S v Juries (2770/2001, 91/2001, 172/2001) [2003] ZAWCHC 5 (11 February 2003)

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[2003] ZAWCHC 5
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S v Juries (2770/2001, 91/2001, 172/2001) [2003] ZAWCHC 5; 2003 (2) SACR 52 (C) (11 February 2003)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
High
Court Reference Number: 2770/2001
Magistrate
Serial Number: 91/2001
Case
Number: 172/2001
In
the matter between:
- REPORTABLE -
THE
STATE
and
HENRY
JURIES Accused
REVIEW
JUDGMENT DELIVERED ON 11 FEBRUARY 2003
KNOLL
J:
This
matter was sent by the magistrate at Mosselbay for review in terms
of section 108 (2) of the Magistrate’s Courts Act No. 32
of 1944.
(Hereinafter referred to as the “Magistrate’s Act”). Section
108 of the Magistrate’s Act 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 sub-section (3)
of
section 5 provided) be liable to be sentenced summarily or upon
summons to a fine not exceeding R2000 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 sub-section
the
word “court” 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 furnish to the
party
committed a copy of such statement.”
In
the instant case, the statement required by section 108 (2) is
included by the magistrate and he notes thereon that a copy thereof
was sent to the accused.
On
the 8
th
of June 2001 the accused appeared before the magistrate in the
periodic court at Groot Brak river on a charge of housebreaking with
the intent to steal and theft. His rights to legal representation
were explained to him and he elected to conduct his own defence.
He
pleaded not guilty to the charge. The complainant in the matter, a
Mr Koos Du Preez, was called by the state to testify. The
evidence
is mechanically recorded and has been transcribed. The accused
cross-examined Mr Du Preez. It was during this cross-examination
that the incident transpired that led to him being convicted of a
contravention of section 108 of the Magistrate’s Act and sentenced
to six months imprisonment.
During
the course of the cross-examination the accused repeated questions
which had already been answered by the complainant. The
magistrate
stopped him and explained that the complainant had repeatedly given
him an answer to the questions asked. The second
time that the
magistrate stopped the accused, his reaction was as follows:-
“
BESKULDIGDE
: Edelagbare,
as ek so verkies soos wat ek nou kan sien dat die hof nie my aanvaar
wat ek het om te praat nie dan staan ek af in
die hof dan vra ek nou
‘n hoërhof.
HOF
: U
moet nou net versigtig wees hoor? U moet nou net nie dat ek vir u
hierso vir minagting van die hof beginne knyp hierso nie. So
pasop
ek waarsku net vir u dat u besig is om minagting van die hof te
pleeg. So indien u dit dalk nie weet nie het ek nou vir u
gesê. So
laat dit weer gebeur dan is dit minagting van die hof en u sal
gevonnis word. Ek het vir u toegelaat met oneindige geduld
wat ek
altyd aan die dag lê om vrae te vra vir die getuie. Maar nou
herhaal u die vrae en dit is nie nodig om vrae te herhaal nie.
Hy
het by herhaling het hy daardie vrae beantwoord. Nou as u iets nuuts
het waaroor u verder wil vra dan is u welkom om dit te
doen dan kan u
voortgaan.”
The
accused proceeded to ask a few more questions during the course of
which the accused made the remark “
oom
jy is mos nie reg nie man
?”
to the complainant. In his section 108 (2) statement the magistrate
explained that, at that stage, the accused pointed with his
finger to
his head when referring to the 74 year old complainant in this
manner. The court said the following to the accused:-
“
HOF
: Jy
gaan nie weer vir ‘n persoon so iets sê in my hof nie hoor?”
The
accused then proceeded with his cross-examination, running into
further trouble with the magistrate as he did so.
The
magistrate described the proceedings as follows in his 108 (2)
statements:-
“
Op
bladsy 14 is sy arrogante houding duidelik te merk uit die volgende
voorval- beskuldigde het weereens ‘n vraag herhaal en het
die hof
hom daarop gewys dat die getuie die vraag reeds beantwoord het. Die
beskuldigde het daarop gesê:
‘
Hy
het dit nie aan my verduidelik nie edelagbare.’ - en wat daarop
volg. (bladsy 14)."
The
passage at page 14 reads as follows:-
“
BESKULDIGDE
: Hy
het nie dit aan my verduidelik nie, edelagbare.
HOF
: Nou
aan wie het hy dit verduidelik?
BESKULDIGDE
: Hy
het dit aan die hof verduidelik.
HOF
: Nou
presies.
BESKULDIGDE
: Maar
ek vra vir hom mos nou die vrae.
