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[2012] ZANCHC 16
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Thenga v S (CA&R 9/2012) [2012] ZANCHC 16; [2012] 4 All SA 449 (NCK); 2012 (2) SACR 628 (NCK) (18 June 2012)
23
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IN THE HIGH COURT OF SOUTH
AFRICA
(Northern Cape High Court, Kimberley)
Case No: CA&R 9/2012
Heard: 11/06/2012 Delivered: 18/06/2012
In the matter between:
MUKHALI IVY THENGA
…......................................................
Appellant
v
THE STATE
…....................................................................
Respondent
Coram: Kgomo JP
et
PakatiJ
JUDGMENT ON APPEAL
KGOMO JP
The appellant is the Director of Public Prosecutions (DPP) of the
Northern Cape Province. She was convicted of Contempt of Court
by
the Regional Court Magistrate, Mr M Viewe, on 13 April 2007 and was
cautioned and discharged. She applied for leave to appeal
but it was
refused by him. Leave was granted (Phatshoane J and Henriques AJ) on
petition to the Judge President of this Division.
The somewhat protracted backdrop towards the appellant’s
conviction for Contempt of Court must be understood in the context
that follows. The accused in the main case, Mr Thomas Nginase
(Nginase), appeared before the Magistrate in Upington on 12 March
2007 on charges of rape, assault with intent to do Grievous Bodily
Harm (AGBH) and murder. The dates 13 to 16 March 2007 were
reserved
for the completion of the case. Later another charge of rape and
AGBH were added.
On 12 March 2007 the prosecutor, Mr Damarah, informed Magistrate
Viewe that the trial is unable to proceed because there are
several
prosecutor vacancies. One of the vacancies was occasioned by Ms L B
French having been appointed a district magistrate.
He conveyed to
the court in essence that he is the control prosecutor and as such
not available to prosecute in that his duties
are administrative. He
also stated that he will in due course relocate to Queenstown,
Eastern Cape, where he has been appointed
Chief Prosecutor
(hoofaanklaer). Ms Engelbrecht, a relief prosecutor, was indisposed
and was receiving treatment out of town.
Her husband, who is a
senior prosecutor, was therefore on compassionate or family
responsibility leave. Damarah said that Mr
Bouman, the district
control prosecutor, was assigned to prosecute this case but there
was a crisis in the district court. Another
prosecutor, Mr Nyirenda,
tragically died in an accident. So, the list went on. Mr Damarah
applied and was granted a remand to
the following day (13/03/2011)
to consult with his witnesses and undertake the prosecution.
I relate the aforegoing history because the defence,Adv Victor,
objected to the postponement as the case had a long history.
The
postponement diary shows that the case was first postponed in the
District Court on 11 May 2004. I have counted 10 postponements
up to
22 September 2004. The dates were fruitfully utilized mainly for a
bail application. The case first served in the Regional
Court on05
October 2004. Between this date and 12 March 2007 there were a total
of 29 further postponements on account of both
sides for various
reasons I need not traverse here. The Regional Magistrate directed
that Mr Swarts, now the control prosecutor,
explain the delay in
prosecuting the case.
The court accordingly ordered an immediate enquiry in terms of s342A
of the
Criminal Procedure Act, 51 of 1977
(the CPA). Mr
Swarts testified at the enquiry. The appellant, the DPP, was not
present. Interestingly, Adv Victor seemed to suggest
to the Court
that the case be heard in the Circuit Court (Upington) in that
“there is a shortage of cases in the High Court.”
The
bait was not taken. S342A(1) provides that:
“
342A Unreasonable delays in
trials
(1) A court before which criminal proceedings are pending shall
investigate any delay in the completion of proceedings which appears
to the court to be unreasonable and which could cause substantial
prejudice to the prosecution, the accused or his or her legal
adviser, the State or a witness.”
When the hearing resumed on 13 March 2007 (the very next day) Mr
Damarah informed the court that the “state was still not
ready
to proceed” because “there was still uncertainty as
regards who will prosecute the case”. He said the
witnesses
were not yet consulted with (as vague as all that) and that a
further obstacle was that the accused (Nginase) faces
two charges
and a third was in the process of being added. After a short recess
it emerged that a fourth and fifth charges were
being prepared. The
court directed that Mr Swarts prosecute the case and afforded him an
opportunity to consult with the witnesses.
When the trial was due to
commence at 14h15 Mr Swarts informed the court that the rape charge
(count 4)was still in the district
court and asked for a further
postponement, which was granted until 14 March 2007.
On 14 March 2007 Mr Swarts informed the court that the rape charge,
the fifth count, has now been incorporated in the charge
sheet. He
stated that he had a discussion with Adv Chris Louw, deputy DPP. The
latter’s directive was that the case be
forwarded to the DPP
for the necessary decision. The accused was out on bail on some of
the charges and not on others. On a conspectus
of the situation he
was refunded his bail deposits and remanded in custody to 29 March
2007.
