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[2014] ZAFSHC 108
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S v Motaung (29/2014) [2014] ZAFSHC 108 (7 August 2014)
FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
Number: 29/2014
Date:
7 August 2014
In
the matter between:-
THE
STATE
and
GILBERT
MOTAUNG
CORAM:
DAFFUE, J
et
MURRAY,
AJ
JUDGMENT
BY:
MURRAY, AJ
DELIVERED
ON:
7 AUGUST 2014
[1]
This is an automatic review pursuant to the summary conviction and
sentence of the accused for contravention of Section 108
of the
Magistrates’ Court Act, Act 32 of 1944, on 21 May 2014 in the
Magistrates’ Court Wesselsbron.
[2]
Section 108(1) of Act 32 of 1944 makes provision for such a summary
procedure for contempt of court, namely:
“
(1)
If any person ... wilfully insults a judicial officer during his
sitting or a clerk or messenger or other officer during his
attendance at such sitting, or wilfully interrupts the proceedings of
the Court or otherwise misbehaves himself in the place where
such
Court is held, he shall ... be liable to be sentenced summarily or
upon summons to a fine not exceeding R2 000 or in
default of
payment to imprisonment for a period not exceeding six months or to
such imprisonment without the option of a fine.”
[3]
Should Section 108(1) be invoked, Section 108(2) provides as follows:
“
(2)
In any case in which the Court commits or fines any person under the
provisions of this section, the judicial officer shall
without delay
transmit to the registrar of the court of appeal for the
consideration and review of a judge in chambers, a statement,
certified by such judicial officer to be true and correct, of the
grounds and reasons of his proceedings, and shall also furnish
to the
party committed a copy of such statement.
”
[4]
I shall deal first with Section 108(2) since in two respects the
requirements therein have not been complied with. First
of all,
the relevant judicial officer did not set out the grounds and reasons
for his proceedings in “
a
statement certified by [him] to be true and correct”
but in a letter, and, secondly, there is no indication that the
letter was “
furnished to the party
committed”
. The Court therefore
needs to determine whether the judicial officer’s failure to
comply with the provisions of Section 108(2)
is fatal.
[5]
In
S
v Nxane
[1]
,
a two-bench decision of this Division it was held that the provisions
of Section 108(2) are merely administrative in nature and
do not
constitute an indispensable part of the proceedings under Section
108(1). The Court therefore held that non-compliance with
Section
108(2) did not result in the invalidity of the summary proceedings
before the Court
a
quo
.
[2]
[6]
In view of the above, and since in the instant case the judicial
officer’s letter bore an official stamp and his signature,
and
since the contents thereof are confirmed by the extract from the
written record of the proceedings which accompanies the letter,
I am
satisfied that the failure to provide a certified statement of events
does not invalidate the Section 108(1) proceedings.
[7]
That leaves the judicial officer’s apparent failure to furnish
the committed party with this letter. The Court
in
S
v Mitchell
[3]
held
that the reasons for the statement to be furnished to the accused are
twofold, namely to enable him or her to confirm that
the facts stated
are correct and to give him or her an opportunity to express his or
her remorse.
[4]
[8]
The accused
in casu
was sentenced to six months’ direct imprisonment. From the
letter it appears that, after invoking Section 108(1) on 21 May
2014,
the Court postponed the main trial for one week, to 28 May 2014.
However, when the trial had to resume on 28 May, the judicial
officer
was informed that the accused had already been released on 27 May
2014 from his imprisonment for contempt.
[9]
As in
S v Nxane
,
the accused herein had already been released by the time the review
was filed. The extract from the proceedings supports the judicial
officer’s version of the proceedings. I therefore respectfully
agree with the Court in Nxane that the failure to furnish
the accused
with the letter does not invalidate his conviction although it might
be said to impact on his rights, an aspect which
is addressed later
herein.
[10]
As far as the provisions of Section 108(1) are concerned, in my view
the judicial officer
in casu
on the facts of the matter, was justified in invoking the summary
procedure the section provides for.
