S v Lewis (610/06) [2007] ZASCA 3; [2007] SCA 3 (RSA); [2007] 3 All SA 477 (SCA) (2 March 2007)

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[2007] ZASCA 3
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S v Lewis (610/06) [2007] ZASCA 3; [2007] SCA 3 (RSA); [2007] 3 All SA 477 (SCA) (2 March 2007)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE
NO
: 610/06
In the matter between :
KERI GWYN LEWIS
.....................
Appellant
and
THE STATE
.....................
Respondent
___________________________________________________________________
Before: HARMS ADP, STREICHER
& JAFTA JJA
Delivered: 2 MARCH 2007
Summary: Contempt of court
in
facie curiae
–
s
35(3) of Constitution – right to a fair trial – summary procedure
not to be followed if not necessary.
Neutral citation: This
judgment may be referred to as
Lewis
v S
[2007]
SCA 3 (RSA)
___________________________________________________________________
J U D G M E N T
___________________________________________________________________
STREICHER JA
STREICHER JA:
[1] The appellant was convicted in
the Witwatersrand Local Division of contempt of court and sentenced
to one month’s imprisonment
for having allowed his cell phone to go
off in court while the court was in session and for answering it as
he was leaving the court.
The court a quo granted him leave to appeal
against the sentence to the full court but refused him leave to
appeal against the conviction.
This court subsequently granted leave
for an appeal against the conviction to this court and that is the
appeal now before us.
[2] Subsequent to leave to appeal
having been granted the judge a quo furnished reasons for the
conviction in which he related the
facts that gave rise to the
conviction as follows:
‘
7 The appellant, who did not have a jacket nor
tie on on the particular day, was seated more or less in the middle
of the public gallery
behind all advocates during the daily roll call
in court CG. This section within the court where counsel sit at the
bar was full,
as usual.
His cell phone, which was evidently not on silence, went off. The
level of the noise was quite loud (high) and caused a disturbance
in
court as everybody’s attention was turned to the loud noise that
pierced the silence of an otherwise orderly and quiet roll
call
session. The cell phone was not immediately switched off nor placed
on silence. The proceedings in court paused for a while
as the cell
phone continued to ring. The appellant stood upright in the middle
of the court gallery and started walking towards
his left (that is,
to the right of the presiding judge) in between the pews with his
ringing cell phone in his hand. Court GC is
a fairly large court and
it thus took a few seconds for the appellant to reach the end of the
pews in order to start walking to
the rear of the public gallery
where the public entrance, which is also the exit from the court, is
situated. While so walking,
the appellant answered the cell phone
and started talking to the caller while walking upright in the
packed court room. It was
as if there was nothing of significance
occurring in his presence other than the conversation he engaged in
on the phone. The court
proceedings were halted until the applicant
took his conversation right to the back of the public gallery, then
behind the partition
at the back, and presumably out of the court
room while talking on the phone. Once the appellant and his cell
phone had moved out
of the court and the disturbing voice of the
conversation had disappeared and attention was again back to the
bench, before resuming
with the proceedings, I instructed the court
orderly to follow the appellant outside court and to call him back
into court as soon
as he was through with his telephonic
conversation. In the mean time the court proceedings resumed.
Once the appellant was back in court, the normal proceedings of the
court once more stopped; the appellant was asked to take the
witness
stand and he took the oath. On inquiry he confirmed that he was the
person whose cell phone had gone off in court and who
had answered
it and spoke on it while walking in the court room.
He was invited to furnish reasons why he should not be found guilty
/ convicted of contempt of court for his conduct and all he
said was
‘I am sorry’ or words to that effect. He also said that he
apologized for his conduct. He was asked whether he was
aware of the
signs at the public entrance to the court room which called for
silence and also indicated that cell phones were not
allowed, and he
responded positively. He was asked whether he was aware when his
cell phone went off that he was inside a court
room and that the
court was in session and he again responded positively. He was asked
why then he had behaved as he had done and
all he said was that he
should not have acted as he did and that he was sorry. I noted that
his response might be relevant to sentence
and again enquired if he
could give reasons why he should not be convicted. He shrugged his
shoulders and said he could give no
reasons or words and / or
conduct to that effect. I informed him there and then that I found
him guilty of contempt.’
