the authority and
dignity of the court, is most important and indispensable. But its exercise is a
delicate one, and care is needed to avoid arbitrary or oppressive conclusions. The
rule or caution is more mandatory where the contempt charged has in it the
element of personal criticism or attack upon the judge. The judge must banish the
slightest personal impulse to reprisal, but he should not bend backward, and
injure the authority of the court by too great leniency. The substitution of an-
other judge would avoid either tendency, but it is not always possible. Of course,
where acts of contempt are palpably aggravated by a personal attack upon the
judge, in order to drive the judge out of the case for ulterior reasons, the
scheme should not be permitted to succeed…All we can say upon the whole
matter is that, where conditions do not make it impracticable, or where the delay
may not injure public or private right, a judge, called upon to act in a case of
contempt by personal attack upon him, may, without flinching from his duty,
properly ask that one of his fellow judges take his place.50
There is support elsewhere for this position. It was said in Moran that
it would not frustrate the remedy for the judge who sees a contempt
Footnote 47 continued
to punish summarily for Ôdirect’ contempt of court: An unnecessary exception to due
process 5 Duke Bar Law Journal (1956) 154; Chesterman, note 20; Teresa S Hanger,
The Modern Status of the Rules Permitting a Judge to Punish Direct Contempt
Summarily’ 28 William & Mary Law Review (1987) 553. See also Gopal
Sankaranayarana, The flying shoe: A Supreme Court decision queers the pitch
relating to in facie curiae contempt, Indian Journal of Constitutional Law, 71.
48
Cooke and Sacher cases.
49
[1975] QB 73, 92. In Baffour-Awuah v The State [1999]1 BLR 366, 378, the
Botswana Court of Appeal said ÔThough the power conferred upon courts to commit
summarily for contempt is a salutary one, because of its draconian nature, it ought to
be exercised sparingly and with great caution’.
50
At 537.
being committed in his presence to allow a moment of reflection

before laying a charge of contempt.51 The other control is that the
contempt must be dealt with immediately as the purpose is to pre-
serve the due conduct of the trial and no other purpose. Otherwise it
must be dealt with in the normal course of a trial following a sum-
mons. And lastly that it must be Ônecessary’ in the sense that the
exigencies of justice so demand. All these are thresholds that defy
precision, and a judicious discretion will have to be exercised in all
circumstances for a court to bring itself within the acceptable pa-
rameters for the exercise of the power. In summary, and in a bid to
infuse some controls on the exercise of the power, in Moran, Lawton
LJ laid down general principles that must be borne in mind when
exercising the power as follows;
First, a decision to imprison the man for contempt should never be taken too
quickly. The judge should give himself time for reflection as to what is the best
course to take. Secondly, he should consider whether time for reflection should
not extend to a different day because overnight thoughts are sometimes better
than thoughts on the spur of the moment. Thirdly, the judge should consider
whether the seeming contemnor should have some advice…justice does not
require a contemnor in the face of the court to have a right to legal advice. But
if the circumstances are such as that it is possible for the contemnor to have
advice, he should be given an opportunity of having it.’52
And in DPP v Channel Four Television Co. Ltd, it was said the power
should be exercised only if (a) the contempt is clear, (b) the contempt
affects a trial in progress or about to start, (c) it is urgent and
imperative to act immediately in order to prevent justice being ob-
structed and undermined and to preserve the integrity of the trial and
(d) no other procedure will do if the ends of justice are about to be
met.53 These controls do not always succeed especially where the
judge gets entangled with the emotive outburst that usually leads to
the invocation of the power.
51
(1985) 81 Cr. App. Rep. 51. But see the dissenting opinions of Justices Black
and Frankfurter in Sacher who thought that the judge had lost the power to sum-
marily punish the offending conduct as at the time the proceedings were completed
and it could not be said there was interference with the due conduct of the pro-
ceedings.
52
Ibid, at 53.
53
[1993] 2 ALL ER 517.
306 BUGALO MARIPE
V THE SOURCE OF POWER
Apart from legal instruments, such as the Constitution and legislative

enactments, there is general agreement across the major legal systems
of the world that there is a power that vests in supreme courts, and
other courts as may be designated, to exercise the power without
reference to an express statutory basis. It is said there is an inherent
jurisdiction or power54 vesting in the higher courts to protect the
dignity and assert the authority of the court and prevent disturbance
of court proceedings and thus eschew undue interference with the
course or administration of justice. In the Anglo- American legal
tradition, the inherent power is generally believed to have originated
in the superior courts of the common law in England and has been
transplanted in all systems which have a connection to English
Common law. It is said to be a necessary jurisdiction that the court
possesses by virtue of it being a superior court, and does not have to
be specifically conferred in order to be exercised. But what is the
precise nature of this jurisdiction? Although this does not purport to
comprehensively answer the question, it is necessary to briefly out-
line, to the extent relevant to the question of the legal basis for the
power to summarily punish for contempt of court in facie curiae, the
concept of inherent jurisdiction.
VI THE INHERENT JURISDICTION OF A COURT
The nature and character of this jurisdiction is not easy to delineate.

The difficulty stems from the absence of a definable source of power
from whence it derives. In most contemporary legal systems the
source of power or jurisdiction would be a constitutive document
such as the constitution, Parliamentary enactments, regulation or
some other form of statutory instrument, and even a decided case. In
the case of the latter, the fact that judges across the world have
54
There is a school of thought that posits that inherent Ôjurisdiction’ and Ôpower’
are often confused and used inter changeably as if they mean the same thing, when
do not. See Siyuan Chen, Is the Invocation of Inherent Jurisdiction the Same as the
Exercise of Inherent Powers?, (2013) International Journal of Evidence and Proof, (17)
4, 367; Rosara Joseph, Inherent Jurisdiction and Inherent Powers in New Zealand
(2005) 11 Cantebury Law Review, 220; Joan Donnely, Inherent Jurisdiction and
Inherent Powers of Irish Courts, (2009) 2 Judicial Studies Institute Journal, 122; The
distinction was also made in the New Zealand Supreme Court in Zaoui v Attorney
General [2005] 1 NZLR 666 (SC).
acknowledged the existence of this power does not mean they were
creating it. Recognition presupposes existence a priori. Superior
courts of record are deemed to have the power, which they do not
have to locate under any written legal authority. Such jurisdiction is a
necessary adjunct of the Court by the very and only reason of its
existence. This is a jurisdiction that the High Court has by reason of it
being a superior court of record which it exercises in certain cir-
cumstances without the need to point out to the particular source of
the power. It inheres in the court. Jerold Taitz says;
…[it exists] as a separate and independent basis for jurisdiction, apart from
statute or Rules of court…it stands upon its own foundation and the basis for
its exercise is…to prevent oppression or injustice in the process of litigation
and to enable the court to control and regulate its own proceedings…[it] is a
necessary part of the armoury of the courts to enable them to administer justice
according to the law. The inherent jurisdiction of the court is a virile and viable
doctrine which in the very nature of things is bound to be claimed by superior
courts of law as an indispensable adjunct to all other powers…it operates as a
valuable weapon in the hands of court to prevent any clogging or obstruction
of the stream of justice.55
While there appears to be common ground on its existence, it is its