MEGANIESE
ONDERBREKING
HOF
: Kom
terug in die beskuldigde bank in meneer?
BESKULDIGDE
: Ek
sien nie kans vir dié hof nie man.
HOF
: Meneer
ek bevind jou skuldig aan minagting van die hof aangesien jy hierso
vir die hof skree: Ek sien nie kans vir dié hof nie
man en jy loop
uit die bank uit terwyl ek vir jou sê jy moet terugkom meneer. Is
daar iets wat u wil sê voor vonnisoplegging weens
minagting van die
hof?
BESKULDIGDE
: (Geen
antwoord).
HOF
: Is
daar enige iets wat u wil sê?
BESKULDIGDE
: (Geen
antwoord).”
The
accused was then summarily sentenced to six months imprisonment.
In
his statement the magistrate described the actions in court at the
relevant time as follows:-
“
Die
beskuldigde het uit die beskuldigdebank geloop en sy arms in die lug
rondgeswaai. Hy het gemompel en die woord ‘fok’ woord
(sic) kon
gehoor word. Hierdie hof het hom beveel om terug te kom na die
beskuldigdebank. Die hofordinans was behulpsaam hierin.
Toe
beskuldigde in die beskuldigdebank terug was, het hy vir die hof
gesê:-
‘
Ek
sien nie kans vir die hof nie man!”’
In
his statement the magistrate explains that after sentencing he
attempted to explain to the accused that the conviction and sentence
were subject to automatic review as also his rights in this regard.
However, the accused pushed the court orderly to one side and
left
the court.
The
magistrate’s reasons for both conviction and sentence were
requested.
As
to conviction, my concerns were expressed as follows:-
“
a) Waarom
was ‘n summiere verhoor nodig? Was dit nie ‘n aangeleentheid wat
verkieslik na die Direkteur van Openbare Vervolgings
verwys moes word
nie?
U
het nie aan die beskuldigde verduidelik dat hy geregtig is op
regsverteenwoordiging voor u hom skuldig bevind het nie, waarom
nie?
U
het nie aan hom verduidelik wat minagting van die hof behels nie en
het hom nie ‘n kans gegee om redes voor te lê waarom hy
nie
daaraan skuldig bevind behoort te word nie; waarom nie? Is dit nie
konstitisioneel verpligtend nie?
Die
beskuldigde was inhegtenis aangehou. Sou dit nie raadsaam gewees
het om die saak te laat afstaan en hom tot bedaring te laat
kom in
die selle alvorens u enigsins ‘n skuldigbevinding van minagting
van die hof oorweeg het nie?”
This
enquiry was sent to the magistrate as well as to the Director of
Public Prosecutions. Advocate Tarental of the Director’s
office,
to whom I wish to express my appreciation, prepared a helpful
memorandum with which the Director agrees. The Director supports
the
summary actions of the magistrate as being necessary and appropriate
and supports the conviction. I shall refer to his submissions
as I
deal hereunder with each question posed.
The
objectionable behaviour clearly took place
in facie curia
.
Section 108 (1) empowers the magistrate to sentence summarily, or
upon summons, any person contravening its provisions. A magistrate
must therefore decide which of the two courses is the most
appropriate to follow, given that the legislature has been held to
have
made provision for a summary sentencing in order to protect and
maintain in the eyes of the general public “
the
waardigheid van die hof en die behoorlike administrasie van die
regspleging
.”
(
S
v Ntsane
1982 (3) SA 467
(T) at 473 A - B
).
The
appellate division has held that:-
“
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 fact 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.” (
R
v Silber
1952 (2) SA 474
(AD) at 480 G to H
).
In
S
v Nel
[1990] ZASCA 145
;
1991 (1) SA 730
(A)at 748 E
and following, the then appellate division, had occasion to revisit
the aforesaid statement. Botha JA at 748 F to G concluded as
follows:-
“
Waar
daar dan verwys word na ‘prompt and drastic action’ moet dit
beskou word as ‘n verwysing na summiere optrede in die enge
betekenis van die uitdrukking, dws waar die skuldigbevinding (en
vonnis) nie voorafgegaan is deur enige waarskuwing of geleentheid
om
vertoë te rig nie.
”
The
learned judge of appeal went on to refer to a number of provincial
decisions subsequent to the decision in
R
v Silber (
supra
)
,
inter
alia,
Duffey
v Munnik and Another
1957 (4) SA 390
(T)
and
R
v Hawkey
1960 (1) SA 70
(SR)
.