Strangely the case was advanced to 20 March 2007; or was it? The
presiding Regional Magistrate was Mr C T G Jacobs. He notes:
“The
presence of the accused cannot be secured at short notice by means
of a requisition. Mr Viewe, the presiding officer
[seized with the
case] phoned from Pofadder [an outlying town] and requested that
thesubpoena (dagvaarding) for Mr Pikoli, the
National DPP, be
stopped because of his unavailability. He is unaware of this matter.
Ms Marian Sparg (CEO) of NPA at VGM Building,
Silverton, Pretoria,
was the relevant official to be subpoenaed in Mr Pikoli’s
stead, for 29 March 2007. Mr Tyers[prosecutor]
will ensure that Capt
Mona serve the subpoena.”
That was the business for the day in accused-Nginase’s matter.
On 29 March 2007 Mr Swarts (control pp) informed Magistrate Viewe
that the docket has now been forwarded to the DPP and that
no
decision has been takenas the said Adv Louw was out of his office.
He informed the court that Adv M I Thenga, the appellant
and DDP,was
attending a National Stakeholders Conference in Johannesburg
(Midrand) and has tendered a written apology and undertook
to avail
herself at the next hearing.
Adv Victor, Nginase’s counsel, in response reminded the court
that the s342A enquiry is the court’s enquiry. She
submitted
that the appellant was not entitled to inverse the procedure by
absenting herself prior to being excused. The court
authorised a
warrant for the appellant’s arrest and suspended its execution
until 13 April 2007 to co-incide with the date
to which the s342A
enquiry was postponed. Mr Swarts handed in the letter of apology by
the appellant.
The letter is dated 27 March 2007 and addressed to the Senior Public
Prosecutor, Upington, and copied to the Clerk of the Court,
Upington. It reads:
“
Attention: A C Damarah
THE STATE VERSUS THOBILE NGINASE: RC 136/04
The above matter refers.
I wish to confirm receipt of the subpoena dated 12 March 2007,
which my office received on 19 March 2007, requiring me to appear
on
29 March 2007 in Court K.
My
request
is that I should be allowed to
appear on the same date as the CEO for the NPA would be appearing.
The reasons for the
request
is that I had other
commitments already scheduled from 28 to 30 March 2007 in
Johannesburg. The arrangements for the above were
planned sometime
last year,
2006. I intend to avail myself on the date still
to be determined when the CEO will be appearing in Court K in
Upington.”
(Emphasis added).
The subpoena that summoned the appellant to testify is the standard
pro-forma J32 form: “
Subpoena in Criminal Proceedings”
and
is dated 12 March 2007. The only detail that the recipient can go by
is that the name of the accused is: “
ThabileNginase:
Enquiry in terms of section 342Aof the
Criminal Procedure Act, 51 of
1977
.”
One step backwards
: On 13 March 2007 Mr Swarts conveyed to
the court that another count has to be added. Why this had to be
repeated is incomprehensible.The
court was on earlier dates
evidently misinformed by a prosecutor or prosecutors thatNginase’s
case had been forwarded to
the DPP for a decision whereas that was
not so. The Magistrate, rightly, felt betrayed and postponed the
case to 14 March 2007
for a proper explanation. What happened on the
latter date is inconsequential for the determination of this appeal.
What is of consequence and concern to me, though, which I have to
revert to, is the Magistrate’s remarks aimed at the
appellant-DPP when he postponed the case in the presence of the
accused-Nginase on 13 March 2007. The recitation is copious but
it
demonstrates that the Magistrate had made up his mind already at
that early stage that the appellant was in wilful default.
In the
premises the
s188
of the CPA enquiry of 13 April 2007 was a mere
subterfuge. My translation follows (the paragraphs are mine):
“
(a) The Court is settled with this
predicament.
I am of the view
that the DPP of the Northern Cape does not take seriously the
magnitude of the shortage [of prosecutors] in her
Province, if she
decides to attend a workshop without informing the Magistrate who
conducts the [s342A of the CPA] enquiry.
She surely knows what the enquiry is all about regard being had to
the letter that she forwarded to the senior prosecutor. As DPP
she
knows that it is not the sector of the prosecution that has
subpoenaed her, it is the Court.
(b) I would have expected that a senior functionary in the
position of AdvThenga would have communicated with the presiding
officer
to say this or that is my predicament. Because this is what
her superior (boss) has done. AdvVusiPikoli’s, the National
DPP’s,
office phoned and explained his predicament. I
accordingly directed that AdvVusiPikoli be excused from attending
court today and
that Marion Sparg, the CEO in the National
Prosecuting Authority (NPA), substitute him. I am pleased that the
NDPP has at least
shown the necessary respect to the Court. I cannot,
for certain, say the same of AdvThenga if she does not deem it
necessary to
phone the presiding officer.
