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[2012] ZAFSHC 23
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Law Society of the Free State v Macheka and Another (5528/2010) [2012] ZAFSHC 23 (23 February 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 5528/2010
Ex
Parte
In the matter between:
THE LAW SOCIETY OF
THE FREE STATE
…............................
Applicant
and
FUSI STEPHEN
MACHEKA
…............................................
1
st
Respondent
MOLISE CECIL
CHABANE
…............................................
2
nd
Respondent
_______________________________________________________
CORAM:
EBRAHIM, J
et
LEKALE, J
JUDGMENT:
LEKALE, J
HEARD ON:
9
FEBRUARY 2012
_______________________________________________________
DELIVERED ON:
23 FEBRUARY 2012
_______________________________________________________
INTRODUCTION AND
BACKGROUND
[1] On the 23
rd
June 2011 the respondents were found guilty of contempt of court
orders removing them from the roll of attorneys. The imposition
of
sentences was, however, delayed pending submissions, by the parties,
of written representations on appropriate punishment.
[2] The respondents have
since submitted their representations while the applicant, on its
part, effectively left the determination
of a suitable sentence in
the hands of the court.
[3] The matter now serves
before us for the determination and imposition of appropriate
sentences.
FIRST RESPONDENT’S
REPRESENTATIONS AND SUBMISSIONS
[4] The first respondent,
effectively, submits that caution and discharge is appropriate as a
sentence. In substantiation of this
contention he points out that he
has undergone a drastic moral and lifestyle change since the
conviction insofar as he is now a
born-again Christian and the
chairperson of the Mens’ Congregation in his new church. He is
42-years old and married with
three children who attend school. His
wife is an educator. He currently does some odd jobs such as serving
as a taxi driver earning
R1 400,00 per month. The crime was committed
mainly as a response to the needs of the community, which continued
to demand his
services even after he was struck-off the roll of
attorneys. His personal circumstances outweigh, by far, the nature of
the offence
and the interests of the community. He, however, requests
the court not to over-emphasise one factor over the others when it
determines
the issue.
SECOND RESPONDENT’S
REPRESENTATIONS AND SUBMISSIONS
[5] The second respondent
implores the court to impose a suitable sentence regard being had to
his personal circumstances and the
fact that no-one suffered damages
or prejudice as a result of the commission of the offence herein. He
is an unemployed thirty-eight-year
old family man with two small
children who attend school. His wife is also unemployed and they rely
on contributions from members
of their extended families to make ends
meet. He is a very useful member of his community and serves as a
coach for an amateur
soccer team as well as chairperson of a popular
burial society.
APPLICANT’S
CONTENTIONS
[6] Mr Williams, for the
applicant, submits to the effect that fairly long periods of
imprisonment suspended, in whole, for maximum
periods of five years,
at the most, are suitable as sentences. In support of this
contention, he refers to the object of contempt
proceedings as well
as the absence of remorse on the part of the respondents, among
others. In conclusion, he submits that the
respondents should carry
the costs, inclusive of the costs relating to the proceedings of the
17
th
November 2011 which were postponed at their instance.
APPLICABLE
PRINCIPLES
[7] As correctly
submitted for the applicant, the object of contempt proceedings,
related to wilful refusal or failure to comply
with orders of court,
is the imposition of a penalty in order to vindicate the honour of
the court following the disregard of its
order and to compel, where
appropriate, compliance therewith. (See
PROTEA HOLDINGS LTD v
WRIWT AND ANOTHER
1978 (3) SA 865
(WLD) at 868A - D) citing
FERREIRA v BEZUIDENHOUT
1970 (1) SA 551
(O) with
approval).
[8] The parties are,
effectively, in agreement that the crime of civil contempt is very
serious insofar as it involves “
contumacious disrespect for
judicial authority”
. (See
FAKIE NO v CCII SYSTEMS
(PTY) LTD
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at 344, para [40]).
[9] Although all
applications for committal for civil contempt carry the threat of
imprisonment, courts are generally loath to restrict
the personal
liberty of the individual in such matters and, if a period of
imprisonment is imposed, it is usually or often suspended.
(See
PROTEA HOLDINGS LTD v WRIWT AND ANOTHER
supra
at
872B – C and the unreported decision of this court in
PROKUREURSORDE VAN DIE VRYSTAAT v PIETER JACOBUS BRITZ
,
case number 510/2003 delivered on the 16
th
October 2003.)
FINDINGS
[10] We are satisfied
that the personal circumstances of the respondents are substantially
the same and, as such, it is not appropriate
to distinguish between
them for the purposes of these proceedings.
[11] In our view, caution
and discharge, as prayed for by the first respondent, is
inappropriate as a sentence herein regard being
had to the
circumstances surrounding the commission of the crimes, the
background of the respondents as well as their standing
vis-á-vis
the court when the orders were made. The respondents have practical
legal background and disregarded orders which
struck them off the
roll of practising attorneys. They were officers of the court until
and when the relevant orders were made.
That they engaged in
contemptuous conduct against the orders of the court which, in the
first place, admitted them as its attorneys
aggravates their guilt
and amounts to a slap in the face for the court. Caution and
discharge would, therefore, overemphasise the
personal circumstances
of the respondents and pay lip service to other relevant factors.
[12] In the light of the
respondents’ personal circumstances, a fine would only add to
the woes of members of their families,
immediate and extended, who
have had to suffer the humiliation and the embarrassment associated
with the respondents’ fall
from grace.
[13] Direct imprisonment
is also not appropriate regard being had to,
inter alia,
the
fact that they are first offenders and there exists no evidence of
any damage caused to members of the public as a result of
the
respondents’ conduct.
[14] In our judgment, a
sentence which reflects both the court’s disappointment and the
community’s disapproval while,
at the same time, vindicating
the court’s honour and correcting the respondents’
conduct is appropriate in the circumstances.
Such a sentence would,
in our opinion, not only salvage the court’s esteem in the eyes
of the public, but would also drag
and keep the respondents out of
the shameful pit into which their crimes have thrown them. It would
afford them an opportunity
to purge themselves of the professional
revulsion which their former colleagues and the general legal
fraternity, most probably,
harbour against them. In this regard, it
should be recalled that civil contempt is essentially a manifestation
of scornful rejection
of the rule of law. It generally makes a
mockery of judicial authority. Left unchecked it has the potential to
promote anarchy.
In its worst form it is to judicial authority what
sedition is to the authority of the government of a state.
[15] Finally there is no
cause before us to warrant a departure from the general rule
regarding costs.
ORDER
[16] In the light of the
above the following proves to be an appropriate sentence for each
respondent and is ordered accordingly:
-
6 months
imprisonment wholly suspended for 3 years on condition that each
respondent is not found guilty of civil contempt committed
during the
period of suspension.
[17] The respondents are,
further, ordered to pay the applicant’s costs, inclusive of the
costs of the postponement of the
17
th
November 2011,
jointly and severally, the one paying, the other to be absolved.
_______________
L. J. LEKALE, J
I concur.
________________
S. EBRAHIM, J
On behalf of the
applicant: Adv. A. Williams
Instructed by:
Phalatsi & Partners
BLOEMFONTEIN
On behalf of the
respondents: In person
c/o Hadebe Attorneys
BLOEMFONTEIN
/eb