nature, scope and limit that defy unanimity. By reason of its uncer-
tain characteristic, academic literature has proliferated in a bid to
locate, in specific jurisdictions or generally, its exact nature.56 While
there is general agreement as to the English common law origins of
the concept of inherent jurisdiction, the precise limits thereof have
never been properly delineated, to the extent that it is overstretched in
many circumstances to justify particular viewpoints where ready
authority may not be located. In the English case of Cocker v Tem-
pest, which is often cited as the origin of the doctrine, Baron Alderson
remarked that;
55
The Inherent Jurisdiction of the Supreme Court, Juta & Co Ltd, Capetown,
(1985) 47.
56
Since the pioneering work on the subject by IH Jacob, ÔThe Inherent Jurisdic-
tion of the Court’ (1970) 23 Current Legal Problems 23, other writers from the
commonwealth have sought to expand on the notion of inherent jurisdiction in their
specific circumstances. Some of the works on the subject; Rosara Joseph, note 54;
Joan Donnely, note 54; Wendy Lacey, Inherent Jurisdiction, Judicial Power and
Implied Guarantees under Chapter III of the Constitution,(2003) 31 Federal Law
Review 57; Siyuan Chen, note 54; Jerold Taitz, ibid.
308 BUGALO MARIPE
The power of each court over its own processes is unlimited; it is a power
incident to all courts, inferior and superior; were it not so, the court would be
obliged to sit still and see its own process abused for the purpose of injustice.57
Several observations stem out from this statement. Firstly, the power
is said to be incidental to all courts, be they inferior or superior. In the
modern conception of the doctrine this would not be entirely correct
as some courts, mostly inferior, do not possess inherent jurisdiction,
but enjoy only such jurisdiction and powers to the extent spelt out in
the statute creating them. Secondly, it is meant to prevent abuse of
court processes and to curb injustice. This is perhaps the justification
that is commonly presented as the basis for the existence of the
power. Thirdly, it is said such power is unlimited. To the extent that
the precise limits have never been delineated, no serious objection can
be raised against the formulation. However, limitless does not mean it
can be seized for any occurrence, but only where the ends of justice
demand. It is thus limited by considerations of necessity. To this
extent, it remains malleable, inviting all manner of justifications and
objections that have arisen in academic literature and case law. Jacob
says such jurisdiction is Ôso amorphous and ubiquitous and so per-
vasive in its operation that it seems to defy the challenge to determine
its quality and to establish its limits.’58 The doctrine remains in
modern day what it was during the days of Cocker v Tempest, and
contemporary authority justifies its existence, in terms and language
not dissimilar to Baron Alderson’s conception. For example, in the
Bremen VulkanSchiffbauund Maschinenfabrick v South India Shipping
Corporation Ltd, the court described the inherent jurisdiction as a
power enabling the court to all things necessary to enable it to
maintain its character as a court of justice. Lord Diplock poignantly
remarked that;
It would stultify the constitutional role of the High Court as a court of justice if
it were not armed with power to prevent its process being misused in such a
way as to diminish its capability at arriving at a just decision of the dispute.59
The cases from the United States of America and the United King-
dom cited above, and the articles by Australian, Indian and New
57
(1841) 7 M & W 501.
58
Jacob, note 56.
59
[1981] AC 909, 977; see also Chunguete v Minister of Home Affairs and Others
1990 (2) SA 836 (WLD).
Zealand writers all indicate an inclination by courts in those juris-

dictions towards acceptance and exercise of inherent jurisdiction.
Courts in several Southern African countries,60 where the common
law is based on the Roman Dutch legal system, also claim this power.
The reception and application of Roman Dutch common law in
Southern Africa is an expansive subject on its own, not least because
although this followed formulae made by the same colonial master,
Britain, the formula applied in the territories was not uniform. In
South Africa, Roman Dutch common law was received through the
Dutch East India Company merchants who settled at the Cape in
1652.61 With the annexation of the Cape by the British, Roman
Dutch common law, which had a criminal component, was subject to
significant English law influence. Although, it was never abolished as
the applicable law at the Cape, Roman Dutch common law devel-
oped in such a manner as to subsume many English law concepts. In
the field of public law, English law became dominant and replaced
much of the Roman Dutch common law rules.62 This was the law
that was then received in the territories of Botswana, Lesotho and
Swaziland by various proclamations. In Botswana, the application of
Roman Dutch criminal law came to an end in 1964 by the adoption
of a Penal Code which required to be interpreted and applied in
accordance with English criminal law and this remains the position to
date.63 As demonstrated above, English criminal law recognizes the
inherent power of the court to summarily punish for contempt of
court in facie curiae. By extension, the courts of Botswana possess the
same power. This has been recognized in the Kgalemang v The State,
where the Court of Appeal, relying on R v Almon,64 laid down that;
The common law rule which in my opinion is of universal application, at least

within the Commonwealth, and which has been applied for over three centuries
in England, is that every court must, for the simple fact that it is a court of
justice, have the power of summary contempt in facie curiae…
60
Botswana, Lesotho, Namibia, South Africa, Swaziland and Zimbabwe.
61
EM Burchell and PMA Hunt, Southern Criminal Law and Procedure, Vol 1,
Juta &Co. Ltd, Capetown (1970) 17; E Khan, The Reception and Development of
Roman-Dutch Law in South Africa, 1 Lesotho Law Journal (1985) 69–95.
62
See AJGM Sanders, Legal Dualism in Lesotho, Botswana and Swaziland: A
General Survey 1 Lesotho Law Journal (1985) 47–67.
63
Section 2(2) of the Penal Code; n29 above.
64
n6 above.
310 BUGALO MARIPE
Similarly in this country our courts have derived their power of summary
punishment for contempt from English common law.65
This is a reassertion of the inherent jurisdiction of the court. It must

be said though that the reference to Ôcourt’ must be to a superior
court, for as will be submitted later on, the Magistrates’ Court does
not possess any inherent powers. Thus the court locates the source of
the inherent power in English common law. But even from a Roman
Dutch common law perspective, the court would still claim the power
as enunciated by Taitz.66 Courts in South Africa, from whence Ro-
man-Dutch common law was received in Botswana have always
claimed and exercised this jurisdiction. In Attorney General v
Crockett, where a South African High Court confirmed the English
origins of the power to summarily commit for contempt of court in
facie curiae laid down the position as follows;
…as regards criminal procedure, we should rather follow the procedure of the
Court of King’s Bench than that of the old Dutch Courts. And especially we do
this in the case of contempt of court, for the jurisdiction of our courts is
derived entirely from the English Crown, and if there is any question of
inherent jurisdiction, it is to the jurisdiction of the court of Kings Bench the
direct descendant of the Aula Regis, that we should look for analogy.67
In S v lavhengwa,68 a magistrate had convicted an attorney for con-

