S v McKenna

• Jurisdiction: South Africa
• Judge: Ngcobo J
• Judgment Date: 05 September 1997
• Citation: 1998 (1) SACR 106 (C)
• Hearing Date: 15 August 1997
• Counsel: M L Sher for the respondent J A Le Roux SC for the State
• Court: Cape Provincial Division

Ngcobo J:

The appellant, a prosecutrix in Athlone Magistrate's Court, was summarily convicted of contempt of F court in facie curiae under s 108(1) of the Magistrates' Courts Act 32 of 1944 as amended, ('the Act'). That section provides:

'If any person . . . 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 G 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 or in default of payment to imprisonment for a period not exceeding six months or to such imprisonment without the option of a fine.'

She was, thereafter, sentenced to a fine of R300 or in default of payment to imprisonment for 30 days. H

Before the court, there is an appeal against both the conviction and the sentence, as well as an application to review the proceedings. In the view I take of the appeal, it is not necessary to decide the review.

The magistrate has, as required of him by s 108(2) of the Act, submitted a statement of the grounds and reasons for his proceedings. The facts which are material to this appeal appear from the transcript of the proceedings and the I statement submitted by the magistrate in terms of that section.

On 11 July 1996 Court T in Athlone, in which the appellant was the prosecutrix, commenced sitting at 11:00. Before the matters on the roll J

Ngcobo J

A for that day were called, the presiding magistrate enquired from the appellant as to why the court only started sitting at 11:00. The magistrate drew the attention of the appellant to the provisions of para 204 of the Code of the State Prosecutors. This code provides that if the court cannot commence on time because of factors beyond the B control of a public prosecutor, he or she must immediately inform the control and/or senior public prosecutor of the reasons for the delay. It also requires that the presiding magistrate be informed accordingly.

In response, the appellant informed the magistrate that she had been preparing the roll for that day. The magistrate found this reason unacceptable. He then warned her that should the court not commence on time the following day, C she would be punished for contempt of court. In addition, he warned the appellant that in the event of her intending to engage in similar conduct the following day, she was to ensure that her legal representative was available in order to prevent any delays that might occur.

D On 12 July 1996 the appellant arrived late for work. The appellant and the control public prosecutor approached the magistrate in chambers. There, the appellant informed the magistrate that the court would not be commencing on time. She gave as an explanation for the delay the fact that she had arrived late for work and that she was looking E for certain dockets and charge sheets. When the appellant and the control public prosecutor went to see the magistrate in chambers it was already after 09:00. The magistrate indicated that he was not satisfied with the explanation.

F Thereafter, the magistrate, without the knowledge of the appellant, set about investigating the explanation relating to the missing dockets and charge sheets. During the course of that investigation, the magistrate was informed by the liaison officer that the dockets had been given to the appellant the previous day. He was also informed that up until G 09:40 no enquiries had been made concerning any dockets. The magistrate also contacted the clerk of the court who informed him that to her knowledge no enquiries had been made concerning charge sheets. The court orderly, who was also contacted by the magistrate, informed the magistrate that he had no knowledge why the court did not start at 09:00. These facts which were established by the magistrate during his investigation were not put to the appellant who was consequently not afforded the opportunity to deal with these facts.

H At 10:15, the court commenced sitting. The magistrate reminded the appellant that on the previous day he had warned her that if the court did not commence at 09:00, proceedings for contempt of court would be held against her. He then enquired from her whether she was going to conduct her own defence. Appellant indicated that she I required legal representation. The following transpired:

'Hof: Gaan u eie - gaan u uself dan verteenwoordig op hierdie stadium juffrou?

Aanklaer: Nee, Edelagbare, die Staat wil dan graag regsverteenwoordiging bekom.

Hof: Sê my net, juffrou, het die hof u gister gewaarsku dat u moet regsverteenwoordiging vandag beskikbaar hê?

J Aanklaer: Die hof het my gister gewaarsku.

Ngcobo J

Hof: Is u regsopgelei juffrou? A

Aanklaer: Dis reg so, Edelagbare.

Hof: Goed; is daar enige rede waarom u nie regsverteenwoordiging vandag beskikbaar het nie?

Aanklaer: Edelagbare, ek het ook met my "seniors" gepraat. Ek het meer tyd nodig om regsverteenwoordiging te bekom.

Hof: Op grond waarvan? B

Aanklaer: Die hof het my wel gister gewaarsku, maar dit is nou duidelik dat die hof voortgaan daarmee. So dit is hoekom ek nou regsverteenwoordiging wil bekom.

Hof: Ja ek het u gister elfuur gewaarsku. Dis korrek.

Aanklaer: Dis reg so, Edelagbare.

Hof: Goed; die hof gaan dan op hierdie stadium vind ek u versoek nie aanvaarbaar nie. Dit word van die hand C gewys en ons gaan voort met die verrigtinge.'

The appellant thereupon requested the matter to stand down to enable her to consult with the senior public prosecutor. The magistrate declined her request. Instead, he sent a court orderly to call the control public prosecutor. The appellant indicated that she required to consult with the senior public prosecutor and not with the D control public prosecutor. The matter was then stood down for approximately five minutes, that is, until 10:25. When the proceedings were resumed, the appellant informed the court that she had not had the opportunity to consult with her superiors as they were not available. She indicated that she still required to consult with them before proceeding with the matter. The court found that her request, to consult with her superiors, was an unnecessary E delay and proceeded with the contempt proceedings. The following then transpired:

'Aanklaer: Edelagbare, ek wil dan ook net noem dat die beheeraanklaer hier het nie dit ons onder - nee goed ek sal dit so laat, maar ek wil net sê dat ek nie voortgaan sonder dat ek geskakel het my beheeraanklaer nie. F

Hof: Goed. Is daar dan enige rede waarom u vir die hof op hierdie stadium gaan sê waarom ek u nie skuldig kan bevind op 'n aanklag van minagting van die hof in facie curiae nie of is dit u houding dat u op hierdie stadium niks gaan sê nie?

Aanklaer: Edelagbare, die is so elke mens, ek het vroeër die hof gevra dat ek regsverteenwoordiging wil bekom en dit is so; volgens die Grondwet het elkeen 'n reg op regsverteenwoordiging al is ek 'n regsgeleerde. Dit sê nie daar G kan teen my diskrimineer word omdat ek een is nie. So ek sal nie - ek sal - dit is nog steeds my houding, ek wil regsverteenwoordiging hê.'

In response the magistrate said:

'. . . Goed, as dit u houding is, u wil my nie antwoord waarom ek u dan nie moet skuldig bevind op hierdie stadium H nie, gaan die hof dan bevind dat u nie volgens die - soos wat ek u gewaarsku het volgens die kode, para 204, die hof stip nege-uur begin het nie.'

The magistrate then proceeded to deliver this judgment. In his judgment, the magistrate noted that the appellant had approached him in chambers and explained that the court could not commence on time because she had arrived late I for work and she was looking for certain dockets and charge sheets. He rejected her explanation that she had been preparing for court. He also rejected the explanation had been looking for certain dockets and charge sheets. In rejecting the appellant's explanation, the magistrate relied upon the facts that he had established J

Ngcobo J

A from the liaison officer, the clerk of the court, and the court orderly. He also relied upon the fact that there were only six cases...