S v Solomons (4249/2003) [2003] ZAWCHC 68; 2004 (1) SACR 137 (C) (11 December 2003)

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[2003] ZAWCHC 68
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S v Solomons (4249/2003) [2003] ZAWCHC 68; 2004 (1) SACR 137 (C) (11 December 2003)

11
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
REPORTABLE
REVIEW CASE NO.: 4249/2003
In
the matter between:
THE
STATE
And
LESLIE
SOLOMONS ACCUSED
________________________________________________________________________
REVIEW
JUDGMENT DELIVERED ON 11 DECEMBER 2003
________________________________________________________________________
DLODLO,
A.J
The
matter came before me by way of automatic review in terms of section
302 of Act 51/1977 as amended.
Mr.
Leslie Solomons, a member of the public who appeared in Paarl
Magistrate’s Court, was summarily convicted on two counts of
contempt of court in
facie
curiae
under
section 108(1) of the Magistrate’s Court Act 32 of 1944 as
amended, (‘the Act’). Section 108(1) of the Act provides:
‘If
any person……. willfully insults a judicial officer during his
sitting or a clerk or a messenger or other officer during
his
attendance at such sitting, or willfully 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 R2 000 (Two
Thousand Rand)
or in default of payment to imprisonment for a period not exceeding
six (6) months or to such imprisonment without
the option of a
fine.’
Mr.
Solomons was thereafter sentenced to undergo imprisonment for six
(6) months; as a result of comments he made as he was escorted
from
the dock to the cells, he was sentenced to another six (6) months
imprisonment.
The material
facts appear from the transcript. According to the Magistrate as he
was busy explaining the rights of another accused
person, Mr. Leslie
Solomons sprang/jumped up and made the observation “Meneer u praat
nie so met kinders moet praat nie” or
words to that effect.The
accused is said to have left the courtroom. He was brought back to
the courtroom by the court orderly
on instruction by the Presiding
Magistrate.
The
Magistrate asked the accused what his name was. The accused gave
his name as Leslie Solomons. Certain further questions (not
important for these proceedings) were put to the accused. The
accused was asked about the remarks he made and he answered as

follows: “Meneer het die manier om te praat, so het ek vir Meneer
gesê met die kinders nie. Ek sit al – ek luister al drie
(3)
sake wat meneer praat met die mense. Ons het mos respek vir mekaar.
Meneer is mos ‘n Edelagbare, man. Sien, meneer het
nie respek
nie. Ek hoor dan hoe sê meneer vir die kind, man. Ek kan my stem
lig as ek daar sit as meneer nie regte uiter daar
nie, man. Jy sê
vir die ander man sommer, “Het jy R5 000? Geluk vir jou.” Is
dit reg? Is mos nie reg nie. Lyk my jy onderskat
die mense.
Moenie so is nie, meneer, man wat wil jy met my maak?”
The
Magistrate went on to say that he would then continue to investigate
why the court should not find the accused guilty of contempt
of
court. That explanation evoked the following reaction from the
accused:“Nee, jy kan nie vir my aankla vir minagting van die
Hof
nie. Neem my na ‘n ander Hof toe, man, dan kan ek daar
verduidelik my storie. Jy is ‘n groot man, man. Jy kan nie so
praat met kinders nie.”
Thereafter
the following appears on record:
“
Hof: Goed. U
het die reg op ‘n regsverteenwoordiger. U het die reg om u eie
prokureur aan te stel, met ander woorde. U kan aansoek
doen om
regshulp as u nie prokureur kan bekostig nie, of u kan u eie
verdediging hanteer. Wat is u keuse?…………
Beskuldigde:
Watter keuse?…………neem my na ‘n ander Hof toe, man, dan kan
ek die magistraat daar verduidelik. Wil jy dan
nou sommer die
verhoor met my hou. Ek is dan die hof hier agter die hof, man. Hier
sit die mense, hulle hoor. Ek kan my stem lig
as jy nie reg praat
met die kinders hier nie, man. Wat maak jy sommer vir my die
beskuldigde hier in jou hof? Is mos nie reg nie,
man. Hou op praat
van prokureur of neem my na ‘n ander hof toe of kla my aan. Hierso
is ‘n speurder, jy is nie ‘n speurder
nie, meneer, man, jy is ‘n
magistraat.
Hof:
Meneer Solomons, oefen dan die keuse uit dat hy sy eie verdediging
gaan hanteer. Is dit korrek so?
Beskuldigde:
………nee, man, waar. Ek het nie lus vir jou nie, meneer. Gee
vir my ander mense. Sit my in ‘n ander hof, ek
sal gaan tot daar.
Stuur my na ‘n ander hof………..”
Hof:
Goed, die Hof neem dan aan dat u nie wil ‘n prokureur hê en dat u
nie wil regshulp hê nie.
Beskuldigde:
Nee, jy neem so aan, man. Ek neem nie so aan nie. Ek sê mos jy vat
jou eie woorde.”
The Magistrate
proceeded to convict the accused of contempt of court. The
Magistrate sentenced the accused to undergo Imprisonment
for six (6)
months without the option of a fine. This sentence evoked further
emotions. The accused made the following utterances
as he was
dragged to the cells:
“Ek
is ‘n vry man, jy stuur my tronk toe…………………kyk hier,
is net jy en daai boer, ek kan mos sien julle is rassiste…………….Jy
is ‘n rassis, Meneer. Hoekom stuur jy my tronk toe?………….Het
ek gesteel of iets hierso, hé? Het ek mense doodgemaak?
Jy stuur
my……………Jy is nie reg nie, jy is ‘n rassis, ek sê so,
man, die Hof”
9. On the instruction by the Magistrate the accused was brought back
to the dock and he once more summarily dealt with him and again
pronounced him guilty of contempt of court. The Magistrate again
sentenced the accused to undergo Imprisonment for further six (6)
months. Again this was without the option of a fine.
10. Upon reading these proceedings I had the following query sent to
the Presiding officer.
“
Can it be
said in this matter the accused person:
was informed of
the charge with sufficient details?
Had adequate
time and facilities to prepare a defence?
Would justice
not have been better served if the magistrate reported the matter to
the Director of Public Prosecutions and rather
left it to that
Department?
Was
the accused given an opportunity for explanation and apology?
11. It took long to get a response from the magistrate. He
eventually responded. It is not my intention to set out his response
here as in my opinion he does not address the key issues at all. I
will only set out the magistrate’s conclusion as I intend to
deal
with it later in this Judgment.
“
It is then
submitting with respect, that the convictions are in order, and that
it should be confirmed. It is further submitted,
with respect, that
the sentence should be set aside and replaced with an order in terms
of section 284 of Act 51 of 1977, that he
be kept in custody until
the court adjourns.”
12. It
cannot be said in these proceedings that Mr. Solomons chose to
conduct his own defence. The Magistrate assumed that thát
was the
choice he could infer from Mr. Solomon’s conduct. Despite Mr.
Solomon’s protest that “nee, jy neem so aan, man. Ek
neem nie so
aan nie. Ek sê mos jy vat jou eie woorde” The right of an
accused person to get legal representation is recognized
in our
country. (See
S
v Wessels and Another
1966(4)
SA89(c),
S v
Mabaso and Another
1990(3)
SA185
The right to
legal representation is presently constitutionally enshrined.
Section 35(3) (f) and (g) of the Constitution of the Republic
of
South Africa Act 108 of 1996 provides as follows:
“
(3)
Every accused person has a right to a fair trial, which includes the
right –
(f) to
choose, and be represented by, a legal practitioner, and to be
informed
of this right promptly;
(g)
to have a legal practitioner assigned to the accused person by
the
State and at State expense, if substantial injustice would
otherwise
result, and to be informed of this right promptly.”
In
S v McKenna
1998(1) SACR
106(c) at 112 Ngcobo J (Friedman JP concurring) stated as follows:
“
To give
meaning to the right to legal representation, an accused person has
to be given a fair opportunity of obtaining legal representation.
A
refusal to give an accused a fair opportunity of obtaining legal
representation has been held to constitute a gross irregularity
warranting the setting aside of the conviction and sentence.”
13. Section
35(3)(f) of the Constitution Act 108 of 1966 guarantees the right to
legal representation of an accused person even at
the State’s
expense, if need be.
It would be an
extremely dangerous practice for Courts to ‘assume’ that an
accused person does not want to be legally represented.
On the
contrary, the Court must be satisfied that the accused person’s
choice to undertake his defence is indeed an informed decision.
In
the instant case, on this aspect alone, the magistrate committed an
irregularity of such magnitude that the conviction and sentence
cannot stand.
14. Another
point worth dealing with is that Mr. Solomons continuously insisted
that he be taken to another Court where he would explain
his side of
the story. This appeared to be an unimportant point to the
Magistrate. I say this because nowhere in the proceedings
was it
explained to Mr. Solomons that he does not have to be taken to
another court as the court he was in was empowered by section
108 of
the Act to deal with the matter. It is one of the difficulties
members of the public are faced with in that when one of them
is
alleged to have insulted the Magistrate and that the same magistrate
must deal with the dispute and make a finding. The point
of being
taken to another court made by Mr. Solomons, was thus valid, if the
matter is viewed objectively. Ordinarily it does not
happen that a
litigant also sits as a Judge in the same matter. Mr. Solomons, in
my view, was owed an explanation why this apparent
‘anomaly’ must
happen. Such explanation would have gone a long way to making our
Courts user-friendly ------something which
is still by and large
sadly lacking in this country.
15. There
is also a question of whether or not section 108 proceedings are in
conflict with the accused’ rights to a fair trial
and to equality
before the law as provided by section 8(1) of the Constitution. This
is a debatable matter. For purposes of this
judgment it is enough to
refer to
s v
Lavhengwa
1996(2)
SACR 453(W) where a magistrate was part litigant and part Judge as he
conducted an enquiry in terms of section 108(1) of the
Act. The
Court held in that case that this offended the fundamental right to
equality before the law enshrined in section 8(1) of
the
Constitution.
It went further to hold that however, it was reasonable to curtail
the right to equal protection of the law in cases of summary
proceedings
for contempt of court under section 108(1) and that such
curtailment was justifiable in an open and democratic society based
upon
freedom and equality and did not negate the essential content of
the right to equal protection of the law. It was held that the
curtailment was saved by the provisions of section 33(1) of the
Constitution. I have said this remains a debatable matter. It is
not necessary to take it any further for purposes of this judgment.
Equality
before the law requires that each person is accorded equal concern
and respect both in formulation and the application
of the law (See
Chaskalson et al
Constitutional
Law in South Africa
at
14 – 12) I am in agreement with the finding by the Court in the
Lavhengwa
case.
There can be no question of denying the necessity for the continued
existence of the summary procedure under discussion.
Experience
shows that there are numerous circumstances that require swift and
immediate action to restore order in Court proceedings.
There may
be disruptive disturbances precluding further continuance of the
proceedings, disobedience to lawful orders etc. As
early as in 1952
when it was not even envisaged that this country would ever be
democratic and have the supreme law of the land,
namely the present
constitution, Schreiner JA (as he then was) in
R
v Silber
1952
(2) SA 475
(A) at 480 stated: “The power to commit summararily
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 the party affected is given less than the usual opportunity of
defending himself, make it necessary to restrict the
summary
procedure to cases where 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
agreeing with the finding in
Lavhengwa
matter I
hasten to set out the provisions of section 36 of the constitution
which limit the scope of certain rights:
“
36
the rights in
the bill of rights may be limited only in terms of law of general
application to the extent that the limitation is
reasonable and
justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors including –
the nature of
the right;
the importance
of the purpose of the limitation -……………….” The right
to equal protection of law is, in my view, (also
according to
Lavhengwa case) limited on reasonable and justifiable ground by the
above quoted provisions of section 36 of the Constitution.
