QUESTION 1

Whether or not there is any legal implication that may arise from the address made by Van Zyl's
during the press conference.

The identifiable legal implication from the scenario can be said to be a contempt of court by
way of scandalizing the court. In Botswana, contempt of court is not regulated or defined by
law. However, the Constitution recognizes that the offense and its punishments deprive the
individual of the right to the protection of individual liberties provided for in section 5(1)(b) of
the Constitution1. This is a general provision that goes beyond contempt in facie curiae and
includes all types of contempt, including due process finding.

A judicial body's honor, reputation, or authority may be illegally and internationally violated, as
well as its ability to administer justice in a case that is now before it. This is known as contempt
of court. Publication of information or comments about an ongoing legal action that have the
potential to affect the outcome of the case or interfere with the legal process in that case is
illegal and willful when it undermines the dignity, prestige, or authority of a judicial official
acting in his official capacity or of a judicial body. Discourtesy, which is referred to as the lack of
politeness, should not be confused with contempt of court. In Morris v Crown Office2 Lord
Justice Salmon said that the sole purpose of proceedings for contempt is to give courts the
power to protect the rights of the public by ensuring that the administration of justice shall not
be obstructed or prevented. 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. 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 court3.

1
2001 (3) SA 409
2
[1970] EWCA Civ J0211-1
3
Maripe, B. (2016, September). Contempt of Court In Facie Curiae; Problems of Justification, Application and Control with
Reference to the Situation in Botswana. In Criminal Law Forum (Vol. 27, No. 3, pp. 291-329). Springer Netherlands.
Mens Rea in the form of the intention aforesaid is a requisite element of the offense. Purpose
of either bringing the court into disrepute or by interfering with the administration of justice.
The nature 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. It is left to the circumstances of each case what conduct amounts
to interference with, or the obstruction of, the smooth administration of justice or intentionally
violating the dignity of the court. Also, the intention necessary to accompany such conduct will
be determinable by reference to the circumstances of each case.

It was said in Moran that it would not frustrate the remedy for the judge who sees contempt
being committed in his presence to allow a moment of reflection before laying a charge of
contempt. The other control is that the contempt must be dealt with immediately as the
purpose is to preserve 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 summons. It must be necessary in the
sense that the exigencies of justice so demand. Lawton LJ laid down general principles that
must be borne in mind when exercising power in Moran. That 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; That 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; That the judge should consider whether the
seeming contemnor should have some advice.

And although section 10(8) of the Constitution provides that: "No person shall be convicted of a
criminal offence unless that offence is defined, and the penalty therefore is prescribed in a
written law. . ." this subsection makes exception specifically of the offence of contempt of
court, in its proviso that nothing in the 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 therefore is not so
prescribed."
Our courts, therefore, must rely on common law and judicial precedent to determine the
nature and ingredients of the offence of contempt of court. No doubt there must be an actus
reus of the offence. The Constitution, in the proviso to section 10(8), speaks of an act or
omission constituting contempt. That must be a reference to the actus reus. Dicta from our
court and from the courts of other jurisdictions have also made mens rea a requisite of the
offence.

With regards to the case of Van Zyl, it can be said that there was a clear case of contempt of
court. He held a conference in which he questioned the decision of the court regarding an
ongoing case. It is said that he attacked the court for failure to adopt progressive
constitutionalism; suppressing freedom of speech; judicial fraud; bias and opinioned that the
court must redeem itself once it prepares its judgment since failure to do so will result in the
collapse of the rule of law. This can be said to be a violation of the judicial body's reputation as
it was an intended act. Hence it may be seen as an offence of contempt of court.

Van Zyl may argue that in him calling and speaking about such a case was a way of him
indicating or expressing his right to freedom of expression as given to everyone in Botswana in
section 12 of the Constitution and supported by the United Nations declaration of human
rights. This was argued in the case of S v Mbombo4 by the appellant, that a charge for contempt
of court infringed their right to freedom of speech. It was said that freedom of speech should
not be limited to any greater extent than is necessary, but it cannot be allowed where there
would be real prejudice to the administration of justice. If a speech targets a particular judicial
officer, it should be of such an unwanted and substantial a character as seriously and
unjustifiably to impede that judicial officer in being able to carry on with his/her judicial
functions with appropriate dignity and respect.

4
Constitution Of Botswana
QUESTION TWO

Whether or not Van Zyl followed the proper procedure in his withdrawal as the legal
practitioner of record.

The concern with the withdrawal of an attorney is when the attorney at the eleventh hour
terminates his mandate, giving the other side and the registrar virtually short notice and his
client no notice whatsoever. Such withdrawals negatively affect the smooth running of the trial
and more importantly places litigants in a misplaced belief that their attorney is attending to
the matter when in fact the attorney has withdrawn.

Order 4 rule 10 of the Rules of the High Court provides that an attorney may at any time
renounce his agency by giving notice to his client and to the Registrar, but until the client
furnishes the Registrar with, and notifies the opposite party of, a new address for service, any
process served on the retiring attorney at the address of service shall be considered good
service and the retiring attorney shall notify his former client of the service of any such process
by letter addressed to the client's last known address5.

The procedure of withdrawal was set out in the case of Keisang v Keisang 19936 on page 55
that; It must be appreciated that once a date of hearing has been fixed, it should not be altered
at the very last moment, unless there are exceptional circumstances which the attorney in
person must apologize for and explain personally before the Court. Finally, once a date of
hearing has been published in the Composite Roll for a case to be heard before a particular
Judge, it is the duty of the relevant attorney to appear before the assigned to be at court on the
day in question.

5
(Practice Notice) 1993 BLR 53
6
Rules of the High Court of botswana (Cap. 04:02)
While the court cannot keep an attorney who wishes to withdraw from a matter in harness,
such withdrawals should be made with decency and sensitivity and at the earliest possible time
with sufficient notice to all parties, particularly the client, who must have time to obtain
alternative representation. To do otherwise constitutes a great disservice to the profession, the
litigating public and amounts to trampling on the client's rights to legal representation which
should not be allowed or tolerated.

The least that the attorney must do as an officer of the court is to appear in court to explain his
predicament. Having learnt of the attorney's plight, the court will be placed in a situation where
it will make an order that will consider the interests of all the parties concerned, including the
client, whose attorney has recently withdrawn.

The situation where attorneys wait until the eleventh hour to withdraw from the proceedings,
with little notice to opposing sides and the court and with no notice to their clients is clearly
insulting. It is rendered even uglier by the withdrawing attorney's decision not to attend court,
when he has known, as in this case, of the notice of set down for many weeks. This is extremely
discourteous of the court and yields grave unfairness to the litigants.

Withdrawals should be made with decency and sensitivity and at the earliest possible time with
sufficient notice being given to all the parties, particularly the client, who must have time to
obtain alternative representation. To do otherwise constitutes a great disservice to the
profession, the litigating public, and amounts to trampling on the client's rights to legal
representation, which should not be allowed or tolerated.

Van Zyl had written a notice to the client regarding the withdrawal, and this was done prior to
the set date of the heading. As indicated in the case of Keisang, once a date of hearing has been
fixed, it should not be altered at the very last moment, unless there are exceptional
circumstances which the attorney in person must apologize for and explain personally before
the Court. By way of such a ruling and that of order 4 rule 10, the procedure that Van Zyl had
followed is not allowed or authorized by any written law.
PRECIOUS OMPHITHETSE
201800817
LAW 433 ASSIGNMENT 1
16 SEPTEMBER 2022