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[2017] ZALMPPHC 36
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S v Lekalakala (113/2017) [2017] ZALMPPHC 36 (9 November 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
REV:
113/2017
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: NO
REVISED
THE
STATE
V
JOSEPH
LEKALAKALA
REVIEW
JUDGEMENT
MULLER
J:
[1]
Mr Rulane Baloyi appeared in the magistrate court Mokopane on drug
related charges. He was in police custody. Baloyi entered
the dock
and the prosecutor requested a postponement for further investigation
when the matter was called on 5 July 2017. The presiding
magistrate
observed from the bench that the Mr Lekalala, the present accused,
who was seated in the gallery was passing something
to Baloyi by
throwing it. The presiding officer called the accused to the bar and
informed him that what he had done is contempt
of court
in
facie curiae
.
[2]
The recording of the proceedings had gone astray, but the magistrate
made notes of the proceedings. The notes show that the
rights of the
accused were explained and that the accused elected to address the
court. The magistrate asked him what it was that
he passed to Baloyi.
The accused replied that it was a packet containing dagga. He was
then asked whether he was aware that it
was a court of law and while
it is sitting it is unlawful and wrong to supply a prisoner without
the consent of the police. No
answer was given to the question. He
was thereafter summarily convicted and sentenced to 3 months
imprisonment. There is no indication
from the notes that he first
convicted of contravening section 108(1) nor that he was given the
opportunity adduce evidence or
address the court in mitigation of
sentence.
[3]
The magistrate was requested to give reasons for the conviction and
the sentence. The Deputy Director of Public Prosecutions
was also
requested to assist the court. A memorandum was prepared for which I
am grateful.
[4] The magistrate in his reasons
stated that he was very disturbed when the accused informed him that
he had wronged certain people
and thought that he would be detained
if he does something naughty in court. The magistrate expressed
himself as follows:
“
Court
felt very disturbed by the accused’s preparedness to go to jail
and the manner in which he promoted his detention even
through the
said package could not be found”.
[5]
The Deputy Director in its memorandum alluded to the fact that the
recorded record of the proceedings went missing and that
the failure
to secure the record nullified the proceedings and for that reason
the conviction and sentence should be set aside.
[6] It is well to note that the
accused was charged and convicted under section 108(1) of the
Magistrates’ Court Act 32 of
1944 which applies to magistrates
only. The section contemplates three possible situations of unlawful
behavior:
(a) where a
judicial officer is willfully insulted during a sitting; or
(b) where the
proceedings of a court is willfully interrupted; or
(c) where a person
otherwise misbehaves in the place where the court is held.
[7]
Misbehavior contemplated under (c) could included willful behavior
not necessarily directed at the judicial officer to insult
him/her,
but which is nevertheless serious enough to invoke the provision of
section 108(1).
[8]
It has been held that the word “misbehave” in section
108(1) connotes impropriety which undermines or interferes
with the
proceedings to the extent that it undermines the due administration
of justice. See
S v Lavhengwa
1996 (2) SACR 453
W at 466 g-i.
[9]
The conduct of the accused during the proceedings in court falls
outside categories (a) and (b) and cannot be described as an
interruption of the proceedings nor aimed at insulting the presiding
officer. (The proceedings was interrupted because the magistrate
first dealt with the accused before he returned his attention to
Baloyi to postpone the case against him.)
[10]
The accused was a member of the public sitting in the gallery when he
passed a packet containing dagga to Baloyi who was in
the dock whilst
his case was being dealt with by the court by throwing it to him. In
my view such conduct is improper and willful
misbehavior on his part
and a contravention of section 108(1). Members of the public cannot
be allowed to harm the decorum of court
proceedings in the way he has
done. It harms the administration of justice in the eyes of the
public which should be conducted
in a calm and orderly fashion.
[11]
The next question is whether the magistrate was justified in dealing
with the case in a summary fashion or whether it should
have been
referred to the Director of Public Prosecutions to take further
steps.
