Booi v S (349/2009) [2009] ZANCHC 31 (13 July 2009)

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[2009] ZANCHC 31
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Booi v S (349/2009) [2009] ZANCHC 31 (13 July 2009)

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IN THE HIGH COURT OF
SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Case
Nr:
349/2009
Magistrate’s
Nr
:
02/2009
Date
delivered:
13/07/2009
In
the matter between:
The
State
and
John
Booi
Coram:
Henriques AJ
JUDGMENT
ON REVIEW
Henriques
AJ:
The
accused was summarily convicted of contempt of Court
in
facie curiae
on 4 June 2009, and sentenced to five days imprisonment. This case
now serves on review.
A
perusal of the record of 4 June 2009 indicates that the conviction
and sentence was not properly recorded. The record in relation
to
the conviction and sentence reads as follows:-
“
Mrs
Gerrits not placed on funds. Attorney also notice that the accused
is intoxicated. So she is not on record for the accused.
Accused under the
influence of liquor. He said he spoke to Ms Gerrits. He will be
able to pay her in a months time.
Court called Insp
Albertus Jacobus as witness in contempt of court.
Accused convicted of
contempt of court.
Sentenced to 5
(Five) days imprisonment.
NB: Accused was
highly under the influence of liquor even difficult for court to
postpone this matter today because of the state
he was in.
Postponed 11/06/2009
Further date.
Accused in custody.
Bail cancelled until
11/06/2009.
Mrs Mtini
04/06/2009”.
In
addition the record reveals that the accused’s right to review and
appeal was also not explained to him
.
Section
108
(1)
and (2) of the Magistrate’s Court Act 32 of 1944 provides as
follows:
“
If
any person, whether in custody or not, wilfully insults a judicial
officer during his sitting or a clerk or messenger or any
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 provided) be liable to be sentenced summarily or upon summons
to a fine not exceeding R2 000,00 or in default
of payment sent
to imprisonment of a period not exceeding six months or to such
imprisonment without the option of a fine.
In
this subsection the word “c
ourt
”
includes a preparatory examination held under the law relating to
criminal procedure.
“
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 furnished to
the
party committed a copy of such statement
.”
F
rom
a perusal of the documents provided, including the covering letter
of Mr J D Wessels, it is clear that this was not done.
Wessels
explains that he came by chance upon this matter on 11 June 2009,
after the proceedings had been finalized and also
after the accused
had served his sentence. The magistrate appears to have been on a
workshop and only discussed the case with
Wessels on 17 June 2009.
It is also apparent from the record that the magistrate, NP Mtini,
had not complied with the obligation
in terms of section 108(2).
In her explanation
dated 19 June 2009 the magistrate indicates the following:
“
The
accused in this case appeared before me on the 04 June 2009 in
Britstown. The matter was called late during that day. The
matter
was postponed for attorney Ms Gerrits. Ms Gerrits was present and
indicated that she is not going to represent the Accused.
Upon
appearance accused was drunk I notice that because he was staggering
and mumbling. I then decided to question him on his
state. I
convicted him for contempt of court. I could see that warning him
will not help as he was highly under the influence
and to order that
he be kept in custody until he recover was not going to work as it
was late in the afternoon. So I sentenced
him to 5 days
imprisonment.
I did not inform him
of his rights to review. A week after that I was away on a workshop
and on 17 June 2009 I discussed the case
with you and unfortunately
then the accused has served the said 5 days.
It
is on the above that I refer this matter to you even if it is at this
late stage for forwarding it for review.
”
I
have read the covering note in support of the setting aside of the
conviction and sentence. I am in agreement with the views
expressed
therein.
I
n
Duffey
v Attorney General, Transvaal and Another
1958 (1) SA 630
(T) at 630 specifically at 633 E Boshoff J held as
follows:
“
A
magistrate's court, as a creature of statute, must seek its
jurisdiction in the statute creating it. Sec. 108 (1) of the
Magistrates'
Courts Act confers jurisdiction on a magistrate's court
to deal summarily with contempt of court committed in facie curiae.
In
terms of sec. 89 of the said Act, a magistrate's court has
jurisdiction to entertain the common law offence of contempt of court