[3] In the light of the fact that the transcription of
the proceedings in the court a quo makes no mention of a sign which
indicated
that no cell phones were allowed in court, the judge a
quo’s reference to ‘signs at the public entrance to the court
room which
called for silence and also indicated that cell phones
were not allowed’ was probably intended to mean that the sign
calling for
silence, by implication, indicated that cell phones were
not allowed.
[4] The judge a quo concluded as
follows:
‘
Contempt
13. In my view the appellant was in contempt as he showed no regard
or respect for the court proceedings and the convenience of the
many
litigants in a busy roll call. His contempt was evident not only in
his apparent disrespect for court proceedings but also in
his whole
conduct and the attitude he displayed. The contemptuous attitude
continued right through until he was sentenced. Even as
the court was
addressing him although the appellant in words said ‘I am sorry”
or something to that effect, his whole manner
and body language was
something different. It was as if he did not make out what all the
fuss was all about as he repeatedly shrugged
his shoulders upwards at
the same time bending his hands inward and opening them in front. It
was only after the sentence was passed
that the seriousness of his
conduct, the enquiry proceedings and of the moment appeared to dawn
upon him.
Respect for Court
The respect for the court that those before it have to show is not
for the convenience or ego of the presiding officer. I certainly
demand no respect for myself as an individual. I do however expect
that respect be shown for the nature of proceedings and that
due
regard be given to the convenience of all those in court and those
who look forward to courts to function with dignity and
without
being disturbed. When the orderly running of the court is disturbed
with disrespect and contempt as aforesaid, the action
to protect and
restore the order and respect for the court, in order to be
effective, had to be taken there and then.
Since this case I am pleased that whatever the outcome of the appeal
there is calm and respect in the court room. In addition to
the
written warnings the court orderlies in our courts now announce that
cell phones be switched off before the court commences.’
[5] Milton
South
African Criminal Law and Procedure
3ed
p175 defines the offence as follows:
‘
Contempt of court
in
facie curiae
occurs
when during the sitting of a court (‘in open court’) a person by
word or conduct interferes with the administration of
justice or
violates the dignity or authority of the court.’
In regard to the requirement of
intent Van Heerden JA said in
S
v Harber and Another
1988
(3) SA 396
(A) at 413H – 414A:
‘
[D]uring the last two decades it seems to have
been generally accepted that intention is an element of the offence.
In
S v Van Staden en `n Ander
1973 (1) SA 70
(SWA), Trengove J
pertinently held that intention is a requisite of that form of
contempt consisting of an interference with the
administration of
justice and, indeed, of all manifestations of the offence. And, in
S
v Van Niekerk
1970
(3) SA 655
(T) at 657 and
S v Kaakunga
1978 (1) SA 1190
(SWA) at 1193, it was held
that an accused cannot be found guilty of contempt merely because his
conduct constituted a violation
of the dignity, repute or authority
of a Court; he must also have intended to bring about that
consequence. Reference may also be
made to
S
v Gibson NO and Others
1979
(4) SA 115
(D) at 121, in which Milne J expressed agreement with a
submission that contempt of court is a crime of intention.’
[6] It follows that the appellant’s
conduct would only have constituted the offence of contempt of court
if he left his cell phone
on and answered it while leaving the court
room with the intention of interfering with the administration of
justice or of violating
the dignity and authority of the court. That
would have been the case if he foresaw that his conduct would or may
possibly have that
effect but nevertheless left the phone on and
answered it.