(c) Mr Nginase[the accused], I would naturally very strongly have
considered excusing her (the DPP) from attending the enquiry (today)
if she only took the trouble to contact the Court.
The Court is of
the view that the excuse that she has currently proffered, which she
has not given, but which she directed to the
prosecution sector, does
not hold water with the Court (“nieopgaan by die Hof nie”).
Adv Victor [for the accused] is
100% correct by submitting that one
cannot default on a court date without being excused by the court
when subpoenaed.
(d)
The Court is of the view that it is disrespectful of her to
have acted in that manner.
She knows that the CEO was also
required to attend (the enquiry). She wanted to attend Court with the
CEO. I don’t know where
she gleaned this knowledge, but the
awareness is there.
She nevertheless come to the Court in a
prescriptive manner. She wants to dictate to the Court who the court
ought to summon and
when she would appear – when the other
person also appears.
I mean, this is disrespectful of her. We
expect hundreds of witnesses to attend court, all of whom have
commitments but they come
to court. Now AdvThenga wants to tell me:
“I am a senior functionary. I have a commitment. I am not
coming to court.
If we allow all the people to prescribe to us in
this way, where is the administration of justice headed.
Our
legal system is overwhelmed by crime, which AdvThenga ought to be
acutely aware of. The manpower or the capacity to overcome
this
scourge is lacking.
(e)
The Chief prosecutor [Mr Swarts], sir, [addressing
MrNginase] has testified under oath that this has reached crisis
proportions
which the prosecution is faced with due to a lack of
manpower. He went as far as stating that no court can function
properly with
a shortage of 40% of prosecutors.
AdvThenga
certainly
does not
apparently
(sic) see the seriousness of the
situation, otherwise she would have phoned me. That is my problem. On
the contrary she communicates
with her junior [Mr Damarah], she
requests her junior to excuse her instead of the court.
Adv M I
Thenga, unlike AdvPikoli, is not excused.
(f) The Court will authorise a warrant of arrest today. At the
next appearance an enquiry will be held to determine whether her
absence was negligent or intentional. If an ordinary person can be
arrested when he/she did not even get proper notice of the date
of
hearing, why can’t the same be done with our upstanding people
in the land? We have to lead by example. I will suspend
the execution
of the warrant of arrest because AdvThengahas at least written a
letter of excuse, even though not directed to me.
(g)
Mr Swarts, the court requests you to please inform
your superior, AdvThenga, that should she fail to attend court on the
next date
I will definitely have her arrested. I will not overlook
(tolerate) the disrespect that she has displayed.
”(Emphasis
Added).
I will revert to theseunfortunate remarks in due course and the
effect or impact they have had on the Contempt of Court enquiry.
I
note in anticipation that Adv Botha, for the state, has sensibly
conceded that the remarks by the Magistrate were inappropriate
and
precipitant.
The appellant duly attended court on 13 April 2007 and testified in
the
s342A
enquiry. From the reading of the enquiry record itis
unclear just what the Magistrate tried to establish or achieve.
Du
Toit
et al
, Commentary on the
Criminal Procedure Act,
encapsulates
the essence of a
s342A
enquiry as follows:
“
An unreasonable delay (or unreasonable
duration of a case) can affect the fairness of the trial. In S v
Maredi 2000(1) SACR 611
(T) the accused was in custody for 22 months
before the case was concluded. Mynhardt J referred the matter to the
authorities to
investigate the conduct of the prosecutor and
magistrate concerned as the accused’s fundamental right to a
speedy trial had
been violated. In S v Jackson & others 2008(2)
SACR 274 (C) Moosa J (Griesel and Motala JJ concurring) pointed out
that some
elements of the right to a fair trial related to pre-trial
procedures, some to trial procedures and some to post-trial
procedures.
The court also confirmed the three basic forms of
prejudice which can be caused by unreasonable delays: loss of
personal liberty;
impairment of personal security; and trial-related
prejudice, such as witnesses becoming unavailable.
Several South African cases on the matter of unreasonable delays
and the right to a speedy trial, have followed the United States
case
of Barker v Wingo 4
07 US 514
(1972) which dealt with the issue of a
permanent stay of prosecution on the ground that the constitutional
right to a fair trial
within a reasonable time had been violated.
This case indicated that the following four factors should be
considered: (1) the length
of the delay before the institution of the
prosecution; (2) the reasons for the delay; (3) the assertion by the
accused of his
rights; and (4) the prejudice to the accused. In
Sanderson v Attorney-General, Eastern Cape 1998(1) SACR 227 (CC),
1997 (12) BCLR 1075
(CC) the Constitutional Court held that the three
most important factors to consider are: (1) the nature of the
prejudice suffered
by the accused; (2) the nature of the case; and
(3) the systemic delay.”
