S v Mpokotho (60/07/01) [2007] ZANCHC 72 (14 September 2007)

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[2007] ZANCHC 72
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S v Mpokotho (60/07/01) [2007] ZANCHC 72 (14 September 2007)
Reportable: Yes / No
Circulate to Judges: Yes
/ No
Circulate
to Magistrates: Yes / No
IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape Division)
High
Court Case no
:
60/07
Magistrates
Court Case no
:
10/07
Date
Delivered
:
14/09/07
In
the matter of
:
THE STATE
versus
BRIAN
MPOKOTHO ACCUSED
Coram:
BOSIELO
AJP
et
MOCUMIE
AJ
JUDGEMENT
ON SPECIAL REVIEW
MOCUMIE
AJ:
1.
The
accused, Mr Brian Mpokotho was charged with contempt of court in
facie
curiae
in
the Magistrate Court, Kimberley on 17 May 2007 and was summarily
convicted as charged. He was sentenced to R200.00 or 15 days
imprisonment and in addition 30 days imprisonment which was suspended
conditionally. His application for a deferred fine was granted.
2.
In
order for an accused to be convicted of contempt of court in
facie
curiae
the
trial court must find that the accused had
actus
reus
coupled with the necessary
mens
rea.
Contempt
in
facie curiae
means contempt of the Court committed “in the face of the court..”,
in other words in the presence of the presiding officer while
the
Court is in session. It is committed when a person who is inside the
Court insults the presiding officer or otherwise misbehaves
in a
manner calculated to violate the dignity of the Court or judicial
officer while the Court is engaged in proceedings.
CR
Snyman Criminal Law 4
th
ed,
325
.
Importantly the wrongful conduct complained of or displayed must be
intentional.
3.
A
presiding officer is in control of his or her Court room and the
proceedings therein. Ordinarily Court officials including
interpreters
ought to seek permission from the Court to leave whilst
the Court is in session unless they wait for the Court to adjourn.
The presiding
officer may then hold a person in contempt of Court if
the person wilfully disrupts the proceedings, misbehaves in a manner
that
impacts on the dignity of the Court.
4.
Section
108(1) of the Magistrate’s Court Act 32 of 1944 (“the Magistrates
Act”) provides:
“
108 (1) If
any person, whether in custody or not, wilfully insults a judicial
officer during his 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 R2000.00 or in default of
payment to imprisonment not exceeding six months
or to such
imprisonment without the option of a fine…”
5.
I
now then turn to the facts of this case. The accused, who was an
interpreter in the Magistrate court of Kimberley on 16 of May
2007,
left the Court during the proceedings without informing the Presiding
officer or asking for his or her permission to leave
the Court. Upon
investigation it was discovered that the accused had also left the
office without informing his immediate superior,
Mr Bungxu. As a
result two outstanding cases were postponed. On 17 May 2007 Mr
Mpokotho was charged with contempt of court, summarily
convicted and
sentenced as shown above in para 1.
6.
In
his plea explanation the accused proffered the following:
“
At
this moment, I will elect to remain silent. To say nothing to the
Court”.
But
on questions put to him by the Court he said:
“
The
reason why I left this Court, yesterday was because the accused
person elected to speak English on the trial and even with the
leave
of the Court, the Court did ask this person if he wants to converse
in English and even the attorney and the accused confirmed
he will
speak English and from there on, I left the Court, because I had one
of the accused who appeared before the trial could proceed,
he was
given … so I had to take that accused to the “casualties”,(It
must be Cashiers), that he can be helped. I even went
to the
prosecutor and informed him that I am going to the cashiers and the
trial is proceeding in English and that is why I left
the Court that
time…”
7.
In
its judgment the Court noted that:
“The
Court’s satisfied and you are found guilty of contempt of Court.”
8.
The
Magistrate gave no reasons for convicting the accused. It is only
during sentencing that it became apparent how incensed the
Magistrate
felt about the interpreter’s conduct the previous day. He says:
“You
are putting this Honourable court in disrepute and you show signs of
disrespect and a disgrace to this Court”
.
One can only assume that he believed that the accused’s conduct
fell within the ambit of Section 108 (1) of the Magistrate’s
Court
Act 32 of 1944.
9.