1
[7] Before the advent of the
Constitution a judge, in the case of contemptuous conduct
in
facie curiae
, if he
considered that the conduct warranted punitive action, could either
refer the matter to the Attorney-General to decide whether
the person
concerned should be prosecuted or, if it was necessary to act more
expeditiously in order to preserve the dignity, repute
or authority
of the court or to permit the administration of justice to continue
unhindered, deal with the matter summarily (see
S
v Nel
[1990] ZASCA 145
;
1991 (1) SA
730
(A) at 749H-I
).
[8] The Constitution now provides:
‘
35(3) Every accused person has a right to a
fair trial, which includes the right-
to be informed of the charge with sufficient detail to answer it;
to have adequate time and facilities to prepare a defence;
to a public trial before an ordinary court;
. . .
. . .
to choose, and be represented by, a legal
practitioner, and to be informed of this right promptly:
to have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial injustice would otherwise
result, and to be informed of this right promptly;’
[9] In
S
v Mamabolo (E TV and others intervening)
[2001] ZACC 17
;
2001
(3) SA 409
(CC) para [51] – [59] the Constitutional Court
considered the constitutionality of the summary procedure which led
to a conviction
of contempt, categorised as ‘scandalising the
court’,
ex facie
curiae
. The Court,
referring to
S v Nel
supra
prefaced its
discussion of the constitutionality of the summary procedure by
stating:
2
‘
It should also be noted that we
are not concerned here with the kind of case where the orderly
progress of judicial proceedings is
disrupted, possibly requiring
quick and effective judicial intervention in order to permit the
administration of justice to continue
unhindered.’ After having
referred to several unsatisfactory features of the summary procedure
the court held that the procedure
‘which rolls into one the
complainant, prosecutor, witness and Judge – or appears to do so –
is irreconcilable with the standards
of fairness called for by s
35(3)’.
3
It then proceeded to consider whether
the summary procedure is saved by s 36(1) of the Constitution and
held that in cases of alleged
scandalising of the court ‘there is
no pressing need for firm or swift measures to preserve the integrity
of the judicial process’
and added: ‘If punitive steps are indeed
warranted by criticism so egregious as to demand them, there is no
reason why the ordinary
mechanisms of the criminal justice system
cannot be employed.’
4
It concluded that the summary
contempt procedure in respect of alleged contempt
ex
facie curiae
, ‘save
in exceptional circumstances such as those in
Chinamasa’s
case
5
where ordinary prosecution at the
instance of the prosecuting authority is impossible or highly
undesirable, [is] a wholly unjustifiable
limitation of individual
rights and must not be employed’.
6
The Constitutional Court thus
recognized that there may be circumstances in which a summary
procedure, at which the constitutional
rights referred to are not
afforded to an alleged offender, may be adopted. An attempt to
circumscribe the circumstances that would
justify such a procedure
would be presumptuous. It is however self-evident that if the summary
procedure, as opposed to a prosecution
by the prosecuting authority,
is not necessary in order to preserve the dignity or authority of the
court or to permit the administration
of justice to continue
unhindered an accused person should be afforded a fair trial as
required by s 36 of the Constitution.
[10] The appellant had left the court
and was clearly no longer interfering with the administration of
justice. Immediate action was
therefore not required in order to
permit the administration of justice to continue unhindered. However,
ringing cell phones and
people answering those cell phones can
obviously not be tolerated in courts and call for some immediate
action in order to preserve
the dignity and authority of the court,
even after the disturbance had been discontinued. That is not to say
that a summary enquiry
with a view to a conviction for contempt of
court is called for. Assuming that the conduct justifies punitive
action, a rebuke and
a notification to the offender that the matter
would be referred to the Director of Public Prosecutions for a
possible prosecution
would in most circumstances serve to preserve
the dignity and authority of the court and would in my view have done
so in the present
case. It was, therefore, not necessary to summarily
deal with the matter and the appellant should have been afforded his
constitutional
right to a fair trial including the right to have
adequate time to prepare a defence and to be represented by a legal
representative.
It follows that the conviction should be set aside.