In casu the enquiry was not confined to the Nginase-accused case or
perhaps more broadly the cases relating to the Magistrate’s
court. It lost focus and ranged throughout the Northern Cape
Province. The provisions of various sections of the
National
Prosecuting Authority Act, 32 of 1998
, and the Constitution of the
Republic of South Africa, 108 of 1996, were traversed. The
Magistrate belaboured aspects already
thrashed, which were in any
event irrelevant. He pontificated and lectured the appellant, a DPP.
This melodrama carried on over
some 18 pages of the record
(transcribed pp163 – 180 and paginated pp 238-255 of Volume
3).
Of particular relevance was the enquiry whether the appellant was
aware of the shortage of prosecutors not merely in his court
but in
the Province and what she has done about it. Her explanation went as
follows:
“
Yes. I will confirm that he [Mr
Swarts]--- explained the shortage, what we did was to have
interviews, if I am not wrong, they were
held in December on –
between the 11
th
,
12
th
or 13
th
,
somewhere there. And unfortunately until now we haven’t had
anything--– for the final decisions whether any person
has been
appointed or not. But what was expected of us in this region to have
done, we have done that. In other words, we have
requested for the
positions to be advertised, which we did. Requested for candidates to
be shortlisted, which we have done.Held
interviews, which we had
done. Recommended some candidates which we did and then we are still
waiting for the final results from
the recruitment officers.”
The upshot of what the appellant conveyed was that as DPP she does
not approve or do the actual appointments. The appellant also
explained that it is difficult to attract the best candidates to the
Northern Cape and some of them find it difficult to adjust
and
leave. In my view this whole saga could have been more speedily
resolved administratively by the Regional Magistrate (Mr
Viewe)
directing the problems to the President of the Regional Court (Mr
Nqadala) to take up the matter concerning the shortage
of
prosecutors with the DPP or if need be with the NDPP.
The Magistrate’s statement to the appellant that: “for
two days [between 12-14 March 2007] there was no prosecutor
---”
is not entirely accurate. Both messrsDamarah and Swarts were
available. The former had not yet left for Queenstown.
More
tellingly in this regard ispara 1.3 of the directive (below) by the
Regional Magistrate, which is part of the record and
self-explanatory.
19.1 “
In die Landdroshofvir die
DistrikGordoniagehouteUpington
In die saaktussen:Die StaatEn ThabileNginase
NA AANHOOR VAN DIE GETUIES VOOR DIE HOF EN NA DEURLEES VAN DIE
REKORD EN DIE ANDER BETROKKE STUKKE:
Gelas die Hof
Dat die NasionaleVervolgingsgesag `n
skriftelikeverslagsalvoorbereiomaante dui:
welkestappegeneem is om die aanstelling van aanklaers in vakante
poste, waartekortevoorkom, regtestel; en
welketussentydsereëlingsgetref is totdat die vakante poste
in 1.1 gevul is; en
tot welke mate die Senior Staatsaanklaer en Hoof Staatsaanklaer,
aanwendbaar is binne die Hof as vervolgingsgesag,
gegewehulleadministratiewewerksaamhede;
en
Tot welke mate bevoegdebeskikbarepersone in
tydperkeenhedeaanwendbaar is totdatvakante poste in 1.1 gevul is;
Die voormeldeverslagpersoonlikondertekendeur die
NasionaleDirekteur van Vervolging;voorgelêsal word by wyse van
viva voce
getuienisdeurhomself en/of sygedelegeerde op 30 Mei 2007.
DATUM VAN UITSPRAAK 26/04/2007
KLERK VAN DIE HOF: UPINGTON – signed
GETEKEN LANDDROS – M VIEWE.”
19.2 The NDPP, AdvPikoli, responded as follows (note para 2(iii)):
“
In the Magistrates Court of Gordonia
District held in Upington
In the matter between: THE STATEANDTHABILE NGINASE The above
matter refers.
Following the Honourable Court’s order handed down on 26
April 2007, I wish to report as follows:-
Four(4) new prosecutors assumed their duties in Upington Court on
2 May 2007.
See the paragraph at (i).
In terms of paragraph 3 (Job Functions) of the Performance
Contract of Chief Prosecutors, sub 3.1 lays down that Chief
Prosecutors
have:
“
To Institute and Conduct Criminal
Proceedings on behalf of the State.”
The above is further clarified in one of the KRA’s where
Chief Prosecutors are expected to “Manage cases effectively
and
efficiently.”
This KRA carries a weighting of 35% in the performance contract,
so it goes without saying that Chief Prosecutors and their Senior
Prosecutors are expected to go to court.