[11]
“Contempt” in terms of Section 108(1) is committed,
inter
alia
:
(a)
Where a judicial officer, or other officer of the Court, is wilfully
insulted during a sitting; or
(b)
Where the court proceedings are wilfully interrupted; or
(c)
Where the person misbehaves himself in Court and thereby interferes
with the proper functioning of the Court.
[5]
[12]
The record leaves one in no doubt that the accused’s conduct
during the trial meets all of the above criteria. It is
clear that he
interrupted the Court proceedings and interfered with the proper
functioning of the Court, and that he did so wilfully.
[13]
When the Court during the proceedings requested the accused to stand
up, for instance, his answers were:
“
For
what your worship”;
“
I
don’t want to”;
and “
You
are also sitting”.
When
the Court, after explaining to him that his conduct could amount to
contempt of court and warning him of the sentence that
could be
imposed if he were to be so convicted, asked him if he understood the
explanation, he kept denying that he was in contempt
and produced
answers like: “
You want me
to stand up so you can tell me again that you find me guilty
”
;
“
Can the Court just find me
guilty
”
; “
Find
me guilty now, Your Worship, I’m telling the Court to find me
guilty, Your Worship
”
;
“
Continue and find me guilty
”
;
and “
Yes, do your job
”
.
[14]
In
S
v Nel
[6]
it was said, loosely translated, that:
“
A
presiding judge or magistrate who is of the opinion that somebody has
acted in contempt of court should first consider whether
it is
necessary and desirable for him to take action. Very often
conduct which strictly speaking constitutes contempt of
court can
quite fittingly merely be ignored without really impairing the
dignity or the authority of the Court or the orderly conduct
of the
proceedings.
”
[15]
From the judicial officer’s letter, as well as the record it
appears that the events of 21 May 2014 were not isolated
incidents,
but that the accused “
has a
history of swearing and threatening both the presiding officer and
the prosecutor, and on occasion spitting at the legal aid
officer”
.
From both documents, furthermore, it is evident that
although the judicial officer had explained the provisions of
Section
108 to the accused before, that the Section was only invoked on 21
May 2014. In my view it is therefore safe
to accept that
the judicial officer had already carefully considered whether he
would be justified in invoking Section 108.
[16]
I am of the view that the conduct of the accused in the instant
matter was not such that the Court could have further ignored
it
without impairing the dignity or the authority of the court or the
orderly conduct of the proceedings. It is evident that
the
accused wilfully refused to obey the Court orders and persisted in
disrupting the process, and that such flagrant disobedience
occurred
in
facie curiae
[7]
,
that an immediate response was necessary to restore order and to
deter the accused from repeating it. In my view the proceedings
had
reached such a point that the presiding officer had no other option
than to invoke the provisions Section 108.
[17]
I am satisfied, furthermore, that the necessary procedure to protect
the rights of the accused was observed during the Section
108
proceedings and the
audi
alteram partem
principle
adequately applied so as not to unconstitutionally infringe the
accused’s rights.
[8]
The Court explained to the accused what conduct could amount to
contempt and explained his right to an attorney and to Legal
Aid
assistance during the Section 108 proceedings, which he refused.
He was invited to give reasons why he should not
be found in
contempt, but talked about anything but the contempt proceedings and
at no stage used any of the opportunities to express
any remorse for
his conduct. He was also invited to present evidence in
mitigation before he was sentenced.
[18]
I respectfully agree with Nugent, JA, that:
[9]
“
[12]
… the proper administration of justice may not be prejudiced
and interfered with and that to do so constitutes the offence
of
contempt of court….. The integrity of the judicial process is
an essential component of the rule of law. If the
rule of law
is itself eroded through compromising the integrity of the judicial
process then all constitutional rights and freedoms
… are also
compromised.
”
[19]
I agree, too, that the primary objective in the application of the
contempt procedure is to maintain the reputation and dignity
of the
court and the orderliness of its proceedings by enforcing the court’s
authority and with the court in S v Lavhengwa
that it is of the
utmost importance to protect the law and the importance of the
judicial process for all citizens.
