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[2014] ZAWCHC 29
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S v Mostert (864/13) [2014] ZAWCHC 29 (6 March 2014)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
High
Court Ref No: 14108
Vredendal
Case No: 864/13
In
the matter between:
STATE
AND
JANNIE
MOSTERT
ACCUSED
Coram
:
DLODLO & ROGERS JJ
Delivered:
6 MARCH 2014
JUDGMENT
ROGERS
J:
[1]
This matter comes
before the court by way of review in terms of
s 108(2)
of the
Magistrates’ Courts Act 32 of 1944
.
[2]
The accused appeared
before the magistrate on 6 December 2013 on which occasion he was
joined as the third accused in respect of
two counts of rape and one
count of attempted murder allegedly perpetrated on 30 November 2013
in relation to the same complainant
(a male person). This review is
not, however, concerned with those charges but with his conviction
and sentencing for contempt
of court committed on 6 December 2013.
[3]
The accused was
unrepresented as at 6 December 2013. He at first indicated that he
wished to conduct his own defence. The magistrate
said that this was
not advisable given the seriousness of the charges. The accused then
said he would like legal aid. The accused’s
rights in respect
of bail were explained to him. The prosecutor said that he would
oppose bail. The accused said that he would
prefer to obtain legal
aid before applying for bail. The case was postponed to 29 January
2014 for further investigation, for the
obtaining of legal aid and
for a bail application.
[4]
As the accused was
being led out of court he directed a most vulgar insult towards the
magistrate. It comprised five words: the
first word, which I do not
intend to repeat, was a derogatory reference to the magistrate’s
physical appearance; and the
other four words were ‘
Jou
ma se poes’
, an
expression probably more frequently in use in the circles in which
the accused moved than those of the magistrate. The magistrate
required the accused to be brought back into the dock. The magistrate
told the accused what he had heard. The accused admitted
that he
uttered those words. The magistrate asked him to explain his
behaviour. The accused said that he was under stress and knew
nothing
about the alleged rapes and attempted murder. He apparently made an
apology of sorts: the magistrate’s note records
that the
accused said: ‘
Ek
sê ek is gestres ek weet niks van die klagtes nie sorry. Ek wil
niks verder sê nie ek is gestres en dra niks kennis
van die
klagtes nie.
’
[5]
The magistrate informed
the accused that he regarded the accused’s conduct as contempt
of court and that he intended to act
summarily in order to preserve
the dignity of the court and to protect the proper administration of
justice. The accused said that
he did not wish to say anything more.
The magistrate advised him that he had the right to appoint a lawyer.
The accused again said
that he did not wish to say anything more and
that he knew nothing of the charges.
[6]
Thereupon the
magistrate found him guilty of contempt of court in terms of
s 108(1)
and sentenced him to six months’ imprisonment. In accordance
with
s 108(2)
the magistrate transmitted to this court a
statement, certified by him as true and correct, of the grounds and
reasons for his
acting as he did.
[7]
The matter having been
allocated to me in chambers, I directed a query to the magistrate,
the relevant part of which reads as follows:
‘…
I have no
difficulty with the conduct of the magistrate in taking summary
action against the accused or with the conviction for
a contravention
of
s 108(1).
I do, however, have a concern
about the sentence – six months’ imprisonment. This is
the maximum penalty which can be
imposed in terms of
s 108(1).
That section provides for a punishment of a fine not exceeding R2 000
or in default of payment to a period of imprisonment
not exceeding
six months, or to such imprisonment without the option of a fine.
The considerations which should
guide the imposition of sentence for contempt committed in the face
of the court are set out in
S v Nel
[1990] ZASCA 145
;
1991 (1) SA 730
(A) at
752F-753E and are conveniently summarised in Jones & Buckle
The
Civil Practice of the Magistrates’ Courts in South Africa
10
th
Ed Volume 1 p 672. The primary purpose of the punishment is not
retribution but to enforce the court’s authority. Heavy
punishments in these kinds of cases are generally not appropriate.
The Appellate Division observed that the lower courts in practice
have been quite modest with punishments for contempt in the face of
the court and that this was a practice to be encouraged.