To clarify the issue further, the following needs to be mentioned
that, during the NPS Conference in July 2006, a resolution was
taken
where Managers were expected to lead by example. The resolution was
prompted by the issue where some managers were seen not
to be
interested in prosecuting cases in court.
See paragraph 2(i) above.
Regards
Signed:____________
ADV VUSI PIKOLI
NATIONAL DIRECTOR OF PUBLIC PROSECURTIONS
PRETORIADATE:
23.05.2007
”
During the s342A enquiry the cross-examination by Adv Victor, for
Nginase, ushered in a new dimension to the case. That on 27
August
2006 (not 11 September 2006 as Adv Victor suggested) the prosecutor
(Ms Freeman) informed the court that the dockets relating
to the
Nginase’s case had been forwarded to the DPP for decision
whereas this was misleading. The appellant-DPP responded
that she
only received the dockets recently (after 12 March 2007). She
prepared and signed the indictment on 11 April 2007 and
instructed
that the accused be tried in the Gariep (Upington) Circuit Court of
the High Court. She was bemused that a case that
was an out-and-out
High Court matter was reserved for the Regional Court. Worth noting
though is that the Regional Magistrate
knew that as of 13 April 2007
the accused’s case would be tried in the High Court as a copy
of the indictment was handed
in as proof. The s342A-enquiry seemed
to have been academic thereafter. The Regional Court nevertheless
still had jurisdiction
to complete the enquiry. See
S v
Khalema and Five Similar cases
2008(1) SACR 165(C) at
173b-iparas 26-30.
As soon as the appellant had completed her s342A-enquiry evidence
the Magistrate said: “
There is another thing Ms Thenga.
S188 – Contempt of Court”.
The appellant was
informed that she may, if she wished, testify under oath and call
witnesses and that she had a right to legal
representation. She
elected to testify under oath and to prosecute her own defence. S188
of the CPA provides:
“
188
Failure
by witnessto attend or to remain in attendance
Any person who is subpoenaed to attend criminal proceedings and
who fails to attend or to remain in attendance at such proceedings,
and any person who is warned by the court to remain in attendance at
criminal proceedings and who fails to remain in attendance
at such
proceedings, and any person so subpoenaed or so warned who fails to
appear at the place and on the date and at the time
to which the
proceedings in question may be adjourned, shall be guilty of an
offence and liable to the punishment contemplated
in subsection (2).
The provisions of section 170(2) shall mutatis mutandis apply
with reference to any person referred to in subsection(1).”
A comedy of errors then ensued. First, and of immediate relevance,
is that s35(3)(a) and (b) of the Constitution of the Republic
of
South Africa Act 108 of 1996prescribes that every accused person has
a right to a fair trial, which includes:
“
a) to be informed
of the charge with sufficient detail to answer it;
b) to have adequate time and facilities to
prepare a defence.
”
The appellant was afforded a mere 8 or so court days calculated from
19 March 2007 (when appellant received notification) to 29
March 2007
to attend court.The computation has to exclude March 21 because it
was a public holiday. A DPP is an official of multifarious
responsibilities for which there has to be some understanding.
Conversely, as the appellant was an accused person in the Contempt
of
Court proceedings
section 54(3)
of the
Criminal Procedure Act was
applicable. It reads:
“
A summons under this section shall be
served on an accused so that he is in possession thereof at least
fourteen days (Sundays and
public holidays excluded) before the date
appointed for the trial.”
Adv Botha, for the state, fairly conceded this aberration on the part
of the Magistrate.
Secondly, Mr Swarts who serves directly as the appellant’s
subordinate was retained and participated as a prosecutor. This
was
not only improper from a human relations point of view but must also
have been embarrassing to the appellant, although this
remained in
the appellant’sinarticulated premise. This is so even though
she agreed that she had no objection that Swarts
be so retained. It
was more like: Let us get over and done with it.
Thirdly, itwas grossly irregular that Mr Swarts who testified in the
s342A
-enquiry and had mentioned a number of things (adverse and
favourable)concerning the appellant and then later prosecuted her.
Some of the matters that emanated from the enquiry (see paras
14(a)–(f) above) were once more traversed in the Contempt of
Court enquiry. Both the Magistrate and Mr Swarts, consciously or
unconsciously, invoked the information or were influenced by
what
they gleaned from the initial enquiry.
In the fourth place, both the Magistrate and Mr Swarts should have
recused themselves from the Contempt of Court proceedings.
The
Magistrate principally because he had already pre-determined the
outcome and Mr Swarts for the reasons already stated.More
fundamentally because it offends against the principle that a
prosecutor cannot act as a witness and a prosecutor in the same
case. Granted, the
s342A
enquiry is distinct from the
s188
enquiry
but in essence the same set of facts emerged. In
Rex v Nakedie
and Another
1942 OPD 162
the court held that it was
difficult to figure out how someone who has acted as a witness can
prosecute an accused person with
that detachment and moderation
which is in accord with the high traditions of prosecution at the
public instance. See also
Rex v Kristen
1950(3) SA
659(C) at 663H-665H .