[12]
Summary proceedings in terms of section 108(1) is
prima
facie
contrary to the provisions of
section 35(3) of the Constitution. See
S
v Mamabolo (E TV and Another Intervening)
2001 (1) SA 686
CC par 54-55. However, the need for swift measures to
preserve the integrity of the judicial process by means of a summary
enquiry
into the conduct of the accused is sometimes called for. Be
that as I may, the magistrate was under the impression that it is
unlawful
to supply a prisoner with items without the consent of the
police whilst the court is in session. The magistrate seemingly
considered
the passing of an item to an accused person whilst he was
in the dock and the court in session, by throwing it to him as
unlawful
and as such a contravention of section 108(1). It certainly
is also an offence under the Correctional Services Act 111 of 1998 to
supply an inmate with dagga. The magistrate appreciated that. It
would have been prudent, upon reflection, to have requested the
orderly to retrieve the packet immediately to confirm the contents
and to take it from there. If the packet did indeed contain
dagga as
stated by the accused, he could have been arrested for being in
possession of dagga and supplying an inmate with dagga.
[13] The court, in
S v Lavhengwa
supra
at 49 b-h, has set out guidelines to be taken into account
by magistrates when invoking the provisions of section 108(1). They
are worth repeating:
“
1.
The magistrate should first carefully consider whether or not he/she
should resort to the normal procedure of referring the matter
to the
Attorney-General or the summary procedure. Considerations which would
become important at this stage are whether or not
he can disregard
the accused’s conduct as unimportant (
S
v Nel (supra at
749G))
or merely stupid and not willfully contumacious (
R
v Silber (supra at
483E))
or whether the matter can be disposed of by merely removing the
accused from the court (
Duffey
v Munnik (supra at
395E) or whether the conduct is insulting or insolent in its nature
towards the magistrate personally. In the instances mentioned
above
it would be better to take evasive action (such as e g the removal of
the accused from the court or an adjournment or requesting
an apology
from the accused or reporting him to his professional body if the
accused is a practitioner) which would obviate the
necessity to
embark upon a trial under section 108(1) or to take the normal route
of referring the matter to the Attorney-General
rather than resorting
to the summary procedure.
2. If, however, the
circumstances are such that the summary procedure is called for (e g,
in cases of disobedience to rulings, interruption
of the proceedings
etc) he should warn the accused of his intention to proceed with a
summary trial under the provisions of section
108(1) of the
Magistrates’ Courts Act. Depending on the accused’s prior
knowledge of the contents of section 108(1),
it would be advisable
for the magistrate to read out the section to the accused so as to
inform him of the provisions thereof and
thus inform the accused of
the nature of the offence with which he is being charged.
3.
The magistrate must
then proceed to inform the accused of the latter’s conduct
which in his view contravened section 108(1)
and which of the three
categories mentioned in section 108(1) his conduct is alleged to have
transgressed.
4.
The magistrate
thereafter should inform the accused of his constitutional rights as
set out in section 25(3) of the Constitution
and enquire from the
accused whether he wishes to remain silent, testify, give an
explanation or call witnesses. If the accused
is a lay person
he should be afforded the right to obtain legal representation should
he wish to do so, subject to such time and
feasibility constraints as
may seem reasonable in the circumstances of the case. Depending on
the decision of the accused, the
magistrate should then afford the
accused full opportunity to exercise his rights in order to ensure
that his constitutional rights
are not infringed nor that the rules
of natural justice are transgressed.
5.
After the accused has
been given an opportunity to exercise these rights the magistrate
should then weigh up all the circumstances,
evidence and arguments
and convict the accused only if the facts before him prove beyond a
reasonable doubt that the accused willfully
contravened any of the
offences mentioned in section 108(1).”
[14]
The magistrate failed to adopt the principles set out above. He did
not read the provisions of the section 108(1) to the accused
nor was
the accused informed of his constitutional rights to engage the
services of a legal representative.
[15] The sentence of 3 months
imprisonment was in my view excessive. The accused was also not given
the opportunity to adduce evidence
or to address the court in
mitigation of sentence before the sentence was imposed. The trial, as
a result, was not fair. It follows
that conviction and sentence ought
to be set aside.
[16] The accused must be released
immediately, if he has not been released.
ORDER
:
The conviction and sentence are set
aside.
The Director of the Correctional
Services Centre where the accused is detained is directed to release
the appellant on receipt of
this order immediately provided the
accused is not serving any other sentence(s).
__________________
G.C
MULLER
JUDGE
OF THE HIGH COURT LIMPOPO DIVISION: POLOKWANE
I
concur
________________
AML
PHATUDI
ACTING
DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE