S v Tsatsa (483/2006) [2006] ZAFSHC 82 (30 June 2006)

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[2006] ZAFSHC 82
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S v Tsatsa (483/2006) [2006] ZAFSHC 82 (30 June 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review No.: 483/2006
In the matter between:
THE STATE
and
BONGANI TSATSA
_____________________________________________________
REVIEW
OF JUDGMENT
_____________________________________________________
CORAM:
KRUGER, J
et
EBRAHIM, J
_____________________________________________________
JUDGMENT BY:
EBRAHIM, J
_____________________________________________________
DELIVERED ON:
30 JUNE 2006
_____________________________________________________
[1] The accused, an 18
year old male was convicted of the offence of contravening section
108 of Act 32 of 1944 (The Magistrate’s
Court Act 1944) that is of
the offence of contempt of court and sentenced to undergo 4 months of
imprisonment on the 27
th
of March 2006 by the Magistrate, Ficksburg. In accordance with the
provisions of the
Criminal Procedure Act 51 of 1977
the matter was
forwarded to this Court on ordinary review.
[2] When the matter was
placed before me on the 16 May 2006, after perusing the record of the
proceedings in the lower court I addressed
a query to the magistrate
requesting him to furnish reasons for the conviction and sentence.
The magistrate responded with those
reasons which I received on the
13
th
of June 2006. I quote from his letter:
“
Accused
1 misbehaved himself while the court was still in session. He could
not leave the dock even though he was requested by court
to leave.
Thereafter the court advised the accused in regard with the
provisions of
Section 108
of the
Magistrate’s Courts Act 32 of 1944
that if he continues misbehaving in court while in session such
conduct shall amount to an offence called Contempt of Court and he
shall be liable to be sentenced summarily to a fine not exceeding R2
000,00 or in default of payment, to imprisonment for a period
not
exceeding six (6) months or to such imprisonment without the option
of fine.
Even
though he was advised by court about the consequences of his conduct
in court, he insisted behaving in the manner that is appearing
at the
last paragraph in page 2 and the first paragraph at page 3 of the
court record. He then on page 1 at line 11 on Mechanically
recording
asked the court to proceed and charge him with contempt of court.”
From a perusal of the
court record as well as the mechanically recorded portion of the
proceedings it is apparent that the accused
became aggrieved by the
fact that his case on the merits was not being proceeded with on that
day and consequently vented his frustration
on the prosecutor by
pointing at the said prosecutor with an empty 1,25ℓ glass bottle to
indicate his discontent. That part of
the proceedings, which were
mechanically recorded, is attached to the record and from it at page
2 the following exchange between
the magistrate and the accused took
place.
“
COURT
Mr Tsatsa the Court advises you that it is going to charge you with
contempt of Court with what you are doing. Now the Court orders
you
to step down.
ACCUSSED
(own language)
COURT
This Court informs you to step down. What is he saying?
INTERPRETER
I ask the Court to proceed and charge him with contempt of Court.
COURT
Thank you. Interpreter?
INTERPRETER
Mr Letuba is a witness to the fact that the complainant when proceed
the police asked him not to proceed with this matter Your Worship.
COURT
Now the Court is not dealing with a trial. You were advised about
that from your first complaint that this Court is dealing with
your
release on bail and you further informed the Court that you do not
care for your release on bail.
ACCUSED
That is not what I told Court that I do not care to be released on
bail.
COURT
What did you say?
ACCUSED
I was informed that a formal bail application was going to be held
today where the CID or the I.O. in this matter was to be called
in
the witness box and proceed with his reasons and I did not see that
happening today.
COURT
Now that a formal bail application has not been conducted, what
bothers you on that?
ACCUSED
I am bothered with what the Court is handling, how the Court is
handling this matter because even the Prosecutor on the previous
occasion indicated that the I.O. will be called to testify today.
COURT
Do you still remember you pointed the Prosecutor with an empty of
Coca-Cola, 1,25 litre.
BESKULDIGDE
Liseki.
COURT
You, you, you were behind the dock, pointing this Prosecutor with an
empty bottle of Coca-Cola, aiming at assaulting him up until
I
requested the Court Orderly to take off that empty bottle. Do you
still remember?
ACCUSED
Yes I still remember that Your Worship.
COURT
That on each date you appear before Court, you want to rule this
Court.
ACCUSED
(own language)
COURT
Even now you pointed that investigating officer, why did you point
the investigating officer with your fingers?
ACCUSED
(own language)
COURT
And even now you are rotating around that behind the dock. And the
Court advised you are in contempt of Court by your conduct.
ACCUSED
No that is not correct Your Worship.
COURT
And you requested the Court to charge you for contempt of Court.
ACCUSED
Yes Your Worship but now I am not in contempt, I am on telling the
Court the truth.
COURT
Do you have a right to point the Court Officer?
ACCUSED
No I do not have such right.”
