S v Lavhengwa
Jurisdiction | South Africa |
Citation | 1996 (2) SACR 453 (W) |
S v Lavhengwa
1996 (2) SACR 453 (W)
1996 (2) SACR p453
Citation |
1996 (2) SACR 453 (W) |
Court |
Witwatersrand Local Division |
Judge |
Claassen J |
Heard |
September 16, 1996 |
Judgment |
September 16, 1996 |
Flynote : Sleutelwoorde
B Contempt of court — Contempt in facie curiae — Contravention of s 108(1) of Magistrates' Courts Act 32 of 1944 — What constitutes — Misbehaviour — Legal practitioner persisting in pressing point despite court's ruling — Such constituting improper behaviour within the meaning of misbehaviour as contemplated by s C 108(1) of Act — Guidelines for implementation of s 108(1) set out.
Contempt of court — Contempt in facie curiae — Contravention of s 108(1) of Magistrates' Courts Act 32 of 1944 — When matter should be referred to Attorney-General — Attorney disobeying lawful court ruling — Where such orders disobeyed, reference to Attorney-General would tend to undermine the flow of court D procedures.
Contempt of court — Contempt in facie curiae — Contravention of s 108(1) of Magistrates' Courts Act 32 of 1944 — Whether need for such powers — Definite need exists for powers to punish contemptuous conduct in both superior and lower courts.
E Contempt of court — Contempt in facie curiae — Contravention of s 108(1) of Magistrates' Courts Act 32 of 1944 — Constitutionality of — Summary procedure contemplated by s 108(1) in conflict with the accused's right to equality before the law as provided for by s 8(1) of the Constitution Act 200 of 1993 in that the magistrate is part litigant and part judge — Procedure saved however by s 33(1) of the F Constitution — Section 108(1) not infringing right to be sufficiently informed of the charge as set out in s 25(3)(b) and does not per se infringe the right to remain silent as set out in s 25(3)(c) — Summary trial for any contravention of s 108(1) even where the accused is without the assistance of legal counsel need not G constitute an infraction of the right to legal representation in s 25(3)(e) of the Constitution.
Headnote : Kopnota
The accused had been the attorney representing a client in a magistrate's court on a charge of drunken driving. During the course of the trial the presiding magistrate made a certain ruling which the appellant disobeyed. As a H result thereof the appellant was convicted of having contravened s 108(1) of the Magistrates' Courts Act 32 of 1944 and in terms of s 108(2) the matter came on review by a Judge in Chambers. The dispute between the appellant and the magistrate occurred after the appellant had taken exception on behalf of the accused to the charge-sheet in terms of s 85(1) of the Criminal Procedure Act 51 of 1977 and the Constitution Act 200 of 1993. The appellant was not satisfied with the magistrate's ruling and despite warning persisted in pressing the I point. After the appellant's address the magistrate found him guilty of contempt in facie curiae in terms of s 108(1) and sentenced him to R330 or 50 days' imprisonment. On review the Court considered a number of issues, inter alia (a) whether the appellant's conduct in persisting to press his point despite the court's ruling constituted misbehaviour as contemplated by s 108(1) of the Act; (b) whether the matter ought rather not to have been referred to the J
1996 (2) SACR p454
Attorney-General for a decision on whether to prosecute or not; (c) on A whether there was a need for powers to punish contemptuous conduct of this nature at all; (d) whether the summary procedure contemplated by s 108(1) was in conflict with an accused's right to a fair trial and to equality before the law as provided by s 8(1) of the Constitution; (e) whether the summary powers provided for by s 108(1) infringed an accused's right to be sufficiently B informed of the charge as set out in s 25(3)(b); (e) whether the summary procedure infringed an accused's right to remain silent as set out in s 25(3)(c) of the Constitution; and (f) whether a summary trial for a contravention of s 108(1) where an accused did not have legal representation constituted an infraction of an accused's right to such legal representation in s 25(3)(e).
