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[2012] ZANCHC 49
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S v Bock (43/2012) [2012] ZANCHC 49 (14 December 2012)
IN THE HIGH COURT
OF SOUTH AFRICA
[NORTHERN CAPE
HIGH COURT, KIMBERLEY]
HIGH COURT REF NR
:43/2012
MAGISTRATE'S
COURT : UPINGTON
CASE
NUMBER: C3489/2010
THE STATE
Versus
TREVINO BOCK
..........................................................................................................
ACCUSED
CORAM: PHATSHOANE
J
et
PAKATI J
DATE OF JUDGMENT: 14
December 2012
JUDGMENT ON
REVIEW
This is a belated
review application in terms of sec 108(1) of the Magistrates
Court Act, 32 of 1944. This provision reads
as follows:
"(1)If any
person, whether in custody or not, 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 (in addition to his liability to
being removed and detained as in subsection
(3) of section 5
provided) 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. In this subsection
the word 'court' includes a
preparatory examination held under the law relating to criminal
procedure.
(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."
On 14 August 2012
the Acting Senior Magistrate of Upington,submitted this case for
review with the following remarks:
"
RE: REVIEW IN CASE
C3489/10 STATE VERSUS TREVINO BOK
During a Judicial Quality
Assessment in June 2012, it came to light that the above case has not
been sent for review by the judicial
officer[Ms L Myles]. The accused
was convicted and sentenced on two counts of contravening s108 of
Act, 32 of 1944, which sentence
is reviewable in terms of s 108(2)
Act 32/1944.
Unfortunately the judicial
officer in question has been absent from work for many months and is
currently suspended from duty, her
comments could not be obtained. As
acting senior magistrate I only started duty at this office on [01
July 2012]. Kindly accept
my apology for the oversight that occurred,
unfortunately the accused concerned has already served the sentence.
Every effort will
be made to avoid re-occurrence of same."
What appears to be
an extract from the judicial quality assessment accompanies the
magistrate’s remarks and reads:
“
In
case C3489/10 the accused was convicted and sentenced on two counts
of contravening s108 of Act, 32 of 1944, which is reviewable
in terms
of s 108(2). The magistrate indicated that the case was reviewable,
then again that it was not reviewable as the accused
was defended.
The magistrate failed to cause the case to be sent on review to the
High Court and failed to submit a statement,
certified by such
judicial officer to be true and correct, of the grounds and reasons
of his/her proceedings, and also failed to
furnish to the party
committed with a copy of such statement.
Kindly explain and confirm
that the case has now been sent on review to the High Court as a
matter of urgency as gross irregularities
occurred”
I have requested
the Office of the Director of Public Prosecution to give inputs on
the matter. I am indebted to advocate CG Jansen
for her
contribution in this regard.
The contempt of
court proceedings of 13 and 14 December 2010,whereat the accused is
said to have insulted the presiding magistrate
and for which he was
accordingly convicted and sentenced, are the subject of this review.
Not much of what was said and done
on 13 December 2010 appears on
the record. The alleged insults hurled at the magistrate on the day
in question are also not apparent.
The transcribed record merely
reflects that there was a loud voice in the background. The
magistrate, in a perfunctory manner,
noted the following:
"
Beskuldigde vloek Hof
vieslik – Hof rekuseer haarself.
Postea:
Bepaling van datum
vir borgaansoek in ander hof en vir minagting van die hof in facie
curiae verrigtinge."
What one gathers
from the above note is that following the alleged insults that were
directed at the magistrate she recused herself.In
so doing she
disqualified herself from hearing the matter any further. Despite
this recusal, in the very next day, in what appears
to be a heated
dialogue between the magistrate and the accused, she nevertheless
proceeded to conduct the enquiry in terms of
s 108 of the
Magistrates’ Court Act, 32 of 1944. In the magistrates hand
written notes the following contrasting statements
appear:
“
The
accused refuses to appear in front of Court.
Mr Kambi: I warned accused
yesterday and today that his conduct is in contravention (sic) and he
could be sentenced. The case stands
down for Mr Kampie to talk to the
accused in connection + sentence (sic)
Resumption:
Court: guilty -s
108 Act 32/44
Nie hersienbaar
Postea
Besk verskyn: sê hy het
nie geyell of geskree nie
Hof : skuldig Art 108 wet
32/44
Vonnis 1) 6 (ses) maande g/s
(besk sê”jy’s gek; AWB; gee my nog; jy’s mal,
ma se bloedkont”
Saak op hersiening te gaan.
