S v Meiring

• Jurisdiction: South Africa
• Judge: Sutherland J and Mudau J
• Judgment Date: 07 November 2018
• Citation: 2019 (1) SACR 227 (GJ)
• Docket Number: 39/2018
• Hearing Date: 07 November 2018
• Counsel: Counsel details not supplied.
• Court: Gauteng Local Division, Johannesburg

Sutherland J (Mudau J concurring): G

Introduction

[1] A magistrate held that the accused, Meiring, was in contempt of court and fined him R5000 or three months' imprisonment. This matter comes before this court by way of automatic review pursuant to the H provisions of s 108(2) of the Magistrates' Courts Act 32 of 1944. The provisions of s 108 read:

'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 I 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 J months or to such imprisonment without the option of a fine. In this

Sutherland J (Mudau J concurring)

subsection the word court includes a preparatory examination held A 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 B proceedings, and shall also furnish to the party committed a copy of such statement.' [Italics supplied.]

[2] It is immediately apparent that the magistrate was unaware of the provisions of this section. That is evident from the sentence of R5000, exceeding the maximum sum permissible. The magistrate, in C addition, failed to submit the statement prescribed by s 108(2). On those grounds alone the magistrate's conduct is irregular.

[3] I have received a helpful and constructive submission from the Deputy Director of Public Prosecutions, Johannesburg, Adv ZJ Van Zyl SC, who, with Adv AM Persad, a state advocate, recommends the judgment and D sentence be set aside. I agree. The events which took place, as addressed by the magistrate, do not constitute contempt of court at all, still less a transgression of s 108.

A critique of the facts E

[4] The circumstances are described in a transcript of exchanges that took place after the critical events, and occurred whilst the court was either not in session or was no longer dealing with Meiring's matter. That, too, is a ground why the events could not constitute contempt in facie curiae as held by the magistrate. F

[5] Meiring was appearing for a third time in the matter. It was again postponed. He evidently was aggrieved by this turn of events. He gave expression to his frustrations. Meiring used the word 'Fuck' once, perhaps twice. The prosecutor claimed to have heard Meiring say 'this country is fucked', which Meiring did not admit to saying. G The prosecutor later in cross-examination declared that this was an act of disrespect not only to the court but also to the country. Meiring admitted using foul language after he had heard it announced that the case was postponed yet again. He apologised at once, and repeatedly apologised.

[6] Meiring was also accused of shoving an orderly. He denied this H accusation; he claims that the orderly grabbed him. It was later surmised by the prosecutor that when Meiring uttered the word 'Fuck' the orderly asked what he had said, and Meiring had replied, 'Who are you?' The magistrate also took umbrage at Meiring having the audacity to lean on the 'bench' — I presume this refers to the dock. I

[7] Meiring was then detained in the cells. He had been released on bail. Why the magistrate thought this was necessary is not explained on the record. The only inference to draw is that it was done out of spite. Whether or not this gratuitous incarceration for some hours founds a civil claim, I express no view. J

Sutherland J (Mudau J concurring)

[8] A Upon resumption, Meiring testified. He explained that he was experiencing many frustrations. He described his personal circumstances as losing everything. His marriage was crumbling, he was losing his house, he had to care for his parents, and he was in financial trouble, which was exacerbated by paying for his attorney at each appearance when nothing happened again and again. He said:

'(T)he B word that I uttered was not pointed at anyone in this court, I am truly sorry for the word that I used and . . . . I am just frustrated with life at this moment . . . .'

[9] The prosecutor then subjected Meiring to an extensive cross-examination. C The bulk of the questions dealt with the exchange between Meiring and the orderly. It was a harassing attack calculated to humiliate rather than extract facts. That approach is at variance with the ethical obligations of counsel, whether for the defence or the prosecution. Despite the intensity of the cross-examination, not one iota of information was elicited that could found a basis upon which to contend that an D act of contempt of court had occurred, not least of all that any wilfulness was present. [1]

[10] Notwithstanding that, the magistrate in his judgment purported to find that Meiring had committed contempt of court. The judgment is no more than a sanctimonious plethora of clichés unsupported by reference E to facts. It is a disgrace. I cite the transcript in full:

'Alright. These are contempt of court proceed in facie curiae and this shall be ex tempore. The behaviour or conduct of this particular accused, Mr Meiring, is disturbing and I say that with the greatest of respect, the word, I cannot find appropriate English term to describe the conduct F this court witnessed, blatant, (indistinct), careless behaviour on his part, showing no regard for this court, its institution or its personnel that uphold its sanctity and gives it the respect it requires. He displayed it right in front of the public gallery, much to their dismay and the court had to call him back. And I do not have to repeat it, because he knows what he did and understa . . . he understood (indistinct) the gravity of G his conduct, which is completely unacceptable. And his attitude that he exhibited, the way he carried himself, completely unacceptable. And his attitude that he exhibited, the way he carried himself, completely, completely showing disregard to this court.

After the matter was adjourned, giving him an opportunity to explain himself, it became pretty clear, there is no justification, all he has is H excuses for his outbursts, which were derogatory and placed the court's system, this court's reputational or integrity in disrepute and that cannot go unnoticed or unpunished. And I cannot find any reason why this court can condone or accept the explanation as provided. I find him GUILTY of contempt.'

Sutherland J (Mudau J concurring)

[11] When the case moved on to sentence, the prosecutor got properly A stuck in. He belaboured the point that Meiring had been disrespectful towards the orderly. The orderly was not called to testify. The prosecutor elided the exchange between Meiring and the orderly into disrespect for the court. Furthermore, the prosecutor, as alluded to earlier, was especially excited about the remark that 'this country is fucked', B an alleged utterance not admitted. The prosecutor concludes with a contention that a suspended sentence would be inadequate, and says this:

'(I)f need there should be a sentence that is meted out to him that will make him tomorrow to respect the [decorum] of this court with sanctity and every individual that [he?] come across.' C

[12] The judgment on sentence was approached as if sentence was being imposed after conviction of a conventional crime, a clear lack of awareness that such a perspective is inappropriate. [2] The 'offence' is said to be serious. Again, the magistrate, like the prosecutor, elides the exchange with the orderly with notions of the court's role as a D 'gatekeeper' between 'order and...