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[2013] ZAKZPHC 44
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S v Mabaso, In re: S v Hadebe and Others (RC 1081/10) [2013] ZAKZPHC 44 (1 September 2013)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
Case No RC 1081/10
In
the matter between:
THE
STATE
versus
SPHA MABASO
IN RE
THE STATE
versus
XOLANI INNOCENT HADEBE
SIHLE NXELE
THEMBINKOSI NDLOVU
REVIEW JUDGMENT
Delivered on:
GORVEN
J:
This matter has been sent on special review from
Pietermaritzburg Regional Court by the learned acting regional
magistrate Ms.
MS Linda. It is headed ‘Request for Special
Review in terms of S 304(4) of the Criminal Procedure Act, 51 of
1977’
(the Act). She convicted the accused, an attorney, of
contempt of court and fined him R5 000 or ten days’
imprisonment
by way of summary proceedings.
The proceedings arose out of a criminal trial where the
accused appeared on 15 August 2013. Although the written record
kept
by the learned magistrate indicates that the proceedings were
mechanically recorded, they do not appear to have been transcribed
in respect of his initial appearance. What follows is therefore
derived from the handwritten record kept by the learned magistrate.
The accused indicated to the learned magistrate that he
was instructed to represent one of the accused (the trial accused)
but
was not ready to proceed as he had a matter in Estcourt. The
learned magistrate ordered that the accused consult with the trial
accused and that the matter should proceed shortly thereafter
whereupon the matter stood down. Approximately one and a half
hours
later the court re-convened and one Ms Zondi indicated that she was
standing in for the accused. When she said that she
was not ready
to proceed with the trial but had simply been asked to stand in, she
was excused. The learned magistrate procured
the attendance of the
accused some four hours fifteen minutes later.
On his attendance, the proceedings were mechanically
recorded and have been transcribed. The trial accused was not
present. The
learned magistrate addressed the accused as follows:
‘
[E]arlier on the Court gave you an order that you
consult and proceed with trial since the matter was at the stage of
the defence
case and the Court was not willing to give you a further
postponement. Later the matter was called, the Court was told that
you
have left for Estcourt.’
The accused agreed with this assertion and,
when asked why that had happened, explained that the trial accused
had requested that
he place himself on record even though he was
meant to be in court in Estcourt. He stated that when he appeared
previously he
had not placed himself on record. The following
interchange then took place:
‘
COURT
Did you not address the Court that
you have been instructed to deal with the matter, that you were not
ready to proceed because
you were engaged in Estcourt and that you
had not properly consulted, and for those reasons I gave you an order
that you –
the matter stand down and we will proceed, and I
proceeded to tell you that it is unethical to take a mandate that you
cannot carry
out.
MR MABASO
Your Worship, I understand that
clearly – loudly and clearly, however, I was of the impression
that given the fact that
we had placed, or we – I had received
instruction at the late hour, the eleventh hour, the matter would not
be able to proceed
because I would not have gotten proper
instruction, would not have consulted, would not have read the
statements and been able
to represent the client to the best of my
ability. In relation to being ordered, at that stage I do not
recall, or if I did not
hear clearly, I did not hear the Court saying
I should come back to the Court and advise the Court, or proceed with
the trial.
COURT
So you are saying that I – the
pronunciation of the Court saying to you the matter stand down, you
will consult and proceed
with the trial, you did not understand that
you were required to come back and inform the Court ….
[indistinct] proceed
with the matter?
MR MABASO
No, Your Worship.
COURT
Mr Mabaso, I am of the view that your
behavior is disrespectful and you are undermining the authority of
this Court and that I
am going to – I am not going to allow.
MR MABASO
Yes, Your Worship.
COURT
Just address me, why should I not hold you
in contempt?’
A lengthy interchange then took place during a summary
inquiry into the conduct of the accused, during which interchange
there
were clearly differences of opinion between the learned
magistrate and the accused as to what transpired and also as to what
was understood to be happening in the matter. During the
interchange the learned magistrate twice repeated her question as to
why she should not find the accused in contempt for defying the
court order given. The accused did not concede that he had
misconducted himself.
After the interchange, and after he was not prepared to
concede that he had misconducted himself, the learned magistrate
said
the following:
‘
This Court finds you GUILTY OF CONTEMPT OF COURT,
Mr Mabaso, you are FINED FIVE THOUSAND RAND OR TEN DAYS’
IMPRISONMENT.’
The accused then applied for a deferred fine and the
learned magistrate deferred the fine in such a way that it would have
been
fully paid by the end of November 2013. The accused then
asked for leave to withdraw as attorney of record of the trial
accused
and such leave was granted.
The learned magistrate sent the matter on
special review, indicating that she had summarily found the accused
of contempt
in facie curiae
.
Her report states that the accused had not been given a right to
legal representation nor an opportunity to mitigate on sentence
as
this was done summarily. She records that she is of the view that
such was unnecessary as he was not an accused person and
the summary
hearing was not unconstitutional in the terms set out in, inter
alia,
S v Mamabolo
(
E
TV & others intervening
).
1
The learned magistrate, in the referral, proceeds to
set out reasons for her decision and the summary process as well as
reasons
for requesting a special review in terms of s 304(4) of
the Act. Those reasons are embraced in the following paragraphs:
‘
3.1 The Magistrate seek for a declaration by the
Honourable Reviewing Judge on whether the Contempt inquiry which was
held Summarily
against the Attorney was procedurally fair in terms of
section 303 of Act 51 of 1977.