In the fifth place, a gross irregularity was committed through the
participation of Adv Victor, Mr Nginase’s counsel, in
the
contempt enquiry. That enquiry had nothing to do with Nginase as it
was the Magistrate who was said to have been held in
contempt. It
should be borne in mind that the Magistrate, at para 14(c) (above),
had already stated that Adv Victor was “
100% correct”
that the appellant stayed away wantonly from the Court on 29 March
2007. Advocate Victor in fact also cross-examined the appellant.
Having painted himself into a corner with the “
100%
correct”
finding the Magistrate could not now be heard to
go back on his word. The
s188
enquiry should have been insulated
against the Nginase case, in the sense adverted to.
A sixth misdirection: At the early stages of the Contempt of Court
enquiry the Magistrate adjourned the hearing as he wanted
to sort
out who could or could not participate in the proceedings. Portions
of the proceedings when the court ordered the adjournment
are marked
“inaudible”. It is therefore unclear who were summoned
to the Magistrate’s chambers. It must be
assumed that when he
announced: “so let me rather go speak in chambers” at
least the prosecutor and Adv Victor were
present, both of whom
should have dropped out of the trial in the first place. It is
therefore immaterial whether the unrepresented
appellant accompanied
them or not. It should not have happened irrespective of what was
discussed. Nothing was placed on record
for the appellant to make
representations on this aspect, if she wished.
There is no indication on record that the appellant knew or was made
aware of what transpired in the
s342A
-enquiry when she was in
Midrand. If she knew she would or ought to have asked for the
recusal of the Magistrate, the prosecutor
and Adv Victor.
It will be noted that the appellant in this matter was literally
ambushed.
Kriegler J
in
S v Mamabolo
(ETV And
Others Intervening) 2001(3) SA 409 (CC) at 436A-J (paras 54-57)
states:
“
[54] 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 their 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.
[55] The composite effect of these departures from the normal
procedure where an accused person is called upon to face a charge
of criminal conduct is fundamental. Indeed, there is no
adversarial process where an impartial judicial officer presides over
and keeps the scales even in a contest between prosecution and
defence. The process is inquisitorial and inherently punitive and
unfair. Moreover, this 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).
[56] There can be no doubt that a procedure by which an individual
can be hauled before a Judge for the sole purpose of enquiring
into
the possible commission of a crime, there to be questioned and,
depending on the Judge's view of the responses to the
questioning,
possibly to be punished by a fine or imprisonment, constitutes a
major inroad into his fair trial rights. Nor can
it be denied that
such an individual enjoys little protection or benefit of the law and
its processes.
[57] ---. If one keeps in mind that the
enquiry is limited to the use of the summary procedure in cases of
alleged scandalising
of the court, there can be only one answer.
In such cases there is no pressing need for firm or swift measures to
preserve the
integrity of the judicial process. 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.
”
See also generally
S v Singo
2002(2) SACR 160 (CC) at
168e-170e (paras 11-17).
The following is the verbatim explanation by the appellant for her
default (speaking English):
“
On the 28
th
until 30
th
of last month, I was in the programme of stakeholders meeting where I
was chairing one of the sessions. The unfortunate side on
my part was
the chairing was happening exactly on the same date when I was
required to appear in this Court. After I realised that
I immediately
phoned the Regional Court President, Mr Nqadala, to explain my
situation. Perhaps I should stop and explain the reason
why I did not
make a call directly to this Court. I had felt at that stage that it
would be unethical for me to communicate with
the Court which is
calling [me as a witness].
Come again, please? === Yes, I was mentioning that the reason why
I decided to call the Regional court President, was that in my
view,
I had thought that it would be irregular and improper andunethical
for me to communicate directly with this Court that has
--- called
me. And I explained the engagement, which was in Midrand – that
is Gallagher Estate and I indicated to him that
to me both situations
– that is coming to Upington and also chairing and attending
the stakeholders meeting, [were] both
equally important for me. And
as a result I had requested him to ask some indulgence from this
Court so that I can be given some
more time to attend. The reason was
that I had thought or it was clear for me that at that stage the
planning of the conference
took [place] some time last year and due
to this culmination I was supposed not to attend. And I must mention
at this stage that
as one of the Directors in the NPA, I am one of
the owners of the projects in the Strategy 20/20, hence the need from
my side and
the NPA’s side to chair one of the breakaway
sessions. Now, Mr Nqadala apparently phoned this Court and then the
response
that he gave me was that unfortunately that cannot happen.
That I should go to Upington. I immediately phoned the National
Deputy
Director as the person that I report to, explaining the
situation.
