S v Kubheka Mapula

• Jurisdiction: South Africa
• Judge: Makhanya J et E M Du Toit AJ
• Judgment Date: 26 May 2011
• Docket Number: 230/05
• Hearing Date: 26 May 2011
• Court: South Gauteng High Court, Johannesburg

E M Du Toit AJ:

1.

This matter came before me on review in terms of the provisions of ss 108 (2) of the Magistrates' Courts Act 32 of 1944 ["the Act"], the accused having been convicted in the Krugersdorp Magistrates' Court of "contempt in facie curiae" and sentenced to 6 months' imprisonment, 3 months whereof were conditionally suspended.

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2.

Preparatory to reviewing the matter it is desirable to briefly address the question of this Court's powers of review under s 108 of the Act.

Court's powers of review under s 108 of Act 32 of 1944

3.

S 108 of the Act reads as follows:

"108 Custody and punishment for contempt of court

(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 subsection (3) of section 5 provided) be liable to be sentenced summarily or upon summons to a fine not exceeding R2 000 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 subsection the word 'court' includes a preparatory examination held under the law relating to criminal procedure.

(2) 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."

It will be seen that ss 108 (2) is silent as to the nature of the review for which it provides and the Court's powers in respect thereof.

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4.

The question of a Court's powers in a review under the provisions of s 103 of the Magistrates' Courts Act 32 of 1917 ["Act 32 of 1917"], the wording of ss (1) whereof was practically the same as, and that of ss (2) identical to, the wording of ss 108 (1) and (2) supra respectively, was considered by Mason JP in R v Baby 1924 TPD 426 as follows at 428-429:

"The first question—and really, on the whole, the most important question—raised upon the present argument is : What are the powers of the Court in dealing with contempts of court brought to its notice under sec. 103? That section provides that in any case in which punishment is inflicted for contempt, the judicial officer shall transmit to the Supreme Court, for the consideration and review of a judge in chambers, a statement of the grounds and reasons of the proceedings, together with a copy of the record. The Attorney-General contends that the only powers of review which are possessed by the judge of this Court under this section are, what you might call general review powers such as the Court possesses under Proclamation 14 of 1902, and he contends that if that is the position, the Court should act upon the English decisions which lay down, in substance, that where the record shows a contempt may have been committed, the Court will not interfere with the proceedings, but where the record shows that a contempt was not committed or that there should have been no conviction—that there were no reasonable grounds for conviction for contempt—the Court should interfere. If those are the sole powers of the Court in dealing with cases of contempt, it appears to me that the argument of the Attorney-General is correct, and that we should not be justified in interfering with the magistrate's punishment in this particular case. But the question has then to be decided whether those are the sole powers of the Court in dealing with cases of contempt. The words

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of sec. 103 are that the proceedings are transmitted to the judge for consideration and review. Under sec. 93, all sentences in criminal cases exceeding a certain gravity shall be subject in ordinary course to review by the Court on appeal or by one of the judges, and sec. 94 provides the machinery for sending the records forward to the judge for consideration. Then sec. 95 provides, upon consideration of those proceedings, what the Court may do. The real question is whether sec. 103 is intended to refer back to secs. 93, 94, 95 and 96. Now I may say that in actual fact that has been the practice of the Court—to deal with sentences for contempt as if they were reviews coming within the provisions of secs. 93 to 96 inclusive. It seems to me that the provisions of the Act may be read in this way, that all sentences are subject to review if they exceed a certain amount, but in cases of contempt all sentences for contempt shall be subject to review by a judge, and then the powers of the judge are set forth. I do not think it can ever have been intended that the power of consideration and power of review should be merely that general power which the Court has in all cases of seeing that justice is done. This Court has an inherent jurisdiction to review proceedings of any magistrate or the proceedings of any person within the Province, subject to certain stated exceptions, to see whether the persons were entitled to do what they professed to have done lawfully. I do not think it could have been intended that this should be the only power of the Court in dealing with cases of contempt : I think the natural construction is the one I have stated—that all sentences exceeding a certain amount shall be subject to review, but in connection with convictions for contempt of court and the punishment following thereon, that punishment shall always be subject to review. And the reason I think is quite clear. In cases of contempt, the magistrate or judicial officer is both judge and prosecutor and injured party at the same time, and one can understand the law restricting within very narrow limits the jurisdiction of the magistrate to punish for contempt—more especially as it has been held that this

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Court has a general power to see the authority of the magistrates enforced even outside the special sections dealing with contempt.

We have come therefore to the conclusion that this case must be dealt with as if it had come in review under sec. 93."

5.

In elucidation of the above judgment I point out that Proclamation 14 of 1902 referred to therein was the Administration of Justice Proclamation, 1902, which, as incorporated into and amended by the Establishment of the Supreme Court and High Court Ordinance 1902 (Ordinance 2 of 1902), established the "Supreme Court of the Transvaal" – as also the "Witwatersrand High Court", a Superior Court for Johannesburg with concurrent jurisdiction, except in respect of appeals, reviews, and certain other proceedings. S 18 of the Proclamation provided inter alia that

"The said Court shall have full power, jurisdiction, and authority to review the proceedings of all inferior Courts of Justice within this Colony, and to hear appeals … ",

while s 19 set out the grounds upon which it was competent to bring the proceedings of the inferior Courts under review. Both the Proclamation and the Ordinance were repealed on 1 January 1960 by s 46 of the Supreme Court Act 59 of 1959.

And ss 93 to 96 referred to in the judgment were the four sections comprising Chapter XIV in Part III of Act 32 of 1917 under chapter

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heading "Review as of Course". S 96 provided that the person convicted might inspect the record and, subject to notice to the Attorney-General of the grounds or reasons relied upon, set the case down for argument before the Court of appeal.

6.

On 2 July 1945, Act 32 of 1917 was repealed by s 116 of the Act which, inter alia, re-enacted ss 93 to 96 of Act 32 of 1917 virtually without modification as ss 96 to 99 in Chapter XIV with chapter heading "REVIEW, AS OF COURSE" and also, as stated above, re-enacted s 103 thereof as s 108.

7.

The only decision at variance with the aforesaid practice "to deal with sentences for contempt as if they were reviews coming within the provisions of ss. 93 to 96 inclusive" of Act 32 of 1917, i.e. as "reviews as of course", appears to be that in Rex v Strydom 1931 EDL 169 where Graham JP, without reference to authority, held as follows at 171 in fine -172:

"… If it is an application on behalf of Mr. Strydom to set the case down for argument in terms of sec. 96 of Act 32 of 1917, as it probably is intended to be, I would point out that sec. 96 only applies to cases in which a Court has imposed a sentence which, under sec. 93, is subject to review, and the sentence in this case is not such a sentence. It is true that a judge in reviewing the proceedings could order the matter to be argued before the full Court, if it was thought necessary, but there is nothing in the Criminal Procedure Acts which gives a person who is

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sentenced under sec. 103 of Act 32 of 1917 the right to demand to have the case set down for argument on review under sec. 96 of Act 32 of 1917, unless the sentence imposed and which it is sought to review is one which would bring the case under automatic review in terms of sec. 93 of Act 32 of 1917."

The above decision was referred to with approval in R v Rosenstein 1943 TPD 65 in an obiter dictum at 66.

8.

But in S v Singh: Singh v Gifford, N.O. and Another 1964 (3) SA 106 (N) Friedman J, having inter alia mentioned Rosenstein's case, stated as follows at 110 in fine - 111B:

"Because of the extraordinary nature of the proceedings under sec. 108 in which a magistrate can punish a person summarily for contempt of court and in which, as has been said, the magistrate...