tempt of court in facie curiae following a disagreement between the
attorney and the magistrate over requirements for objecting to a
charge sheet. Acting pursuant to powers conferred upon him by the
Magistrates’ Courts Act, the magistrate convicted the attorney and
imposed upon him a fine. The Act provides
If any person, whether in custody or not, wilfully insults a judicial officer

during his sitting or a clerk or manager or other officer during his attendance at
65
[1997] BLR 767, 770–771.
66
see n55 above.
67
1911 T.P.D. 893, 917 per Wessels J. See also R v Silber 1952 (2) SA 475. In S v
Lavhengwa 1996 (2) SACR 453, the High Court in South Africa laid down that; ÔIn
regard to the powers to punish contemptuous conduct summarily, there is a differ-
ence between the powers of the Supreme Court and the powers of the lower courts.
The former has inherent powers to do so at common law. The latter lacks such
powers at common law’ 474–475, per Claasen J. Earlier on the learned judge had
categorically stated that ÔA magistrate lacks the jurisdiction to punish summarily for
the common law offence of contempt committed in facie curiae.’ P 465.
68
ibid.
such sitting, or wilfully interrupts the proceedings of the court or otherwise

misbehaves himself in the place where such court is held, he shall (in addition
to being removed and detained as in subsection 3 of section 5 provided) be
liable to be sentenced summarily or upon summons to a fine not exceeding
R2000 or in default of payment to imprisonment for a period not exceeding six
months or to such imprisonment without the option of a fine…69
Mr Moloto, the attorney, challenged the constitutionality of this

provision on the basis that it infringed inter alia his constitutional
right to a fair trial by an independent and impartial tribunal. The
argument was dismissed on the basis that such provision was neces-
sary to allow the Magistrates’ court to deal immediately with conduct
which amounted to flagrant breach of a court order, which conduct
occurred in facie curiae. Since Magistrates’ courts did not, as the
court held, possess inherent jurisdiction to punish summarily for
contempt of court committed in facie curiae, such statutory provision
was the vehicle by which the due administration of justice would be
ensured in inferior courts and it therefore served a legitimate purpose
and did not infringe the Constitution. Such challenges based on
constitutional infringements have been dismissed elsewhere in the
Commonwealth jurisdictions where it was found that the application
of provisions for contempt of court did not violate the several rights
inuring to an accused person.70
The Lavhengwa case demonstrates the similarities and differences
between the positions in Botswana and South Africa. In both coun-
tries the superior courts acknowledge the existence of inherent powers
to punish summarily for contempt committed in facie curiae, while
they disavow the same in respect of inferior courts. The inferior
courts must find their authority in statute. While in South Africa
empowering provisions such as section 108 of the Magistrates’
Courts Act have been enacted, no such provision exists in Botswana.
In the absence of such empowering provisions, the Magistrates
Courts’ powers only exist within the parameters laid down below,
which are to remove the offender from court, to detain the offender
until the rising of the court and to order that the public gallery be
cleared and doors closed off to the public.
Modern tribunals, created under the auspices of the United Na-
tions, also claim for themselves the inherent power to punish conduct
that compromises their functions and the due administration of jus-
69
s108 (1) of the Magistrates’ Courts Act 32 of 1944.
70
for example in Zimbabwe in the case In Re Chinamisa 2001(2) SA 902; In
Canada in R v Cohn (1985) 10 CRR 142. (Ontario Court of Appeals).
312 BUGALO MARIPE
tice.71 Although not stated exhaustively, and notwithstanding its

elasticity, there is a discernible pattern in a range of circumstances in
which courts have seized inherent powers. These generally include
regulation of process and proceedings, parens patriae powers,
granting bail, judicial review, setting aside unsound judgments, dis-
ciplining officers of court, and includes critically, for our purposes
here, the power to punish for contempt of court committed in facie
curiae.72 In Botswana, the exercise of the inherent jurisdiction and
powers to punish for contempt in summary fashion depends largely
on the location of the particular court in the general system. Al-
though some courts have sought to exercise the power, it is submitted
they have acted ultra vires and in some circumstances, improperly
notwithstanding the presence of such powers. It is necessary here to
sketch out briefly the nature of legal system to determine which
courts have those inherent powers.
VII THE BOTSWANA LEGAL SYSTEM
In the substratum of rules in the Botswana legal system, laws are

ordered in a hierarchical fashion, with the Constitution at the apex,
followed by Parliamentary legislation, subordinate legislation and the
common law and to an extent customary law. The Constitution is the
supreme law from which all laws derive their validity.73 Any law, be it
Parliamentary Legislation,74 subordinate legislation,75 common law76
71
For example Judgment of the Appeals Chamber of the International Criminal
Tribunal for the former Yugoslavia (ICTY) on Allegations of Contempt Against
Prior Counsel Milan Vujin, Tadic (IT-94-1-A-R77). All international tribunals
including the International Criminal Tribunal for Rwanda (ICTR), the International
Criminal Court (ICC), the Special Court for Sierra Leone (SCSL), and the Special
Tribunal for Lebanon (STL), and the International Court of Justice (ICJ) claim this
power. See Silvia D’Ascoli, Sentencing Contempt of Court in International Criminal
Justice, JICJ 5 (2007), 735–756; Jessica Liang, The Inherent Jurisdiction and
Inherent Powers of International Criminal Courts and Tribunals: An Appraisal of
their Application, New Criminal Law Review, Vol 15, No.3 (2012) 375–413.
72
See articles at note 54; GM Kakuli, Civil Procedure and Practice in the High
Court of Botswana, 2nd Edition, (Bay Publishing, Gaborone, 2005), pp 25–26.
73
AG v Dow [1992] BLR 113.
74
ibid.
75
Ngope v O’Brien Quinn [1986] BLR 335.
76
Ndlovu v Macheme[2008] 3 BLR 230.
or even customary law77 that is in conflict with the Constitution

suffers a legal defect and is void to the extent of the inconsistency. It is
therefore necessary to survey the law in order to establish the exis-
tence of the power or lack thereof, on the part of the courts to
exercise summary powers on contempt.
VIII THE CONSTITUTION
The Constitution of Botswana provides for the protection of the right

to personal liberty and for fair trial procedures, as follows;
No person shall be deprived of his personal liberty save as may be authorized

by law in any of the following cases, that is to say-
(b) in execution of the order of a court of record punishing him for contempt of
that or another court78;
and
No person shall be convicted of a criminal offence unless that offence is defined
and a penalty therefor is prescribed in a written law:
Provided that nothing in this subsection shall prevent a court of record from
punishing any person for contempt of itself notwithstanding that the act or
omission constituting the contempt is not defined in a written law and the
penalty therefor is not so prescribed.79
Section 5 (1) is a general provision that goes beyond contempt