In these latter cases it was held that, although there might be
cases where the accused’s actions obviously constitute contempt
of
court where it is necessary and appropriate to summarily fine and
punish the offender without conducting any investigation to
satisfy
the court that there was indeed contempt of court, there were cases
where the actions of the accused may not be so unequivocal
as to
justify the assumption that the person undoubtedly intended to be
contemptuous. It was held that, in the latter cases, the
audi
alteram partem
rule should be observed, by allowing the accused person the
opportunity of giving an explanation for his actions and/or
apologising.
Botha
JA came to the conclusion at 749 F - 750 D, bearing the aforesaid
provincial decisions in mind, that certain aspects of the
procedure
with regard to contempt of court
in
facie curiae
required elucidation.
“
As
‘n Regter of landdros besluit dat die betrokke minagtende optrede
nie van so ‘n aard is dat dit maar net oor die hoof gesien
kan word
nie, dan is daar vir hom twee moontlike weë oop. Hy kan die
aangeleentheid na die Prokureur-generaal verwys om te besluit
of die
betrokke persoon in die gewone loop van sake vervolg gaan word. Dit
sal die aangewese weg wees as dit nie noodsaaklik is
om vinniger teen
die betrokkene op te tree ter wille van die beskerming van die
aansien of die gesag van die hof of die handhawing
van die
ordelikheid van die verrigtinge nie. Aan die ander kant, as daar wel
so ‘n noodsaaklikheid bestaan, sal die Regter of
die landdros self
die aangeleentheid daar en dan in behandeling neem. Besluit hy om
dit te doen, dan tree hy ‘summier’ teen
die betrokkene op, in die
wye sin van die woord, dws in teenstelling met die gewone
regsprosesse wat geld by strafregtelike vervolgings.
Maar hy sal in
so ‘n geval nogtans in die reël nie ‘summier’ teen die
betrokkene optree in die enge sin van die woord nie,
dws deur hom
skuldig te bevind aan minagting sonder om hom eers die geleentheid te
gee om aangehoor te word. Die gedagte om iemand
skuldig te bevind
aan ‘n strafregtelike oortreding sonder dat hy ‘n kans gegun is
om vertoë te rig dienaangaande, is so ‘n
drastiese afwyking van
die fundamenteelste beginsels van ons regstelsel dat dit nie gedoog
kan word nie, behalwe in uitsonderlike
omstandighede. Alhoewel daar
geen onwrikbare reël is dat ‘n persoon eers aangehoor moet word
voordat hy regsgeldig skuldig bevind
kan word aan minagting nie, is
dit ‘n heilsame uitgangspunt dat hy ‘n geleentheid gegun behoort
te word om die hof toe te spreek
alvorens hy skuldig bevind word. Of
‘n skuldigbevinding regtens geregverdig is sonder ‘n voorafgaande
geleentheid om vertoë
te rig, hang af van die besondere
omstandighede van elke geval. Onder meer sal daar gekyk moet word na
die aanloop tot die optrede
wat minagtend is en die aard van die
optrede self; en daarby is dit van belang of die betrokke persoon ‘n
regspraktisyn is of ‘n
leek, en in laasgenoemde geval, wat sy
kennis en ervaring is van hofprosedures.”
In
S
v Phomadi
1996 (1) SACR 162
(E) at 164 h ff
Melunsky J, Jennet J concurring, expressed some doubt whether the
decision in
Nel’s
case (
supra
)
at 750 D - F, limiting the application of the
audi
alteram partem
rule to cases in which there are exceptional circumstances, would
pass constitutional muster.
Subsequent
to the decision in
S
v Nel (
supra
)
,
the Witwatersrand Local Division of the High Court was required to
decide upon the constitutionality of section 108 of the Magistrate’s
Act in
S
v Lavhengwa
1996 (2) SACR 453
. Claassen J, with whom Cameron J, as he then was, concurred,
concluded at 494 h that the summary procedure for contempt under
section
108 (1) of the Magistrate’s Act “
does
not per se conflict with the constitutional rights set out in ss 8
(1), 25 (3) (b), (c) or (e) as relied upon by the appellant
”
in that case. Its constitutional validity was confirmed. However
certain guidelines were formulated, at page 495 b - 496 a,
for use
when implementing the provisions of section 108 (1), in order for a
summary procedure to conform with the provisions of the
Constitution
Act 200 of 1993.
“
In
my judgment a conviction under section 108 (1) after a summary
procedure will stand if the magistrate had adopted the following
rules and principles:
The
magistrate should first carefully consider whether or not he/she
should resort to the normal procedure of referring the matter
to the
Attorney-General or the summary procedure. Considerations which
would become important at this stage are whether or not
he can
disregard the accused’s conduct as unimportant...or merely stupid
and not wilfully contumacious....or whether the matter
can be
disposed of by merely removing the accused from the court.....or
whether the conduct is insulting or insolent in its nature
towards
the magistrate personally. In the instances mentioned above it
would be better to take evasive action (such as eg the
removal of
the accused from the court or an adjournment or requesting an
apology from the accused or reporting him to his professional
body
if the accused is a practitioner) which would obviate the necessity
to embark upon a trial under section 108 (1) or to take
the normal
route of referring the matter to the Attorney-General rather than
resorting to the summary procedure.
If,
however, the circumstances are such that the summary procedure is
called for (eg, in cases of disobedience to rulings, interruption
of
the proceedings etc) he should warn the accused of his intention to
proceed with a summary trial under the provisions of section
108 (1)
of the Magistrate’s Court Act. Depending on the accused’s prior
knowledge of the contents of section 108 (1), it would
be advisable
for the magistrate to read out the section to the accused so as to
inform him of the provisions thereof and thus inform
the accused of
the nature of the offence with which he is being charged.
The
magistrate must then proceed to inform the accused of the latter’s
conduct which in his view contravened section 108 (1) and
which of
the three categories mentioned in section 108 (1) his conduct is
alleged to have transgressed.
The
magistrate thereafter should inform the accused of his
constitutional rights as set out in section 25 (3) of the
Constitution
and enquire from the accused whether he wishes to
remain silent, testify, give an explanation or call witnesses. If
the accused
is a lay person he should be afforded the right to
obtain legal representation should he wish to do so, subject to such
time and
feasibility constraints as may seem reasonable in the
circumstances of the case. Depending on the decision of the
accused, the
magistrate should then afford the accused full
opportunity to exercise his rights in order to ensure that his
constitutional rights
are not infringed nor that the rules of
natural justice are transgressed.
After
the accused has been given an opportunity to exercise his rights the
magistrate should then weigh up all the circumstances,
evidence and
arguments and convict the accused only if the facts before him prove
beyond a reasonable doubt that the accused wilfully
contravened any
of the offences mentioned in section 108 (1).”
It
is my view, that these guidelines are equally applicable under the
provisions of the Constitution Act 108 of 1996. From the above
authorities, it seems to me that although occasions may present
themselves where summary action is necessary, every judicial officer
must consider whether summary action is absolutely necessary or
whether an alternative would serve the same purpose. Once having
embarked upon the course of summary action, it is necessary to be
aware that an accused is entitled to a fair trial in all cases
where
he faces punishment and accordingly it is necessary to observe the
rules of natural justice as well as comply with the accused’s
constitutional rights in this regard.
In
deciding whether or not to proceed summarily in the wide sense
against a person, a magistrate is afforded a discretion within
certain
defined limits. Thus he must exercise that discretion
judicially.
I
agree that a court of appeal or review should not lightly interfere
with a magistrate’s decision to so proceed because it is difficult
for the former court to appreciate the atmosphere within which the
incident took place. [
S
v Poswa
1986 (1) SA 215
(NC) at 221 C - E
].
The
magistrate in the instant case has not indicated which category of
offence, referred to in section 108, he was of the view the
accused’s
conduct contravened. In my view, however, his conduct in walking out
of the court was an interruption of the proceedings
and his remark
thereafter was insulting to the court. Accordingly his behaviour
would fall within the first and second category
of offence and within
the provisions of section 108.
Having
considered the circumstances set out by the magistrate and the
record, as also, the submissions of Advocate Tarantal, I have
come to
the conclusion that in the circumstances of this matter, I cannot
find that the magistrate incorrectly adopted the summary
procedure in
the wide sense referred to in
S v Nel (
supra
)
.
The need was there to contain the behaviour of the accused, whose
conduct was disruptive of the proceedings and contemptuous of
the
court. It was also appropriate to there and then apply the
provisions of section 108 of the Magistrate’s Act in order to
restore
and maintain dignity and order in the court. A courtroom is
a public place and, in the circumstances of this case, it was
appropriate
to show the public that the type of behaviour that the
accused displayed would not be tolerated.
The
questions that arise, however, are whether the rules of natural
justice were sufficiently complied with and whether the accused’s
constitutional rights were sufficiently observed.
An
interesting question is raised by Melunsky J in
S
v Phomadi (
supra
)
at 166 h - j
.
The learned judge points out that section 108 (1) does not expressly
authorise a summary procedure in the narrow sense, i.e. a
conviction
without affording the accused an opportunity of being heard. It is
also doubtful whether the summary procedure in the
narrow sense may
be implied in the section, for a court will be slow to imply a
provision that is in conflict with the fundamental
rights of an
accused person. The learned judge took the matter no further as it
was not relevant in that matter. Assuming that
section 108 (1)
allows, in exceptional circumstances, for a summary procedure in the
narrow sense, it is necessary to examine whether
there were
exceptional circumstances present in the instant case which would
justify such a course.
In
the instant case, both the magistrate and Adv Tarantal submit that
the fact that the accused had been warned that his earlier behaviour
[in criticising the magistrate and stating that he wished to come
before a higher court] was contemptuous and that, should it be
repeated he might attract the consequence of being sentenced for it,
was sufficient and that the accused’s actions thereafter were
openly contumacious and that he behaved as he did with knowledge of
the possible consequences.
There
may have been merit in this submission, in my view, had it been
apparent that the accused had understood the concept “
contempt
of court
”,
the type of behaviours which would constitute contempt of court and
the consequences thereof. There is no indication that the
magistrate
assured himself of this when he initially warned him. It must be
borne in mind that the accused is a lay person who was
defending
himself. His level of education or familiarity with court proceedings
was not gauged.
Furthermore,
although, it may seem overly technical to distinguish section 108 of
the Magistrate’s Act from the common law, however,
it is, in my
view, necessary because
S
v Nel (
supra
)
refers to the common law. A magistrate has no jurisdiction to
summarily sentence an accused for contempt under the common law, he
must act in terms of section 108 (
S
v Lavhengwa (
supra
)
).
I agree with Claasen J in
S
v Lavhengwa (
supra
)
at 465 h that it is conceivable that conduct falling within the three
categories of offence in section 108 need not necessarily amount
to
contumacious conduct under the common law, but could nevertheless
constitute a contravention of the section. (See also
S
v Memani
1994 (1) SA 515
(W) 517 H - 518 A)
.
In
order to comply with the constitutional provision that an accused is
entitled to be sufficiently informed of the charge against
him, the
magistrate, should, in my view have explained the provisions of, and
the different categories of offence in, section 108
to the accused,
as was held in
Lavhengwa
(
supra
)
.
In
my view, in addition, it would be important for a magistrate to
explain to an accused that should his conduct again contravene
the
provisions of the section, he might be sentenced without further
reference to him. This was not done in the instant case.
In
my view for these reasons, the warning given to the accused prior to
his conviction for contempt, was not such that it would constitute
exceptional circumstances.
I
am further of the view that the circumstances described by the
magistrate do not indicate a situation where the accused was out
of
control. The court orderly had managed to bring the accused back
into the dock. The magistrate was also able to ask him if he
wanted
to say something before sentence. There could be no reason why he
could not have done the same before conviction. Although
after he
was sentenced the accused pulled himself free from the hold of the
court orderly and walked out of court, it cannot be assumed
that he
would have behaved in the same fashion had his rights been explained
to him prior to conviction. In my view, the circumstances
surrounding the incident did not justify summary conviction in the
narrow sense.
Both
Adv. Tarantal and the magistrate in the instant case submit that it
was not necessary to explain to the accused that he was entitled
to
legal representation, because he had already elected to continue a
trial on a more serious count without legal representation.
In my
view, this is insufficient reason not to give the accused an
opportunity to obtain legal representation should he so wish.
He was
not expecting to face a charge under section 108 of the Magistrate’s
Act during the course of his trial; he no doubt did
not understand
the court procedures and may well have wished to take advice in this
regard. He had the right to do so. In my view,
there were also no
exceptional circumstances which would justify a departure from the
principle that the accused was entitled to
legal presentation, should
he have chosen it, on this charge.
Although
the magistrate’s reaction under the circumstances of this case was
perhaps understandable, it is necessary always to be
aware of the
need for restrained action because of the importance of being fair to
all accused persons who appear in our courts.
Fairness in courts
will enhance the respect in which they are held, it is not necessary
to act summarily in the narrow sense in
order to do this.
The
failure to observe the proper procedure in this case, was in my view
an irregularity in the proceedings which led to a failure
of justice.
The accused was not given a fair trail and as a result, in my view,
there must be some doubt as to whether he was intentionally
or
wilfully acting in contravention of section 108, with the necessary
appreciation of the wrongfulness of his actions.
Accordingly,
in my view, the conviction and sentence in this matter must be set
aside.
The
following order is made:-
The
conviction of the accused of the contravention of section 108 of Act
32 of 1944, as well as his sentence thereon is set aside
and he is
found not guilty and discharged.
______________________
KNOLL
J
I
concur.
______________________
VAN
HEERDEN J