[11] It should be added that when the
summary procedure is permissible and adopted by a court, the court
should bear in mind that
the alleged offender may not know what the
elements of the offence are and also that he had not had any time to
prepare his defence
and to consult a lawyer. The court should
therefore realise that the alleged offender is in no position to
adequately defend himself.
For these reasons the court should take
great care to ensure that an alleged offender who ostensibly acted
contemptuously and who
is unrepresented, is indeed guilty of
contempt. The court should in particular make sure that the conduct
complained of occurred
with the intention to violate the dignity and
authority of the court or to interfere with the administration of
justice. Conduct
which may ostensibly point to an intention to be
contemptuous may prove not to be such.
[12] In the present case the court a
quo could not have been satisfied that the appellant acted with the
required intent. Cell phones
going off when they should not be on, is
a common occurrence. It happens in theatres, during meetings and
unfortunately also in courts.
Most of the time the owner
inadvertently left it on, he is caught off guard and his
embarrassment often causes him not to be able
to deal with the
problem as speedily and effectively as people irritated by the
disturbance expect him to do. The court should in
the circumstances
at least have enquired whether the appellant was aware that his cell
phone was on or whether he left it on inadvertently.
If he was aware
the court should have enquired whether he realised that leaving his
cell phone on may be disruptive of the proceedings
and may be
considered to be contemptuous of the court as opposed to being
inconsiderate or discourteous. The court should also have
enquired
whether he actually conducted a conversation while he was walking out
of court. It is possible that the appellant merely
told the caller to
hold on until he was out of court as the appellant, in his
application for leave to appeal, alleged he did. The
court should
also at least have enquired whether the appellant was aware that the
ringing of his cell phone and his answering thereof
caused an
interference with the court process to the extent that it could be
considered to be contemptuous. In the latter regard
it should be
remembered that the incident occurred in a large court during roll
call at a time when the court was ‘packed’. The
front part of the
court would have been occupied by a number of advocates and the back
part by members of the public. People, would
have moved in and out of
the court, those not directly concerned in the matter that was being
called, would have had little or no
interest in the the matter that
was being dealt with, would have paid little attention to the
proceedings and may well have been
whispering amongst one another
without being frowned upon. In these circumstances it is possible
that the appellant as a layman did
not realise that leaving his cell
phone on and answering it while he was leaving the court may be
interpreted to be contemptuous.
What may seem obvious to lawyers who
practise in the courts and who know very well that a cell phone
should not be answered in a
court, not even to tell the caller to
hold on, may not be that obvious to a layman.
[13] That the appellant in fact did
not realise the seriousness of his transgression is evidenced by the
court a quo’s finding that
‘[i]t was only after the sentence was
passed that the seriousness of his conduct, the enquiry proceedings
and of the moment appeared
to dawn upon him’. The shrugging of the
shoulders and the bending and opening of the hands in front of him,
which the court a quo
interpreted to be a sign of the appellant’s
contempt, may have been an indication by the appellant of
helplessness, and may have
been intended to convey ‘what can I do
but apologise’. Furthermore, the fact that the appellant left the
court to conduct his
conversation outside afforded some evidence that
the appellant had no intention to be contemptuous but respected the
authority and
dignity of the court.
[14] It should also be added that it
may at times be more dignified to simply ignore conduct that may
technically constitute contempt
of court or to treat it less harshly
than to convict the perpetrator of the offence.
7
A rebuke or some other indication of
disapproval should in most cases be an adequate measure to discourage
cell phone transgressions
in court.
[15] The appeal is upheld and the
conviction is set aside.
_________________
STREICHER JA
CONCUR
:
HARMS ADP)
JAFTA JA)
1
Cf
S v Foley
1968
(1) SA 694
(T) at 697
in fine
.
2
Para
[52].
3
Para
[55].
4
Para
[57].
5
2001
(2) SA 902
(ZS).
At the time of the trial
Chinamasa was the Minister of Justice of Zimbabwe and the case
concerned a statement he had made in his
capacity as
Attorney-General of Zimbabwe.
6
Para
[58].
7
S
v Nel supra 749F-H.