And from his side he said the invitation and the
programmes are already out and there is no one that can really take
my place as
the national owner of those two projects.
And
he suggested that maybe it will be better if I were to write a
letter, explaining my situation, which I wrote but I didn’t
give detail as to the commitments. I have, as a result brought along
the printout of the communication or the indication that I
phoned Mr
Nqadala on his cellphone and it was on the 26
th
[of
March 2007] in the morning – very early on arrival in the
office. Your Worship, can I hand this over? The first call that
was
made, it couldn’t go through. And the second one, which is
highlighted, is where we spoke for one minute and some few
seconds.
And I have also brought a document also from part of our strategic
planning indicating my ownership of the national project.
I have also
brought along a programme, which indicates my commitment thereof on
that day --- That is the programme for the day
that coincided with
the subpoena for me to appear. ---I think that is all that I need to
explain.”
(Emphasis added).
As I pointed out earlier the appellant was cross-examined by both
prosecutor-Swarts and Adv Victor for accused,Nginase. Some
of the
Magistrate’s questions are impertinent and impersonal. The
appellant is referred to as “
she”
several times
and not in the first person. Some questions/remarks were also
sarcastic like: you achieved this, that or the other
thing and
became the DPP but decided not come to court. The Magistrate further
suggested: “
You as a senior person [know that] nobody is
above this Court. Do you deny that? === Answer: No, I don’t
deny that.”
No worthwhile purpose will be served by delving into how the
questions and responses proceeded except to say it went on
ad
nausium
and along the lines already given in para 14 above. It
makes for tedious reading.
If the Magistrate excused Mr Pikoli, the then NDPP, I am at a loss
why the appellant was not excused as well as their situations
appear
to be almost identical. For example AdvPikoli did not phone the
Magistrate himself. According to the Magistrate his (Pikoli’s)
office phoned. It means an official in his office. On the other hand
the appellant phoned the Magistrate’s superior (the
President
of the Regional Court) to intercede. She dispatched an excuse
through the control prosecutor (Mr Damarah) and through
the clerk of
the court.
The Magistrate misdirected himself in his view that a witness has to
communicate directly with a presiding officer to purge his/her
default. It is not only highly irregular for a witness to do so but
also undesirable because a serious conflict could arise on
what was
said or not said or agreed to or not agreed upon. This could
seriously compromise the position of a judicial officer.
It was
certainly not wrong for the appellant to have asked or notified any
of the persons mentioned (including the clerk of the
court who
occupies a neutral position) to intercede on her behalf or simply
notify them, as the case may be. A notable omission
on the part of
the appellant was not to have favoured the appellant’s lawyers
with a copy of the letter, to balance the
scales. However, this does
not detract from the validity or otherwise of the manner in which
the excuse was proffered. The Magistrate
said, see para 14(c) above,
that “
I would naturally very strongly have considered
excusing the DPP from attending the enquiry today if she only took
the trouble
to contact the Court.”
The implication is
inescapable that the excuse advanced was valid. Therefore to have
denied appellant absolution is irrational.
The Magistrate’s regimental approach is also problematic for
many reasons. Medical practitioners are summoned daily to
testify in
court. Emergencies arise in their line of duty and they notify the
investigating officer or the prosecutor about the
situation. We
never insist on a warrant of arrest for them. On the next available
date they avail themselves and testify. The
same can be said for
teachers who invigilate students writing examinations. This works
very well. On the very isolated occasions
when such a responsible
persondoes not co-operate or shows recalcitrance a warrant of
arrestwould be authorised and the
s188
of the CPA enquiry route
followed. Pragmatism and open-mindedness are the watch words and not
over-fastidiousness. See
S v Mushonga
1994(2) SACR 782
(ZS) at 787h-788c where
Gubbay CJ
held:
“
The exception to the general proposition
is where blind compliance with an obviously invalid order would
itself tend to weaken respect
for the administration of justice.
Suppose, for instance, that a judicial officer had ordered a person
to do something quite absurd
and blatantly in violation of his legal
rights; his disobedience could not be regarded as contemptuous. See
Makapan v Khope
1923 AD 551
at 556 in fine-557; R v Vass (supra at
37); Melius de Villiers The Roman and Roman-Dutch Law of Injuries at
172-3; SnymanCriminal
Law 2nd ed at 343.
Accepting the limitation, which is essentially a matter of
commonsense, it is the second view that I find the more persuasive.
Its
adherence ensures that the authority, dignity and respect of the
court - the maintenance of which is so fundamental to the proper
administration of justice - is not demeaned or prejudiced.
