S v Bresler and Another

• Jurisdiction: South Africa
• Judge: Satchwell J
• Judgment Date: 01 February 2002
• Citation: 2002 (2) SACR 18 (C)
• Docket Number: SS167/01
• Hearing Date: 01 February 2002
• Counsel: W J Downer for the State. First accused in person. L F Wilkin for the second accused.
• Court: Cape Provincial Division

Satchwell J:

Introduction

There has, over a period of time, been a savage verbal attack on an individual magistrate. This was rendered of application to a select B group amongst the magistracy and Judiciary, namely African, coloured, Asian and Indian judicial officers. Ultimately this was transposed into an indictment of the administration of justice in South Africa.

Accused number 1, Mr Rynhardt Bresler, is the father of accused number 2, Ms Jeanine Bresler, who was prosecuted in the magistrate's C court at Bellville on a charge of contravening the speed limit on the public roads. She was found guilty and sentenced to a fine of R150 or ten days' imprisonment. She appealed against both convictions and sentence in the High Court at Cape Town.

In the course of noting and prosecuting an application for leave to appeal and the appeal itself certain statements were published concerning the magistrate presiding at the trial of Ms Bresler, all D magistrates and Judges who are not caucasian or 'white' persons, the courts themselves and the administration of justice in South Africa.

Charges

Arising from publication of these statements both accused face E charges which I have summarised and translated from the Afrikaans indictment as follows:

(a)

Count: Contempt of court

It is alleged that over the period 5 November 1999 to 10 November 2000 the accused wrongfully and unlawfully attacked the dignity, the status or authority of the judicial officer in his F judicial capacity or the dignity, status or authority of a judicial body or were contemptuous of magistrates or Judges generally or of judicial administration in the magistrates and High Courts thereby intending to compromise the administration of justice.

(b)

First alternative count: Criminal defamation

It is alleged the accused wrongfully and unlawfully over the period G 5 November 1999 to 10 November 2000 published allegations with the intention of sullying the good name of one Mr J N Koeries.

(c)

Second alternative count: crimen injuria. H

It is alleged that the accused wrongfully and unlawfully over the period 5 November 1999 to June 2001 attacked the dignity of the aforesaid Mr J N Koeries.

Allegedly offending publications

The indictment relies upon the four documents, comprising the appeal I noted and prosecuted by Ms Jeanine Bresler against her conviction in the magistrate's court at Bellville.

Mr J N Koeries was the district court magistrate presiding in the traffic offence trial. He is a South African who, in this country, was formerly identified as a 'Cape Coloured'. He is the individual (identified as 'die J

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man' or 'the magistrate') whose actions (identified as 'hierdie optrede' or 'hierdie saak' or 'verdict' A or 'judgment') were the subject matter of the publications which gave rise to this prosecution.

The application for leave to appeal (exhibit C) dated 5 November 1999 was addressed and handed to the clerk of the court at Bellville on 10 November 1999 and stated, inter alia, the following: B

(a)

'Hierdie optrede lyk darem baie Afrika-agtig en kom voor as bundu gereg' (This behaviour appears Africanised and presents as bush law).

(b)

'Is die man gek?' (Is the man mad?)

(c)

'As hierdie saak gesien word as 'n ewenkansige steekproef van wat met ons regstelsel gebeur het na ons nuwe Afrika C demokrasie, is anargie die toekoms.' (If this case is viewed as an example of what has happened to the administration of justice after our new African democracy, the result is anarchy).

The undated petition for leave to appeal (exhibit E) was addressed and handed to the clerk of the court at Bellville during 1999 and stated, inter alia, the following: D

(a)

'Sy [die landdros se] optrede volgens die appellant die hele program van regstellende aksie 'n hewige knou gee. Ongelukkig moet die geloofwaardigheid van ons regtstelsel saam sneuwel.' (The magistrate's behaviour towards the appellant is an acute set-back to the programme of affirmative action. Unfortunately, the credibility of our legal system must die as well).

(b)

'Die appellant eis dat hierdie saak na 'n regte E hof verwys word en dat daar ondersoek ingestel word na die konsekwensie in die Mickey Mouse hof (soos die ordonnanse dit noem).' (The appellant asks that this case be referred to a proper court and that an investigation be done into the results of the Mickey Mouse court (as named by the orderly).

