S v Meiring
Jurisdiction | South Africa |
Citation | 2019 (1) SACR 227 (GJ) |
S v Meiring
2019 (1) SACR 227 (GJ)
2019 (1) SACR p227
Citation |
2019 (1) SACR 227 (GJ) |
Case No |
39/2018 |
Court |
Gauteng Local Division, Johannesburg |
Judge |
Sutherland J and Mudau J |
Heard |
November 7, 2018 |
Judgment |
November 7, 2018 |
Counsel |
Counsel details not supplied. |
Flynote : Sleutelwoorde
Contempt of court — Contempt in facie curiae — Sentence — Magistrate F exceeding jurisdiction in imposing sentence — Overreaction by magistrate and prosecutor to frustrations expressed by accused — Conviction and sentence set aside.
Headnote : Kopnota
The accused was convicted in a magistrates' court of contempt in facie curiae and was sentenced to a fine of R5000 or three months' imprisonment. The matter G came before the High Court on automatic review where it appeared that the conviction came about after the accused, who was appearing for the third time in the matter, audibly uttered an obscenity, perhaps twice, when his case was postponed yet again.
The events took place whilst the court was either not in session or was no longer dealing with his matter. The magistrate took umbrage and the accused, who H had been out on bail, was taken to the cells. Upon resumption, the accused apologised and explained that he was experiencing many frustrations. He was busy 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 for each appearance at court when nothing happened. He expressed sorrow for the word that he I had used and explained that he was just frustrated with life at the time. The prosecutor then subjected him to a lengthy and intense cross-examination that elicited nothing in addition to what had already been established. On review,
Held, that it was immediately apparent that the magistrate was unaware of the provisions of s 108(1) and (2) of the Magistrates' Courts Act 32 of 1944 from which it was evident that the sentence of a fine of J
2019 (1) SACR p228
R5000 A exceeded the maximum sum permissible. The magistrate had also failed to submit the statement prescribed by ss (2). On these grounds alone, the conduct was irregular. In addition, the fact that the court was either not in session or was no longer dealing with the accused's matter, was also a ground why the events could not constitute contempt in facie curiae. (See [2] and [4].)
Held, B further, that mature persons did not approve of foul language being used, especially in any formal setting. However, the reality of life was that people who experienced exasperation would spontaneously swear. An overreaction was unwarranted.
The court suggested that appropriate steps should be taken by both the National Prosecuting Authority and the Magistrates Commission to educate officers C of the court in the scope of their powers when unseemly behaviour occurred in and about a court. (See [16] – [17].) The conviction and sentence were set aside.
Cases cited
R v Rosenstein 1943 TPD 65: applied
S v Nel D 1991 (1) SA 730 (A): referred to.
Legislation cited
Statutes
The Magistrates' Courts Act 32 of 1944, s 108(1) and (2): see Juta's Statutes of South Africa 2017/18 vol 1 at 2-466 to 2-467.
Case Information
Review.
Order E
The finding and sentence are reviewed and set aside.
The fine paid by the accused shall be refunded within 30 days of the date of this judgment, and if not paid within that period shall be paid with interest at the prescribed rate of interest a tempore morae F until date of payment.
The judgment is referred to the National Director of Public Prosecutions and to the Magistrates Commission for the taking of appropriate steps.
Judgment
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
2019 (1) SACR p229
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
2019 (1) SACR p230
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...
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