The Court examined the magistrate's ruling in the instant case and came to the C conclusion that the ruling was a lawful one. The conduct of the appellant in continuing to press his point despite such ruling constituted improper behaviour within the meaning of 'misbehaviour' as contemplated in s 108(1) of the Magistrates' Courts Act. Section 108 had broadened the scope of punishable conduct which otherwise may not have constituted the common-law crime of contempt of court and in particular the category of 'misbehaviour' D created by s 108(1) established a wide range of conduct which may not otherwise have been indictable. It was incumbent upon legal practitioners to abide by magistrates' lawful rulings and to seek their remedy elsewhere either on appeal or on review. Failure on the part of legal practitioners to do so would result in chaos and confusion, wasted expenditure, unnecessary time delays and eventually a subversion of the due administration of justice. Of all E people, legal practitioners should in word and deed uphold respect for the authority of our courts and not undermine it. Practitioners should set the standard of due respect for lawful court orders as an example to the public.
As regards the question whether the magistrate should have referred the matter to the Attorney-General rather than dealing with it in a summary fashion, the Court held that this was an instance where a magistrate had made a lawful F ruling and that wilful disobedience of lawful interlocutory court rulings should normally be dealt with summarily in order to restore the authority of the court and to allow matters to proceed. Where such lawful orders were disobeyed, references to the Attorney-General would tend to undermine the flow of court procedures. In instances where no court ruling has been made, G and where the individual magistrate was personally insulted, it may indeed be preferable to refer contumacious conduct to the Attorney-General for investigation and prosecution before another judicial officer. But where flagrant disobedience to a court order has occurred in facie curiae, an immediate response is normally required with a view to restoring order and to deterring the offender from similar conduct. H
The court then proceeded to examine whether there was a need for a statutory offence of contempt of court as provided for by s 108(1). The Court came to the conclusion that the weight of authority seemed to justify the existence of such a crime and the right of a court in certain circumstances to summarily convict and punish, provided the safeguards of the rules of natural justice had been complied with. Under the new constitutional dispensation the important role I of the courts had been strongly underscored by their role as the watchdogs of constitutional rights. Their authority, dignity and repute therefore had to be protected.
As regards the constitutionality of the summary procedure provided for by s 108(1), the Court held that where a magistrate was part litigant and part judge, as he was in conducting an inquiry in terms of s 108(1), this offended the fundamental right to equality before the law enshrined in s 8(1) of the J
1996 (2) SACR p455
Constitution. The Court held however that it was reasonable to curtail the A right to equal protection of the law in cases of summary proceedings for contempt of court under s 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. The Court held accordingly that the curtailment was saved by the provisions of s 33(1) of the Constitution. B
The Court then turned to examine whether the accused's right to be informed with sufficient particularity of the charge as required by s 25(3)(b) was negated by the summary procedure provided for s 108(1) and held that the degree of particularity of the essentials of the charge differed with each criminal offence. In cases where an accused was charged with a contravention of C s 108(1) committed in facie curiae and where a summary procedure was decided upon by the judicial officer the essentials of the charge were not only well known but frequently obvious to the accused. In these circumstances the constitutional right to have sufficient particularity of the crime allegedly committed would not normally be infringed in summary proceedings instituted in accordance with s 108(1). Where circumstances indicate that the accused D may not be aware of the facts underpinning the alleged contravention of s 108(1) there was a duty upon the magistrate so to inform the accused. However, the fact that a magistrate may on occasion fail to comply with this prerequisite did not render the existence of s 108(1) in itself an infraction of the constitutional right set out in s 25(3)(b). The Court held further that upon a proper implementation of the summary procedure under s 108(1) the E provision did not infringe upon the constitutional right to be sufficiently informed of the charge as set out in s 25(3)(b). The Court remarked however that should it be wrong in this conclusion the summary procedure was in any event reasonable and necessary for the proper functioning of the magistrate's court in an open and democratic society and it would be axiomatic that such limitation was authorised by s 33(1) of the Constitution.
F The Court then examined whether the right to be presumed innocent and to remain silent under s 25(3)(c) was infringed by the summary procedure of s 108(1). The Court held that the possibility of the procedure infringing the presumption of innocence arose because of the common practice that once the...
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2014 index
...225S v Kuse 1990 (1) SACR 191 (E) .......................................................... 79S v Lavhengwa 1996 (2) SACR 453 (W) .............................................. 218, 220S v Le Grange 2009 (1) SACR 125 (SCA) ............................................ 55S v Le Roux 2010 (2)......
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2012 index
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