[10]
[20]
In
S
v Mitchell
[11]
,
supra,
it was held that a review court should be slow to interfere with the
measures which a lower court considers necessary in “
self-protection
and in order to secure the decorum of its own proceedings
”,
such as to invoke Section 108.
[12]
In my view the conviction and sentence at that stage of the
proceedings
in
casu
were
indeed necessary to protect the reputation and dignity of the Court
as well as to restore the orderliness of its proceedings
and in so
doing to protect the Court’s authority.
[21]
In my view, then, the application of the summary procedure provided
for in Section 108 in the present case did not result in
any
injustice.
THE SENTENCE:
[22]
In
S
v Nel
[13]
the Court stressed that the conviction for the contempt is a
sui
generis
type of conviction where the accused is not a “
criminal
”
in the strict sense of the word and the purpose of the sentence is
not to ‘
punish’
the
accused but directed mainly at getting an offender to refrain from a
continuation of his contemptuous conduct. The penal
jurisdiction is R2 000 or alternatively six months’
imprisonment or both such fine and imprisonment.
[14]
[23]
Although I agree that imprisonment in the circumstances of this case
with the accused’s history of disruptive behaviour,
is the
correct sentence, I am of the view that a suspended sentence would
have been an effective deterrent for continued misconduct
during the
trial.
[24]
Wherefore the following order is made:
1.
The conviction for contravention of Section
108 of Act 32 of 1944 is confirmed;
2.
The sentence of six months’
imprisonment is set aside and substituted with a sentence of six
months’ imprisonment, wholly
suspended for two years on
condition that the accused is not convicted of contempt of court
again during the period of suspension.
_______________
H.
MURRAY, AJ
I
concur:
______________
J.
P. DAFFUE, J
[1]
See:
1975 (4) SA 433
(O) at 436 (A)
[2]
See:
Jones & Buckle:
THE
CIVIL PRACTICE OF THE MAGISTRATES’ COURTS IN
SOUTH AFRICA
[3]
See:
2011 (2) SACR 182
(ECP)
[4]
See:
At para [15] at p. 186
[5]
See:
Misbehaviour should be wilful (See:
S
v Memani
1993 (2) SACR 680
(W) at 681 (e) – 682e, and the
mens
rea
required can either be
dolus
directus
or
dolus
eventualis
(
S
v Foley
1968 (1) SA 694
(T) at 697 H)
[6]
See:
[1990] ZASCA 145
;
1991 (1) SA 730
(A), at 749F – 750F.
[7]
See:
S
v Mathoho
:
In
Re:
Da
Silva Pessegueiro v Tshinanga
2006 (1) SACR 388
(T) at para [19] at p. 393;
S
v Lavhengwa
1996(2) SACR 453 (W) at p. 454, 474
[8]
See:
S
v PhomadI
1996 (1) SACR 162
(E) at p. 165;
S
v Lavhengwa
,
supra,
at
p.455;
S
v Nyalambisa
1993 (1) SACR 172
(TK) at p. 176
[9]
See:
Midi
Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions
(Western Cape)
[2007] ZASCA 56
;
2007
(5) SA 540
(SCA)
(2007) (9) BCLR 958
, at para 12.
[10]
See:
S
v Mitchell
supra
at para [11] at p. 186 and
S
v Lavhengwa,
supra,
at
p. 464.
[11]
See:
S
v Mitchell
2011 (2) SACR 182 (ECP)
[12]
See:
At para [9] read with paras [8] and [5] at 185 g – 186 a;
184 i – 185 b and 185 e – f;
See
also:
S v Lavhengwa
,
supra,
at
p. 454 and 455, 466, 467, 472, 474, 480
[13]
See:
S
v Nel
,
supra
at p. 752,753
[14]
See:
S
v Mitchell
,
supra
at paras [17] and [18] at p. 187