committed in facie curiae and includes all types of contempt,
including a finding after due process. The power to punish for con-
tempt of another court would certainly require proof that that other
court issued an order, and that the alleged contemnor has wilfully
disregarded that order.80 In the case of a summary order for con-
tempt, the loss of liberty must follow an order of a court empowered
to issue that order. As shall be shown below, the Magistrates’ court
does not have that power.
77
Ramantele v Mmusi and Others CACGB-104-12 (yet unreported).
78
Section 5(1).
79
Section 10 (8).
80
Frasmet (Pty) Ltd and Others v Chandrakant Chauhan and Others Misca 385/05
(yet unreported) per Kirby J (as he then was).
314 BUGALO MARIPE
Section 10(8) proscribes the subjection of a person to any criminal

penalty unless the offence is written. It is for this reason that the High
Court of Botswana has held that no person may be convicted for an
offence under customary law to the extent that such law is not written.81
The provision proscribes any prosecution or conviction on an unwritten
offence. It is referred to here to highlight the nature of punishment for
summary contempt as a criminal proceeding rather than a civil one. Save
for imprisonment for failure to pay a debt under the High Court Rules,82
and where a suspect is remanded in custody pending investigation for
alleged crimes, imprisonment is a criminal sanction, following a finding
of guilt. So too is imprisonment following a conviction for in facie curiae
contempt of court. Since a conviction for contempt of court is not based
on a written law, the framers of the Constitution then created a proviso to
allow for imprisonment for contempt. This is the limited circumstance
where it is permissible for a court of record to punish for an unwritten
offence. Such court, as the proviso requires, must be a court of record.
IX COURT OF RECORD
There is nowhere in the laws of Botswana where a court of record is

defined. There are however references to courts which are variously
described as a Ôsuperior court of record’83 or just Ôa court of record.’84
According to one common law dictionary, a court of record is a
court where the acts and judicial proceedings are enrolled in parchment for a
perpetual memorial and testimony, and which has power to fine and imprison
for contempt of its authority.; a court that is bound to keep a record of its
proceedings and that may fine or imprison;…
A court of record necessarily requires some duly authorized person to record

the proceedings.85
81
See Bimbo v The State High Court Crim. App No.8 of 1980 (unreported).
82
Order 53 of the High Court Rules, 2011 made by the Chief Justice in terms of
section 28 of the High Court Act. Cap 04:02. See also Noor and Others v Co-oper-
ative Bank Ltd [1999] 1 BLR 443 (CA).
83
The High Court is described as such by the Constitution, section 95(3).
84
The Magistrates’ court is a court of record as per section 4 (1) of The Magis-
trates Courts Act Cap 04:04.
85
P. Ramanatha Aiyer, The Law Lexicon; The Encyclopaedic Law Dictionary with
Legal maxims, Latin terms and Words& Phrases, 3rd edition, Wadhwa and Company,
New Delhi (1977).
Both the High Court and the Magistrates’ court have designated
officials whose duties are to keep records of court proceedings.86 Both
are courts of record. The question that arises is whether the proviso
under section 8 of the Constitution is a power conferring provision or
it merely provides an exception to the general rule laid down under
section 8. I submit it is the latter. Section 8 is clear in that it prohibits
imprisonment for a conviction for an unwritten offence. The proviso
allows a court to punish by way of imprisonment for an unwritten
offence, but only if the court has the power. The Magistrates’ Court,
although a court of record, would, as a creation of statute, have to
point to a power conferring provision, either in its enabling Act, or
some other written law in order to exercise the power. And there is
none. In fact, the Constitution describes a Magistrates’ Court as a
Ôsubordinate Court’.87 In Mathumo v The State, the High Court said
A Magistrates’ court, no matter its grade, is not a superior court of record; it is

an inferior court. Whilst a superior court of record has inherent jurisdiction to
punish for contempt summarily an inferior court has to seek its jurisdiction
from statutes.88
The High Court on the other hand is deemed, by reason of its

inherent jurisdiction as a superior court of record, to have the power,
which it does not have to locate under any written legal authority. No
legal instrument in Botswana spells out the inherent jurisdiction of
the Court. This is a jurisdiction that the High Court has by reason of
it being a superior court of record which it exercises in certain cir-
cumstances without the need to point out to the particular source of
the power. Courts across the Commonwealth acknowledge the exis-
tence of such power. Botswana Courts also do.89 In the exercise of
such jurisdiction, the High Court has on several occasions punished
attorneys for what it considered contempt. The reference in section 8
86
S16 of the High Court Act, Cap 04:02 and Order 3 of the Rules of the Mag-
istrates’ Court, Statutory Instrument No.13 of 2011.
87
Section 127 of the Constitution describes a Ôsubordinate court’ as Ôany court
established for Botswana other than (a) the Court of Appeal (b) the High Court (c) a
court martial and (d) the Industrial Court.
88
[1997] BLR 623, 625 per Aboagye J. In The State v L. Samaria, Namibia High
Court Review Case No. 1760/2010, the High Court of Namibia pronounced as
follows; ÔIt is trite law that a magistrate’s court is a creature of statute and as such
has no inherent jurisdiction, and only has the jurisdiction to deal with matters
provided for by its statutes, and in terms of such statutes’ per Botes AJ.
89
Rugwaro note 9.
316 BUGALO MARIPE
of the Constitution to a court of record must therefore be to such

court as already possesses the power. In this case it is the High Court
and the Court of Appeal since the latter has for all purposes the
power, authority and jurisdiction vested in the former.90 Although a
court of record, the Magistrates’ Court is not a superior court of
record. It is a subordinate and inferior court. It does not possess the
inherent jurisdiction.
Although the constitution confers a power on a court to punish for
contempt of itself, it does not state the manner in which that power
may be exercised. It does not expressly state that it can do so in
summary fashion. There is authority for the proposition that statu-
tory provisions that interfere with the liberty of an individual must be
construed restrictively.91 This would entail construing the provision
in such a manner as to preserve the full rights of an individual to all
due process rights. In the absence of an express power to summarily
condemn a person to prison for contempt of court, it is submitted
that section 8 is no authority for summary committal to prison for
contempt. Having discounted section 8 of the Constitution as a
power conferring provision, and having established that a Magis-
trates’ court does not have inherent jurisdiction to summarily punish
for contempt, it remains to establish if there are provisions in other
enactments providing for summary punishment for contempt by a
Magistrates’ court.
X POWERS OF A MAGISTRATES’ COURT
The starting point is section 30 of the Magistrates’ Courts Act, which

spells out matters over which a magistrate has no jurisdiction except
as otherwise provided in the Act or in any other written law. Its juris-
diction is therefore purely and exhaustively statutory. The Act does
not carry any provision which authorizes imprisonment for contempt
of court by summary processes. It provides;
If any person in or in the precincts of a court conducts himself in such a

manner as is capable of disturbing the peace or order of the court, the presiding
magistrate may order that such person be removed or detained in custody until
the final rising of the court for the day, or, if in the opinion of the magistrate
90
Section 7 of the Court of Appeal Act, Cap 04:01.
91
AG v Dow note 73; Attorney-General v Moagi [1982] 2 BLR 124; Petrus and
Another v The State [1984] 14.
peace or order cannot otherwise be secured, may order that the public gallery
be cleared and the doors thereof closed to the public.92
This section does not explicitly require that proceedings should be

underway for the power to be exercised. However, this is implied in
the use of such phrases as Ôdisturbing the peace or order of the court’,
Ôthe presiding magistrate’, Ôfinal rising of the court’ and Ôorder that the
public gallery be cleared and the doors thereof closed to the public.’
On a proper construction, the power only extends to removing the
contemnor from the precincts of the court, or detaining the person
until the court completes the business of the day, or clearing the
public gallery by closing the doors to the public. There is no power to
summarily send the contemnor to prison.
Is there any other written law that authorizes a magistrate to
punish for contempt in summary fashion? The Penal Code provides;
Any person who-