The heads of argument (exhibit F) were addressed and handed to the F Registrar of the High Court and the Director of Public Prosecutions on 5 October 2000 and contain, inter alia, the following seven quotations:

(a)

'It is a simple matter to ask this Court to discard what can only be seen as an insane verdict to the lower court.'

(b)

'There is no possibility that this judgment can be justified to the normal reasonable man.' G

(c)

'Must we accept that as this country is being Africanised, court judgments are to follow bush law?'

(d)

'The judgment, together with these questionable procedures, brought doubt to the mind of the appellant as to the competence and objectivity of the magistrate.' H

(e)

'Unfortunately, the accused standing before a magistrate has no idea whether the magistrate or the Judge if he conforms to the racist criteria of affirmative action by being of colour, has been appointed on merit based on skill and competency or simply on the basis of his skin colour.'

(f)

'The accused must assume that this magistrate is second rate and therefore incapable of making the right judgment.' I

(g)

'It is really unfortunate that the competency of all magistrates and judges are now simply judged on their skin colour due to a law which was designed to be an equaliser. (The right to a fair trial is impossible when the credibility of the magistrate is suspect).'

The appellant's final summary of argument is contained in exhibit H addressed and handed in to the Registrar of the High Court and the J

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Director of Public Prosecutions on 6 November 2000 in which is, A inter alia, stated the following:

'(a)

This Court will have to decide whether upholding a conviction worth R150 is worth its own credibility and whether any sane person would support the judgment of the lower court. The appellant has surely not come across any.

(b)

The government has given their affirmative opinion B on AIDS. Are we getting an affirmative consolidation of judgment. This is Africa, anything is possible, the joke is on us.'

At commencement of trial a number of formal admissions in terms of s 220 of the Criminal Procedure Act 51 of 1977 were made by both accused No 1 and No 2. These were handed in as exhibits A and B. The import of these admissions is essentially three-fold: C

(a)

Accused No 1, Mr Bresler, was and is the author of each of the allegedly offending documents, exhibits C, E, F, H.

(b)

Each document contains the allegedly offensive words and statements.

(c)

Accused No 1, Mr Bresler, placed the document in the D public domain, publishing and distributing these documents on the clerk of the court at Bellville, the Registrar of the High Court and the Director of Public Prosecutions in Cape Town.

Background to publication

Jeanine Bresler was apprehended travelling at 101 kmph on a public E road in Bellville. Summons was issued and her father, Mr Bresler, wrote to the public prosecutor requiring that the charges be withdrawn and that the prosecution not be proceeded with. This application was unsuccessful and Ms Bresler was prosecuted in the magistrates' court at Bellville. F

In her defence she stated that she was 18 years old and in her matriculation year at high school. It was late and dark and she was on her way home. She had been warned by her father to beware of being followed by 'black people or other elements'. She believed herself to be followed by another vehicle behind her. In order to escape this G vehicle she travelled very fast. She was very frightened particularly because when she was a child she had been attacked and left for dead by a 'non-white' assailant. She was stopped and apprehended by two traffic officers. The other vehicle was also stopped and given a traffic ticket and she could then see that the occupant was not a threatening person, in fact was a white person. She did not tell the H traffic officers that she had been fleeing from the vehicle she believed in pursuit of her. Her fears are summarised at p 9 of the traffic offence trial, where she said that because so few criminals are apprehended she believed that 'anyone near me could be a criminal' (my translation).

In a six page judgment the presiding magistrate in this traffic I offence trial, Mr J Koeries, referred to her written statement in explanation of her plea and commented that he could call her attitude 'paranoid'. The court found no objective fact to support Ms Bresler's averment that she was being followed by threatening persons. Her speeding was not justified and the magistrate found all elements of the traffic offence to have been proven. J

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Ms Bresler was accordingly convicted and sentenced. As a result A thereof Ms Jeanine Bresler launched appeal proceedings.

Accused number two

In respect of the three documents:

(a)

Exhibit C was prepared in form of a four-page letter under the name of Jeanine Bresler. B

(b)

Exhibit E was prepared in form of a one-page letter under the name of and with the signature of J Bresler apprehended thereto.

(c)

Exhibit F and H have formal court headings and are signed by no-one.

In his judgment on the application for leave to appeal, Mr Koeries C himself commented that he did not believe the document to have been drawn up by Ms Bresler. In the High Court appeal, Mr Bresler announced to the Judge President that he had...