brought before it as a criminal charge in the ordinary way by
summons. … But for sec. 108 (1), a magistrate's court has no
jurisdiction
to punish summarily contempt of court committed in facie
curiae. It consequently has no jurisdiction to punish summarily the
common
law offence of contempt of court committed in facie curiae and
is limited to the provisions of sec. 108 (1) and the penalties
therein
provided, in this respect.
In
S
v Nel
1991 (1) SA 730A
at 733C of the headnote, the court considered the
objective of contempt proceedings. It held that “
The
primary objective of the application of the contempt procedure is to
maintain the reputation and dignity of the court and
the orderliness
of its proceedings. It is to achieve that objective that the court
exercises its power to punish the offender.
The most important
function of the imposition of punishment in this case is to enforce
the court’s authority.”
In R v Silber
1952
(2) SA 475
AD at p480 Schreiner JA said the following:
“
The
power to commit summarily for contempt in facie curiae is essential
to the proper administration of justice. … But it is important
that
the power should be used with caution for, although in exercising it
the judicial officer is protecting his office rather
than himself,
the facts that he is personally involved and that the party affected
is given less than the usual opportunity of
defending himself make it
necessary to restrict the summary procedure to cases where the due
administration of justice clearly
requires it. There are many forms
of contempt in facie
curiae
which require prompt and drastic action to preserve the court's
dignity and the due carrying out of its functions. ….”
In S v Zungo 1966
(1) Caney J at p 270 D-F held the following:
“…
The
exercise of the power hereby conferred to punish summarily depends
upon the question whether the appellant either (1) wilfully
insulted
the magistrate, or (2) wilfully interrupted the proceedings of the
court, or (3) otherwise misbehaved himself in court,
and the
misbehaviour must be wilful misbehaviour.”
The
section therefore
allows a magistrate’s court with the jurisdiction to commit or
fine, in a summary hearing and without the participation of
a
prosecutor, an offender who has committed,
in
facie curiae
,
any of the types of contemptuous conduct specify therein. See
S
v Ntshwence
2004 [1] All SA 328 (TK) at para 8.
In
Ntshwence supra the court considered the provisions of section 108
in the light of the constitutional imperatives of section
36 of the
Constitution. The court per Maya J held that in
summary
proceedings of this nature the court must have regard to the
following rights namely:
The
right to be informed of the charged with sufficient detail to
answer it (see
Ntshwence
supra
at p335 para 19);
The
right to have adequate time and facilities to prepare a defence
(see
Ntshwence
p 336 at para 21);
The
right to legal representation (see
Ntshwence
supra
p336 at paras 22 to 25);
The
right to adduce and challenge evidence (see
Ntshwence
at p338 at paras 28 and 29);
The
right to be presumed innocent, to remain silent and not to testify
during the proceedings (see
Ntshwence
supra
p388).
More
importantly the proceedings that take place must be recorded. See
in this regard
Ntshwence
supra
p342 at para 43 wherein the Court held as follows:
“
It
is implicit in section 108 (2) that everything which transpires in
the Court, as is the case with any Court proceedings, must
be
recorded.
”
This was not done in
this instance, nor were the accused’s right to review or appeal
the matter explained.
A
perusal of the record also indicates that the sentence may not have
been appropriate and
induces
a sense of shock.
A
person who is convicted of contempt
in
facie curiae
is not to use the words of Maya J in
Ntshwence
:
‘…
..an
ordinary criminal in the usual meaning of the word and ought not to
be treated as such. Heavy sentences are therefore generally

inappropriate in these types of cases.’ See
Ntshwence
p 343 at para 47.
I
agree with the sentiments of Maya J wherein she says
it is only in serious or repeated cases of contempt that the Courts
are inclined to impose even a suspended sentence without
the option
of a fine.
Quoting
from
Nel
at 733D-E Maya J held as follows:
“
The
punishment which is imposed is meant to bring the offender to his
senses in the very proceedings in which the offence is committed
…
to refrain from continuing with his contemptuous conduct in the
proceedings which are underway. The punishment is not meant
to hurt
the offender but to bring about an end to the outrage to the court’s
esteem and authority. The extent of the punishment
stays in the
background … The authority of the Court is too precious to attempt
to measure it against any punishment which may
be imposed for conduct
which harms it
.”
In
Nel
the
Court also considered what principles ought to be taken into account
when imposing a sentence, see the headnote at 733C:
“
The
most important function of the imposition of punishment is to enforce
the court’s authority. There is no room whatsoever
for any notion
of retribution. There can also be limited scope for reformation;
for the most part…. the purpose of the punishment
which is imposed
is to bring the offender to his senses in the very proceedings in
which the offence is committed. Deterrence
is by the same token
often and chiefly directed at getting the offender to refrain from
continuing with his contemptuous conduct
in the proceedings which are
underway. The punishment is not meant to hurt the offender but to
bring about an end to the outrage
of the court’s esteem and
authority. The extent of the punishment stays in the background; in
the foreground is the esteem and
the authority of the Court; and
between the one and the other there is no direct relationship. The
authority of the court is to
precious to attempt to measure it
against any punishment which may be imposed for conduct which harms
it. Esteem for the Court
cannot be achieve by heavier punishments
for insults to the court. These considerations indicate why heavy
sentence in these sort
of cases is generally inappropriate in the
ordinary course of the events.
”
It is for this reasons
that I am of the view that the proceedings were not in accordance
with justice and I make the following
order:
The
conviction and sentence are hereby set aside
.
_____________
_________
J I HENRIQUES
ACTING
JUDGE
NORTHERN
CAPE DIVISION