The
limitation is reasonable in that summary procedure in section 108(1)
of the Act are in place to protect and preserve the dignity
of our
Courts. But in the instant case, given the acrimony and emotions,
the level of the accused’ sophistication, the interest
of justice
would have been better served by the magistrate recusal from the
proceedings. Mr. Solomons’ insistence “neem my
na ‘n ander
Hof” was nothing but “please recuse yourself.”
Section
108(1) of the Act has been the subject of discussion before the
Constitutional Court in
S
v Mamabolo (ETV and Others intervening)
2001(5)
BCCR 449 (cc).
It was held
amongst many other things that it was now settled law that the right
under section 35(3) of the Constitution “embraces
a concept of
substantive fairness” and that it is “a comprehensive and
integrated right” composed of a number of elements.
19. Section
35(3) of the Constitution provides:
“
(3) Every
accused person has a right to a fair trial, which includes the
right –
to be informed
of the charge with sufficient detail to answer it;
to have
adequate time and facilities to prepare a defence;
to a public
trial before ordinary Court
to be presumed
innocent, to remain silent, and not to testify during proceedings’
to adduce and
challenge evidence;
not to be
compelled to give incriminating evidence…..”
One only needs
to read the transcript to conclude that it is more than apparent
that Mr. Solomons did not understand the contempt
of court charge
then preferred against him. No attempts were made to make him
understand. The proceedings were clouded by emotions.
20. It would
appear that Mr. Solomons was not aware that he had offended the Court
by remarking as he did. Interestingly section
108(1) of the Act
requires the offence to have been committed wilfully. The
proceedings before the magistrate took an unusual format.
There was
clearly not a single aspect where the Court and Mr. Solomons
understood each other. It is also debatable whether or not
Mr.
Solomon’s remarks can be construed as an insult to the magistrate.
I accept that he
(Solomons) had no business to remark at the manner the magistrate
addressed certain young accused persons. But the
remarks as such are
difficult to be construed as insultive. The remarks were allegedly
made by Mr. Solomons who then went out of
the courtroom. There is
also a question mark on the aspect of disruption of the proceedings.
21. Shouldn’t
the magistrate merely have either ignored these remarks or called Mr.
Solomons in and warn him strongly against the
behaviour?
I am mindful of
the fact that the Reviewing Court should not lightly interfere in
matters of this nature. But it is my view that
the matter had no
importance at all. It was blown out of proportion by the magistrate
himself. The second conviction clearly came
about as a result of
annoyance and frustration on the part of Mr. Solomons. He
subjectively asked himself (as he actually said –
he is no thief,
he is no murderer) what has he done to deserve such a harsh
punishment. Once more this goes to the requirement that
he should
have been informed of the charge with sufficient details so as to
enable him to understand. It is my view that he was
not given
adequate time and facilities to meaningfully prepare his defence.
This could easily be achieved by standing the matter
down for a
moment. Mr. Solomons would then have had the opportunity to think
thoroughly about the matter and considered his then
position.
22. The
magistrate is now of the view that the correct sentence should have
been detention until the Court adjourns in terms of section
284 of
Act 51/1977. This is clearly an admissions or realization on the
part of the magistrate that the incident was of an insignificant
nature. It certainly did not warrant the kind of sentence meted out
to Mr. Solomons in
casu
,
which is certainly shocking by any stretch of imagination .
I
am of the view that conviction and sentence cannot stand in this
matter. It follows, therefore that both conviction and sentence
must be set aside.
____________________
DLODLO,
A.J
I
agree and it is so ordered. ___________________
HLOPHE,
J.P