Social media influencer escapes criminal liability for civil contempt

A civil court’s finding of contempt - even if accompanied by a sanction such as a fine or a stint in jail - does not constitute a criminal conviction under the Criminal Procedure Act. 

This means that the person found to be in civil contempt cannot have a criminal record.

This was the finding of the Gauteng High Court, Pretoria, which took a closer look at South Africa’s common law. This followed when South African hair brand Native Child earlier won its case against social media influencer, Mary Oluwatobiloba Akinwale.

She was ordered to remove certain posts regarding the hair brand from social media. Akinwale did not totally adhere to the order, and Native Child returned to court to hold her in contempt, coupled with a prison sentence.

The business, which promoted and sold its products over the internet and in some of the big retail stores, complained that Akinwale badmouthed the company on social media. It first went to court in 2023 after Akinwale, who worked for the company for a short while, made a series of videos and posts, accusing the company of unethical conduct and mistreatment.

Akinwale is said to have more than 108,000 social media followers across Instagram, TikTok, and X (formerly known as Twitter). It was claimed that she called on her followers to harass the applicant on its various social media pages; encouraged them to repost her defamatory posts; and told them to go to the applicant’s major retail clients to tell them to stop selling the applicant’s products.

The company maintained that her statements were false and damaging to its reputation. In 2023, the court ordered Akinwale to remove all defamatory content and stop publishing anything further about the hair company and its owners.

Native Child, however, claimed that she continued with these posts and returned to court to hold her in contempt for failure to comply with the earlier order. It also asked for an order that the station commander of the Pretoria Central Police Station must note that she is “guilty of the crime of contempt” and ensure that this is “recorded in her criminal record”. It also wanted her to face a 30-day prison sentence for contempt of court.

Acting Judge Karin Strydom said from the outset she has indicated her discomfort with the formulation of the relief sought. “It is evident from the notice of motion that the applicant treated the contempt proceedings as if they were a criminal trial.

“I was very troubled by the idea that my findings could result in a young student having a criminal conviction on record for the next 10 years. The impact of a criminal record on an individual's life is profound. It can affect job opportunities, travel, and education, leaving a lasting mark on many areas of their lives,” the judge remarked.

She concluded that civil contempt proceedings remain within the civil jurisdiction, and the use of criminal terminology such as “conviction” or “sentence” does not transform the nature of the proceedings. Judge Strydom did find Akinwale to be in contempt of the 2023 order but stated that any punishment should stay within the civil framework.

Cape Times