From
these facts it is undisputed that the accused’s services as an
interpreter when he left the Court whilst it was in session
were not
required as the proceedings were conducted in English and all parties
understood English, including the accused in that
matter. Secondly
the presiding officer had confirmed with the accused in that matter
as well as his or her attorney that the accused
will speak in
English, thus dispensing with the use of an interpreter. Thirdly the
interpreter as is common practice in the Magistrate
Courts across the
country where the majority of the accused are uneducated, illiterate
and unsophisticated, left the Court to help
an accused who had
appeared earlier on with some administrative problem in the cash
hall, as the Court orderly was apparently not
available.
10.
Interestingly
enough it is also apparent from the record that although the
interpreter stated under oath that he had informed the
prosecutor of
his whereabouts, the Court simply did not accept his evidence.
Instead, the court chose to accept the words of the
prosecutor who
was not under oath and who addressed the Court from the bar that
“…
My response was that Mr Mpokoto did not tell me where he was heading
to…”
11.
I
am of the view that although there is a definite need in all Courts
for the power to punish the contemptuous conduct summarily as
affirmed in
S
v Lavhengwa
1996
(2) SACR 453
(W), this power is an extremely drastic weapon which
should not be resorted to lightly but only with the utmost care and
circumspection.
See
S
v Nel
[1990] ZASCA 145
;
1991
(1) SA 730
(A);
S
v Sokoyi
1984
(3) SA 935
(NC)
12.
The
conduct complained of or displayed must be such that it disrupts the
orderly process of judicial proceedings at that material
time. In
this case the interpreter conducted himself in an unbecoming manner.
He did that under the pretext of assisting a person
who needed
assistance. Whether this is true is irrelevant. The fact that the
Court thereafter could not function without an interpreter
is what
ought to have been addressed properly. There were several avenues
available to the Presiding officer.
13.
The
interpreter could have been reported internally to face disciplinary
action. The disciplinary action could have determined exactly
what
transpired and how such conduct could be avoided in future. This
conduct not only impacts on the Court’s decorum but access
to
court. (sec 34 of the Constitution). Better still the matter could
have been referred to the DPP to decide whether to prosecute
or not,
so that the accused could have an opportunity to testify, call
witnesses if he so wished, employ the services of a legal
representative and to cross-examine state witnesses. This is what is
envisaged by Section 35 (3) of the Constitution which articulates
the
right to a fair trial.
14.
On
the facts in this case I cannot find any deliberateness and
premeditation on the part of the interpreter either to bring the
court
into disrepute or to disrupt the court’s orderly functioning.
If anything his little escapade just went horribly wrong. Quite
clearly this is not a matter which calls for summary prosecution. I
am of the view that the magistrate overreacted to put him through
a
summary trial of this nature in which his constitutional right to a
fair trial including the right to have adequate time to prepare
a
defence and to be represented by a legal representative were
transgressed. (s(35) (3) of the Constitution) The case of
S
v Nel
supra
is still authoritative in this regard. See too
S
v Ntshwene
2004 (1) SACR, 506
TkD at 541 [14].
“
An
officer of the Court should rather be dealt with privately or
administratively”.
See
re
Da Silva Pesseguiero v Tshinanga
2006
(1) SACR 388
(T) at 393 [21].
15.
Most
recently in
S
v Lewis
case no 610/00 delivered on 2 March 2007 the Supreme Court of Appeal
with reference to
S
v Nel
supra
stated:
“
It
should also be added that it may at times be more dignified to simply
ignore conduct that may technically constitute contempt of
court or
to treat it less harshly than to convict the perpetrator of the
offence. A rebuke or some other indication of disapproval
should in
most cases be an adequate measure to discourage cell phone
transgressions (in this case disappearing acts of interpreters)
in
Court.”
In
the circumstances and relying on
S
v Lewis
(supra),
I
am of the firm view that the circumstances of this case did not
warrant the drastic and summary procedure adopted by the magistrate
which infringed the accused’s right to a fair trial.
In the result I make the
following order:
ORDER
1. The
conviction and sentence imposed by the Magistrate on 17 May 2007 is
set aside.
The
matter should be referred to the Director of Public
Prosecution for a decision whether to prosecute
or not,
if necessary.
_____________________
BC
MOCUMIE
ACTING
JUDGE
HIGH COURT OF
SOUTH AFRICA
NORTHERN
CAPE DIVISION
I
concur.
_____________________
L O BOSIELO
ACTING
JUDGE PRESIDENT
HIGH COURT OF
SOUTH AFRICA
NORTHERN
CAPE DIVISION