Beskuldigde hou aan vloek: teruggeroep weier te kom”
Far from what
appears on the magistrate’s hand written notes the transcribed
record of 14 December 2010 reveals the following:
"
COURT
: Mr
Kampie, did you explain to him that …. (inaudible) conducting
an inquiry in terms of Section 108 of the Magistrate's
Court Act?
That he is warned?
MR KAMPIE
: I did
inform him Your Worship.
COURT:
You also
informed him?
MR KAMPIE
: Yes
Your Worship.
COURT
: That he
can be punished?
MR KAMPIE
: Yes
Your Worship.
COURT
: You did
that already yesterday?"
MR KAMPIE
: And
then again today Your Worship."
COURT
:
(inaudible)… he has anything to say in mitigation then. Mnr
Bok, toe u gister hier af geloop het, al vloekend, toe het
ek geskryf
dat ek myself rekuseer, want ek onthou……… Ek wil
egter vir u sê – en u weet ook gister
Mnr Kampie het u
aandag daarop gebring dat u gedrag – dat almal gehoor het, tot
die Landdros van D Hof – u vloekery
van my is minagting van die
Hof.
BESKULDIGDE
:
Nee, ek het nie vir u gevloek nie. Daardie mense daar binnekant het
gevloek.
HOF
: Nee.
BESKULDIGDE:
(Onhoorbaar). Daardie mense gister – u kan die mense van
gister vra daarso. Ek het nooit vir u gister gevloek nie. Daardie
mense het gevloek daar binnekant.
HOF
: Jou wit
hoer. Jou "p", jou "c" – ek het alles
gehoor en u het my van ook genoem.
BESKULDIGDE
: Nie
ekke nie.
HOF
: Dit was u.
BESKULDIGDE
: Ek weet
dan nie nou eers wat is u van nie. Ek weet nie eers nou wat is u van
nie. Dis hoekom ek kom hierso, want ek hoor –
daardie mense het
gister daar binnekant het hulle so geraas, dan het ek vir hulle gesê.
Toe vloek hulle. 'n Mannetjie wat
voor my in gekom het wat
…(tussenkoms).
HOF
: Ek het opdrag
gegee dat u afgevat word na die onderste selle toe, omdat u so tekere
gegaan het, want die ander howe kon nie aangaan
nie.
BESKULDIGDE
: Daardie
mense het gevloek. U hoor moes hoe sê ek. Ek het nie gevloek
nie.
HOF
: In die eerste plek
het u vir my ge-jy en ge-jou, verwyl ek vir u gesê het u. Ek
het reeds gesê u. U het vir my gesê
jy wil onafhanklik
wees. (onhoorbaar) … u hoef nie my werk vir my te vertel nie.
U hele optrede was van die begin af minagtend.
BESKULDIGDE
: Nee, u het
vir my ook – u het vir my geminag. Dis hoekom ek …
(tussenkoms).
HOF
: Nonsens. Ek het
vir u verduidelik …. (tussenkoms).
…………………
MR KAMPIE
: He did not
hear … (inaudible) Your Worship.
HOF
: U het duidelik
geweet dat dit 'n oortreding is om die Hof te vloek.
BESKULDIGDE:
Edele, u
sien dit is wat die probleem hier inkom.
HOF:
Deur finger te wys
en tekere te gaan.
BESKULDIGDE:
Ek het nog
nooit vir u vinger gewys nie. Dit is die probleem wat ….(tussenkoms).
HOF:
U het vir my gesê
jy wil onafhanklik wees.
BESKULDIGDE:
Nee.
HOF:
U stry net
heeltyd. Ek vind u skuldig aan oortreding van Artikel 108 van Wet 32
van … (onhoorbaar). Minagting van die Hof
.. (onhoorbaar) in
die teenwoordigheid van die Hof. Anything in mitigation?
BESKULDIGDE:
Nee, ek sê
niks. Ek wil ook nie ….(onhoorbaar).
VONNIS – ONDERSOEK
(MINAGTING)
HOF:
U word gevonnis tot
6 (SES) maande gevangenisstraf.
BESKULDIGDE:
Ah, jy is
mal.
HOF:
Jy is mal,
stapelgek.
