Read judgment

The facts that gave rise to this case speak of a woman who flagrantly disobeyed the court and refused to back down. (Because a child is involved, the mother, who was the applicant in this case, is not being named here, being merely referred to by her initials.)

The mother and her former husband have one child. They were divorced in 2018 and the magistrate made an order dealing with access and custody of the child. A series of unfortunate incidents followed soon afterwards in which the father complained that the mother did not observe the court order on access and the mother, summonsed to court, did not immediately obey. An arrest warrant was issued but she promised to come to court and she was not arrested.

Some time later, in October 2020, there was another series of incidents and the husband went to court, before the same magistrate, complaining that the mother had refused to return the child when she should have done so, and had set conditions for access that were not in the original court order.


For the second time the magistrate issued an arrest warrant for the mother to be brought to court where she would have to show why she should not be committed for contempt.

On 6 October 2020 MM was duly brought to court under arrest. There she was asked to give reasons why she should not be committed to prison for contempt of court for not taking the child back when she was supposed to have done. Her answer was the cause of the trouble that followed and surely ought, in retrospect, to have caused her considerable embarrassment.

She said that she ‘did not bring the child back because she liked’. Asked whether she was sure about her answer – it sounded as rude and contemptuous to the magistrate as it does to a reader – MM confirmed her position: ‘Yes, it is not by mistake.’ This is a translated version of the exchange, but the Chief Justice would later say that MM had ‘confessed her guilt’ and that there had been ‘some arrogance’ in her answer, while the magistrate described the ‘sarcasm’ of the woman’s comments.


These answers prompted the court to act: MM was sent to prison for seven days ‘to be released upon purging her contempt’. It took all of two days. On 8 October she appeared in court again to apologise for the way she had spoken in court. In response, the magistrate ordered her immediate release from prison.

But MM has had time to reflect on other things since then. Obviously still smarting from her prison experience she brought a high court application asking that some constitutional questions be resolved. Among them, she sought a declaration that the Children’s Court had no civil jurisdiction to summarily commit her to prison for contempt.

She also wanted the court to declare that contempt was a criminal offence; one that had to be proved and that could only follow a formal criminal charge by the director of public prosecutions. She had been sent to prison without these pre-conditions being met and thus her rights to fair trial, liberty and dignity were infringed, she said.


To top it all, she demanded constitutional damages of M500,000 for what she believed was wrongful conviction and imprisonment.

The three judges who heard the matter, including the Chief Justice, Sakoane Sakoane, said they had to decide three issues: whether a magistrate could ‘punish disobedience of a civil order’; whether committal for contempt of court could violate the constitutional rights to fair trial, liberty and dignity so as to warrant a claim for damages, and whether the magistrate in this matter was protected by judicial immunity.

If a judicial officer were ‘actuated by malice or improper motive’, that would be an abuse of judicial power and then a claim for damages could be made.

Qualified immunity

There was no reason to retain the common law rule of qualified immunity for magistrates, the court said. This was because the constitution gave judicial power to all courts irrespective of their position in the judicial hierarchy. And although the constitution said nothing on judicial immunity, there was no reason for it to operate ‘on a qualified basis’ in subordinate courts. ‘After all, judges and magistrate perform the same constitutional function of administering justice’ even though their jurisdiction differs.

‘If a litigant cannot sue a judge for anything done at the seat of justice, whether within or without jurisdiction, why should it be different for a magistrate or a tribunal exercising judicial power?’

In addition, qualified immunity was losing ground in international law where unqualified immunity had become more usual, as the African Commission’s guidelines on fair trial rights showed.


According to the court there was now ‘international consensus that judicial officers must, regardless of their rank in the judicial hierarchy, be protected from civil claims and criminal prosecutions for improper acts and omissions in the exercise of judicial power. The threat of civil claims and criminal prosecutions should not be allowed to hang over the heads of judicial officers like swords of Damocles.’

Clearly, however, the Crown (or State) could not be vicariously liable for wrongful or harmful decisions by judicial officers: ‘A judge or magistrate is not a servant of the Government. There is no master-servant relationship between a judicial officer and the Crown.’

The procedure followed by the magistrate had been ‘correct and lawful’.

Contumacious disrespect

‘The applicant was brought to court under arrest. She was made aware of what her ex-husband was complaining about and afforded an opportunity to explain her conduct. She said she disobeyed the order because she enjoyed doing that. Thus, she confessed her guilt to wilful disobedience of the court order. What doubt existed as to her guilt? Nothing. Hers was contumacious disrespect for judicial authority beyond reasonable doubt.’

MM’s claim that she was summarily imprisoned without the required standard of proof was ‘completely unsound, meritless and an invitation [to] this court to glorify utterly contemptuous behaviour. [MM’s] liberty was taken away fairly, procedurally and lawfully. … The learned magistrate should be commended and not condemned for upholding the dignity and effectiveness of her court.’

MM could have appealed or applied for bail pending review or appeal. But she chose not to do so ‘because she is only interested in monetary compensation.’


The judiciary operated a ‘self-correcting system’ via appeals and reviews. These constituted ‘the necessary hygiene for the administration of justice,’ declared the court.

She had correctly been held accountable and punished for ‘enjoying disobedience of a court.’ The constitution approved the taking away of liberty of people like MM who disobeyed court orders. And in any case, errors made during the process of holding those who commit contempt accountable ‘cannot found a civil claim for damages against a magistrate.’

The court concluded that the claim for constitutional damages was ‘misguided and misconceived’, adding, ‘Judicial officers are immune from civil suits for performing their constitutional duty of protecting the dignity and effectiveness of their courts.’

‘No just cause’

What was to be done about costs, especially since MM had ‘dragged her ex-husband into these proceedings for no just cause’? It had been ‘unnecessary’ for MM to ask the court for clarity, said the judges, because ‘the procedure and standard of proof in contempt proceedings has always been clear’.

The court’s decision therefore was to dismiss the entire application and to order that MM had to pay the legal costs of her former husband.