[3] The magistrate has
made annotations in manuscript that the accused shouted loudly, had
numerous complaints, that the Court Orderlies
had to be requested to
dispossess him of the empty 1,25ℓ bottle and remove him from the
dock. Only once this was done did the
learned trial magistrate
decide to record the evidence mechanically.
[4] It is not clear at
what point the accused was convicted of contempt of court as no
verdict to that effect was recorded anywhere
in the case record,
except on that portion of the form J14 which is the covering page of
the case record, reserved for the recording
of the judgment or
verdict. From the mechanically recorded portion of the proceedings,
the magistrate appears to have embarked on
the sentencing stage of
the hearing immediately after the exchange referred to earlier on in
this judgment. It is also apparent
from the record that the
magistrate merely informed the accused that he was going to be
charged with contempt then followed the exchange,
then followed the
sentence.
[5] The issue which
arises is whether the conduct of the accused amounted to misbehaviour
within the meaning of
section 108
of Act 32 of 1944. The shorter
Oxford English Dictionary defines the word “misbehave” as “behave
badly; to conduct oneself
improperly”.
[6] It is apposite,
however, to first comment on the summary nature of the proceedings.
In
REX
v SILBER
1952 (2) SA 475
(A) at 480 F – H the court said:
“
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 NEL
[1990] ZASCA 145
;
1991 (1) SA 730
(A) at 733 C the following appears in the English
headnote:
“
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.”
[7] The constitutionality
of the summary procedure was settled in
S
v SINGO
2002 (2) SACR (CC) 160. This case dealt with the constitutionality
of the provisions of
section 72(4)
of the
Criminal Procedure Act 51
of 1977
namely the procedure dealing with the issue of a warrant of
arrest in respect of an accused person who fails to appear in court
after
being duly and properly warned to do so. In my view, the
reasoning employed by Ngobo J, is equally applicable to the summary
procedure
invoked under the provisions of
section 108
of Act 32 of
1944 by reason of the fact that in both instances the summary
procedures conducted are inherently similar. The constitutionality
of the provisions of section 108 of Act 32 of 1944 were dealt with
extensively in
S
v LAVHENGWA
1996 (2) SACR 453
(W), a decision of the Witwatersrand Local
Division. I am in respectful agreement with the views expressed in
that judgment; albeit
that the case was decided under the provisions
of the interim constitution.
[8] I turn now to an
analysis of the facts of this present matter. There is no indication
anywhere in the record of the proceedings
before me that the
provisions of section 108 were fully explained to the accused. The
presiding officer merely informed the accused
that he was going to be
charged with contempt. The accused appears however to have adopted
an arrogant and disrespectful attitude
to the presiding officer by
inviting him to proceed to charge him. Moreover, during the
exchange referred to earlier on in this
judgment, the accused
admitted having threatened to assault the prosecutor with the empty
bottle but denied that he was in contempt.
In addition the further
allegations of misconduct which apparently were put by the magistrate
to the accused and the accused’s
answers thereto have not been
recorded. The magistrate thereafter proceeded to convict him of
contempt and sentenced him to imprisonment
without an option of a
fine.
[9] In my view, the
magistrate, quite correctly considered the type of aggressive conduct
exhibited by the accused in open court to
be grossly disrespectful of
the prosecutor as an officer of the court and to be seriously
undermining of the dignity and integrity
of the court. The accused
was rightly convicted of contempt.
[10] When it comes to the
sentence imposed by the learned magistrate however, I am of the view,
that it is unnecessarily harsh and
disproportionate to the
contemptuous conduct complained of. It is important to remember that
the purpose of the summary contempt
procedure is to preserve the
dignity of the court as the axis on which the administration of
justice turns and accordingly the reputation
and orderly conduct of
the court’s proceedings must be preserved. The purpose of
sentencing in such a case is not to belittle
and dehumanise the
accused person but rather to draw to his attention the importance of
preserving the dignity of the court (
S
v NEL
supra
at 754 E – F). It is also essential that accused persons
understand that under the new constitutional dispensation in this
country,
the role of the courts has been strongly underscored as
watchdogs of constitutional rights. Imprisonment for this offence
should
not be summarily imposed without the option of a fine, except
perhaps in highly exceptional circumstances (
S
v NEL
supra
at 754 I – J). A sentence of imprisonment coupled with the option
of a fine would in my view have been an appropriate and fair
sentence
in the circumstances of this case and would have sufficed to draw to
the attention of the accused the purpose of the punishment.
[11] It is regrettable
that this matter could only be finalised by me at this stage due to
the delays in forwarding the record to
this court initially and
thereafter returning it with the necessary responses to the enquiry
addressed.
[12] The following order
is made:
The conviction is
confirmed;
The sentence is set
aside and substituted with a sentence of R500 or 2 months’
imprisonment.
In terms of section 282
of Act 51 of 1977 the sentence is deemed to have been imposed on 27
March 2006.
_____________
S.
EBRAHIM, J
I
concur.
_______________
A. KRUGER, J
/em