Contempt case against lawyer who spoke isiXhosa in court overturned

The Eastern Cape High Court has overturned the contempt proceedings initiated by a magistrate against a lawyer for addressing her in isiXhosa in court.

Judge Belinda Hartle also found that speaking isiXhosa in circumstances of communication difficulty was not in willful misconduct and did not undermine the court proceedings.

This comes after drama unfolded during a bail hearing when a magistrate struggled to hear a lawyer over the noise of an air conditioner and the lawyer then addressed the magistrate in isiXhosa, resulting in her believing that he brought the court “into disrepute”.

While isiXhosa is one of South Africa’s official languages, and interpreters were available at court, the magistrate insisted that English is the only acceptable language when the court is addressed by a legal practitioner.

While initiating contempt of court proceedings against the Legal Aid South Africa lawyer, the magistrate, who is not named in the judgment, later seemed to have reservations and she turned to the Eastern Cape High Court, sitting in Bhisho, where she referred the half-completed contempt of court proceedings to this court as a “special review”.

The magistrate from the Whittlesea Magistrate’s Court in the Eastern Cape wanted a judge to take a second look at her findings, before she went ahead to sanction the lawyer - Luvuyo Melani.

The pretext of the review was that although she believed that the actions of Melani amounted to contempt of court, she wanted to be assured that she was correct in her handling of the matter before continuing.

Melani was never convicted; the magistrate having reserved her judgment pending this special review. However, she told the court that she is confident that she had every reason to have invoked contempt of court proceedings.

The matter concerns an incident on October 24, 2024, when the magistrate could not hear Melani over the loud air conditioner.

Instead of meeting the magistrate’s expectation of speaking up as requested by her (in English, which is regarded as the official language of record), Melani spoke in isiXhosa. Before embarking on this route, however, he requested to be assisted by the interpreter if the magistrate could not understand him.

He perceived that the reason she could not hear him was because he might not be arguing sensibly in a language that is not his mother tongue. An exchange ensued, with Melani speaking in the vernacular.

The magistrate warned him that he was “now bringing the court into disrepute, by insisting on addressing the court in isiXhosa on the premise that it was one of the official languages that he was entitled to use.

The magistrate corrected him, indicating that he knew that the only language in court is English. After surmising that Melani was “going to continue on this trajectory”, she announced that she was going to resort to contempt proceedings.

When Melani appeared to face the charge of contempt a week after the earlier fracas, he told the magistrate that speaking isiXhosa is a constitutionally guaranteed right and he is thus not contemptuous to the dignity of the court.

He pointed to an earlier interview by Chief Justice Mandisa Maya, wherein she stated that other official languages should be encouraged in spite of the challenges with the translation of the records.

Melani told the magistrate that the most appropriate way to deal with the situation would be for the court to give a statement to the prosecuting authority to decide whether to prosecute him for contempt of court or not.

Judge Hartle, hearing the review application, noted that it was at this point that the magistrate seems to have begun to have reservations and referred the matter for review.

The judge noted that the record of the lower court proceedings showed that the magistrate treated the use of isiXhosa as contemptuous and regarded it as common-law contempt.

She found the proceedings to be irregular as the magistrate’s court lacked jurisdiction to summarily try common law contempt and the judge noted that Melani was never clearly informed of the charge, nor of his rights.

Judge Hartle overturned the contempt proceedings as being irregular.

Cape Times