3.2 The Magistrate seek for a declaration by the
Honourable Reviewing Judge on whether the Contempt inquiry which was
held Summarily
against the Attorney was in accordance with justice,
in terms of section 304 of Act 51 of 1977.
3.3 The Magistrate seeks a declaration by the
Honourable Reviewing Judge on whether the Sentence imposed was
competent and fair.’
(The grammar in the reference has not been
corrected.)
She concluded that if the proceedings were found to be
procedurally unfair and not in accordance with justice, a directive
as to
how contentious conduct by practitioners should be dealt with
was requested.
There are a number of difficulties with
the procedure adopted by the learned magistrate. In the first place,
it is clear that
the inquiry concerned conduct not committed
in
facie curiae
.
2
If contempt is not committed
in facie curiae
,
a summary procedure is not competent.
3
In
Mathoho
, an
attorney refused to re-enter the court room when instructed to do so
by a magistrate. It was held that s 108 of the Magistrates’
Court Act 32 of 1944 did not make provision for summary punishment
for contempt committed
ex facie curiae
in that the court was able to try such offence only if brought
before it by way of summons. The conviction and sentence were
set
aside.
Secondly, the learned magistrate did not
invoke the provisions of s 108 of the Magistrates’ Court
Act. This provides
a summary procedure
for a person who:
‘
[W]ilfully
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.’
It
is clear that this was not invoked for a number of reasons. First,
the learned magistrate made no reference to the section. Secondly,
she did not refer to it in sending the matter on review. Thirdly, she
did not comply with its provisions. In this regard, s 108(2)
provides that, if any sanction has arisen under the section, ‘the
judicial officer shall without delay transmitted 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.’
She
did not certify the statement, neither does it appear that she
furnished the accused with a copy of the statement. Fourthly,
the
sanction imposed exceeded that provided for in the section.
In
Mamabolo,
Kriegler J, dealing inter alia with s 108 of the Magistrates’
Court Act 32 of 1944 and ss 159(1), 178(1) and
(2) and 189 of
the Act, which empowers a presiding officer to deal with a
particular form of disruptive conduct on the part of
an accused,
held that none of these deals with allegedly contentious conduct
outside court and after the event. He also indicated
that the
inquiry was limited to proceedings in superior courts as lower
courts have no extraordinary jurisdiction to deal with
instances of
scandalizing the court. In doing so he distinguished ‘between
prosecutions in the ordinary course at the instance
of the
prosecutorial authorities, which may be tried before a lower court,
and the special proceedings initiated by the presiding
judicial
officer’.
4
He held that a person summoned in respect of extra curial alleged
contempt is an accused person as contemplated by Section 35
(3) of
the Constitution of the Republic of South Africa, 1996. He found as
follows:
‘
Manifestly the summary procedure is
unsatisfactory in a number of material respects. There is no
adversary process with a formal
charge sheet formulated and issued by
the prosecutorial authority in the exercise of its judgment as to the
justice of the prosecution;
there is no right to particulars of the
charge and no formal plea procedure with the right to remain silent,
thereby putting the
prosecution to the proof of its case. Witnesses
are not called to lay the factual basis for a conviction, nor is
there a right
to challenge or controvert the evidence. Here the
presiding Judge takes the initiative to commence proceedings by means
of a summons
which he or she formulates and issues; at the hearing
there need be no prosecutor, the issue being between the Judge and
the accused.
There is no formal plea procedure, no right to remain
silent and no opportunity to challenge evidence. Moreover, the very
purpose
of the procedure is for the accused to be questioned as to
the alleged contempt of court.’
5
The court there held that such a procedure was
irreconcilable with standards of fairness called for by Section 35
(3) of the Constitution.
It constitutes a major inroad into an
accused’s fair trial rights and such an accused enjoys little
benefit or protection
from the law and its processes. He held that
such proceedings should be reserved ‘for the most exceptional
cases only’.
Regardless of the constitutionality of the
sections considered by Kriegler J in
Mamabolo
, it is clear
that, since the alleged contempt took place
ex facie curiae
,
the proceedings by the learned magistrate were fundamentally
procedurally flawed.
In addition, and in any event, the
Magistrates’ Court, being a creature of statute, has no
jurisdiction to deal with contempt
of court by way of a summary
procedure.
6
The only basis upon which contempt
in facie
curiae
can be dealt with by way of summary
procedure is if it falls within the four corners, and is dealt with
in terms, of s 108.
The court has jurisdiction over the common
law crime of contempt of court. It is obliged, however, to deal with
it as it deals
with every other crime, by way of summons and a
formal hearing.
I decline the invitation of the learned magistrate to
give legal advice as to what should take place. The law is
sufficiently
clear in this respect if she takes the trouble to
establish its contours. This means that the conviction and sentence
must be
reviewed and set aside and the learned magistrate, or any
other person, is then entitled to take whatever steps may be deemed
appropriate to prosecute the accused since the setting aside is done
on procedural rather than substantive grounds.
In the result, the conviction and sentence of the
accused is reviewed and set aside.
______________________
GORVEN J
I agree
_______________________
VAHED J
1
2001 (1) SACR 686
(CC) paras 51 – 59.
2
S v
Mbaba
2002 (1) SACR 43
(E)
3
S v
Mathoho
: In re
Da Silva Pessegueiro v Tshinanga
2006 (1) SACR 388
(T).
4
Para 51.
5
Para 54
6
S v Mkize
1962 (2) SA 457
(N) at 459G-H;
Mathoho
, note
3 supra.