Later in its judgment the
Appellate Division said that an accused person should not, in case of
contempt in the face of the court,
be summarily sentenced to
imprisonment without the option of a fine, except in the most
exceptional circumstances. It was found
in that case that on a second
conviction for contempt the trial judge erred in imposing a sentence
of three months’ imprisonment
without the option of a fine. The
Appellate Division set aside that sentence and replaced it with a
fine of R500 or one month’s
imprisonment plus a further period
of one month’s suspended imprisonment.
Kindly comment on the sentence
imposed in the light of the above principles and refer me to any
authorities of which you are aware
which might support a harsher
approach.’
[8]
The magistrate has
furnished a full response in which he contends that the sentence was
appropriate. I shall deal presently with
the main points made by the
magistrate. However, it is convenient first to quote the passage from
Jones & Buckle, mentioned
in my query to the magistrate, which
appears to me accurately to summarise the principles laid down in the
leading case of
S v
Nel
[1990] ZASCA 145
;
1991 (1) SA 730
(A):
‘
(i) The
primary object of the summary procedure in terms of which the offence
can be immediately dealt with is to maintain
the reputation and
dignity of the court and to ensure the orderly conduct of its
proceedings.
(ii) The most important
function of the imposition of punishment is to enforce the court’s
authority: there is no room
for any notion of retribution; there is
limited scope for reformation (the purpose of the punishment is to
bring the offender to
his senses in the very proceedings in which the
offence is committed); deterrence is by the same token directed at
getting the
offender to refrain from continuing with his contemptuous
conduct in the proceedings which are underway.
(iii) The primary purpose
of the punishment is accordingly to bring about an end to the outrage
to the court’s esteem
and authority.
(iv) There is no direct
relationship between the esteem and authority of the court and the
extent of punishment – the
esteem and authority of the court is
too precious to be measured against any punishment which may be
imposed for conduct which
harms it.
(v) Finally, the person who
commits contempt
in facie curiae
is not an ordinary criminal
in the everyday meaning of the word and ought not to be treated as
such.
(vi) In view of the
foregoing considerations, heavy sentence is generally inappropriate
in these cases and the magistrates’
courts in the past have
rightly been moderate in the punishment they imposed.’
[9]
As I pointed out to the
magistrate in my query, the punishment he imposed in this case –
six months’ imprisonment without
the option of a fine –
is the harshest punishment for which
s 108(1)
makes provision.
Having regard to the principles laid down in
Nel
,
I find it difficult to conceive of any case in which such a
punishment would be merited for a first conviction. In
Nel
the appellant had
been guilty of contempt in the face of the court on two occasions
during the course of the same proceedings (a
civil motion). He had at
various times insulted the presiding judge by accusing him of playing
cat and mouse games with him, accusing
him of being a coward and of
bias. For the first offence the appellant had been summarily
convicted and sentenced to a fine of
R2 000 or three months’
imprisonment. On the second summary conviction he was sentenced to
three months’ imprisonment
without the option of a fine. On
appeal the Appellate Division found that both of the sentences were
too severe, having regard
to the principles which should guide a
judicial officer in such cases. On the first conviction the sentence
was reduced to a fine
of R500 or one month’s imprisonment; and
on the second conviction the sentence was reduced to a fine of R500
or one month’s
imprisonment together with a further period of
one month’s imprisonment suspended on appropriate conditions.
[10]
The magistrate in his
response in the present matter said that the accused had made an
offensive personal remark about the magistrate’s
appearance and
had used very vulgar language. The magistrate contrasted this with
the language of the appellant in
Nel
which contained no
vulgarity. In my view, the distinction drawn by the magistrate is
fallacious and tends, erroneously, to place
the emphasis on the
person of the judicial officer and his own feelings rather than on
the dignity and authority of the court.
While a vulgar insult about
one’s appearance may give personal offence, I doubt whether it
can be said to be more serious
than ostensibly more polite language
by which a litigant accuses the judicial officer of perverting
justice by playing games with
him and being cowardly and biased.
Imputations of the latter kind strike directly at the heart of the
proper judicial function.
[11]
The magistrate submits
that the language used by the accused person is an important
indication of his intention. Of course, an intention
to impugn the
dignity and authority of the court is a necessary element for any
conviction on a charge of contempt in the face
of the court. I
nevertheless accept that the language or conduct constituting the
contempt is an important element in assessing
the gravity of the
offence. However, and for reasons I have explained, the magistrate
erred in apparently regarding a personal
and vulgar insult directed
at the judicial officer as being by its very nature more serious than
ostensibly more polite language
which impugns the integrity with
which the judicial officer is performing his or her work. A
reasonable person who heard the insult
which the accused in the
present case uttered would treat it is simply that – vulgar
abuse. The reasonable person might take
more seriously allegations by
a litigant that the judicial officer is performing his or her
judicial function in a biased or cowardly
fashion.