(a) Within the premises in which any judicial proceeding is being had or taken, or
within the precincts of the same, shows disrespect, in speech or manner, to or
with reference to such proceeding, or any person before whom such proceeding
is being had or taken;
(b) Causes an obstruction or disturbance in the course of a judicial proceeding;
(h) Commits any act of intentional disrespect to any judicial proceeding, or to any
person before whom such judicial proceeding is being had or taken,
Shall be liable to an offence and is liable to imprisonment for a term not
exceeding three years.
(2) When any offence against paragraph (a), (b), (c), (d), or (i) of subsection (1)
is committed in view of the court, the court may cause the offender to be
detained in custody and at any time before the rising of the court on the same
day take cognizance of the offence and sentence the offender to a fine not
exceeding P150 or, in default of payment, to imprisonment for a term not
exceeding one month. (emphasis added)
(3) The provisions of this section shall be deemed to be in addition to and not in
derogation from the power of the High Court to punish for contempt of
court.93
It is quite clear that the Penal Code empowers a magistrate to punish

any person for contempt of court. The issue arises as to the procedure to
be adopted. Just like section 8 of the Constitution, the Penal Code does
not provide for summary punishment for contempt. In relation to
contempt committed in view of the court, the power under section 123
92
Section 6(3).
93
Section 123 of the Penal Code, Cap 08:01.
318 BUGALO MARIPE
(2) is to Ôcause the offender to be detained in custody and at any time

before the rising of the court on the same day take cognizance of the
offence and sentence the offender to a fine not exceeding P150 or, in
default of payment, to imprisonment for a term not exceeding 1 month.
The immediate power is to detain, and thus deal with the offending
conduct immediately. The punishment, which should in the first in-
stance be a fine, and in default, a prison term, must follow a full trial
where the offender is afforded all the opportunity of defending
himself. This is what is implied in the phrase Ôtake cognisance of the
offence.’ The power to take cognisance of a matter imports the
competence of the court to entertain the matter and adjudicate on its
merits.94 The contemnor may only be punished as such following a
conviction by regular due process. There is nothing that authorizes
summary imprisonment for contempt. The proviso is a recognition of
the residual power of the High Court to exercise summary contempt
jurisdiction. It does not create a new species of such power on the
High Court. Section 123 of the Penal Code does not authorize the
Magistrates court to summarily punish for contempt.
XI RULES OF THE MAGISTRATES’ COURT
Rules of court are a species of subordinate or subsidiary legislation. In

this connection, section 68 of the Magistrates’ Courts Act empowers
the Chief Justice to make rules of court regulating proceedings in
magistrates’ courts, and Ôgenerally making provision with regard to any
matter in respect of which, in the opinion of the Chief Justice, it is
necessary or desirable to make provision in order to facilitate the
proper despatch and conduct of the business of the courts.’95
Being statutory instruments, Rules of Court have legislative ef-
fect.96 The relevant rules provide in part
If the Accused, his attorney, or the prosecution fails to attend a case man-
agement conference, an additional case management conference or final case
management conference, or fails to obey a case management order, the mag-
istrate may give such orders as are just, including but not limited to the fol-
lowing-
(a) In the case of the accused, issue a warrant of his arrest; or
94
Stytler NO v Fitzgerald 1911 AD 295.
95
Section 68 (l).
96
Section 2 of the Statutory Instruments Act, Cap 01:05.
(b) In the case of the accused’s attorney or the prosecutor, issue a warrant of arrest the
execution of which shall be suspended pending the attorney or the prosecutor
showing good cause why it should not be executed
(2) The court shall set a date on which the attorney or the prosecutor shall show cause
why the warrant of arrest may not be executed.97
To the extent that the conduct that is punished here relates to failure to
attend conferences or to obey one, it constitutes civil contempt, and is
certainly ex facie curiae rather than in facie curiae. In fact the provision
itself outlines the procedure, at subsection 2 thereof, to be followed in
such situations. Even then, the contempt envisaged here is punishable
in regular fashion, after due process, with the alleged contemnor fully at
large to exercise all his rights as an accused person. The provision is
certainly no basis for summary procedure. For some reason, magis-
trates in this country have assumed jurisdiction to summarily punish
for contempt on some basis which is never explained. One can only
surmise that such exercise of non-existent powers is explainable only on
the basis of error of law, with the belief, genuine or otherwise, that such
powers do in fact exist, when in actual fact, and in law, they do not. It
now remains to sketch out hereunder how the Magistrates’ Court has
sought to exercise summary jurisdiction for alleged contempt com-
mitted in facie curiae. Two cases will be discussed.
(a) Mathumo v The State,98In this case an attorney had been engaged
as defence counsel in a criminal trial before the Chief Magistrate of
Gaborone. She had appeared in all sessions of the court until the trial
was adjourned to the 17th February 1996. When the trial resumed on
the day, she was absent. The session was adjourned briefly. When the
trial resumed after the brief adjournment, she was present. Her
explanation was that she had arrived in court at 0800hrs. Not finding
anybody, and on checking the notice of set down, she realized the
trial was to resume at 0900hrs. She then went into town intending to
come back in time for the resumption of the trial. Not satisfied with
the explanation, the learned magistrate then called upon the attorney
to show cause why she should not be held in contempt of court. The
record of the proceedings shows the following exchange between the
court and the attorney.
Court: I see no valid reason for learned counsel’s failure to appear in time.
Counsel has already displayed an attitude amounting to professional mis-
97
Order 51 Rule 5.
98
note 88.
320 BUGALO MARIPE
conduct. I see no reason why learned counsel did what she did and I do have
difficulty believing what counsel says were the causes for her late appearance.
Even if I were to believe counsel’s story it does not amount to a valid reason. I
would therefore at this stage call upon counsel to show cause why she should
not be held to be in contempt of court.
Ms Mathumo: I have already stated that I did come to court at 0800 hrs and
because nothing was going on I left. If the court feels that I should show cause
why I should not be held in contempt I would inform the court that I wish to
engage counsel.
Court: I find no need for a legal representative by an attorney who misconduct
(sic) herself in the eyes of the court. No cause being shown why counsel con-
ducted herself unprofessionally and in a manner amounting to contempt I find
counsel guilty of the misconduct which amounts to contempt and this renders
her liable to a penalty of P200.00 which I impose upon counsel or 2 weeks’
imprisonment.
The Magistrate did not express the legal basis for the exercise of the
power. In the circumstances, it seems reasonable to assume that he
was relying on some sort of power inherent in the court. Ms Ma-
thumo then appealed to the High Court against both conviction and
sentence. The High Court held that in as much as the alleged act of
contempt was the failure by the Appellant to appear in court in good
time for continuation of the trial, thus wasting the court’s time, the
contempt, if at all, was committed ex facie curiae and not in facie
curiae. The court was enjoined to follow the provisions of section 123
of the Penal Code which required that punishment for contempt of
court had to follow a trial and conviction. The Magistrate had, so the
court held, acted in excess of his powers. It set aside both the con-
viction and sentence. Although this never featured at the High Court,
the Magistrate did not attempt to disabuse himself of the apparent
guilty finding that he had made prior to the exchange spelt out above.
At the time he called upon counsel to show cause why she could not
be held in contempt, the Chief Magistrate had already taken the
position that ÔCounsel has already displayed an attitude amounting to
professional misconduct.’ One of the means of control against abuse
of power is that the presiding officer must make all endeavours to be
dispassionate and should not be inclined towards a conviction in
advance of the inquiry or before the Ôtrial.’ Otherwise the requirement
of impartiality will not be satisfied, especially where the person taking
a decision has already been predisposed to a particular position.99
99
R v Kent Police Authority Ex parte Godden [1971] 2 QB 662; R v Bingham
Justices Ex Parte Jowitt [1974] QB 7.
The United States Supreme Court has emphatically laid down, in