BESKULDIGDE:
Jy is gek.
Jy is self …(onhoorbaar).
PROSECUTOR:
You should
have gone to another 6 months Your Worship.
HOF:
Né?
PROSECUTOR:
On top of
that one.
COURT:
I think it best
to call him back and give another.
PROSECUTOR:
Yes, give
him another one.
HOF:
Sê vir hom
dis nog 6 (SES) maande by.
BESKULDIGDE:
Jou ma se
….(onhoorbaar).
HOF:
Mnr die Hof
Ordonans, kan u net 'n vorm … (onhoorbaar).
BESKULDIGDE:
(onhoorbaar).
COURT:
Mr Kampie,
impose another 6 (SIX) months imprisonment (inaudible) … leave
you with the report form and then the case is
referred to B Court
for a bail application.
MR KAMPIE:
(inaudible)
… Your Worship, it seems as if … (interjection).”
The accused was not
properly informed of the accusation against him to enable him to
reply thereto. What he was accused of is
also not clear from the
record. It only emergesfrom the transcribed record of 14 December
2010 that he is alleged to have passed
some derogatory remarks
against the magistrate on 13 December 2010. Whether these remarks
were passed in or outside the Court
room is unclear. Nevertheless
the accused attempted to exonerate himself and imputed the blame to
others. He was not afforded
an opportunity to fully and effectually
rebut the allegation and call witnesses.Neither was his counsel
invited to address the
Court prior to the convictions and the two
sentences.In truth the accused cannot be said to have been legally
represented. His
legal representative was passive throughout the
drama that played itself out. He was in reality denied legal
representation.
The basis upon
which the magistrate concluded that the convictions were sustainable
was not traversed in a judgment to show that
the magistrate had
brought her mind to bear on the issues.
In
S v
Mamabolo (ETV and others intervening) 2001(1) SACR 686 (CC)
at para 54-56 the Constitutional Court held:
"
[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 haled 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."
The Court proceeds
as follows at 712 para 58 and 59:
“
58…..Indeed,
what transpired in the Court below in this case demonstrates the
pitfalls of the procedure and underscores why
it should be reserved
for the most exceptional cases only.
[59] Justice would have been
better served had the learned Judge reported the matter to the
Director of Public Prosecutions and
left it to that office to take up
as it deemed best.
Jones &
Buckle Civil Procedure in the Magistrates Court of South Africa
makes comments under sec 108 of the Magistrates Court Act,
32 of 1944, at Act668, amongst others:
"Summary jurisdiction
under this section should moreover be exercised only when the case is
clear beyond reasonable doubt and
when immediate action is necessary
to vindicate the dignity of the court. If an indictment will meet the
case, the summary jurisdiction
should not be resorted to. The power
to commit or fine summarily for contempt should be used with caution,
for, though in exercising
the power the judicial officer is
protecting his office rather than himself, the fact that he is
personally involved and that the
party affected is given less than
the usual opportunity of defending himself makes it necessary to
restrict the summary procedure
to cases where the due administration
of justice clearly requires it.
In S v Ntshwence the Full
Court held that the summary procedure does not limit the rights of an
accused set out in s 35(3)(a), (b),
(f), (g), (h), (i) and (j) of the
Constitution of the Republic of South Africa, 1996. The limitation on
the right to a public trial
before an ordinary court as set out in s
35(3)(c) is, however, justifiable in terms of s 36(1) of the
Constitution. Accordingly,
in summarily dealing with an offender
under s 108, the court must have regard to the fact that the offender
has the following rights:
The right to be informed of
the charge with sufficient detail to answer it.
The right to have adequate
time and facilities to prepare a defence.
The right to legal
representation.
The right to adduce and
challenge evidence.
(v) The right to be presumed
innocent, to remain silent and to testify during the proceedings.'
The summary proceedings must
be recorded."
What transpired in
this matter, although distinguishable,is almost similar to what the
Court was confronted with in
S v Dube
2012 JOL 29590
[ZH]
.
At
p3 the Court pronounced:
"From the above scant
record of proceedings it is apparent that the alleged offending words
were uttered outside the Court
and in the absence of the Magistrate.
The Magistrate only heard about the alleged offending words from the
Court Interpreter. In
the circumstances the alleged contempt was ex
facie curiae – S v Musa
1997 (2) Z:R 149
(H) and S v Tobias
1966 (1) SA 656
(N) at 660 [also reported at
[1966] 1 All SA 421
(N)
– Ed).