[12]
The magistrate has also
contrasted the present case with
Nel
by submitting that
in
Nel
the
contempt occurred in the course of a heated argument. I do not regard
the purported distinction as valid. The litigant in
Nel
was guilty of
sustained submissions which were derogatory of the judge. This was so
even in respect of the first conviction, which
followed only after
the litigant failed to heed the judge’s warning to the litigant
mind his language. Despite the conviction
and sentence for the first
contempt, the litigant later continued with his derogatory
submissions. In the present case, by contrast,
the accused made a
single short insult as he was led out of the dock. His response to
the magistrate was that he was stressed because
he knew nothing about
the rapes and attempted murder. He apparently said sorry. The
magistrate, in his
s 108(2)
statement, does not say that he did
not believe the accused’s explanation that he was stressed. One
does not know at this
stage whether the accused is or is not guilty
on the charges of rape and attempted murder. However, one can
understand that a person
who has just been arrested on such charges
and who faces potentially lengthy incarceration while awaiting trial
would be under
emotional stress. Unlike
Nel
,
the accused’s conduct in the present case strikes me as an
insult made in the heat of the moment and in circumstances of
personal stress.
[13]
I would add that in
Nel
the contempt
occurred midway through the proceedings. In the present case, by
contrast, the accused made the insult as he was leaving
the dock,
after the completion of the day’s proceedings. What he said did
not interfere with the ongoing conduct of the proceedings
though it
was an affront to the dignity of the court and was thus rightly dealt
with summarily by the magistrate.
[14]
The magistrate in his
response refers to the statement in
Nel
that a person who
commits contempt in the face of the court is not an ordinary criminal
and ought not to be treated as such. The
magistrate goes on to
express his respectful agreement, pointing out that the litigant in
Nel
appeared
in motion proceedings whereas the accused in the present case was
appearing on very serious criminal charges. Punishment
should fit the
offender and the offence, he says. This in my view constitutes a
serious misdirection. The point made in
Nel
was not concerned
with the character of the proceedings during the course of which the
contempt occurred (civil or criminal) but
with the character of the
special crime of contempt in contrast with other ‘ordinary’
crimes. It was thus irrelevant
that the accused in the present case
committed contempt in the course of criminal proceedings rather than
civil proceedings. Apart
from the fact that the distinction drawn by
the magistrate is erroneous, there was no basis for treating the
accused as if he were
guilty of rape and attempted murder. He has yet
to be tried and convicted for those offences and is entitled in the
meanwhile to
be presumed innocent.
[15]
For all the reasons
stated above, the sentence imposed by the magistrate cannot stand. I
must emphasise that nothing said in this
judgment is intended to
condone the behaviour of the accused. It was entirely unacceptable
and did indeed amount to contempt committed
in the face of the court.
If the accused were to repeat such conduct, he would face more severe
sanctions. At this stage, however,
and with a view to giving effect
to the principles laid down in
Nel
,
a much lighter sentence would suffice to bring about an end to the
outrage to the court’s esteem and authority and to bring
the
accused to his senses.
[16]
Because of the approach
adopted by the magistrate, he did not enquire into the accused’s
ability to pay a fine. If there was
information in that regard, I
would have been inclined to impose a sentence of a fine in a
specified amount, failing payment of
which imprisonment of one month.
However, and in the absence of such information, I think the
preferable course would be simply
to impose imprisonment of one
month, suspended for three years on appropriate conditions.
DLODLO J:
[17]
I concur. The accused’s
conviction for contempt of the court in violation of
s 108(1)
of
the
Magistrates’ Courts Act 32 of 1944
is confirmed. The
sentence imposed by the magistrate is set aside and replaced with the
following sentence: ‘The accused
is sentenced to imprisonment
of one month, suspended for three years on condition that the accused
does not again commit contempt
in the face of the court, committed
during the period of suspension. The sentence is ante-dated to 6
December 2013.’
DLODLO
J
ROGERS
J