Taylor v Hayes that in contempt proceedings, the inquiry must be
Ônot only whether there was actual bias…but also whether there was
such a likelihood of bias or an appearance of bias that the judge was
unable to hold the balance between vindicating the interests of the
court and the interests of the accused.’100 In Mathumo, the magis-
trate’s position that counsel had displayed an attitude amounting to
professional misconduct was a manifestation of a settled decision
made in advance of the inquiry. Anything that counsel could say was
never going to move the magistrate to hold otherwise. It was breach
of the fair trial procedure. To this end the conviction was properly
quashed by the High Court.
(b) Christinah Ramokwena v AG and Others101This case came before
the High Court as an appeal from a conviction and sentence by
the Magistrates’ Court. The Appellant was a prosecutor in a
matter that was called for mention before a junior magistrate in
the matter. According to the Appellant, it was a very hot
morning and she had, while waiting for the court to sit, taken off
her jacket. When the court convened, she had forgotten to put
on her jacket until her matter was called. The following then
transpired;
Court: Counsel always make sure you wear your jacket before you come into
court.
Prosecutor: It is hot!
Court: Yes it is hot but we are all wearing our jackets, including me but we are
hot.
Prosecutor: May be you do not sweat as much as I do!
Then later on the prosecutor had asked the indulgence of the court to ask the
four accused persons who of them was remanded in custody, and with the
court’s permission she did. The court then reminded her to make sure next time
which accused person was remanded in custody. The record then indicates that
both the Magistrate and the prosecutor addressed each other in pitched voices,
and the court remarked;
Court: Counsel addresses the court properly or I shall hold you in contempt,
we are not at a party or bar, but in court, hence you should address it with
respect.
100
418 U.S. 488 (1974) at 501.
101
Case No. CLHGB-000047-13.
322 BUGALO MARIPE
Prosecutor: I do not know how I am in contempt. Can we just get matter going
already. I wont be forced to say I am wrong.
Court: No we can’t. Not until you apologise to the court for not addressing it
properly. And stop shouting!
Prosecutor: In that case I am sorry I was shouting at the court.
Court: Counsel you should never ever repeat that same conduct again. Is that
clear?
Prosecutor: Silence.
Court: Is that understood?
Prosecutor: Silence.
At the end of the matter, and the court having set the next mention
day the court, all of a sudden, and without prior notification to Ms
Ramokwena, pronounced;
Court: Warrant of Arrest for Prosecutor Ramokwena CK for contempt of

court. She shall appear before court tomorrow the 8th March 2013 to show
cause why she should not be held in contempt of court.
The Appellant was thereafter detained at a prison following the

Magistrate’s order.
After the contempt proceedings the magistrate delivered a Ôjudg-
ment’ in which she found the Appellant guilty of contempt of court,
holding critically that Ôthe rapport that took place delayed all matters
that were to take place on the 7th. It showed that the court is a place
where there is no protocol or procedures, further the integrity of the
court was put into disrepute by the outburst of accused conduct, and her
shouting at the court. Hence interfering with administration of justice’
She relied on section 123 of the Penal Code and on sections 5(1) b
and 10(8) of the Constitution as her basis for convicting and sen-
tencing the Appellant in the manner she did.
A few observations are apposite. Firstly, notwithstanding the little
fracas that occurred, the court was able to carry on with proceedings
of the day to completion. The warrant for the arrest and detention of
the Appellant was issued after the completion of proceedings. The
warrant was therefore not meant to remove any conduct that inter-
fered with the due conduct of the proceedings. It amounted at best to
the use of power by the magistrate to get even with the prosecutor. It
was abuse of power. Secondly, it can hardly be said the prosecutor’s
conduct was contemptuous in the circumstances, given the suggestion
made by the court that the prosecutor was unprepared for the case by
not knowing which accused person was remanded in custody. This is
the more-so as the prosecutor had explained she had been handed the
docket that morning and had been unfamiliar with the matter. Ad-
dresses by officers of court which the court does not like are expected,
and space should be allowed for differences arising from disparate
approaches between the court and its officers. The court in the matter
displayed a finicky and overly sensitive attitude to what it considered
a challenge upon its dignity. It was thus a matter of personal feeling
with all traits of an injured ego. It was abuse of office. Thirdly, sec-
tion 5 of the Constitution and 123 of the Penal Code, as explained
above do not empower the Magistrate to convict for contempt in the
circumstances. She clearly acted in excess of power. It is submitted
the High Court was correct in setting aside both the conviction and
sentence. Interestingly the appeal was not opposed!
In the Mathumo case the High Court found that the Magistrates
Court had purported to exercise a power it did not have, thus ren-
dering its decision a nullity, while in Ramokwena there was an order
made by the High Court setting aside the imprisonment for court
without detailed reasons being given. The applicant’s papers had
alleged that the decision of the Magistrate was ultra vires as she did
not have the power to commit the Prosecutor summarily for con-
tempt, and in any event the appeal was not opposed.
XII PRACTICE IN THE HIGH COURT
It has already been submitted above that in addition to the consti-

