- Influencer Mary Oluwatobiloba Akinwale defied a court order and continued online posts targeting Native Child Africa.
- The court rules that civil contempt, even if punished by jail, does not create a criminal record.
- The judgment compares South African law with international approaches to civil contempt.
The Pretoria High Court has ruled that a person who disobeys a court order in civil cases cannot be treated as a convicted criminal, even if they face jail time for contempt.
The decision came after Native Child Africa (Pty) Ltd took influencer Mary Oluwatobiloba Akinwale to court for repeatedly violating an earlier order that banned her from posting harmful comments about the company on social media.
Native Child Africa, which sells hair and beauty products, first went to court in 2023 after Akinwale made a series of videos and posts accusing the company of unethical conduct and mistreatment. The company stated her claims were false, damaging to its reputation, and aimed at provoking outrage among customers. In December 2023, the court ordered Akinwale to remove all defamatory content and stop posting anything further about Native Child or its owners.
However, according to court documents, Akinwale ignored the ruling and continued posting on her TikTok and Instagram accounts. The company argued that her defiance showed a willful disregard for the court’s authority and sought to have her declared guilty of contempt, believing this would justify recording a criminal conviction.
Civil contempt versus criminal conviction
Judge K Strydom found that Akinwale had indeed disobeyed the order, but dismissed the idea that civil contempt automatically leads to a criminal record. “It is clear from the notice of motion that the applicant approached the contempt proceedings as one would a criminal trial,” he said. “The request that a finding of contempt be recorded in her criminal record before any punishment had even been determined was particularly concerning.”
The judge explained that the goal of civil contempt is to uphold the court’s authority, not to criminalise individuals in civil disputes. “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,” he said. “The impact of a criminal record on a person’s life is severe. It can affect job opportunities, travel, and education, leaving a lasting mark on many areas of their lives.”
A legal grey area in South African law
Judge Strydom noted the confusion over how to handle civil contempt had persisted for years, partly due to the 2006 Fakie v CCII Systems ruling and the later Jacob Zuma contempt case. “It is unfortunate that these questions were not addressed by the Constitutional Court when it developed the common law,” he said. “Civil contempt has been treated as a criminal offense without anyone stopping to consider whether that was constitutionally and legally correct.”
He referenced examples from the United Kingdom, Australia, and New Zealand, where civil contempt is not regarded as a criminal conviction, even when the contemnor is jailed. “A person found guilty of contempt of court in civil cases does not receive a criminal record,” the judge quoted from English law. “Civil contempt proceedings remain civil in nature. When a person is sent to prison for contempt of court, the court is acting within its civil authority. That person is not an accused in the sense described in Section 35 of the Constitution.”
The ruling also emphasised the need for fairness and balance in applying court penalties. “Civil contempt can be punished,” Judge Strydom said, “but it does not turn the contemnor into a criminal. The aim is to protect the authority of the courts, not to ruin the lives of those who make mistakes in civil matters.”
The court determined that Akinwale had violated the December 2023 order but stated that any punishment should stay within the civil framework. The judgment clarifies that while civil contempt is serious, it does not result in a criminal conviction unless pursued under the Criminal Procedure Act.
Director at Bongani Khanyile Ka Luthuli Attorneys, Bongani Khanyile, said, “I argued this case like my life depended on it. To me, to commit a young person to prison for contempt of court offended my sense of justice. Our argument was upheld. In paragraph 34 the judge sums up my argument on this score. We are successful; civil contempt should not result in a criminal comeuppance. What a victory!”
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