Further, the accused was
summarily committed for contempt of court even though he raised a
defence ie the utterances were directed
to "two women" who
said they could not speak IsiNdebele. No evidence was adduced in this
regard save for the unsworn
single sentence statement by the
interpreter. In the case of contempt committed in facie curiae the
Magistrate would have heard
the offending utterances himself or
herself. There is no need for evidence to introduce the contemptuous
utterances. In casu, the
Magistrate was not privy to the contemptuous
utterances. They were said in corridor of the Court complex. They
were heard by the
Court Interpreter. In the circumstances some degree
of formality was required to bring him before the Court and put the
allegations
to him. Accused was not given opportunity to challenge
the interpreter's statement. If the utterances were directed at "two
ladies" it is not clear why the accused was convicted. There is
no judgment by the learned Magistrate explaining the basis
of the
conviction. There is no evidence showing that the Magistrate afforded
the accused the opportunity to defend himself. Magistrates
will be
well advised to accept that the audi alteram partem principle applies
to all cases in which they try an offender summarily
for contempt of
court in terms of section 17 of Magistrates' Court Act (chapter
7:10); S v Musa, supra; S v Nyalambisa
1993 (1) SACR 172
(TK) [also
reported at
[1993] 3 All SA 678
(Tk) – Ed] and S v Mushonga
1994 (1) ZLR 296
(S). In my view, Magistrates should summarily
convict for contempt of court as [a] last resort when it is
absolutely necessary.
In this regard I respectfully share the
sentiments of Chatikobo J in the Musa case, supra, at 158F-159A where
the learned Judge
stated:
"… I entertain
serious doubt about the efficacy of routinely resorting to summary
committal of a contemnor as a vehicle
for preserving the dignity of
the Court in each case of contempt in facie curiae. I doubt in the
Court's dignity can be protected
by punishing fools for their
indiscretions. I respectfully share the sentiments expressed by BOTHA
JA in S v Nel
[1990] ZASCA 145
;
1991 (1) SA 730
(A) [also reported at
[1991] 3 All SA
976
(AD) – Ed], in which regrettably for me was in Afrikaans.
The head note to the report reads in part:
"A presiding judge or
magistrate who is of the opinion that someone has acted in contempt
of Court should just 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. Too liberal a use of the
Court's powers to punish persons for contempt can undermine the very
reasons for the
existence of such power."
In
Masonwabe
Mhambi v The State
(Case Nr CA&R 56/2012),
the
judgment of this Court handed down on 16/11/2012 at para 12 and 13
it was held:
"
[13]Irrespective of
whether the appellant had all the rights that an accused person would
normally have in terms of section 35 of
the Constitution, and even if
it is to be assumed for the moment that a summary inquiry was proper
and justified in the circumstances,
the regional magistrate was
"obliged to ensure that the proceedings afford an accused a fair
trial."
[14]The Regional Magistrate's
approach constituted a material misdirection which necessitates the
setting aside of the conviction
and sentence."
Following the
accused’s conviction he made an offensive remark directed at
the magistrate. The magistrate compensated herself
by returning “the
complement”. By so doing the magistrate stooped to the level
of the accused, impugned the decorum
of the court and brought the
administration of justice into disrepute. Such conduct is unbecoming
of a presiding judicial officer.
The Magistrate lacks the requisite
temperament of a judicial officer because she allowed herself to be
improperly influenced
by the prosecutor to impose an additional
sentence, on the second occasion without even a semblance of an
enquiry.
Insofar as the
magistrate had, rightly in my view,initially recused herself she
ought to have left the matter in the hands of
the Director of Public
Prosecution to determine the appropriate course to be followed. The
Magistrate’s deficient knowledge
of the criminal procedure has
led to a serious misdirection which produced a miscarriage of
justice. This gross irregularly has
vitiated the convictions and
sentencesmeted out.
It would be a
further travesty of justice if the accused is re-charged. This is
said without derogating from the powers of the
Director of Public
Prosecutions.
ORDER
In the result the
following order is made:
The accused’s
convictions and sentences in respect of contravention of s 108 of the
Magistrates’ Court Act, 32 of 1944,
are hereby set aside.
__________________________
JUDGE
MV PHATSHOANE
I AGREE.
____________________________
JUDGE
BM PAKATI