tutional provisions and the Penal Code, the High Court has an
inherent jurisdiction to try and punish for contempt committed in
facie curiae. The exercise of this power is facilitated by the Rules of
Court. Order 56 of the rules lays down an elaborate procedure for the
bringing of matters where contempt of court is alleged. Critically, the
Order provides ÔNothing in the preceding rules shall affect the power
of the court to deal summarily with a contempt of court committed in
its presence without any written charge or notice to the offender.’102
102
Order 56 Rule 3.
324 BUGALO MARIPE
Again this is a reservation of the court’s power over contempt in facie

curiae. While this power derives from its inherent jurisdiction, it is the
exercise of the power that raises issues of concern. A few cases
illustrate that even the High Court has difficulties identifying the
propitious circumstances that call in aid the power. The Court of
Appeal has had to set aside many convictions made by the High
Court. Although Kgalemang v The State,103 concerned conduct that
occurred in court, the case is strictly speaking not about summary
punishment. Its significance lies in the pronouncement of the origins
of the summary procedure powers and the exercise thereof. The
Appellant, who was counsel in a civil matter before the High Court,
was alleged to have accused the judge of bias. At the end of the
proceedings, and the court having delivered judgment, the Appellant
was served with a summons directing him to show cause why he
should not be punished for contempt. He duly appeared through
counsel and was convicted and fined. On appeal to the Court of
Appeal, the conviction and sentence were set aside as the summons
was not clear and lacked the necessary averments to find for con-
tempt. The Court of Appeal went out to spell out the methods by
which contempts are punished and poignantly directed that;
The judge a quo had three alternative methods of proceeding against the
appellant. First he should have proceeded summarily against the appellant;
secondly, he could have referred the matter to the Attorney General for nec-
essary action; and thirdly he was entitled to ask the registrar to institute
proceedings at his instance under the above quoted rules (Order 56).’104
The court stated that the courts of Botswana derived their power of
summary punishment for contempt from the English common law, and
that this power should only be used Ôwhen it is urgent and imperative to
act immediately.’105 In Rugwaro v The State,106 an attorney was con-
victed for contempt for having arrived late in court, where the High
Court had decided to sit in another town, and the attorney had,
according to him, had a breakdown along the way and had not
immediately located the exact place where the court was sitting. The
Court of Appeal set aside the conviction and sentence on the basis that
103
[1997] B.L.R 767.
104
Per Aguda JA at 770.
105
At 771. This seems to follow the Balogh and Channel Four Television cases case
which seem to insist on urgency.
106
note 9.
it had not been shown that the attorney’s conduct had been calculated
or intended to cause an interference with or an obstruction to the
smooth administration of justice or of intentionally violating the dig-
nity of the court. In Joina v The State107 an attorney did not appear
when his matter was called. He was in another court at the time. The
judge was of the view that the attorney should have come to the judge’s
chambers to excuse himself. He convicted the attorney for contempt of
court. The Court of Appeal set aside the conviction on the same basis as
the Rugwaro case. Both required the mens rea of the offence to be
established, which is the intention to interfere with the administration
of justice, the due conduct of the proceedings or attack on the dignity of
the court. Of the three cases, Kgalemang stands out for the reason that
the court went out to locate the rationale and jurisdictional basis for the
court’s power to punish for contempt of court in facie curiae. The court
made no reference to section 2(2) of the Penal Code. Rather it located
the power at section 123, not as creating the power but recognising it. In
tracing the source of this power, Aguda J.A., in whose judgment the
other two members of the court concurred made the following obser-
vations which it is deemed here necessary to reproduce;
The common law rule which in my opinion is of universal application, at least

within the Commonwealth, and which has been applied for over three centuries
in England, is that every court, for the simple fact that it is a court of justice,
has the power of summary punishment for contempt in facie curiae. In R v
Almon (1765) Wilm 243; 97 E.R. 94, it was said that the power of the courts to
punish for contempt is coeval with their first foundation and institution; and
that it is a necessary incident to every court of justice, whether of record or not,
to fine or imprison for contempt of the court in the face of it. In South Africa
the courts have acknowledged the fact that the power of the court to punish
summarily for contempt was inherited from the court of King’s Bench in
England. In this regard Wessels, J. in Attorney-General v Crockett 1911 T.P.D
893 at p. 917 said that-
‘‘…the jurisdiction of our courts is derived entirely from the English Crown,
and if there is any question of inherent jurisdiction, it is to the jurisdiction of
the court of King’s Bench the direct descendant of the Aula Regis, that we
should look for analogy.’’
Similarly in this country our courts have derived their power of summary
punishment for contempt from the English common law.108
107
[1997] BLR 26.
108
770–771.
326 BUGALO MARIPE
The case confirms the rationale for the exercise of summary power to
punish for contempt of court in facie curiae, its source (inherent
jurisdiction) and its origins, which again are traceable to the English
common law. But it is submitted that the court went overboard in
taking the view that the power of summary punishment for contempt
in facie curiae is a Ônecessary incident to every court of justice, whe-
ther of record or not.’ This cannot be the position by reason that all
other courts are creations of statute, and anything they do must
find authority on the terms of the statute creating them.109 The
Magistrates’ court, being a creature of statute would necessarily have
to point to a statutory provision in order to locate a power to sum-
marily punish for contempt of itself. As submitted before, the only
power that the Magistrates’ court has is that spelt out at section 123
of the Penal Code, which is very specific in its remit. The fact that the
Magistrates’ Court is described as a court of record means only that
its proceedings are recorded as outlined in the dictionary by Aiyer.110
That definition would not however prevail over the binding pre-
scriptions of law with a particular legal setting. In the case of the
Magistrates’ court, the position was clearly laid down by Aboagye J
in Mathumo v The State, and Botes AJ in The State v L. Samaria who
said the Magistrates’ Court has no inherent jurisdiction and derives
its jurisdiction from the terms of statute111
These cases demonstrate the need for restraint on the part of the
court and to keep an open mind in considering the explanations
presented for the seemingly contemptuous conduct. In all the cases
there was some explanation proffered, which unless disavowed by
evidence, would purge the contempt. The nature of the inquiry, as the
judge relies on what he has seen, would be difficult for him to dis-
prove the explanation, especially where such is found in circum-
stances occurring outside court. It seems in the cases above the power
was used only to placate the personal indignation of the presiding
officer. This is the reason why perhaps another judge must be brought
in to adjudicate on the issue. The only other case where perhaps a
conviction was justified is that of Pilane v The Attorney General112
which was a bail application pending an appeal against a conviction
by the High Court. The circumstances are best explained by pro-
109
See for example Lobatse Nursey School v Bachopi [2007] 1 BLR 580 and the
Mathumo and Samaria cases at note 88 above.
110
note 85 above.
111
See note 88 above.
112
[2005] 2 BLR 379.
ducing a record of what transpired in court. The appellant, a very

senior attorney had wanted to tender some report as evidence in civil
proceedings before a High Court bench manned by three judges. An
objection by the attorney on the other side was upheld, whereupon
the Appellant requested a reasoned ruling to be delivered. He re-
quested a brief adjournment. On resumption, one of the judges then
began to read out the ruling, while the Appellant was seated. The
record then goes;
Dow J: Mr Pilane, it is common courtesy in this court when addressing the

court to stand up.
Mr Pilane: I am not addressing the court. I am listening to a ruling.
Dow J: Then the court demands that you stand up as you are listening to
Justice Phumaphi.
Mr Pilane: I am not the only one who is listening. He made the objection. The
ruling is on his objection.
Dibotelo J: Mr Pilane, you are being addressed by the court, and when the
court addresses you, you should stand up.
Phumaphi J: Mr Pilane, is there any reason why you think you shouldn’t be
cited for contempt?
Mr Pilane: I don’t see what contempt I have committed. I am listening to

reasons for a ruling on an objection not made by me. If you are addressing us,
you are also addressing him. He also must stand up.
Dow J: We are choosing that only you would stand up.
Mr Pilane: No, I will not stand up.
Dow J: You will not?
Mr Pilane: No.
Dibotelo J: Is there any reason why we should not cite you for contempt
summarily?
Mr Pilane: I know no reason why you should cite me for contempt.