It does not follow inevitably, however, that disobedience of an
order of court constitutes the crime of contempt. It must be
committed
intentionally and in relation to the administration of
justice in the courts. See S v Van Niekerk
1970 (3) SA 655
(T) at
657F-G; S v Gibson NO and Others
1979 (4) SA 115
(D) at 120A-121B; S
v Benatar
1984 (1) ZLR 296
(SC) at 304D-E,
1984 (3) SA 588
(ZS) at
593I; S v Harber and Another
1988 (3) SA 396
(A) at
413G-414E.Doluseventualis is sufficient. Indeed, it is this form of
intent that is usually present when contempt is committed.
See R v
Silber1952 (2) SA 475 (A) at 484D-E; S v Van Niekerk (supra at
657G-H). Intention is absent if the seemingly insulting
behaviour is
the result of forgetfulness, ignorance, absentmindedness,
inadvertence or excitement. See Snyman (op cit at 344).
And where an
order of court has been disobeyed because of a genuine belief that it
was invalidly made, mensrea may befound to be
lacking.”
The Learned Chief Justice continued at 790h-791a:
“
I am also disturbed by the learned
Judge's recourse to the issue of a warrant for the arrest of the
appellant. The behaviour objected
to occurredex facie curiae. See R v
Magerman and Others
1960 (1) SA 184
(O) at 189D-E; R v Butelezi
1960
(1) SA 284
(N) at 285H; S v Nene
1963 (3) SA 58
(N) at 60A-B.
Obviously, as the learned Judge was disposed to deal with the absent
appellant himself, some degree of formality
was required to bring him
before the Court. But, at most, a citation in writing from the
learned Judge calling upon the appellant
to attend at a designated
time and place to show cause why he should not be punished for
contempt was all that was necessary.”
By consent counsel provided us with two pages of the Policy
Directives issued by the National Direction of Public Prosecutors.
In
Part 8
under “Prosecution of Certain Categories of Persons”
clause 1(f) directs that:
“
1. In addition to instances where
statutory provisions require prior authorisation from the DPP for the
institution of a prosecution,
there are certain categories of persons
in respect of whom prosecutors may not institute and proceed with
prosecutions without
the written authorization or instruction of the
DPP (either in general terms or in any particular case or category of
cases). This
general rule is subject to the exception set out in
paragraph 2 below. The categories of persons are –
(f) Prosecutors, magistrates and judges.”
The appellant certainly resorts under the category of prosecutors.
Clause 5(c) stipulates that:
“
5. Where any criminal charge involving
violence or dishonesty is pending or a decision regarding prosecution
is taken (including
a decision not to prosecute), the prosecutor must
forward a written notification thereof to –
(c) the NDPP in respect of any official or employee of the
Prosecuting Authority.”
Whilst the Constitution decrees that all people are equal before the
law there are instances, such as the present, where even without
the
benefit or the knowledge of the aforegoing Policy Directives
commonsense would dictate that a degree of circumspection could
have
been exercised. It is a serious matter for a DPP, an officer of the
court, to commit a Contempt of Court offence.
For the reasons discussed hereinbefore, cumulatively and even
separately, the Magistrate should have found that the appellant
has
purged her default and exonerated her, particularly if her conduct
is tested against the definition of Contempt of Court
recited in
Milton, Criminal Law and Procedure Vol2
p164 that:
“
Contempt of court consists in unlawfully
and intentionally violating the dignity repute or authority of a
judicial body, or interfering
in the administration of justice in a
matter pending before it.”
(Footnote
omitted).
On another issue. The judges of this bench have in numerous cases
over the years pointed out to the DPP that the more serious
cases
are regularly tried in the Regional Court and some run-of-the-mill
ones referred to the High Court. The Nginase case is
such an
instance. There was no reason for the district court to have
transferred the case
meromotu
to the Regional Court. The
Regional Court should also not have clung to the case when Adv
Victor suggested, as she was entitled
to in the interest of her
client, that justice would be speedier served in the High Court. It
is therefore no wonder that the
Regional Court rolls are clogged
because the very control prosecutors who have a phobia for appearing
in court fight for turf
with the High Court by diverting extremely
serious cases to the Regional Court.
What remains is to thank counsel for the appellant, AdvRathidili,and
Adv J Botha, attached to the Free State DPP’s office,
for
their most helpful Heads of Argument and oral submissions.
In the result the appellant was, by a long stretch, not shown to
have made herself guilty of Contempt of Court. The appeal should
therefore succeed.
I make the following order:
The appeal is upheld. The conviction and sentence are set aside.
__________________________
F DIALE KGOMO
JUDGE-PRESIDENT
Northern Cape High Court,
Kimberley
I concur
__________________________
B M PAKATI
JUDGE
Northern Cape High Court,
Kimberley
-On behalf of the Appellant
:
AdvN R RATHIDILI
Instructed by: Office of the State Attorney
On behalf of the First Respondents
:
AdvJ BOTHA
Instructed by: National Prosecuting
Authority