328 BUGALO MARIPE
The court then summarily found the attorney guilty of contempt for
his Ôgeneral disrespect to this court’ and ordered his immediate
imprisonment until 3 days later. The judge on the bail application
dismissed the application on the basis that he had generally been
haughty and had directly challenged the authority of the court. He
emphasized the requirement of the rule of law which demands com-
pliance with court orders no matter how one strongly feels about
them. Mr Pilane had allowed his personal feelings to get ahead of him
in defying the collective directions of the court. It was quite con-
temptuous and the application was properly dismissed. It is submit-
ted that the court’s inherent power of summary committal for
contempt was properly exercised.
XIII CONCLUSION
This paper has sought to do three things. Firstly, to establish the

rationale for the summary power of contempt. The rationale is to
protect the conduct of proceedings, to facilitate the due administra-
tion of justice and to preserve the dignity of the court. This goes to
justification. Secondly, it has sought to locate the source of the
power. Such is to be found in the inherent jurisdiction of the superior
court and in the statutory jurisdiction of inferior courts. Some infe-
rior courts have sought to exercise inherent power in the erroneous
belief that they had the power, only to be overruled on appeal or
review. This goes to legality. Even then, even where the court is
clothed with the inherent jurisdiction, the exercise of the power in
many instances has been improper, and it has been abused. This goes
to application. It has emerged that the controls for the exercise of the
power are not adequate, and this has in many instances led to
injustices. Understandably, some of the misapplication of the power
arises from the fusion of capacities in the same person, those of
complainant, witness, prosecutor and judge. It would appear this is
an exception to requirements of fair trial especially in adversarial
criminal jurisdictions which require complete detachment from the
issues by the presiding officer. Yet its constitutionality has been up-
held in several common law jurisdictions. While the legality of
empowering provisions is settled, it is in the application of such
provisions that problems do arise. The problem associated with this
power is what has prompted inquiries for reform in many countries,
such as the Phillimore Report in England; Australia Law Reform
Commission Report in 1987; Guidelines on the use of contempt
powers of the Canadian Judicial Council in 2001; the Law Reform

Commission of Hong Kong Report on contempt of court of 1986.
This calls for greater legislative controls if the power is to remain
relevant for its purpose. It is perhaps time, and it is so urged, that
circumstances that call for the exercise of the power be clearly laid
out in law, albeit in broad outline. This will also clearly show who the
repository of power is. In Botswana this has now become urgent.

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Criminal Law Forum (2016) 27:291–329 Springer Science+Business Media Dordrecht 2016

CONTEMPT OF COURT IN FACIE CURIAE; PROBLEMS OF

* Associate Professor of Law, University of Botswana, Gaborone, Botswana.

II THE RATIONALE FOR THE SUMMARY PROCEDURE

Almost every jurisdiction allows for courts of law to punish conduct

III OBJECTIONS TO THE SUMMARY PROCEDURE TO

As observed earlier, the major objection against the procedure to

The fair trial guarantees or due process are signiﬁcantly abridged. As

translated means no one may be a judge in his own cause.19 It

In European Asian Bank AG v Wentworth, the court expressly noted

in criminal law. The fundamental principle in criminal law rests on

The imposition of criminal penalties through the exercise of summary

cumstances of Botswana. Third, section 2(2) would seem to be a

dignity of the court. As well, the intention necessary to accompany

The constitutional setting in which judges in earlier centuries claimed the

However, as shall become apparent later on this has signiﬁcantly

determining what may be contemptuous conduct in any particular

IV THE OFFENCE OF CONTEMPT OF COURT JUSTIFIED

I have above shown the major objections to the oﬀence of contempt

being committed in his presence to allow a moment of reﬂection

V THE SOURCE OF POWER

Apart from legal instruments, such as the Constitution and legislative

VI THE INHERENT JURISDICTION OF A COURT

The nature and character of this jurisdiction is not easy to delineate.

While there appears to be common ground on its existence, it is its

Zealand writers all indicate an inclination by courts in those juris-

The common law rule which in my opinion is of universal application, at least

This is a reassertion of the inherent jurisdiction of the court. It must

In S v lavhengwa,68 a magistrate had convicted an attorney for con-

If any person, whether in custody or not, wilfully insults a judicial oﬃcer

such sitting, or wilfully interrupts the proceedings of the court or otherwise

Mr Moloto, the attorney, challenged the constitutionality of this

tice.71 Although not stated exhaustively, and notwithstanding its

VII THE BOTSWANA LEGAL SYSTEM

In the substratum of rules in the Botswana legal system, laws are

or even customary law77 that is in conﬂict with the Constitution

VIII THE CONSTITUTION

The Constitution of Botswana provides for the protection of the right

No person shall be deprived of his personal liberty save as may be authorized

Section 5 (1) is a general provision that goes beyond contempt

Section 10(8) proscribes the subjection of a person to any criminal

There is nowhere in the laws of Botswana where a court of record is

A court of record necessarily requires some duly authorized person to record

A Magistrates’ court, no matter its grade, is not a superior court of record; it is

The High Court on the other hand is deemed, by reason of its

of the Constitution to a court of record must therefore be to such

X POWERS OF A MAGISTRATES’ COURT

The starting point is section 30 of the Magistrates’ Courts Act, which

If any person in or in the precincts of a court conducts himself in such a

This section does not explicitly require that proceedings should be

Any person who-

It is quite clear that the Penal Code empowers a magistrate to punish

(2) is to Ôcause the oﬀender to be detained in custody and at any time

XI RULES OF THE MAGISTRATES’ COURT

Rules of court are a species of subordinate or subsidiary legislation. In

(a) In the case of the accused, issue a warrant of his arrest; or

The United States Supreme Court has emphatically laid down, in

Prosecutor: In that case I am sorry I was shouting at the court.

Court: Is that understood?

Court: Warrant of Arrest for Prosecutor Ramokwena CK for contempt of

The Appellant was thereafter detained at a prison following the

XII PRACTICE IN THE HIGH COURT